You are here: / INTRODUCTION OF DEFENDANT’S TWO-YEAR-OLD FIREARM CONVICTION UNDER...

Search Results

/ ,

INTRODUCTION OF DEFENDANT’S TWO-YEAR-OLD FIREARM CONVICTION UNDER THE THEORY THAT DEFENDANT “OPENED THE DOOR” WAS REVERSIBLE ERROR; DEFENDANT HAD NOT QUESTIONED THE PROPRIETY OF THE POLICE CONDUCT OR THE OFFICER’S CONCLUSION THE BULGE IN DEFENDANT’S POCKET WAS A FIREARM; THE JUDGE SHOULD HAVE APPLIED THE TWO-STEP MOLINEUX ANALYSIS, WHICH DOES NOT SUPPORT INTRODUCTION OF THE PRIOR CONVICTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing defendant’s conviction, determined the People’s introduction of evidence of defendant’s two-year-old possession of a weapon conviction was not justified under the Molineux criteria. A police officer, Lafemina, who was aware of defendant’s prior firearm conviction and a parole warrant for defendant’s arrest, saw a bulge in defendant’s pocket which Lafemina thought could have been a firearm. The defendant ran when approached by Lafemina and, during the chase, entered and exited two buildings. Because Lafemina radioed that defendant may be armed, more that 100 officers responded to the chase. Defendant was charged with burglary based upon the building-entries. No firearm was recovered:

… [O]n the erroneous theory that defendant opened the door, the trial court admitted evidence that defendant was previously convicted of second-degree attempted criminal possession of a weapon ostensibly to explain Lafemina’s actions on the day defendant was arrested. We find this was improper. The trial court should have, but failed to follow the necessary two-step Molineux test: first, determine whether the evidence is relevant to a material issue, and then, if so, whether its probative value outweighs any potential prejudice to defendant. Instead, the court improperly relied on Santana [16 AD3d 346], which does not apply here because defendant never opened the door. …

The court erred by granting the People’s application before defendant raised any issues as to the propriety of the officers’ conduct or as to the accuracy of Lafemina’s belief that defendant was armed … . People v Woody, 2023 NY Slip Op 01263, First Dept 3-14-23

Practice Point: Evidence of a prior conviction can be admitted if the defense “opens the door” to such evidence, even if the evidence would not be admissible under a Molineux analysis. Here the two-year-old firearm conviction was not admissible under Molineux and the defense did not “open the door” by questioning the propriety of the police conduct of the officer’s conclusion the bulge in defendant’s pocket indicated defendant was armed.

 

/ , ,

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION BASED UPON AN APPELLATE DECISION WHICH CAME OUT AFTER HER APPEAL BUT BEFORE SHE APPLIED FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS; THE COURT OF APPEALS DECISION WHICH HELD THE EXECUTIVE LAW ALLOWING DEFENDANT TO BE PROSECUTED BY THE “JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS” UNCONSTITUTIONAL SHOULD NOT BE APPLIED RETROACTIVELY (THIRD DEPT).

​The Third Department, reversing Supreme Court, over a two-justice concurrence, determined defendant was entitled to a hearing on her motion to vacate her conviction based on an appellate decision which came out after her appeal but before she applied for permission to appeal to the Court of Appeals. In addition, the Third Department held the Court of Appeals decision which found the statute (Executive Law § 552 (2)) authorizing her prosecution by the “Justice Center for the Protection of People with Special Needs” unconstitutional should not be applied retroactively:

Under the unique circumstances of this case, where the case defendant relies upon — Hodgdon [175 AD3d 65]— had not yet been decided at the time that her direct appeal was perfected, we find that her failure to challenge whether the Justice Center had permission to prosecute her and whether the District Attorney maintained responsibility of the prosecution was justified … . Therefore, County Court abused its discretion in concluding that it was “bound” to deny defendant’s motion under CPL 440.10 (2) (c), without a hearing, on the ground that defendant unjustifiably failed to raise the Hodgdon defense on direct appeal. … [W]e remit the matter to County Court for a hearing pursuant to CPL 440.30 (5). …

Defendant contends … she should be entitled to the benefit of the decisions in Hodgdon and People v Viviani (36 NY3d 564 [2021]), which found that Executive Law § 552 was unconstitutional to the extent that it empowered the Justice Center with concurrent prosecutorial authority … . * * *

… [T]he holding in Viviani does not go to the heart of a reliable determination of guilt or innocence … . * * *

… [D]efendant is not entitled to have the new constitutional rule articulated by Viviani applied retroactively to her matter … . People v Rice, 2023 NY Slip Op 01211, Third Dept 3-9-23

Practice Point: Defendant should have been granted a hearing on her motion to vacate her conviction based on an appellate decision which came out after defendant’s appeal but before she applied for permission to appeal to the court of appeals.

Practice Point: The Court of Appeals decision which declared the statute under which defendant was prosecuted was not applied retroactively because it did not go to the hear of a reliable determination of guilt or innocence.

 

/ , ,

THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT LAWSUIT AGAINST THE STATE ALLEGING SEXUAL ABUSE AT A PSYCHIATRIC HOSPITAL SUFFICIENTLY DESCRIBED THE TIME PERIOD WHEN THE ABUSE ALLEGEDLY TOOK PLACE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims in this Child Victims Act action, determined that the notice of claim sufficiently described when the alleged sexual abuse took place at the state’s psychiatric center:

The claimant commenced this claim against the State of New York to recover damages resulting from alleged acts of sexual assault committed against her, beginning when she was 15 years old, by an employee of Sagamore Children’s Psychiatric Center (hereinafter Sagamore). * * *

… [T]he claim was sufficiently specific to satisfy the pleading requirements of Court of Claims Act § 11(b). The claim alleged negligent hiring, training, and supervision of an employee who had subjected the claimant to multiple sexual assaults at Sagamore between June 5, 2013, and September 16, 2013—a period of approximately three months—while the claimant was a patient at Sagamore. This was sufficiently specific to enable the State to investigate the claim promptly and ascertain its liability … . D. G. v State of New York, 2023 NY Slip Op 01183, Second Dept 3-8-23

Practice Point: Here the notice of claim sufficiently described the three-month time-frame when the alleged sexual abuse of the plaintiff took place at a state psychiatric hospital, The Child Victims Act lawsuit should not have been dismissed.

 

/ , ,

THE CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (OF THE PLAINTIFF-STUDENT) AND NEGLIGENT FAILURE TO WARN (THE PLAINTIFF-STUDENT) SHOULD NOT HAVE BEEN DISMISSED IN THIS CHILD VICTIMS ACT CASE; THE COMPLAINT ALLEGED PLAINTIFF WAS SENT TO A PRIEST NOT EMPLOYED BY THE SCHOOL FOR DISCIPLINE AND WAS MOLESTED BY THE PRIEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligent supervision and negligent failure to warn causes of action against defendant Catholic school should not have been dismissed in this Child Victims Act case. Plaintiff alleged he was sent by the school to a priest, who was not employed by the school, for discipline. Plaintiff alleged he was molested by the priest and the school knew or should have known of the priest’s propensity:

The complaint alleges … the defendant knew or should have known of the priest’s propensity to molest children, that the defendant had a duty to exercise the same duty of care of supervision over its minor students as a reasonably prudent parent would, and that the defendant breached its duty to adequately supervise the plaintiff which caused him to be sexually abused by the priest. …  … [T]he fact that the sexual abuse occurred off school premises does not require dismissal of the cause of action alleging negligent supervision since, here, the plaintiff has alleged that the defendant released the plaintiff into a potentially hazardous situation and directed him to see a certain priest for discipline knowing that the priest had a propensity to sexually abuse children … . … [T]he criminal intervention of a third party may be a reasonably foreseeable consequence of circumstances created by the defendant, for example where, as here, the plaintiff was permitted to meet with the priest, a person who allegedly had a propensity to abuse children, alone and behind closed doors … .

