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BECAUSE THE DRUG TESTING WAS FLAWED, THE SUBSTANCE PETITIONER WAS SMOKING WAS NOT IDENTIFIED AS MARIHUANA, AND THEREFORE WAS NOT PROVEN TO BE CONTRABAND; BOTH THE POSSESSION OF DRUGS DETERMINATION AND THE POSSESSION OF CONTRABAND DETERMINATION WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department determined the possession of contraband determination was not supported by substantial evidence. Petitioner was seen smoking a cigarette. When he was asked what was in the cigarette, he answered “weed.” A test was performed which identified the substance as marihuana and petitioner was charged with possession of drugs and possession of contraband. The drug possession determination was dismissed when an inconsistency in the drug testing instructions was discovered. But the contraband possession determination remained and the punishment was unchanged:

Substantial evidence does not support the determination of guilt and, therefore, we annul. “[T]he prohibition of contraband hinges on whether or not the item is authorized” … . In light of the unreliable drug test and the absence of any hearing testimony identifying the substance at issue or attesting to petitioner’s alleged admission, the substance was not adequately identified … . Accordingly, “substantial evidence does not support the determination that the substance was unauthorized and, therefore, contraband” … . Matter of Razor v Venettozzi, 2021 NY Slip Op 06740, Third Dept 12-2-21

 

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EVIDENCE OF OCCASIONAL MARIJUANA USE DID NOT SUPPORT THE ASSESSMENT OF 15 POINTS IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department determined the evidence did not support the SORA risk-level assessment of 15 points for drug and alcohol abuse:

Defendant admitted to occasional marijuana use, and there is no evidence that he had smoked marijuana at the time of the offense. The only evidence of prior drug treatment was as a condition of parole, on a nondrug-related conviction, that was completed in 2005. There is no evidence that defendant’s use of marijuana was established as anything more than occasional social use, and accordingly it does not warrant assessment of points under the risk factor for drug abuse. People v Baez, 2021 NY Slip Op 06771, First Dept 12-2-21

 

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THE COMPLAINANT WAS CAJOLED BY OTHERS, NOT THE DEFENDANT, TO HAVE SEX WITH DEFENDANT IN FRONT OF THE OTHERS; THERE WAS NO EVIDENCE FORCE WAS USED AND NO EVIDENCE OF ANY THREATS TO USE FORCE; RAPE FIRST CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined there was no evidence of forcible compulsion in this Rape First case. The complainant was cajoled by others, not including the defendant, to have sex with the defendant in front of the others. But there was no evidence defendant used force and no overt or implied threats to use force:

… [S]ince the complainant had never spoken with the defendant prior to the alleged sexual assault, there was no reason, even from her subjective point of view, to fear that he would physically harm her if she did not do what Franiqua and Franeisha were pressuring her to do … .

… The complainant said repeatedly during her testimony that she was uncomfortable throughout the incident, that she “fe[lt] like [she] had no control” over what was happening, and that there was “nothing [she] could do” to stop it. But she never connected those feelings to a fear of being physically injured, or some other similarly serious consequence … .

… [T]here was no testimony that the complainant had been physically abused by Franiqua prior to this incident, and no evidence that the defendant was aware that Franiqua was acting abusively towards the complainant, regardless of when that conduct began. Beyond that, the complainant acknowledged that at least some of her discomfort was attributable to the “whole situation,” including, understandably, that several people were present. People v Graham, 2021 NY Slip Op 06699, Second Dept 12-1-21

 

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APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO FILE AN AMENDED BRIEF OR A SUPPLEMENTAL BRIEF AFTER THE COURT OF APPEALS RULED SENTENCING COURTS MUST CONSIDER YOUTHFUL OFFENDER STATUS FOR ALL WHO ARE ELIGIBLE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined appellate counsel was ineffective and granted a writ of coram nobis. Appellate counsel did not raise the sentencing court’s failure to consider defendant’s eligibility for a youthful offender adjudication. Although the controlling case was decided after the appellate brief was filed, appellate counsel should have amended the brief or submitted a supplemental brief:

… [W]e grant the defendant’s application for a writ of error coram nobis, based on former appellate counsel’s failure to contend on appeal that the Supreme Court failed to determine whether the defendant should be afforded youthful offender status. As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501), CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain.” Here, the record does not demonstrate that the court considered whether to adjudicate the defendant a youthful offender, even though the defendant was eligible … . We acknowledge that the Court of Appeals decided Rudolph shortly after former appellate counsel filed the brief on the appeal. However, under the circumstances of this case, after Rudolph was decided, the standard of meaningful representation required former appellate counsel to seek to amend the brief or file a supplemental brief in order to argue that, pursuant to Rudolph, the sentence must be vacated and the matter remitted for determination of the defendant’s youthful offender status … . People v Downing, 2021 NY Slip Op 06698, Second Dept 12-1-21

 

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THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was seen by defendants. The description of the flaws in the expert’s affidavit reads like a checklist for the required contents of a defense expert’s affidavit in a medical malpractice action:

… [T]he defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause Nodar’s injuries. With respect to the plaintiffs’ allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit by Nodar, which was just weeks before Nodar attempted suicide by jumping off his roof, the defendants’ expert failed to set forth the standard of care for conducting a suicide risk assessment … . The expert’s conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs’ specific allegations of negligence … . In addition, the defendants’ expert did not address the plaintiffs’ allegation that the defendants failed to schedule or conduct a timely follow-up visit with Nodar after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that Nodar was advised to do was appropriate under the circumstances … . Moreover, the defendants’ expert failed to establish, prima facie, that any departure from the standard of care did not proximately cause Nodar’s injuries … . Nodar v Pascaretti, 2021 NY Slip Op 06695, Second Dept 12-1-21

 

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WHERE A FORECLOSURE ACTION IS TERMINATED BY A STIPULATION OF DISCONTINUANCE WITH PREJUDICE, THE STIPULATION CANNOT BE VACATED BY A MOTION, A PLENARY ACTION MUST BE BROUGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank’s motion to vacate the stipulation terminating the foreclosure action should not have been granted:

The Supreme Court improperly granted Deutsche Bank’s motion to vacate the stipulations. The mortgage foreclosure action was terminated by the stipulation of discontinuance with prejudice and Deutsche Bank could only vacate that stipulation by commencing a plenary action … . Deutsche Bank Natl. Trust Co. v Goltz, 2021 NY Slip Op 06671, Second Dept 12-1-21

 

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THE PRODUCTS LIABILITY AND BREACH OF WARRANTY CAUSES OF ACTION ALLEGING THE FAILURE OF AN IMPLANTED MEDICAL DEVICE WHICH ASSISTS THE HEART WERE PREEMPTED BY FEDERAL LAW; THE CAUSES OF ACTION ALLEGING NEGLIGENCE ON THE PART OF THE ENGINEERS WHO REPLACED THE LEAD TO THE DEVICE WERE NOT PREEMPTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the products liability and breach of warranty causes action alleging decedent’s death was caused by an implanted medical device which assisted the heart were preempted by the Federal Food, Drug, and Cosmetic Act as amended by the Medical Device Amendments of 1976 (MDA). But the causes of action alleging negligence of the engineers who replaced a lead on the device were not preempted by the MDA:

The MDA … includes an express preemption provision, prohibiting state requirements “with respect to a device intended for human use” (21 USC 360k[a]) which are “different from, or in addition to, any requirement” … applicable under federal law and which “relate[ ] to the safety or effectiveness of the device” … . Pursuant to this provision, it has been held that common-law causes of action which “challenge the safety and effectiveness of a medical device and seek to impose requirements that are ‘different from, or in addition to,’ federal requirements,” such as those sounding in products liability and breach of warranty, are preempted … .

… [P]laintiff  … claims in her first and fifth causes of action that negligent acts or omissions of the engineers … , allegedly committed during the course of their replacement of the lead in the decedent’s LVAD, were a proximate cause of his death. Those claims in those causes of action do not “challenge the safety and effectiveness of a medical device and seek to impose requirements” different or additional to federal law … . Accordingly, they are not preempted. Arnold v Lanier, 2021 NY Slip Op 06666, Second Dept 12-1-21

 

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IN THIS FORECLOSURE ACTION, THE BANK’S PROOF OF MAILING THE RPAPL 1304 NOTICE WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s proof that the RPAPL 1304 notice was properly mialed to the defendant was insufficient:

… [A]lthough Gonzales [an employee of plaintiff Wilmington’s loan servicer] stated in her affidavit that RPAPL 1304 notices were mailed by certified and first-class mail, and attached copies of those notices, Wilmington failed to attach any documents showing that the mailings actually happened … . Further, Gonzales did not aver that she had personal knowledge of the purported mailings, and did not describe any standard office procedure designed to ensure that notices are properly addressed and mailed … . Accordingly, Wilmington failed to establish, prima facie, compliance with RPAPL 1304 … . Wilmington Sav. Fund Socy., FSB v Novis, 2021 NY Slip Op 06720, Second Dept 12-1-21

 

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THE CHALLENGE TO A JUROR WHO SAID HE WOULD FAVOR THE TESTIMONY OF THE POLICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the challenge to a juror who said he would favor the police testimony should have been granted:

… [D]uring voir dire, one prospective juror, a firefighter who worked in the neighborhood where the offenses occurred, told the Supreme Court that he “personally see[s] a lot that goes on in the area[ ].” While he initially indicated that he could be fair and impartial, he subsequently stated that the police in the neighborhood “defended us, stuck up for us,” and added that he would “lean a little bit more to what [a police officer] had to say” and it would be “tough” for him not to credit police officer testimony because he had “seen it” himself. Although, when he was questioned by the court, he indicated that he would treat police officers’ testimony the same as the testimony of civilian witnesses, when asked whether he was “retracting” what he had said about “favoring police testimony,” he did not answer in the affirmative. Instead, he stated that he would evaluate police testimony based on what he had experienced.

Thus, at no point did the prospective juror provide “‘an unequivocal assurance’ that [he] could ‘set aside any bias and render an impartial verdict based on the evidence'” … . Since the defendant exercised a peremptory challenge to remove the prospective juror and exhausted his allotment of peremptory challenges prior to the completion of jury selection, the judgment of conviction must be reversed and a new trial ordered … . People v Thomas, 2021 NY Slip Op 06711, Second Dept 12-1-21

 

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THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” … . Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court’s failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

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