You are here: / Appeals
,

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

 

,

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

 

, ,

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

 

,

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

 

,

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

 

,

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

 

,

Waiver of Appeal Invalid

The Second Department determined defendant’s waiver of his right to appeal, which included a written waiver, was invalid:

A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” … . ” Though a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, a trial court must make certain that a defendant’s understanding’ of the waiver . . . is evident on the face of the record” … . Further, it must be made clear to the defendant that an appeal waiver ” is separate and distinct from those rights automatically forfeited upon a plea of guilty'” … . “A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement'” … .

Here, although the defendant executed a written waiver of his right to appeal, the defendant’s understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the oral colloquy conducted by the Supreme Court in light of the absence of any mention of the waiver during the discussion of the terms of the plea. After the plea agreement had been reached, the court told the defendant that “[b]efore I accept your plea, you need to sign a waiver of your right to appeal.” First, the court’s “terse colloquy [which included this mandatory-sounding language] at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal” … . Second, the court suggested that the right to appeal is automatically forfeited upon pleading guilty when it advised the defendant that the written appeal waiver “tells me you understand the rights you have waived by pleading guilty” … . Accordingly, under these circumstances, including the defendant’s relative inexperience with the criminal justice system …, the defendant’s appeal waiver was invalid … .  People v Pressley, 2014 NY Slip Op 02461, 2nd Dept 4-9-14

 

, ,

Appeals Not Pursued for a Decade or More Properly Dismissed

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined, with respect to three of four defendants, dismissal of the appeals was appropriate. The appeals were not pursued for more than a decade, in one case more than two decades, after the filing of the notices of appeal, and the excuses for inaction were found insufficient.  With respect to the fourth defendant, counsel had never reviewed the record. Therefore, defendant’s right to appellate counsel had not been honored. The matter was sent back for the appointment of appellate counsel and submissions, after which the motion to dismiss the appeal could be properly considered.  People v Perez, 2014 NY Slip Op 02326, CtApp 4-3-13

 

,

Failure to Prove Shared Intent (Accessorial Liability) Required Dismissal of Robbery Counts Under a Weight of the Evidence Analysis

The Second Department, after a weight of the evidence review, determined there was insufficient proof defendant shared the intent to commit the robbery and dismissed the relevant counts of the indictment:

Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. “To sustain a conviction based upon accessorial liability, the evidence . . . must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime'” (…see Penal Law § 20.00…).Upon the exercise of our factual review power (see CPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded … . The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed … . People v Marchena, 2014 NY Slip Op 02312, 2nd Dept 4-2-14

 

,

Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness’ Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant’s request for an “accomplice-in-fact” jury instruction.  The defendant’s conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness.  The Court of Appeals found that there was enough evidence of the eyewitness’ participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness’ credibility accordingly.  The Court explained the “accomplice as a matter of law” and “accomplice-in-fact” theories:

An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution … . * * *

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement … . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve… . * * *

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime …, or otherwise confirms participation or assisting in the charged crime … .

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice … .  * * *  The propriety of a jury instruction is reviewable as a matter of law… .  People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy