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DEFENDANT BOUGHT THE FORECLOSED PROPERTY WITHOUT KNOWLEDGE THE JUDGMENT OF FORECLOSURE AND SALE HAD BEEN APPEALED; DEFENDANT WAS A PURCHASER IN GOOD FAITH AND FOR VALUE AND WAS THEREFORE INSULATED FROM THE EFFECTS OF THE APPELLATE REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Bartlett) was a purchaser in good faith and for value of the foreclosed property. The foreclosure was reversed on appeal. Defendant, as the fee owner of the property, was insulated from the effects of the reversal:

Where a judgment of foreclosure and sale is reversed on appeal, the successful appellant may seek restitution of the real property lost by the judgment (see CPLR 5015[d]; 5523). However, where the real property was sold pursuant to the judgment of foreclosure and sale, and the title is held by “a purchaser in good faith and for value,” recovery is limited to the value of the real property (id. § 5523). In the absence of a stay of the sale or an outstanding notice of pendency, title of the purchaser in good faith and for value “is . . . insulate[d] . . . from the effects of an appellate reversal” … .

Here, in support of its cross-motion, Bartlett established, through an affidavit of its member, that Bartlett acquired title to the property subsequent to a foreclosure sale, without actual knowledge of a successful appeal by the plaintiffs in the underlying action that resulted in a vacatur of the judgment of foreclosure and sale … . The affidavit also demonstrated that the plaintiffs had not obtained a stay of the foreclosure sale in the underlying action. Under these circumstances, Bartlett established … that it was a purchaser in good faith and for value entitled to the protection of CPLR 5523 … . Puretz v Mae, 2024 NY Slip Op 06227, Second Dept 12-11-24

Practice Point: A buyer of foreclosed property who had no knowledge the judgment of foreclosure had been appealed is insulated from the effects of a reversal on appeal. The buyer, as a purchaser in good faith for value, is the fee owner of the property.

 

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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):

… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *

Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24

Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.​

 

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THE PEBBLES ON WHICH PLAINTIFF SLIPPED MET THE CRITERIA FOR A “FOREIGN SUBSTANCE” AND A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MECHANICS OF THE 30-DAY COURT-OF-APPEALS “APPEAL CLOCK” EXPLAINED IN THE CONTEXT OF ELECTRONIC FILING (CT APP).

The Court of Appeals, reversing the Appellate Division’s dismissal of the Labor Law 241(6) causes of action, determined the loose pebbles on which plaintiff slipped were not “inherent in the work” and, therefore, the Industrial Code provisions prohibiting “foreign substances” and “slippery conditions” applied.  In addition, the Court of Appeals held one party’s appeal to the Court was untimely and explained how the 30-day appeal clock works with electronic filing:

* * * To be effective to start CPLR 5513 (b)’s 30-day clock, service must comply with CPLR 2103. CPLR 2103 (b) (7), in turn, empowers the Chief Administrative Judge to authorize electronic service. * * * … [I]n an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)’s 30-day clock. * * *

Plaintiff testified … that, while attempting to install a 500-pound glass panel into a metal channel cut into the floor of the construction site, he slipped on concrete pebbles—that he believed came from the installation of the metal channel—and sustained injuries to his spine. …

… {Defendants] failed to demonstrate that the concrete pebbles that allegedly created the slipping hazard were integral to the work, because they did not conclusively show that the pebbles were “inherent to the task at hand, and not . . . avoidable without obstructing the work or imperiling the worker” … . As to … Industrial Code § 23-1.7 (d), [defendants] did not demonstrate that the concrete pebbles were not a “foreign substance” because, at the time of the alleged injury, the pebbles were “not a component of the [floor] and w[ere] not necessary to the [floor]’s functionality” … . [Defendants] did not demonstrate that the pebbles did not cause a “slippery condition” … . Regarding Industrial Code § 23-1.7 (e) (2), this provision is not limited to “tripping” hazards … . Ruisech v Structure Tone Inc., 2024 NY Slip Op 05866, CtApp 11-25-24

Practice Point: The pebbles on which plaintiff slipped were not integral to the work and met the criteria for a “foreign substance” and “slippery condition” in the Industrial Code.

Practice Point. Consult this decision for an explanation of the mechanics of the 30-day period for taking an appeal to the Court of Appeals in the context of electronic filing.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:

… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24

Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.

 

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DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion:

… [T]he Appellate Division held that defendant’s statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant’s decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. * * *

The record here is ambiguous at best as to defendant’s motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was “pleading guilty because it’s a good deal,” he may only have believed that “in the face of all the evidence” admissible at the time, including his highly incriminating post-arrest statement “you saw what I had on me” … . Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling …. . The People’s argument that defendant may only have been concerned with the court’s suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant’s independent motivation for the plea. On this record, we cannot say that defendant’s decision to plead guilty was unaffected by the court’s erroneous suppression ruling, and therefore his guilty plea must be vacated. People v Robles, 2024 NY Slip Op 05819, CtApp 11-21-24

Practice Point: Consult this opinion for insight into the difficulty in applying a harmless-error analysis to a guilty plea.

 

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SUPREME COURT DISMISSED THE INDICTMENT ON SPEEDY-TRIAL GROUNDS, FINDING THAT THE PEOPLE HAD NOT COMPLIED WITH THEIR DISCOVERY OBLIGATIONS AT THE TIME THE PEOPLE INDICATED THEY WERE READY FOR TRIAL; THE DISMISSAL ORDER WAS NEVER SERVED ON THE PEOPLE SO THE 30-DAY APPEAL PERIOD NEVER STARTED RUNNING RENDERING THE PEOPLE’S APPEAL TIMELY; THE FAILURE TO TURN OVER “DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES” DOCUMENTS DID NOT VIOLATE THE PEOPLE’S DISCOVERY OBLIGATIONS BECAUSE THE PEOPLE DID NOT POSSESS THOSE DOCUMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the People’s appeal was timely because defendant never served the order dismissing the indictment on them so the 30-day appeal period never started running, and (2) the People were not obligated to turn over Department of Corrections and Community Supervision (DOCCS) documents to comply with their discovery obligations because the People did not possess those documents:

The Court of Appeals has “interpreted CPL 460.10 (1) (a) ‘to require prevailing party service’—not just the handing out of an order by the court—’to commence the time for filing a notice of appeal’ ” … . Here, the record establishes that the People received a copy of the original order, but there is “no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)” … . Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People’s 30-day period to appeal never began to run and the People’s appeal is therefore timely … . * * *

… [A]ssuming … that the parole officer’s disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto (see CPL 245.20 [1] …). “[F]or the purposes of discovery, DOCCS is not a ‘law enforcement’ agency” and is ” ‘outside of the legal or practical control of local prosecutors’ and, therefore, the People cannot be deemed to be in constructive possession of that which DOCCS possesses” … . People v Walker, 2024 NY Slip Op 05662, Fourth Dept 11-15-24

Practice Point: If the defendant wins a motion to dismiss the indictment, the defendant must serve the People with the dismissal order or the People’s 30-day appeal period does not start running.

Practice Point: The People do not violate their discovery obligations by failing to turn over documents which are in the possession of another agency, here the Department of Corrections and Community Services (DOCCS).

 

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THE RECORD ON APPEAL DID NOT SUPPORT FAMILY COURT’S RULING MOTHER HAD FORFEITED HER RIGHT TO COUNSEL IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the record on appeal did not support Family Court’s ruling mother had forfeited her right to counsel in this termination-of-parental-rights proceeding.

​… Family Court granted a second application by the mother’s assigned counsel to be relieved and determined that the mother had forfeited her right to be assigned new counsel. The court’s determination was based upon, among other things, “suspicions” that the mother had been “involved” in a recent security compromise of the assigned counsel’s computer. The court also cited as a basis for its determination the fact that, over the course of the child protective proceeding and this proceeding, the mother had a total of three attorneys assigned to represent her or to act as her legal advisor. The record on appeal does not reflect how long the prior assigned attorneys represented the mother or why they ceased representing her. * * *

A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel … . A party may forfeit the fundamental right to counsel by engaging in “‘egregious conduct,'” but only as a matter of “‘extreme, last resort'” … . Here, the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel … .

The deprivation of the mother’s right to counsel requires reversal without regard to the merits of her position … . Matter of Sa’Nai F. B. M. A. (Chaniece T.), 2024 NY Slip Op 05440, Second Dept 11-6-24

Practice Point: Consult this decision for some insight into the criteria for finding a party in a termination-of-parental-rights proceeding has forfeited the right to counsel.​

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ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department, finding that the proof the victim suffered “serious physical injury” in this assault case insufficient, reduced defendant’s conviction from assault second to assault third. There was evidence the victim suffered a fractured jaw which was wired shut for weeks. But the evidence did not establish a “protracted impairment of health or … function of any bodily organ:”

As to the victim’s injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim’s jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury’s effect on the victim’s daily living to support a finding that he sustained a “protracted impairment of health or . . . of the function of any bodily organ” (Penal Law § 10.00 [10] …). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a “serious physical injury,” as that term is defined in Penal Law § 10.00 (10) … . People v Dillon, 2024 NY Slip Op 05246, Third Dept 10-24-24

Practice Point: Consult this decision to gain some insight into what “serious physical injury” means as an element of Assault 2nd.​

 

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ALTHOUGH THERE WAS PROOF DEFENDANT WAS AWARE THE CO-DEFENDANT POSSESSED A WEAPON, THERE WAS NO PROOF DEFENDANT ACTED AS AN ACCOMPLICE IN THE CO-DEFENDANT’S POSSESSION OF A WEAPON; DEFENDANT’S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCOMPLICE THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined that, although the proof demonstrated defendant’s awareness that the co-defendant possessed a firearm, that awareness alone did not give rise to accomplice liability for the co-defendant’s criminal possession of a weapon: Defendant was convicted after a four-day trial. The Third Department held the conviction was not supported by the weight of the evidence:

We agree with defendant that his conviction is against the weight of the evidence. … [T]he jury could rely on testimony by the People’s witnesses describing defendant’s conduct during the incident as evidence that defendant was aware the codefendant possessed the subject handgun before the codefendant displayed it to those witnesses … . Still, accessorial liability requires evidence directed at the equally important actus reus element, i.e., that ” ‘the accomplice must have intentionally aided the principal in bringing forth a result’ ” … . Here, even though “defendant’s conduct suggested that he may have known that [the codefendant] had a gun, there was no proof that . . . defendant solicited, requested, commanded, importuned, or intentionally aided him to possess the gun” … . What defendant did or said in furtherance of the codefendant’s possession of the subject handgun was left to the jurors’ imaginations … . Such speculation cannot be the basis for defendant’s guilt beyond a reasonable doubt … . People v Goodman, 2024 NY Slip Op 05249, Third Dept 10-24-24

Practice Point: To be convicted of a co-defendant’s criminal possession of a weapon under an accomplice theory, the proof must demonstrate the defendant solicited, requested, commanded, importuned or intentionally aided the co-defendant to possess the gun (in addition to the mens rea, the actus reus must be proven).

 

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THE CRITERIA FOR A COURT-OF-APPEALS REVIEW OF AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE ANALYSIS IS EXPLAINED; HERE DEFENDANT’S MANSLAUGHTER CONVICTION, BASED ENTIRELY ON CIRCUMSTANTIAL EVIDENCE, WAS PROPERLY REVIEWED BY THE APPELLATE DIVISION, WHICH AFFIRMED THE CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurring opinions and an extensive dissenting opinion by Judge Wilson, determined the Appellate Division properly conducted a weight-of-the-evidence review of an entirely circumstantial manslaughter prosecution (affirming the conviction):

Jorge Baque’s five-month-old daughter was found unresponsive in her crib at 6:30 a.m. on July 30, 2016. Despite efforts to resuscitate her, she was declared dead. An autopsy revealed that the victim had sustained injuries consistent with abusive head trauma and violent shaking. Baque was arrested and charged with manslaughter in the second degree and endangering the welfare of a child. * * *

The question before us is whether the Appellate Division erred as a matter of law in conducting its review of the weight of the evidence, in this purely circumstantial case. Weight of the evidence review is a “unique” power afforded to intermediate appellate courts, and one that they exercise regularly … . It requires the Appellate Division to “independently assess all the proof” and “to serve, in effect, as a second jury” … . * * *

This Court reviews a weight of the evidence determination to assess whether the “order and writings of the intermediate appellate court manifest a lack of application of [its] review power” … . “[W]e cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . We have never required the Appellate Division to “manifest its weight of evidence review power by writing in all criminal cases” … . Indeed, the Appellate Division “could have summarily affirmed without explicitly addressing the merits of defendant’s challenge to the weight of the evidence” … . People v Baque, 2024 NY Slip Op 05244, CtApp 10-24-22

Practice Point: This decision is a rare Court-of-Appeals review of an appellate division’s weight-of-the-evidence affirmance of a conviction based entirely on circumstantial evidence. The unique criteria for review by the Court of Appeals is explained.

 

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