In a proceeding pursuant to part three, article six of the Family Court Act to allow a mother visitation with her child in her home, the Fourth Department determined the grandmother, who had primary physical custody of the child, should have been advised of her right to assigned counsel (Family Court Act section 262 (a)(iii)). The court’s failure to so advise her constituted reversible error. Matter of Wright vs Walker, 11, CA-12-00962 Fourth Dept. 2-1-13
A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department. A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood. The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene. People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13
DeBour, street stops
In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office. Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given. The Second Department determined the preamble rendered the Miranda warnings ineffective. The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself. The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time. Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation. This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.” People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13
Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls. The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13
Substantially modified by the Ct. of Appeals in People v Golb, 2014 NY Slip Op 03426 [23 NY3d 455], CtApp 5-13-14
The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men. The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.” People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13
DeBour, street stops
In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR. It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests. The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction. The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.
The First Department reversed a finding of neglect of a child which was based on a single incident. There is a brief but substantive discussion of neglect or abuse findings based upon a single incident. In re Pria J. L., et al, 8841 First Dept. 1-29-13
The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter. There is a substantive discussion of similar third party actions in legal malpractice cases. Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13
In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value. The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value. People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13
The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”. Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.” Preservation is not required for such a “mode of proceedings” error. People v Rivera, 2009-11428, Ind. No. 9921/07 Second Dept. 1-23-13
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