… Supreme Court erred in determining that the cause of action alleging negligent failure to warn was subject to dismissal because it was duplicative of the cause of action alleging negligent supervision. … [T]hese causes of action are based on distinctive facts, one based on failing to warn the plaintiff about the priest and the other based on the defendant’s failure to adequately supervise the plaintiff … . Sullivan v St. Ephrem R.C. Parish Church, 2023 NY Slip Op 01207, Second Dept 3-8-23

Practice Point: Here plaintiff alleged the Catholic school sent him to a priest, who was not employed by the school, for school-related discipline and the priest molested him. The causes of action for negligent supervision of the plaintiff-student and failure to warn the plaintiff-student should not have been dismissed. The fact that the priest was not employed by the school did not require dismissal because the school allegedly released the plaintiff into a dangerous situation. Nor did the fact that the priest allegedly committed criminal acts relieve the school of potential liability.

 

/ , ,

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION AFTER PLAINTIFF FAILED TO MEET A DEADLINE SET IN A STATUS CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure proceeding should not have, sua sponte, dismissed the complaint when plaintiff did not move for a judgment of foreclosure and sale by the deadline set in a status conference order:

On March 22, 2017, the Supreme Court issued a status conference order … directing the plaintiff to “file an application for a [j]udgment of [f]oreclosure [and] sale” by June 7, 2017. The plaintiff failed to do so. In an order entered June 15, 2017 (hereinafter the dismissal order), the court, sua sponte, directed dismissal of the complaint and cancellation of the notice of pendency.

A court’s power to dismiss an action, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the plaintiff’s failure to move for a judgment of foreclosure and sale as directed by the … status conference order was not a sufficient ground upon which to sua sponte direct dismissal of the complaint and cancellation of the notice of pendency … . Deutsche Bank Trust Co. Ams. v Martinez, 2023 NY Slip Op 01179, Second Dept 3-8-23

Practice Point: Sua sponte dismissals of complaints are disfavored. Here the failure to meet a deadline set in a status conference did not justify a sua sponte dismissal of the complaint.

 

/ , ,

IN A FORECLOSURE ACTION THE BANK MUST PROVE COMPLIANCE WITH RPAPL 1306 WHICH REQUIRES PROOF PAPERS WERE FILED WITHIN THREE BUSINESS DAYS OF MAILING THE RPAPL 1304 NOTICE OF DEFAULT; HERE THERE WAS NO PROOF WHEN THE RPAPL 1304 NOTICE WAS MAILED, SO THE PROOF OF COMPLIANCE WITH RPAPL 1306 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment dismissing an affirmative defense (alleging failure to comply with RPAPL 1306) should not have been granted to the plaintiff in this foreclosure action. Because there was no proof of when the notice of default required by RPAPL 1304 was mailed, proof that plaintiff had filed papers with the superintendent of financial services pursuant to RPAPL 1306 was insufficient. RPAPL 1306 requires filing within three business days of mailing the RPAPL 1304 notice. But the date of mailing was not proven:

… [I]n the absence of evidence establishing when the plaintiff mailed the notices required by RPAPL 1304, the plaintiff could not establish, as a matter of law, that it complied with the requirement of RPAPL 1306 to file with the superintendent of financial services within three business days of the mailing of the notice required by RPAPL 1304. Thus, the court should have denied that branch of the plaintiff’s motion which was, in effect, for summary judgment dismissing so much of the defendant’s fifth affirmative defense as alleged a failure to comply with RPAPL 1306…. . PROF-2013-S3 Legal Title Trust V v Johnson, 2023 NY Slip Op 01204, Second Dept 3-8-23

Practice Point: In a foreclosure action, if there is no proof when the RPAPL 1304 notice of default was mailed, the bank can’t prove the papers filed pursuant to RPAPL 1306 were filed within three business days of mailing the RPAPL 1304 notice (which is a requirement of strict compliance with RPAPL 1306).

 

/ ,

FATHER’S PETITION TO SUSPEND CHILD SUPPORT WAS PROPERLY DISMISSED BUT THE DISMISSAL SHOULD NOT HAVE BEEN “WITH PREJUDICE” BECAUSE FAMILY COURT HAS CONTINUING JURISDICTION OVER SUPPORT MATTERS (SECOND DEPT).

The Second Department, modifying Family Court, determined that although father’s petition to suspend child support was properly dismissed, it should not have been dismissed “with prejudice:”

Family Court properly dismissed that branch of the father’s petition which was to suspend his basic child support obligation on the ground of parental alienation without a hearing … .

