Appeals – Page 19 – New York Appellate Digest

AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third Department considered it in the interest of justice. Because defendant had been convicted of two counts which were in the original indictment, those convictions were allowed to stand because the original indictment was never dismissed. The Third Department noted that double jeopardy principles do not attach to a mistrial. The conviction on the third count, which was not in the original indictment, was reversed:

… [B]ecause the court did not, upon declaring the mistrial on the original indictment, “dismiss the indictment or authorize the People to re-present a new indictment to the [g]rand [j]ury[,] . . . the People were limited to retrying defendant upon the same accusatory instrument” … ; thus, the superseding indictment is a nullity … . However, reversal of the judgment of conviction is not required given that both indictments contained two identical counts … . * * * This conclusion, however, does not extend to count 1 of the superseding indictment, charging defendant with criminal possession of a controlled substance in the third degree … , which was not charged in the original indictment; therefore, we reverse that conviction. To the extent that defendant raises double jeopardy concerns, as the first trial ended in a mistrial, double jeopardy principles do not attach … . People v Gentry, 2023 NY Slip Op 03818, Third Dept 7-13-23

Practice Point: If, after a mistrial, the judge does not dismiss the indictment or authorize a new indictment, the original indictment remains. Double jeopardy does not attach.

Practice Point: If, after a mistrial, a superseding indictment is brought without the trial court’s authorization, the superseding indictment is a nullity and the original indictment remains in effect.

July 13, 2023

Appeals, Civil Procedure, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the defendant’s failure to assert the plaintiff’s lack of standing and lack of personal jurisdiction in the answer did not waive those affirmative defenses, Defendant’s motion to amend the answer should have been granted. The court noted that even though RPAPL 1302-a, which provides that the failure to assert plaintiff’s lack of standing in the answer does not waive the defense, had not been enacted at the time the motion below was decided, the statute can be applied on appeal:

RPAPL 1302-a … provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in [RPAPL 1304(6)(a)], shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.” “‘The general rule holds that an appellate court must apply the law as it exists at the time of its decision'” … . Accordingly, RPAPL 1302-a may be considered in connection with the present appeal, even though that statute had not been enacted at the time the relevant orders in this action were decided by the Supreme Court … .

… Although the defendant did not assert lack of personal jurisdiction in her answer and thereby waived this defense under CPLR 3211(e), such a defense can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) … . Deutsche Bank Natl. Trust Co. v Groder, 2023 NY Slip Op 03768, Second Dept 7-12-23

Practice Point: Although defendant in this foreclosure action did not assert the affirmative defenses of lack of standing and lack of personal jurisdiction in the answer, the defenses were not waived and defendant should have been allowed to amend the answer accordingly.

Practice Point: An appellate court can apply the law as it exists at the time of the appellate decision, even where, as here, the relevant statute had not been enacted when the lower court issued its decision.

July 12, 2023

Appeals, Criminal Law, Evidence

THE DEFENDANT’S ACCOMPLICE TO MURDER CONVICTION RESTED ENTIRELY ON THE TESTIMONY OF A JAILHOUSE INFORMANT WHICH WAS AT ODDS WITH THE SURVEILLANCE VIDEO; THE TESTIMONY OF THE INFORMANT WAS REJECTED, RENDERING DEFENDANT’S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s accomplice-to-murder conviction, determined the conviction was against the weight of the evidence. There was evidence the shooter came to and left the area where the shooting took place in a white sedan. Defendant owned a white sedan but it was not possible to tell whether the white sedan in the surveillance video was defendant’s. The People presented the testimony of a jailhouse informant who claimed defendant admitted dropping off and picking up the shooter. But the evidence given by the informant did not comport with the video surveillance of the white sedan and was therefore rejected by the Fourth Department:

… [W]e find that the version of events that the informant attributed to defendant is completely at odds with the video evidence establishing that the codefendant took an efficient, one-block circuitous route from the side street where the white sedan parked to the bar and then back to the sedan. The timing of events as established by the video evidence is too tight to permit any potential diversions or alternate routes to have been taken by the codefendant, much less the irrational choice of running along a busy thoroughfare several blocks away from the white sedan. Further, the informant’s testimony is too specific to permit the conclusion that any inconsistency between it and the video evidence is the innocuous result of an imprecise account. We therefore conclude that this is an appropriate case to substitute our own credibility determination for that made by the jury and find that the informant’s testimony is not credible ,,, . Absent the informant’s testimony, there is no evidence from which to reasonably infer that defendant shared the codefendant’s intent to cause the death of another person … or that defendant knew that the codefendant was armed at the time defendant transported him to the bar … . People v Ramos, 2023 NY Slip Op 03755, Fourth Dept 7-6-23

Practice Point: This decision is a clear example of the difference between a “legal sufficiency of the evidence” and a “weight of the evidence” analysis. Here the informant’s testimony describing a jailhouse confession by the defendant rendered the evidence legally sufficient. However the informant’s testimony was deemed incredible because it conflicted with the video evidence. The informant’s testimony was rejected by the appellate court rendering the conviction against the weight of the evidence.

Practice Point: If you search this website by clicking on the category “Criminal Law” and type “weight of the evidence” in the search bar, you will find many cases which are decided using the “weight of the evidence” label but which actually find the evidence legally insufficient. Appellate courts are now willing to reverse convictions as against the weight of the evidence where the legal sufficiency argument was not raised in the trial order of dismissal motion or where the TOD motion was not renewed upon the close of proof. Therefore, if there are deficiencies in the proof at trial, even if the legal insufficiency argument cannot be raised on appeal because it was not preserved, the “weight of the evidence” argument should be raised.

July 6, 2023

Appeals, Human Rights Law, Landlord-Tenant, Municipal Law

THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been avoided had it been raised below:

Executive Law § 296 (5) (a) (2) provides in relevant part that it “shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof . . . [t]o discriminate against any person because of . . . lawful source of income . . . in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.” Plaintiff alleged in its amended complaint that it sent two testers to defendants’ properties seeking to rent the properties. The testers asked defendants if they accepted security agreements, which are issued by the Erie County Department of Social Services to landlords in the amount of one month’s rent in lieu of a cash deposit. Defendants responded that they accepted those agreements, but that they also required tenants to put down a cash deposit of one-half of a month’s rent for the security deposit.

… The allegations in the amended complaint support the inference that, for a person whose lawful source of income is public assistance … , defendants imposed a different term or condition for the rental than for a person whose lawful source of income was not public assistance. In particular, for a person on public assistance, defendants required one-half’s month rent, in cash, as a security deposit in addition to the security agreements. Housing Opportunities Made Equal v DASA Props. LLC, 2023 NY Slip Op 03607, Fourth Dept 6-30-23

Practice Point: The Executive Law prohibits landlords from discriminating against potential tenants by requiring a cash deposit in addition to security agreements issued by the county.

Practice Point: An issue not raised below will be considered on appeal if it presents a question of law which could not have been avoided if raised below.

June 30, 2023

Appeals, Criminal Law, Evidence, Vehicle and Traffic Law

THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the People did not demonstrate the legality of the street stop at the suppression hearing. The police had a warrant to search defendant’s apartment and anyone in it. Before the warrant was executed, the defendant left the apartment and the SWAT team stopped him. The People relied on the allegation that defendant was violating the Vehicle and Traffic Law at the time of the stop by walking in the middle of the street. The Fourth Department found the evidence of a Vehicle and Traffic Law violation was insufficient. Therefore the People failed to demonstrate the legality of the police conduct:

… [W]here the issue presented is whether the People have demonstrated “the minimum showing necessary” to establish the legality of police conduct, “a question of law is presented for [our] review” … . Here, the court refused to suppress the physical evidence on the ground that the officers’ observation of defendant walking in the roadway provided probable cause for them to believe that defendant had violated the Vehicle and Traffic Law, which justified the initial stop and the subsequent pursuit of defendant. Vehicle and Traffic Law § 1156 (a) requires that, “[w]here sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.” Here, when asked at the suppression hearing if he had seen defendant “doing anything illegal,” the testifying police officer responded, “[o]ther than walking down the center of the road, no.” Even assuming, arguendo, that we can infer the presence of a sidewalk based on the officer’s response, we conclude that the People failed to establish that a sidewalk was available and that it could “be used with safety” …, especially when considering that defendant was stopped in January in central New York. Nor did the People establish that defendant, by walking “down the center of the road,” violated section 1156 (b), which requires a pedestrian, where sidewalks are not provided, to “walk only on the left side of the roadway or its shoulder facing traffic” inasmuch as a pedestrian is only required to do so “when practicable.” Thus, we agree with defendant that, under the circumstances of this case, the People failed to meet their burden of establishing the legality of the police conduct. People v Montgomery, 2023 NY Slip Op 03606, Fourth Dept 6-30-23

Practice Point: At a suppression hearing the People have the initial burden of demonstrating the legality of the police conduct. That issue is a question of law which can be reviewed by an appellate court. Here the stop was based on the allegation defendant violated the Vehicle and Traffic Law by walking in the middle of the street. The People made no attempt to show there were sidewalks or, if there were sidewalks, that they were passable in January. The Vehicle and Traffic Law violation was not supported by sufficient proof. The People therefore did not prove the legality of the police conduct and the suppression motion should have been granted.

June 30, 2023

Appeals, Criminal Law, Judges

THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s robbery conviction and ordering a new trial, determined the trial judge acted as an advocate for the prosecution when questioning witnesses. The issue was not preserved but the Second Department exercised its interest of justice jurisdiction:

“[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of the trial, and, if necessary, to develop factual information,” so long as the judge does not take on the function or appearance of an advocate … . Here, the Supreme Court engaged in its own lines of inquiry, which detailed the nature of the surveillance equipment tracking the defendant, elicited a detailed description of the perpetrator and the bags he was carrying, and what the perpetrator was observed doing on the video surveillance camera, asked leading questions as to what the guard saw and heard as the perpetrator left the store and triggered the store alarm, and noted that when the guard approached the perpetrator and asked for the merchandise back, the guard even said, “please,” but the perpetrator still refused to return the items.

The Supreme Court also repeated the perpetrator’s allegedly threatening language, “[K]eep going or watch what’s going to happen to you,” and noted that it looked like the perpetrator was reaching for something and the guard did not want to find out what it was. During the direct examination of the arresting officer, the court elicited the fact that the officer observed a duffel bag containing the stolen property on the subway platform next to the defendant.

Viewing the record as a whole, the Supreme Court took on the function and appearance of an advocate, at times even engaging in a running commentary on the testimony against the defendant. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … . People v Pulliam, 2023 NY Slip Op 03482, Second Dept 6-28-23

Practice Point: A trial judge can ask questions of witnesses but cannot take on the appearance of an advocate for the prosecution.

June 28, 2023

Appeals, Criminal Law

THE WASHINGTON DC ATTEMPT TO COMMIT ROBBERY CONVICTION COULD NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION IN NEW YORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined a Washington DC offense could not be the basis of a second felony offender adjudication. Although the issue was not preserved, the court exercised its interest of justice jurisdiction:

… [T]he defendant’s conviction of attempt to commit robbery in Washington, D.C., cannot be used as a predicate felony in New York (see People v Jurgins, 26 NY3d 607, 614-615; see also Penal Law §§ 70.06[1][b][i]; 160.00, 110.00; DC Code §§ 22-2801, 22-2802). Accordingly, we modify the judgment by vacating the defendant’s adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter … for resentencing. People v Blaker, 2023 NY Slip Op 03472, Second Dept 6-28-23

Practice Point: The Washington DC attempt to commit robbery conviction could not be the basis for a second felony offender adjudication in New York.

June 28, 2023

Appeals, Civil Procedure, Family Law

NO APPEAL LIES FROM AN ORDER ISSUED ON DEFAULT, A MOTION TO VACATE IS THE ONLY REMEDY; NO APPEAL LIES FROM AN ORDER ISSUED ON CONSENT (FIRST DEPT).

The First Department, dismissing the appeal in this custody case, determined (1) no appeal lies from an order issued on mother’s default, and (2) no appeal lies from an order entered with mother’s consent:

Because the fact-finding order was issued on the mother’s default, it is not appealable as of right and her remedy was to move to vacate (CPLR 5511 …). Although the mother appeared on the final date of the inquest after petitioner’s witnesses had testified, she was not present during the majority of the fact-finding hearing, and her counsel was not authorized to proceed in her absence … . The mother also did not offer any evidence or seek to testify.

Furthermore, no appeal lies from the dispositional order, as it was entered on the mother’s consent and she is therefore not an aggrieved party under CPLR 5511 … . Matter of P. A. (Joseph M.), 2023 NY Slip Op 03432, First Dept 6-27-23

Practice Point: No appeal lies from an order issued on default. The only available remedy is a motion to vacate the default.

Practice Point: No appeal lies from an order issued on consent because the consenting party is not “aggrieved.”

June 27, 2023

Appeals, Criminal Law, Judges

THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid:

… [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . …

Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy’s mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if she could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction” … . People v Shea’Honnie D., 2023 NY Slip Op 03137, Fourth Dept 6-9-23

Practice Point: A waiver of appeal is not absolute and the judge’s characterizing a waiver as absolute invalidates it.

June 9, 2023

Appeals, Criminal Law, Evidence

THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT).

The First Department, exercising its interest of justice jurisdiction, reversing defendant’s manslaughter conviction, determined the People did not disprove defendant’s justification defense. The fact that, during a shoot-out, the victim was shot in the back was not enough:

“When a defense of justification is raised, the People must prove beyond a reasonable doubt that [the] defendant’s conduct was not justified. In other words, the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” … . In this case, the evidence regarding which man initiated the gunfire was equivocal at best. Valentin, the lone eyewitness, testified that she did not know who fired first. Footage from numerous surveillance cameras, each of which captured only part of the scene, did not answer that question, nor did the ballistic evidence. There was no evidence that defendant approached displaying a firearm. Rather, the evidence strongly suggests that [the victim] was the first person to do so.

In this case, we do not believe that the mere fact that the victim was shot in the back establishes that defendant was the initial aggressor, or that he did not reasonably believe that deadly physical force was still being used against him at the time he fired the fatal shot. Under the totality of the evidence, the fact that [the victim] had his back turned to defendant at the moment when he was shot does not establish that he was withdrawing from the gunfight or running away. People v Skeeter, 2023 NY Slip Op 02946, First Dept 6-1-23

Practice Point: When the justification defense is raised, the People must disprove it beyond a reasonable doubt. Here the fact that the victim was shot in the back during a shoot-out was not enough to disprove the defense.

June 1, 2023