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Appeal Rendered Academic by Failure to Move for a Preliminary Injunction Pending Appeal

The Second Department determined the appeal had been rendered academic because the appellant did not move for a preliminary injunction pending appeal and the related development project had been completed:

In order to preserve the status quo pending the determination of this appeal, the petitioner/plaintiff was required to move in this Court pursuant to CPLR 5518 for a preliminary injunction pending appeal, prohibiting the development of the subject real property. Since the petitioner/plaintiff failed to do so, it failed to preserve its rights pending appellate review. In the absence of a preliminary injunction issued pursuant to CPLR 5518, nonparty 405 Hotel, LLC, purchased and redeveloped the subject property, and a hotel is now operated thereon. By virtue of this change in the underlying circumstances, this Court has been prevented “from rendering a decision that would effectively determine an actual controversy” … .  Matter of Yeshiva Gedolah Academy of Beth Aaron Synogogue v City of Long Beach, 2014 NY Slip Op 04502, 2nd Dept 6-18-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14

 

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Records of Criminal Proceedings Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Accessed by the Commission on Judicial Misconduct Investigating the Alleged Misconduct of a Judge—The Law Surrounding the Sealing of Criminal Records Explained—Mootness Doctrine Explained

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the Commission on Judicial Conduct is authorized under the Judiciary Law to request records of a criminal matters sealed under Criminal Procedure law 160.50 for use in its investigations.  In the course of the opinion, the court explained why the case before it could not be considered moot (the Court of Appeals can hear only “live”cases). The appellant is an attorney who had been charged, along with a judge, with crimes related to the judge's election campaign.  The Commission sought the sealed records of those criminal proceedings, which had ended in dismissal and acquittal.  The appellant opposed release of the records:

…[A]bsent “extraordinary circumstances” …, a specific grant of power …, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records …, sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and “narrowly defined” in CPL 160.50 (1) (d) … .

Given the Commission's broad powers under the Judiciary Law, specifically its authority under Judiciary Law § 42 (3) to request and receive a wide range of records and data, and its constitutional duties and obligations to ensure the integrity of the judicial system by investigating and sanctioning judicial misconduct, we conclude that the Commission may obtain documents sealed pursuant to CPL 160.50. Continued public confidence in the judiciary is of [*9]singular importance, and can be furthered only by permitting the Commission access to information that allows it to quickly identify and respond to judicial misconduct, including criminal behavior, abuse of power, corruption, and other actions in violation of laws applicable to judges. Matter of New York State Commission on Jud Conduct v Rubenstein, 2014 NY Slip Op 04118, CtApp 6-10-14

 

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Record Did Not Support Striking the Answer for the Spoliation of Evidence

The First Department, over a partial and a full dissent, determined the extreme sanction of striking defendant’s answer and instructing the jury the lost evidence would have supported plaintiff’s position was not appropriate under the facts. Electronically stored information (ESI) had been lost.  The court rejected the argument that the failure to issue a written “litigation hold” to preserve the evidence constituted per se gross negligence.  Instead the court found that the record supported at most simple negligence.  The court explained the operative criteria and its appellate powers in this context:

“A party seeking sanctions based on the spoliation of evidence must demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and finally, (3) that the destroyed evidence was relevant to the [moving]; party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … .

Further, “[w];hile discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . * * *

Because the record supports, at most, a finding of simple negligence against the MP defendants, plaintiffs must prove that the lost ESI would have supported their claims … . This they have failed to do … . Pegasus Aviation I Inc, v Varig Logistica SA, 2014 NY Slip Op 04047, 1st Dept 6-5-14

 

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Loss of Small Portion of Stenographic Record Did Not Require Reversal

The First Department noted that the loss of some of the stenographic minutes of a trial did not require reversal. The trial court had conducted a reconstruction hearing:

The loss of a relatively small portion of the stenographic record does not require reversal of defendants’ convictions … . The court conducted a reconstruction hearing at which various participants in the trial presented their recollections, to the extent possible, of the brief portions of the trial for which minutes are not available. When viewed in light of the presumption of regularity (id. at 796), the facts adduced at the reconstruction hearing regarding the missing pages support an inference that the missing minutes would not have revealed any significant appellate issues. People v Negron, 2014 NY Slip Op 03752, 1st Dept 5-22-14

 

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Violation of Right to Counsel Deemed Harmless Error

The Second Department noted that a violation of a defendant’s right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant’s right to counsel was violated when the police questioned him, but found the error harmless:

The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation … . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody … . “An attorney enters’ a case by actually appearing or directly communicating with the police by telephone” … . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant’s family … . * * *

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations … . Constitutional errors are “considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt … . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother’s Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So

After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother’s superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:

Notwithstanding Family Court’s failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed … . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother’s home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother’s health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother’s health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.

It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother’s trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner’s care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14

 

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Weight of the Evidence Review Required Reversal

The Second Department determined the defendant’s conviction was not supported by the weight of the evidence—there were too many unexplained problems in the People’s proof:

Although great deference is accorded the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor …, objective facts, which were not adequately explained, cast doubt upon the officers’ credibility, including the loss of the arresting officer’s memo book, the fact that the ammunition allegedly retrieved from the gun was only submitted to the police laboratory for analysis five days after the gun was submitted for analysis, and the fact that a photograph of the gun was exhibited in the precinct with a caption referring to a white lie. Further, the eyewitness who initially called the police to the scene testified at the trial that the man involved in the incident was not the defendant, and that the police arrested the wrong man. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt. Thus, the judgment must be reversed and the indictment dismissed… . People v Battle, 2014 NY Slip Op 02447, 2nd Dept 4-9-14

 

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