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AFFIRMATION CONTESTING SERVICE DID NOT CONFORM TO NEW YORK LAW AND THEREFORE DID NOT REBUT THE PROCESS SERVER’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined that defendant’s affirmation did not conform to New York law and therefore was not sufficient to rebut the process server’s affidavit of service. Defendant’s made his affirmation in front of a notary in Israel, but the affirmation did not indicate it was made under penalty of perjury:

“[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so,” but such affirmation “must be made before a notary public or other authorized official,” and the affirmant must “be answerable for the crime of perjury should he make a false statement” … . Furthermore, an affirmation from a person physically located outside the geographic boundaries of the United States must comply with the additional formalities of CPLR 2309 (c), and must, in substance, affirm that the statement is true under the penalties of perjury under the laws of New York (see CPLR 2106 [b]). While the defendant’s identity was verified by an authorized official in Israel acting in the capacity of a notary, the affirmation itself failed to indicate that the statements made therein were true under the penalties of perjury. Therefore, the affirmation was without probative value … . U.S. Bank N.A. v Langner, 2019 NY Slip Op 00492 [168 AD3d 1021], Second Dept 1-23-19

 

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PROVIDING ILLEGAL HIV MEDICATIONS TO A PHARMACY FOR RESALE: (1) DID NOT CONSTITUTE GRAND LARCENY BECAUSE THE AGENT OF THE PHARMACY TO WHOM THE DRUGS WERE PROVIDED KNEW THE DRUGS WERE ILLEGAL AND THAT KNOWLEDGE IS IMPUTED TO THE CORPORATION; AND (2) DID NOT CONSTITUTE CRIMINAL DIVERSION OF PRESCRIPTION DRUGS BECAUSE THE DRUGS WERE PROVIDED TO A CORPORATION, NOT TO A PERSON WHO HAD NO MEDICAL NEED FOR THEM. AN UNSEALED COMPILATION OF WIRETAP RECORDINGS CONSTRUCTED FROM SEALED ORIGINALS WAS ADMISSIBLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Sgroi, reversing defendant’s grand larceny and criminal diversion of prescription medications convictions, determined that: (1) the knowledge of the agent of the pharmacy to whom the illegal HIV drugs were provided must be imputed to the corporation, therefore the corporation was deemed to know it was receiving and selling illegal drugs; (2) the statute prohibiting criminal diversion of prescription drugs is aimed at street sales of prescription drugs to those who have no medical need for them, therefore the statute does not apply to supplying illegal drugs to a pharmacy for resale; (3) the moneylaundering convictions and related sentences should be affirmed; and (4) a compilation of wiretap recordings, although not sealed, was made from properly sealed recordings and was properly authenticated, therefore the compilation was admissible:

… [T]here is no statutory requirement that a properly authenticated composite recording be compared against the sealed original recording. Three simultaneous original recordings of the intercepted communications were created in this case. The composite recording was compared against an original version of the recordings, and [a witness] testified that the composite recording was a true and accurate reflection of the content of the original. ,,, [A] sealed version of the original recording existed to deter alteration of, and permit challenge to, the composite, thus satisfying the statute. * * *

[Re; Grand Larceny:] The People’s theory in this case was that the defendant … wrongfully took money from [the pharmacy] by falsely representing that the medications they were selling were lawful to sell, transfer, and dispense. The defendant argues … that the People failed to prove that such a false representation of past or existing fact was made to [the pharmacy] because [the agent] , a high managerial employee of [the pharmacy], knew that the medications were not lawful to sell, transfer, and dispense, and thus, [the pharmacy], by imputation, also knew this fact. We agree. * * *

[Re: Criminal Diversion of Prescription Medications Penal Law § 178.25:] The defendant does not challenge the People’s premises that (1) the medications had left the legitimate stream of commerce rendered them “adulterated,” and (2) one cannot have a “medical need” for adulterated medications, as the term “medical need” is used in the statute. Thus, we do not address the validity of these premises. However, the defendant challenges the applicability of this statute to his alleged conduct on the basis that, by its terms, the statute cannot apply to a transfer of prescription medications to a corporation, as opposed to a person capable of having medical needs. Again, we agree. People v Gross, 2019 NY Slip Op 00461, Second Dept 1-23-19

 

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OFFICER DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VAN AFTER HE LEARNED THAT DEFENDANT, WHO WAS SITTING IN THE PASSENGER SEAT, WAS SMOKING A CIGAR, NOT MARIJUANA, SUPREME COURT’S SUA SPONTE FINDING THAT DEFENDANT DID NOT HAVE STANDING TO CONTEST THE SEARCH WAS ERROR, THERE WAS UNCONTRADICTED EVIDENCE THE VAN WAS DEFENDANT’S WORK VEHICLE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction and dismissing the indictment, determined that the police officer did not have probable cause to search the van where the weapon was found. The defendant was sitting in the passenger seat smoking a cigar when the officer approached and removed him from the van, apparently because the officer thought defendant was smoking marijuana. At the time the officer searched the van, he know defendant was smoking a cigar. Although defendant was sitting in the passenger seat, there was no evidence to contradict his claim that the van was his work vehicle. Contrary to Supreme Court’s contrary finding (made sua sponte), the defendant had standing to contest the search:

The officer testified that he removed the defendant from the minivan and frisked him out of a fear for the officer’s own safety; no weapon was recovered. The officer further testified that, at that time, he realized that the two men were smoking cigars, not marijuana. Nevertheless, the officer went around the minivan to the driver’s side and opened the sliding door on that side, whereupon he observed a firearm sticking out of a bag behind the driver’s seat.

We disagree with the hearing court’s determination, sua sponte, that the defendant lacked standing to challenge the search of the minivan. The defendant, who had told the police at the police station that the minivan was his work van, had standing to challenge the search. Although the defendant had been sitting in the front passenger seat of the minivan, no evidence was presented to contradict his statements that it was his work van. The defendant’s statements were sufficient to establish that he exercised sufficient dominion and control over the minivan to demonstrate his own legitimate expectation of privacy therein… .

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . Contrary to the People’s contention, under the circumstances here, where the defendant already had been removed from the minivan and no one else was in the minivan, the police lacked probable cause to conduct a warrantless search by opening the sliding door of the minivan, and the weapon found as a result of the unlawful search should have been suppressed … . People v Dessasau, 2019 NY Slip Op 00456, Second Dept 1-23-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THIS DIVORCE ACTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT). ​

The Second Department determined Supreme Court should not have dismissed the complaint in this divorce action, sua sponte, on a ground not raised by the parties:

The Supreme Court should not have granted the defendant’s motion for summary judgment on a ground not raised in the defendant’s motion … . “[O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court”… . The plaintiff had no opportunity to address the issue regarding the allegedly defective summons, and this “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … .

Since the Supreme Court did not consider the merits of the motion and cross motion, the matter must be remitted to the Supreme Court, Richmond County, for a determination of the motion and cross motion on the merits … . Patel v Sharma, 2019 NY Slip Op 00452, Second Dept 1-23-19

 

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IN DENYING THE PETITION FOR AN AREA VARIANCE THE ZONING BOARD DID NOT ADDRESS ALL OF THE FACTORS THAT IT MUST CONSIDER, THE DETERMINATION WAS ANNULLED AND THE MATTER REMITTED FOR RECONSIDERATION OF THE PETITION (SECOND DEPT).

The Second Department annulled the zoning board’s determination and remitted the matter for reconsideration of the petition seeking an area variance allowing a two-family home in a single-family zone:

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted . . . against the detriment to the health, safety and welfare of the neighborhood or community by such grant” (…see Town Law § 267-b[3][b]…). The zoning board must also consider: “(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” … .

We agree with the Supreme Court that, although the Board engaged in the required balancing test, the Board failed to meaningfully consider the relevant statutory factors. While the proposed variances were clearly substantial and the alleged difficulty was self-created, the Board’s failure to cite to particular evidence as to whether granting the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community requires reconsideration of the application, weighing all of these factors … . Matter of Mengisopolous v Board of Zoning Appeals of the City of Glen Cove, 2019 NY Slip Op 00440, Second Dept 1-23-19

 

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MOTHER’S APPLICATION FOR RETURN OF THE CHILD AFTER TEMPORARY REMOVAL OF THE CHILD IN THIS DERIVATIVE NEGLECT AND ABUSE PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that mother’s application for return of the child who had been temporarily removed from the home should not have been granted:

… [T]he Family Court’s determination granting the mother’s application for the return of the subject child lacked a sound and substantial basis in the record. At the hearing, the mother admitted to hitting Sincere G. with an extension cord, leaving welts on his skin, because he would not clean his room and she wanted to get “control” over him. Although the mother testified that she only hit Sincere G. on his arms and legs, photographs admitted into evidence at the hearing clearly show welts across his chest as well. Since that incident, and as of the time of the hearing, the mother had failed to sufficiently address the mental health issues that led to the incident … . Accordingly, we cannot agree that the return of the subject child to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the child’s life or health. The mother’s application for the return of the child should have been denied, and we remit the matter to the Family Court, Kings County, for further proceedings on the petition. Pending those further proceedings, the subject child shall remain in the care and custody of the father, with supervised parental access to the mother, pursuant to the terms and conditions of an order of the Family Court … . Matter of Tatih E. (Keisha T.), 2019 NY Slip Op 00434, Second Dept 1-23-19

 

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IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT).

The Second Department determined that the zoning code provisions enacted by the village board of trustees, which concerned the maximum floor space and coverage on residential lots, were consistent with the village’s comprehensive plan and properly enacted. The Second Department further found that the requirements of the State Environmental Quality Review Act (SEQRA) were met. However, the portions of the petition which sought declaratory relief and related damages should not have been summarily dismissed along with the portions which sought Article 78 relief because no demand for dismissal of the declaratory relief portions had been made:

… [I]n the absence of a dispositive motion addressed to the fifth, sixth, seventh, and eighth causes of action, which sought declaratory relief and damages not in the nature of CPLR article 78 relief, the Supreme Court should not have, in effect, dismissed those causes of action. “In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Bonacker Prop., LLC v Village of E. Hampton Bd. of Trustees, 2019 NY Slip Op 00432, Second Dept 1-23-19

 

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DEFENDANT SHOULD NOT HAVE BEEN ARRAIGNED ON A SPECIAL INFORMATION CONCERNING A PRIOR CONVICTION PRIOR TO JURY SELECTION, THE STATUTE REQUIRES ARRAIGNMENT AFTER JURY SELECTION, THE ERROR WAS DEEMED HARMLESS HOWEVER (FIRST DEPT).

The First Department, over a dissent, determined defendant should not have been arraigned on a special information pursuant to Criminal Procedure Law 200,60 before jury selection. The procedure avoids the presentation of proof of a prior conviction at trial. The error was deemed harmless by the majority. The dissent argued the error was not harmless and would have ordered a new trial:

A court cannot disregard plain statutory language simply because it concludes that an alternate procedure would be consonant with the policy underlying the statute. Courts do not possess the power to ignore the legislature … . It may well be that the legislature’s general purpose in enacting CPL 200.60 was to avoid the prejudicial effect of having the prior offense proven before the jury. However, such a purpose does not support reading the timing requirement out of the statute. Allowing a defendant to wait until after the commencement of the trial ensures that he will have as much information as possible when forced to make the choice of admitting his prior conviction and relieving the People of its burden to prove it beyond a reasonable doubt; or denying the conviction and allowing the jury to learn about it. …

Despite the court’s error, however, we are obliged to affirm because defendant has not shown any prejudice arising from the fact that he was required to decide whether to contest the prior conviction earlier than necessary. Defendant does not assert that he would have contested the conviction if he had been asked after jury selection. Thus, defendant’s claims of prejudice are speculative. People v Alston, 2019 NY Slip Op 00410, First Dept 1-22-19

 

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PRIOR FLORIDA CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FIRST DEPT).

The First Department determined defendant should not have been sentenced as a second felony offender because the prior Florida conviction was not the equivalent of a New York felony. The defendant was convicted of attempted murder and attempted robbery:

The knowledge element of the Florida statute at the time of defendant’s Florida offense was that a defendant “knew of the illicit nature of the items in his possession” … . This was broader than the knowledge requirement under Penal Law § 220.16, which demands proof of “knowledge that the item at issue was, in fact, the controlled substance the defendant is charged with selling or possessing” … . Contrary to the trial court’s analysis, the dispositive difference between the knowledge requirements of the Florida and New York statutes was in place at the time of defendant’s 1998 Florida conviction. Florida’s alteration of its knowledge requirement in 2002 (see Fla Stat Ann § 893.101) has no bearing on our analysis. People v Muhammad, 2019 NY Slip Op 00386, First Dept 1-22-19

 

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DEFENDANT’S UNATTENDED TOW TRUCK MOVED BACKWARDS INTO PLAINTIFF’S CAR, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT),

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. Defendant’s tow truck was left running and unattended when it moved backwards into plaintiff’s car:

Plaintiff established entitlement to judgment as a matter of law in this action where he was injured when defendants’ tow truck was left unattended by its driver, defendant Millar, and rolled backwards into plaintiff’s car, which was stopped behind the tow truck. When a driver fails to secure an unattended vehicle sufficiently to prevent it from starting to move on its own, the driver is negligent …

In opposition, defendants did not raise a triable issue of fact as they failed to offer a non-negligent explanation for the collision… . Defendants’ speculation that, even though Millar left the gear in “park” before exiting the tow truck, the gear must have slipped into reverse on its own due to some mechanical failure is insufficient to raise an issue of fact … . Defendants present no evidence of any type of mechanical failure or defect in the tow truck, which Millar was able to drive back to the depot after the accident without incident. Franco v City of New York, 2019 NY Slip Op 00377, First Dept 1-22-19

 

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