Appeals – Page 17 – New York Appellate Digest

NONE OF THE ESPINAL EXCEPTIONS APPLIED TO THE DEFENDANT FIRE SAFETY AND SECURITY CONTRACTOR IN THIS SLIP AND FALL CASE; THEREFORE THE CONTRACTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED; THE ISSUE WAS PROPERLY CONSIDERED ON APPEAL, DESPITE THE FAILURE TO RAISE IT BELOW, BECAUSE IT CONCERNED A QUESTION OF LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant fire safety and security contractor’s motion for summary judgment in this slip and fall case should have been granted. It was alleged the steps where plaintiff fell were in disrepair and were not sufficiently illuminated, which had nothing to do with defendant-contractor’s duties. Therefore the contractor did not “launch and instrument of harm,” plaintiff could not have relied upon the contractor to make the area safe, and the contractor’s contract with the owner did not displace the owner’s safety-related responsibilities:

Unity, the building’s fire safety and security contractor, should have been granted summary judgment. Even assuming that Unity’s contractual fire safety inspection duties extended to the identification of premises defects such as the broken step involved in plaintiff’s mishap, any failure by Unity to identify that defect would not have constituted the affirmative launching of a force or instrument of harm within the meaning of Espinal … . The same is true of any failure by Unity to call attention to insufficient lighting of the stairway. Further, Unity’s contract did not completely displace the duty of the owner or managing agent to maintain the safety of the premises … . Nor is there any evidence that plaintiff detrimentally relied on Unity to perform its contractual duties. Accordingly, on this record, none of the Espinal conditions for holding a premises contractor liable for an injury to a third party are satisfied with respect to Unity. Diamond v TF Cornerstone Inc., 2023 NY Slip Op 06473, First Dept 12-19-23

Practice Point: Here none of the Espinal exceptions applied such that the contractor could be held liable for the slip and fall.

Practice Point: Although the “Espinal” issue was not raised below, it could be raised on appeal because it presented a question of law.

December 19, 2023

Appeals, Criminal Law, Vehicle and Traffic Law

THE DRIVER’S LICENSE SUSPENSION REFORM ACT (DLSRA), WHICH ELIMINATED LICENSE SUSPENSIONS FOR FAILURE TO PAY A FINE, DOES NOT VACATE UNLICENSED-OPERATION CONVICTIONS BASED UPON THE FAILURE TO PAY A FINE AND DOES NOT APPLY RETROACTIVELY; THE APPEAL WAIVER HERE WAS INVALID BECAUSE IT SUGGESTED DEFENDANT COULD NOT FILE A NOTICE OF APPEAL (FIRST DEPT).

The First Department, affirming defendant’s unlicensed operation of a vehicle conviction, in a full-fledged opinion by Justice Webber, determined the Driver’s License Suspension Reform Act (DLSRA) did not vacate defendant’s conviction. The DLSRA eliminated the failure to pay a fine as a basis for suspension of a driver’s license and does not apply retroactively. Defendants’ waiver of appeal was deemed invalid because the written waiver indicated a notice of appeal could not be filed:

… [T]he written waiver of appeal contained language … suggesting that the defendant was barred from even filing a notice of appeal … . The People contend that because they did not enforce the language stating that defendant’s appeal would be deemed a motion to vacate, the oral colloquy at the sentencing hearing cures the defect in the written waiver or otherwise renders defendant’s waiver valid. This contention is without merit … . …

The DLSRA amended Vehicle and Traffic Law § 510(4-a) to remove the failure to pay a fine as a basis for the suspension of a driver’s license … . The Legislative intent was to lift suspensions of licenses and lessen the financial burdens on the defendants by structuring an affordable installment payment plan … .

Nothing in the statutory language, which is the “clearest indicator of legislative intent” suggests that there was any intent to authorize the vacatur of convictions under Vehicle and Traffic Law § 511 that arose from license suspensions predicated on failures to pay a fine … . People v Castro, 2023 NY Slip Op 06452, First Dept 12-14-23

Practice Point: The Driver’s License Suspension Reform Act (DLSRA) does not vacate unlicensed-operation convictions stemming from a failure to pay a fine and does not apply retroactively.

Practice Point: A written waiver of appeal which indicates a notice of appeal cannot be filed is invalid.

December 14, 2023

Appeals, Criminal Law, Evidence

THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT; ASSAULT FIRST REDUCED TO ASSAULT SECOND; THE ISSUE WAS NOT PRESERVED (NO TRIAL ORDER OF DISMISSAL MOTION?) BUT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s assault first conviction to assault second, determined the evidence of serious disfigurement was legally insufficient. The issue was not preserved (no motion for a trial order of dismissal on the issue?) but was considered on appeal in the interest of justice:

The People failed to demonstrate that the victim, who sustained a two-to-three-centimeter laceration on her forehead, which required three stitches and resulted in a small scar, suffered a serious disfigurement … . Accordingly, the convictions on those counts must be vacated. However, because the evidence sufficed to prove that the victim suffered a physical injury (Penal Law § 10.00[9]), we reduce the second-degree assault conviction to third-degree assault (Penal Law § 120.00[1]). People v Murray, 2023 NY Slip Op 06454, First Dept 12-14-23

Practice Point: If there is a “legally insufficient evidence” issue, raise it on appeal even if the issue was not preserved by a motion for a trial order of dismissal. The issue may be addressed in the interest of justice.

December 14, 2023

Appeals, Constitutional Law, Criminal Law, Immigration Law, Judges

THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas:

The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … .

… [W]e remit the matters to the Supreme Court … to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty and, if so, its determination as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Jean, 2023 NY Slip Op 06380, Second Dept 12-13-23

Practice Point: If the record does not demonstrate a defendant was aware of the deportation consequences of a guilty plea, the matter will be remitted to give the defendant the opportunity to move to vacate the plea. The issue need not be preserved for appeal.

December 13, 2023

Appeals, Civil Procedure

ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) despite the fact that the plaintiffs indicated they do not contest the appeals and will not pursue the action which had been dismissed, the appeals are not moot because the dismissal may affect related actions against the defendants; and (2) the plaintiff’s summary judgment motion, brought before the defendants had answered the amended complaint, was premature:

While plaintiffs do not contest the appeals and have represented that they will not be pursuing the underlying litigation, this does not render defendants’ appeals moot. The mootness doctrine will deprive a court of the ability to review a case where a change in circumstances between the parties has eliminated the controversy that once existed … . However, an appeal is not moot where “the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . Defendants have the right to appeal the order addressing the motion to dismiss because it may serve as unfavorable precedent in related cases that have been brought against them. Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 06314, First Dept 12-7-23

Practice Point: An appeal is not moot when it is not contested if the order appealed from could affect related actions against the appellants.

December 7, 2023

Appeals, Civil Procedure

THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:

Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …

Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … . OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23

Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.

November 29, 2023

Appeals, Criminal Law, Evidence

A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),

The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. There was no evidence anyone got out of the car on the driver’s side. The defendant was found by the police lying in the grass near the car. Two of the people who got out of the car were dressed in clothes similar to those seen in the poor-quality video of the shooting:

“[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” … . Viewing the evidence in a neutral light, the People failed to prove beyond a reasonable doubt that defendant was the shooter. The conviction must therefore be reversed as the verdict is against the weight of the evidence … . People v Jones, 2023 NY Slip Op 06007, Third Dept 11-22-23

Practice Point: This decision demonstrates the difference between “legally sufficient evidence,” which will get by a motion for a trial order of dismissal, and a “weight of the evidence” analysis which results in reversal despite the presence of “legally sufficient evidence.” Two occupants of the car which was involved in the shooting had clothes similar to the clothes worn by the shooter as seen in a poor quality video. Although the driver was the shooter, there was no evidence anyone got out of the driver’s side of the car after it was stopped. The People therefore did not prove the identity of the shooter beyond a reasonable doubt. The conviction was supported by “legally sufficient evidence.” But the conviction was reversed as “against the weight of the evidence.”

November 22, 2023

Appeals, Criminal Law, Judges

THE SENTENCE FOR MANSLAUGHTER SHOULD NOT HAVE BEEN BASED UPON THE INTENT TO KILL WHICH IS NOT AN ELEMENT OF THE CRIME; THE SENTENCES FOR MANSLAUGHTER AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY; REMANDED FOR RESENTENCING (FIRST DEPT).

The First Department, remanding the matter for resentencing, determined the judge improperly based the sentence for manslaughter on the belief defendant intended to kill the victim. Intent to kill is not an element of manslaughter. It is an element of murder second degree. Defendant was acquitted of murder second degree. In addition, the judge should not have imposed consecutive sentences for manslaughter and possession of a weapon:

… [T]he court improperly based the sentence on the manslaughter conviction on its stated belief that defendant intended to kill the victim. Intent to kill is an element of murder in the second degree, of which defendant was acquitted, and not manslaughter in the first degree, of which defendant was convicted … . Because the sentence was based on conduct of which defendant had been acquitted, resentencing on the manslaughter conviction is required … . Although defendant’s challenge to this sentence is unpreserved, we reach it in the exercise of our interest of justice power … .

… [t]he imposition of consecutive sentences on the conviction for manslaughter and the conviction for simple possession of a weapon under Penal Law § 265.03(3) was improper. The sentences should have run concurrently, since the People did not demonstrate that the act of weapon possession was separate from the act of manslaughter … . There was no evidence presented at the trial establishing that defendant possessed the firearm before shooting the victim … . People v Anonymous, 2023 NY Slip Op 05990, First Dept 11-21-23

Practice Point: The defendant was acquitted of second degree murder and convicted of manslaughter. The judge erroneously sentence defendant based on the belief defendant intended to kill the victim. But intent to kill is not an element of manslaughter. Resentencing was required.

Practice Point: There was no evidence the possession of a weapon by defendant was separate from the conduct underlying the manslaughter conviction. Therefore the sentences should not have been imposed consecutively.

November 21, 2023

Appeals, Constitutional Law, Criminal Law, Evidence, Judges

DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissent, rejected defendant’s challenges to the inventory search and to purported prejudicial testimony allowed by the trial judge. Defendant’s constitutional challenge to New York’s weapons-possession regime rejected as unpreserved:

Defendant Carlos L. David challenges his conviction for two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several grounds. He argues that the police recovered the handguns that gave rise to his conviction during an invalid inventory search, and that Supreme Court improperly allowed prejudicial testimony at his trial. Neither argument provides grounds for reversal. David additionally argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for the reasons set forth below, we do not reach it. People v David, 2023 NY Slip Op 05970, CtApp 11-21-23

Practice Point: The constitutional challenges to New York’s weapons-possession regime rejected as unpreserved.

November 21, 2023

Appeals, Attorneys, Constitutional Law, Criminal Law

DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:

Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *

From the dissent:

The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23

Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.

Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.

Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.

November 21, 2023

THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT; ASSAULT FIRST REDUCED TO ASSAULT SECOND; THE ISSUE WAS NOT PRESERVED (NO TRIAL ORDER OF DISMISSAL MOTION?) BUT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

THE SENTENCE FOR MANSLAUGHTER SHOULD NOT HAVE BEEN BASED UPON THE INTENT TO KILL WHICH IS NOT AN ELEMENT OF THE CRIME; THE SENTENCES FOR MANSLAUGHTER AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY; REMANDED FOR RESENTENCING (FIRST DEPT).

DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP).

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