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THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHIN THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division, determined the failure to provide defendant with notice of a recorded phone conversation was improper. The Attorney General’s office was monitoring a wiretap in an unrelated case when defendant was overheard in a call originating from the county jail talking about a fatal hit-and-run accident. Local police were informed of the defendant’s conversation and they obtained a recording of it made by the county jail. The jail recording, which was introduced at trial, was not an “intercepted conversation” within the meaning of Criminal Procedure Law 700.70. But the conversation overheard pursuant to the wiretap which alerted the police to the jail conversation was an “intercepted conversation” which triggered the CPL 700.70 notice:

The People produced the recording … to defendant in discovery but did not furnish defendant with a copy of the wiretap warrant and underlying application within the fifteen-day period prescribed by CPL 700.70. Several months after defendant was arraigned, the People informed defendant by letter that the police were “alerted” to the call by the wiretap. Defendant moved to preclude the call from evidence on the grounds that the People failed to adhere to the CPL 700.70 notice procedure. * * *

The substance of the wiretap recording informed law enforcement that the same conversation had been recorded by [jail], leading the Syracuse Police directly to the recording that the People used as evidence at defendant’s trial. In listening to the wiretap, a detective heard incriminating statements about the hit-and-run, identified defendant as the declarant, and directed authorities to the [jail] recording. Clearly, the [jail] call is evidence derived from the wiretap. … [I]t is not certain that police investigating the hit-and-run would otherwise have discovered the call—indeed, the inmate who placed the call had no apparent connection to the hit-and-run incident. Because the wiretap was an “intercepted communication,” the People’s failure to timely furnish defendant with a copy of the eavesdropping warrant and underlying application precluded the admission of the wiretap recording and any evidence derived therefrom—namely, the jail recording—into evidence at trial … . People v Myers, 2023 NY Slip Op 00691, CtApp 2-9-23

Practice Point: Recorded jail conversations are not considered “intercepted conversations” triggering the notice requirements of CPL 700.70. But here the police were alerted to the jail conversation by monitoring a wiretap in an unrelated case. Therefore the jail’s recording of the conversation was evidence derived from an “intercepted conversation” triggering the CPL 700.70 notice requirements.

 

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THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) MAY APPROVE MINING WHERE MINING IS OTHERWISE PROHIBITED IF THE MINING IS AN UNDISPUTED PRIOR NONCONFORMING USE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Department of Environment Conservation (DEC) can renew mining permits where mining is an undisputed prior nonconforming use. The “mining” at issue in this case is a sand and gravel mine on Long Island. Although mining was a permitted use when the mine opened, the area where the mine is located had been rezoned as a residential district where mining is prohibited:

The question raised on this appeal is whether Environmental Conservation Law 23-2703 (3) bars the Department of Environmental Conservation from processing all applications for permits to mine in covered counties, including applications for renewal and modification permits, when “local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” … . We hold that DEC may process renewal and modification applications when such applications seek to mine land that falls within the scope of an undisputed prior nonconforming use. The applications at issue implicate some prior nonconforming uses that are undisputed and others that are disputed but not yet resolved. Because prior nonconforming use was not taken into account by either DEC or the courts below, we modify and remit for further proceedings. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2023 NY Slip Op 00689, Second Dept 2-9-23

Practice Point: Where mining is currently prohibited by zoning, the DEC cam renew mining permits when the mining is an undisputed prior nonconforming use.

 

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THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to amend the complaint should not have been denied on the ground the proposed changes were not “redlined” (apparently referring to the failure to mark the proposed changes to make them more visible):

The court improvidently exercised its discretion in denying plaintiff’s cross motion solely on the technical basis that the proposed amended complaint was not redlined (see CPLR 3025[b]), since the proposed amendments to add the third-party defendants as direct defendants were sufficiently described in the moving papers and easily discerned on review of the proposed amended summons and complaint … . Herrera v Highgate Hotels, L.P., 2023 NY Slip Op 00729, First Dept 2-9-23

Practice Point: Although CPLR 3025 (b) requires that “Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” the motion to amend here should not have been denied because the proposed changes were not “redlined.” The accompanying papers sufficiently described the proposed changes.

 

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THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the evidence defendant knew the codefendant was armed and shared the codefendant’s intent to cause serious injury was legally insufficient. Although the robbery second conviction was based on legally sufficient evidence, an unnoticed statement was allowed in evidence at trial, a reversible error:

… [D]efendant is entitled to a new trial on the second-degree robbery count. The People should not have been permitted to submit evidence of defendant’s August 9, 2016 statement to a detective regarding defendant’s discussion with the victim about the value of the latter’s jewelry because this statement was not properly noticed pursuant to CPL 710.30(1)(a). Although the People disclosed the interview generally, they did not disclose this particular statement … . At a suppression hearing, defendant only moved to suppress other statements not at issue on appeal, and the statement at issue was first revealed during trial testimony, at which time defendant moved for preclusion on the ground of lack of notice. People v Weathers, 2023 NY Slip Op 00741, First Dept 2-9-23

Practice Point: If the People attempt to introduce a statement made by the defendant which was not provided in the CPL 710.30 notice, and no motion to suppress the statement had been made, introduction of the statement at trial must be precluded. In this case, it was not enough that the People disclosed the interview from which the statement was taken. No notice of the specific statement had been provided.

 

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THE PEOPLE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” BY PRESENTING SUFFICIENT PROOF OF THE LEGALITY OF POLICE CONDUCT AT THE SUPPRESSION HEARING; THERE WAS NO EVIDENCE THE OFFICERS WHO ARRESTED DEFENDANT WERE MADE AWARE OF THE CO-DEFENDANT’S STATEMENT WHICH WAS THE BASIS OF THE ARREST; THE FACT THAT GAPS IN THE PEOPLE’S PROOF MAY HAVE BEEN FILLED IN BY THE DEFENDANT’S TESTIMONY AT THE HEARING DIDN’T CURE THE DEFICIENCY (FIRST DEPT).

The First Department, reversing defendant’s conviction and suppressing his postarrest statement, determined the People did not meet their “burden of coming forward” with proof of the legality of police conduct. The fact that some of the gaps in the proof might have been filled by the defendant’s testimony at the suppression hearing did not cure the defect:

The People failed to submit evidence sufficient to support the suppression court’s findings, thus failing to meet their burden of coming forward … . Although the officers who arrested defendant were not required to testify, the People’s initial evidentiary presentation, consisting of the testimony of the investigating detective, was insufficient to permit the inference that information constituting probable cause was transmitted by the detective to the officers effectuating the arrest of defendant, as required to meet the People’s prima facie burden of establishing the legality of the challenged police conduct and shift the burden of persuasion to defendant … . Although defendant testified after the People rested, we need not consider whether defendant’s testimony before the suppression court could have been used to remedy deficiencies in the People’s presentation. As the People repeatedly informed the court, they relied solely on the detective’s testimony to meet their burden. Further, the suppression court discredited defendant’s testimony as “unworthy of belief” and based its decision to deny defendant’s motion to suppress solely on the testimony of the detective, which it credited. People v Watkins, 2023 NY Slip Op 00742, First Dept 2-9-23

Practice Point: The People have a burden of proof at a suppression hearing called the “burden of going forward.” To meet the burden the People was demonstrate the legality of the police conduct. Here there was no evidence the officers who arrested the defendant were aware of the statement by the codefendant which was the basis for the arrest. Therefore defendant’s postarrest statement should have been suppressed.

 

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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea:

To be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently … . Generally, a defendant must preserve for appellate review a challenge to the validity of a guilty plea … . When, however, a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, the defendant’s contention challenging the validity of his plea of guilty is unpreserved for appellate review since he did not move to withdraw his plea or otherwise raise that issue prior to the imposition of sentence … . However, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of an affirmative defense based on duress (see Penal Law § 40.00) permits the defendant to challenge the sufficiency of the allocution on direct appeal, and requires reversal of the judgment of conviction … . People v Rodriguez, 2023 NY Slip Op 00678, Second Dept 2-8-23

Practice Point: Here the defendant’s allocution raised the possibility he had duress as an affirmative defense but the judge made no inquiry into the validity of the plea. Despite the defendant’s failure to preserve the error by moving to withdraw the plea, the appellate court reversed his conviction.

 

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation:

The court never asked juror number two during any of the inquiries if he had fallen asleep or was sleepy. During the third inquiry, the court did not ask juror number two about defense counsel’s specific observations, including that juror number two had allegedly put his head back with his eyes closed and his mouth dropped. The court also failed to ask juror number two what he meant by his equivocal statement that he “[m]ore or less” understood the jury charge, or to ask if there were any specific portions of the jury charge that juror number two did not understand. Although the court did state at one point that “[w]e have not seen [juror number two] sleeping,” the statement, in context, indicates that the court was correcting defense counsel’s misstatement, rather than making its own observation. Likewise, a statement by a court officer that he had not observed juror number two sleeping was not determinative in this case because defense counsel’s assertion that the officer was seated behind juror number two was uncontradicted … . Since the court failed to ask during the third inquiry whether juror number two had fallen asleep during the jury charge, whether he had difficulty staying awake, or about any of defense counsel’s specific observations, its determination that juror number two was not grossly unqualified to serve was based on speculation … . People v Mentor, 2023 NY Slip Op 00677, Second Dept 2-8-23

Practice Point: When it appears a juror has been sleeping at times and a motion to disqualify the juror is made, the judge must make a sufficient inquiry before ruling on the motion. Here the denial of the motion to disqualify was not preceded by a sufficient inquiry and defendant’s conviction was reversed.

 

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THE INSTRUMENT SHOULD HAVE BEEN ADMITTED TO PROBATE AS A LOST WILL (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the will should have admitted an instrument to probate as a lost will. It was shown the will was never in decedent’s possession which negated the presumption the will had been revoked:

A lost or destroyed will may be admitted to probate if (1) it is shown that the will has not been revoked, (2) execution of the will is proved in the manner required for probate of an existing will, and (3) “[a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” … . “When a will, although once possessed by a testator, cannot be found after the death of the testator, a strong presumption arises that the testator revoked the will by destruction” … . “The presumption may be overcome, and the lost will admitted to probate, if the proponent establishes that the will was not revoked by the testator during his or her lifetime” … .

Here, in support of the petition, the petitioners submitted, among other things, the affirmation of the attorney-draftsperson, the affidavit of an attesting witness, and the unsigned copy of the decedent’s lost will. The petitioners’ submissions established that the will was never in the decedent’s possession, that the will had not been revoked, and that the will was duly executed … . Matter of McKenna, 2023 NY Slip Op 00664, Second Dept 2-8-23

Practice Point: Here there was unsigned, undated copy of the will, proof the will was never in the decedent’s possession and that it had been duly executed. The instrument should have been admitted to probate as a lost will.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT).

The Second Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim sufficiently described when the sexual abuse occurred. The claimant alleged she was abused by a state employee in 1982 and 1983 when she was 17. The Court of Claims had dismissed the claim finding that the allegations when the abuse took place were not specific enough. The Second Department found the 1982 – 1983 time frame adequate:

Court of Claims Act § 11(b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … .  ***

Under the particular circumstances of this case, the date ranges provided in the claim stating that the sexual abuse commenced in approximately 1982 and occurred “repeatedly” and “multiple times” from approximately 1982 to 1983, during periods when the claimant was directed to the Workshop to receive counseling, along with other information contained in the claim including, inter alia, that there was a criminal investigation, prosecution, and conviction of West based upon the claimant’s complaints of sexual abuse, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) … . Fenton v State of New York, 2023 NY Slip Op 00650, Second Dept 2-8-23

Practice Point: Here in this Child Victims Act case against a state employee, the allegation the sexual abuse took place in 1982 – 1983 was deemed specific enough to satisfy the pleading requirements in the Court of Claims Act.

Similar issues and result in Meyer v State of New York, 2023 NY Slip Op 00658, Second Dept 2-8-23

 

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IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the amended answer should not have been struck because it was untimely. The plaintiff did not reject the amended answer:

Although Saldarriaga [defendant] filed her amended answer approximately 20 months after filing her original answer, well beyond the period within which an amended pleading could have been served as of right (see CPLR 3025[a]), without obtaining leave of court or the stipulation of all parties to the amendment … , the plaintiff did not reject the amended answer. By “retaining the amended pleading without objection” , the plaintiff waived any “objection as to untimeliness” … . Thus, Saldarriaga’s amended answer should not have been stricken as untimely.  Citibank, N.A. v Saldarriaga, 2023 NY Slip Op 00647, Second Dept 2-8-23

Practice Point: If a plaintiff accepts an untimely answer submitted without leave of court or a stipulation, objection to the answer as untimely is waived.

 

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