However, the Family Court should not have provided that the dismissal was “with prejudice.” The court has continuing jurisdiction to modify, set aside, or vacate a prior order of child support pursuant to Family Court Act § 451 … . Matter of Lew v Lew, 2023 NY Slip Op 01192, Second Dept 3-8-23

Practice Point: Family Court has continuing jurisdiction over support matters. Therefore father’s petition to suspend child support, although properly dismissed, should not have been dismissed “with prejudice.”

 

/ ,

THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was evidence of two proximate causes of the slip and fall: (1) plaintiff/s knee buckled when she stepped out of the shower; and (2) when plaintiff tried to stop her fall by grabbing onto the vanity, the vanity moved five inches and she fell. The building superintendent testified that a properly installed vanity would not move away from the wall:

“There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault” … . “‘Generally, it is for the trier of fact to determine the issue of proximate cause'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff losing her balance due to her knee buckling was the sole proximate cause of the accident and that the defendant was free from fault in the happening of the accident … . In support of its motion, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony, at which she testified that, after she lost her balance due to her knee buckling and she grabbed the vanity with one hand, the vanity moved about five inches away from the wall, “and when it moved I lost my balance even more and that’s when I fell.” Moreover, the plaintiff testified that the vanity had been installed around “a couple of weeks” prior to the accident. The defendant also submitted the transcript of the deposition testimony of the superintendent for the apartment building, who testified that a vanity which had been properly installed should not move away from the bathroom wall through “normal use.” Moe-Salley v Highbridge House Ogden, LLC, 2023 NY Slip Op 01187, Second Dept 3-8-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff’s knee buckled as she stepped out of the shower. When she tried to stop her fall by grabbing the vanity, the vanity moved and she fell. There was testimony that a properly installed vanity would not move away from the wall.

 

/ , ,

DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this icy-steps slip and fall case did not demonstrate they had transferred possession and control of the property such that they were not responsible for removal of ice and snow. The lease was not submitted in support of defendants’ motion for summary judgment:

… [T]he defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises … . Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises … . Maharaj v Kreidenweis, 2023 NY Slip Op 01185, Second Dept 3-8-23

Practice Point: Here the defendant landlords did not submit the lease in support of their motion for summary judgment in this icy-step slip and fall case. Therefore the defendants did not demonstrate they were out-of-possession landlords not responsible for ice and snow removal.

 

/ ,

ALTHOUGH DEFENDANT COMMITTED A HEINOUS SECOND DEGREE MURDER, THE PROOF OF THE STATUTORY ELEMENTS OF FIRST DEGREE MURDER WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s first degree murder conviction, determined that, although defendant committed a heinous murder, the statutory criteria for first degree murder were not met:

… [T]he evidence was legally insufficient to prove that defendant inflicted torture on the victim within the meaning of the statute in two respects. First, we conclude that defendant did not engage in a “course of conduct” with the intention of inflicting “extreme physical pain” on the victim. Extreme physical pain cannot be defined precisely. However, it cannot be reasonably doubted that the fatal blow to the victim’s neck caused extreme pain. Yet, that blow was a single act rather than a course of conduct. Thus, we find that defendant and his accomplices did not engage in a “course of conduct” involving the intentional infliction of extreme physical pain. Accordingly, the conduct at issue here does not satisfy the statutory definition of torture in that respect.

… [T]he record also fails to support the conclusion that defendant “relished” or “evidenced a sense of pleasure in the infliction of extreme physical pain.” In arguing to the contrary, the People point out that, after the homicide, defendant twice told other gang members that he had “hit [the victim] in the neck,” in a tone that the listener considered boastful. This did not meet the statutory standard. In our view, the statute contemplates evidence that the defendant savored the infliction of extreme pain in the process of inflicting the pain, and for its own sake. The record does not indicate that this occurred here … . People v Estrella, 2023 NY Slip Op 01240, First Dept 3-9-23

Practice Point: Here the evidence of two elements of first degree murder, torture and “relishing” the infliction of pain, were not proven. Therefore the first degree murder conviction was vacated.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy