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DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined (1) defendant, who wanted to question witnesses with the aid of standby counsel, did not make an unequivocal request to represent himself requiring a searching inquiry by the court, and (2) the defendant, who did not notify the People of his wish to present psychiatric testimony (required by CPL 250.10), was properly precluded from presenting psychiatric testimony for the purpose of calling into question the voluntariness of his confession:

Defendant urges that a court presented with a request to proceed pro se with “standby counsel” should make an in-depth inquiry whether defendant still desires to represent himself, once defendant is informed that dual representation will not be provided. We hold that further colloquy by the trial court is not constitutionally required when a defendant remains equivocal, despite having been informed by the court on more than one occasion that his right to self-representation includes a waiver of the right to an attorney, as here. When a defendant asks to proceed “pro se with standby counsel” and the trial court explains the scope of the right to proceed pro se, and specifically denies the defendant’s request for hybrid representation, the better practice would be to again ask the defendant if he or she still wants to proceed without counsel. Nevertheless, “[w]hile such inquiries may be the better practice, we will not compel courts to engage in any particular catechism” before denying an equivocal request to proceed pro se because “[n]either our Constitution nor our precedent requires it” … . * * *

Defendant narrowly construes the phrase “any other defense” in CPL 250.10 (1) (c) to be limited to psychiatric evidence offered in support of a complete defense to an element of the crime, such as mens rea; he does not interpret the statute to include a defense strategy to offer evidence that allows the jury to negate the prosecution’s evidence of guilt. As explained below, this argument ignores the legislative intent, our precedent espousing the very purpose of notice, and the fact that, if a defendant’s confession was the primary evidence of guilt and the defendant raises the issue of voluntariness at trial, then voluntariness could be a complete defense to the crime … . Notably, our Court has previously labeled a defendant’s challenge to the voluntariness of his statement pursuant to CPL 710.70 a “defense” … . People v Silburn, 2018 NY Slip Op 02286, CtApp 4-3-18

​CRIMINAL LAW (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/ATTORNEYS (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/EVIDENCE (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PSYCHIATRIC OPINION (CRIMINAL LAW,  DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/EXPERT OPINION (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/NOTICE (CRIMINAL LAW, CPL 250.10, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/CONFESSIONS (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/CPL 250.10  (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))

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QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT).

The Third Department determined the certificates of nomination authorized by the Independence Party of Westchester County were invalid because the quorum requirement was not met:

Turning to the merits, Election Law § 6-114 provides that “[p]arty nominations for an office to be filled at a special election shall be made in the manner prescribed by the rules of the party.” Petitioners alleged several violations of the rules of the County Independence Party, some of which are compelling. Our discussion focuses, however, upon rules defining the Executive Committee, following an initial meeting, as having seven members … and needing “four members present . . . in person or by proxy” to form a quorum … .

The affidavit of … the secretary of the County Independence Party … reflected that the nomination process fatally deviated from those rules. Vazquez averred that she and two other individuals attended the meeting … . …[F]our members were needed for a quorum. The quorum requirement in the rules leaves no room for interpretation and, contrary to respondents’ contention, the fact that some seats on the Executive Committee were unfilled does not affect the requirement’s applicability … . Accordingly, “a duly constituted quorum of the [E]xecutive [C]ommittee was not present when [respondent] was nominated,” and those committee members present had no authority to designate [respondent] as the County Independence Party nominee … . Matter of Loftus-Doran v Mayer, 2018 NY Slip Op 02284, Third Dept 3-30-18

ELECTION LAW (QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/QUORUM (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/CERTIFICATES OF NOMINATION  (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))

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CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who delivered baked goods for the employer under a distribution contract, was an employee entitled to unemployment insurance benefits:

Initially, we are unpersuaded by the company’s contention that the Board erred in determining that claimant was an employee as a matter of law pursuant to Labor Law § 511 (1) (b). Labor Law § 511 (1) (b) defines “[e]mployment” for unemployment insurance purposes to include “any service by a person for an employer . . . as an agent-driver or commission-driver engaged in distributing . . . bakery products.” According to the company, claimant did not earn a commission but earned revenue upon selling the bakery products that he purchased at prices set by him. The record, however, supports the Board’s finding that the actual relationship between the parties did not constitute that of a buyer and seller.  …

Additionally, we find that substantial evidence supports the Board’s finding that the company exercised sufficient supervision, direction and control over claimant to establish an employer-employee relationship under common-law principles. The company retained numerous rights under the distribution agreement, including the right to set the price of the products sold to claimant and the right to negotiate with chain outlets to determine price and terms of sale, and it retained the authority to sell distribution rights purchased by claimant or perform his delivery obligations under certain circumstances. Claimant was further required to deliver fresh products and remove stale products in a defined area, sell any additional products provided by the company, cooperate with its marketing programs, remit settlement information to it each week, maintain certain chain outlet customers even if not profitable to him and not engage in any business activity that directly competed with the company or interfered with his obligations under the distribution agreement. In addition, claimant was interviewed by the company, relied on certain equipment and supplies provided by it, was paid on a weekly basis and was trained, instructed, supervised and monitored by a company manager regarding his deliveries. Matter of Cowan (Bimbo Foods Bakeries Distrib., Inc.–Commissioner of Labor), 2018 NY Slip Op 02229, Third Dept 3-29-18

UNEMPLOYMENT INSURANCE (CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DISTRIBUTION CONTRACT (UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/LABOR LAW (LABOR LAW 511, UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DELIVERIES  (UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled summary judgment on his Labor Law 240(1) cause of action. He was working in a stairwell and tripped over an extension cord:

Because the stairway was an elevated surface on which plaintiff was required to work, and also the sole means of access to his work area, it constituted a safety device within the meaning of the statute … , as well as an elevated work platform that required provision of an adequate safety device … . Under either theory, it is clear that plaintiff’s fall was the direct result of absence of an adequate safety device, and thus, plaintiffs are entitled to partial summary judgment on the section 240(1) cause of action. That plaintiff tripped on an extension cord does not take the case out of the ambit of Labor Law § 240(1)… , and the fact that the staircase from which plaintiff fell was a permanent structure of the building does not remove this case from the coverage of Labor Law § 240(1) … . Conlon v Carnegie Hall Socy., Inc., 2018 NY Slip Op 02268, First Dept 3-29-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))/STAIRS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO TRIPPED ON AN EXTENSION CORD AND FELL DOWN A STAIRWELL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT))

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THIRD DEPT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT).

The Third Department, reversing Family Court, in a comprehensive decision explaining in depth the relevant law, made findings allowing the child to apply for special immigrant juvenile status (SJIS):

Before a child may seek SIJS from USCIS, a state court with jurisdiction over the juvenile must first issue a special findings order determining that (1) the child is under the age of 21, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law and (5) it would not be in the child’s best interests to return to his or her native country … . By issuing a special findings order, Family Court is not rendering an immigration determination … ; such order is merely a step in the process to assist USCIS and its parent agency, the Department of Homeland Security, in making the ultimate immigration determination … . Matter of Keilyn GG. (Marlene HH.), 2018 NY Slip Op 02226, Third Dept 3-29-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))

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WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT).

The Third Department, over a concurring opinion, determined the wife in this divorce proceeding raised a question of fact about the validity of the prenuptial agreement:

Viewing the evidence in a light most favorable to the wife, we find that the wife carried her burden of raising a material issue of fact. In opposition to the husband’s motion, the wife submitted an affidavit in which she provided a contrasting version of events surrounding the execution of the prenuptial agreement. She stated therein that shortly before the wedding day, the husband presented her with a prenuptial agreement. The wife, on the advice of her counsel, told the husband that she could not sign it or marry him unless he made some changes — namely, that she would get half the value of the land and house where they resided and 50% of everything they acquired during the marriage. The wife further averred that, on “the very day before the wedding” and as she was making final preparations for the wedding, the husband presented her with a revised prenuptial agreement, told her that he had made the requested changes and assured her that she would be taken care of for the rest of her life.

Moreover, the wife stated that she was given this new prenuptial agreement while standing outside the County Clerk’s office and that the husband “didn’t really give [her] time to even read the document, let alone take it back to the lawyer to look at it again.” She stated that she was feeling stressed and pressured with the wedding planning and “just signed the document.” These facts, if credited, give rise to the inference of overreaching … . Carter v Fairchild-Carter, 2018 NY Slip Op 02230, Third Dept 3-29-18

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/OVERREACHING (FAMILY LAW, CONTRACT LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))

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ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT).

The Third Department, over a concurring opinion and an extensive dissenting opinion, determined that the petitioners’ attempt to contest the NYS Board of Elections’ failure to plug the LLC loophole was properly dismissed because the petitioners did not have standing and because the petition did not present a justiciable controversy. The LLC loophole treats limited liability companies as individuals for campaign contribution purposes. LLC’s therefore can contribute more than corporations and partnerships:

Essentially, petitioners ask this Court to direct respondent to rescind its 1996 opinion on the LLC Loophole and replace it with one that would provide what they assert to be a superior application of public policy. We may not grant this request without violating the vital principle of the separation of powers. That principle dictates that each branch of government “should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches” … . Here, the Legislature has conferred the authority to make directions pertaining to campaign financing practices upon respondent … . This Court cannot disturb respondent’s lawful directions with regard to LLCs without interfering with “policy-making and discretionary decisions that are reserved to the legislative and executive branches” … . The important issues raised here involve matters of discretion and policy that have been expressly entrusted to another branch of government and are “beyond the scope of judicial correction” … .

The nonjusticiable nature of this controversy is closely interconnected with the question of petitioners’ standing to pursue this matter — “an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” … . To establish standing, petitioners must show that they have suffered an injury-in-fact and that the injury is within the zone of interests protected by the statute at issue .. Here, the dispute focuses upon the injury-in-fact element, which requires petitioners to establish that they have suffered or will suffer concrete harm that is “distinct from that of the general public” … . Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections, 2018 NY Slip Op 02228, Second Dept 3-29-18

ELECTION LAW (LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/LIMITED LIABILITY COMPANY LAW (ELECTION LAW,  ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/CAMPAIGN CONTRIBUTIONS (ELECTION LAW, LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))

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BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel  because counsel, after defendant pled not responsible by reason of mental disease or defect, conceded defendant suffered from a dangerous mental disorder and thereby waived the required “track” hearing pursuant to Criminal Procedure Law (CPL) 330.20 (a “critical stage” of the proceedings):

… [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners … , who must submit to the court a report of their findings and evaluation regarding defendant’s mental condition … .

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as “track one,” “track two,” or “track three” based on the defendant’s mental condition … . …

“The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law” … . …

At the initial hearing, the People bear the burden of proving “to the satisfaction of the court,” i.e., by a fair preponderance of the credible evidence, that the defendant has a dangerous mental disorder or is mentally ill … .

The initial hearing under CPL 330.20(6) is “a critical stage” of proceedings at which the defendant is entitled to the effective assistance of counsel … . …

… [C]ounsel rendered ineffective assistance when he conceded at the plea proceeding that defendant was a danger to himself and society, and waived defendant’s right to an initial hearing before reviewing the psychiatric examination reports which had not yet been prepared for the court. Further, at the proceeding that followed the issuance of the reports, counsel simply relied on the psychiatrists’ reports and deferred to the court’s discretion. He did not call any witnesses or seek to cross-examine the psychiatrists who prepared the reports. Nor did counsel consult an expert on defendant’s behalf who might have offered a contrasting opinion. People v Darryl T., 2018 NY Slip Op 02280, First Dept 3-29-18

CRIMINAL LAW (DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DANGEROUS MENTAL CONDITION, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/DANGEROUS MENTAL CONDITION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))

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ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department noted that a text message from defendant indicating he needed money “just in case for a lawyer” should not have been admitted in evidence in this homicide case. The error was deemed harmless however:

The People should not have been permitted to introduce, as evidence of defendant’s consciousness of guilt, a text exchange the day after the crime in which defendant indicated that he needed money “just in case for a lawyer.” This evidence was an improper infringement of defendant’s right to counsel … . However, under all the circumstances, including the overwhelming evidence of defendant’s guilt, which included the testimony of one of the victims, any error in the admission of the text exchange and related summation comment on it was harmless beyond a reasonable doubt … . The circumstantial evidence was compelling, and it led to an inescapable inference that the deceased and surviving victims were shot by defendant, the only other occupant of the car in which the shootings took place. People v Suero, 2018 NY Slip Op 02269, First Dept 3-29-18

CRIMINAL LAW (EVIDENCE, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))

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THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT).

The First Department determined the derivative action for breach of an Amended and Restated Pooling and Servicing Agreement (PSA) was properly dismissed because plaintiffs did not fulfill all of the conditions precedent for bringing the suit, which alleged the defendants’ failure to determine the fair value of a loan. Whether the contractual conditions precedent were met turned on whether the term “event of default” in one provision was synonymous with the term “default” in another provision. Because the two terms were deemed to mean the same thing, a condition precedent for the suit was not met:

Because the uncontroverted and unambiguous documentary evidence demonstrates that plaintiff failed to satisfy the terms of section 7.01(a)(iii) defining the Event of Default here at issue, plaintiff’s compliance with the conditions precedent of section 12.03(c) does not suffice to afford it standing to sue, as it has failed to demonstrate an actionable Event of Default under the PSA. Thus, KeyBank and Berkadia have conclusively established a defense to plaintiff’s asserted claims as a matter of law … and the motion court correctly granted both defendants’ CPLR 3211(a)(1) motions to dismiss. Alden Global Value Recovery Master Fund, L.P. v KeyBank N.A., 2018 NY Slip Op 02241, First Dept 3-29-18

CONTRACT LAW (THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))/EVENT OF DEFAULT (CONTRACT LAW, THE TERMS ‘EVENT OF DEFAULT’ AND ‘DEFAULT’ WHICH APPEARED IN TWO DIFFERENT SECTIONS OF THE CONTRACT WERE DEEMED TO MEAN THE SAME THING, BECAUSE THE TERMS WERE DEEMED SYNONYMOUS PLAINTIFF DID NOT MEET ALL THE CONDITIONS PRECEDENT FOR STANDING TO SUE, COMPLAINT PROPERLY DISMISSED (FIRST DEPT))

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