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PARTY ADMISSIONS WERE NOT HEARSAY AND SHOULD HAVE BEEN CONSIDERED BY SUPREME COURT IN THIS LABOR LAW 240(1), 241(6), 200 ACTION; THE “PARTY-ADMISSIONS” ARGUMENT, ALTHOUGH NOT RAISED BEFORE SUPREME COURT, CAN BE CONSIDERED AND DEEMED DISPOSITIVE ON APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined many of the causes of action in this Labor Law 240(1), 241(6) and 200 action should not have been dismissed. Plaintiff’s decedent, Rosa, was electrocuted when working on live electrical equipment. Rosa’s boss, Cuevas (the building manager), testified he told Rosa not to work on the live equipment until he returned with rubber insulation and shut down the power to the building. Decedent’s daughter, however, testified Cuevas told her Rosa had to do the work with the power on because there was an upcoming inspection. Cuevas’ statement was deemed admissible as a party admission and should have been considered by Supreme Court. The “party-admissions” argument was raised for the first time on appeal:

When “a party raises a legal issue for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit review, this Court may consider the new argument” … . We may also consider this testimony in our discretion because [defendants] also relied on it in support of their summary judgment motion … . …

… [P]laintiff testified to postaccident conversations that Cuevas had with her when he visited Rosa in the hospital, when he admitted to plaintiff that Rosa had to perform the bus duct work without shutting down the electricity because of the imminently scheduled building inspection, so as not to inconvenience the tenants, and to avoid any complaints attendant to a service interruption, such as a lack of elevator service. Cuevas never denied either having those conversations with plaintiff in the hospital or making those statements…. . In any event, assuming hypothetically that these statements were inadmissible hearsay, they may still be considered as they are not the only evidence in this record that the electricity was not shut down when Rosa performed the duct work … . Rosa v 47 E. 34th St. (NY), L.P., 2022 NY Slip Op 05144, First Dept 9-13-22

Practice Point: Party admissions are not hearsay. A legal issue (here “inadmissible hearsay” versus “party admission”) raised for the first time on appeal may be considered where, as here, the record is sufficient and the issue is determinative.

 

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APPEAL FROM A DENIAL OF A MOTION TO REARGUE CONSIDERED DESPITE THE DISMISSAL OF THE APPEAL FROM THE INITIAL DENIAL OF SUMMARY JUDGMENT FOR FAILURE TO PROSECUTE; PLAINTIFF’S LABOR LAW240(1) CAUSE OF ACTION STEMMING FROM A FALL INTO A PIT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the appeal from the denial of a motion to reargue would be considered even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute; (2) the Labor Law 240(1) cause of action stemming from plaintiff’s fall into a pit should not have been dismissed:

“As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so” … . Since the plaintiff appealed from an order superseding the prior order appealed from at a time before the prior appeal was deemed dismissed, we exercise that discretion here. …

… [T]he defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action … . Contrary to the defendants’ contention, the risk of falling into a 16-foot pit on an excavation site is a type of elevation-related risk within the purview of protection of Labor Law § 240(1) … . Furthermore, the defendants failed to establish, prima facie, that the plaintiff’s negligence was the sole proximate cause of his injuries. The deposition testimony of the plaintiff and the foreman, which were submitted in support of the defendants’ motion, contain conflicting testimony raising a triable issue of fact as to whether the plaintiff received instructions not to stand within five feet of the pit. The defendants also did not establish, prima facie, that the installation of a protective device “would have been contrary to the objectives of the work” … . Thorpe v One Page Park, LLC, 2022 NY Slip Op 05053, Second Dept 8-24-22

Practice Point: Here the appellate court exercised its discretion to hear an appeal from the denial of a motion to reargue, even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute.

Practice Point: Plaintiff’s Labor Law 240(1) cause of action stemming from his fall into a pit should not have been dismissed.

 

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HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY, ATTEMPTED TO CHALLENGE HIS CERTIFICATION AS A SEX OFFENDER, PRONOUNCED AT SENTENCING, IN THE SORA RISK-LEVEL ASSESSMENT PROCEEDING; THE SEX OFFENDER CERTIFICATION WAS DEEMED TO BE PART OF THE JUDGMENT OF CONVICTION WHICH CAN ONLY BE CHALLENGED ON DIRECT APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the defendant could not challenge his certification as a sex offender at the SORA risk-level-assessment proceeding. The sex-offender certification is part of the judgment of conviction which must be challenged on direct appeal. Here the defendant pled guilty to burglary as a sexually motivated felony and was designated a sex offender at sentencing.

… [W]e take this opportunity to pronounce that where, as here, a defendant challenges certification on the ground that the underlying New York conviction is for an offense which does not require registration under SORA, the issue is one which is properly raised on a direct appeal from the judgment of conviction, not on an appeal from an order designating his or her sex offender risk level…. . People v Matos, 2022 NY Slip Op 04984, Second Dept 8-17-22

Practice Point: Here the defendant was certified as a sex offender at sentencing for burglary as a sexually motivated felony. He attempted to challenge the certification at the SORA risk-level-assessment proceeding. The Second Department, like the First Department, held the sex offender certification was part of the judgment of conviction and can only be challenged by direct appeal.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A ONE-DAY ADJOURNMENT TO ALLOW HIS DAUGHTER TO TRAVEL TO COURT TO TESTIFY, COUPLED WITH THE RELATED GRANT OF THE PEOPLE’S REQUEST FOR A MISSING-WITNESS JURY INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the judge’s denial of defendant’s request for a one-day adjournment to allow defendant’s daughter to travel to court to testimony, and the grant of the People’s related request for a missing witness jury instruction, deprived defendant of a fair trial:

“[W]hen the witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” … . Under the circumstances here, the Supreme Court should have granted a one-day continuance for the defendant’s daughter to travel to New York from out of state … . The failure to grant this continuance cannot be considered harmless error, as there was conflicting testimony as to the defendant’s whereabouts at the time of the robbery … . …

Although the defendant’s contention that the Supreme Court improvidently exercised its discretion in granting the prosecution’s request for a missing witness charge is unpreserved for appellate review … , this issue is inextricably linked with the denial of the defendant’s request for a continuance, and this Court will consider the issue in the exercise of our interest of justice jurisdiction … .  “The failure to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge, ‘[r]ather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him [or her], and that the witness is available to such party'” … . People v Reeves, 2022 NY Slip Op 04979, Second Dept 8-17-22

Practice Point: The request for a one-day adjournment to allow defendant’s daughter to travel to court to give ostensibly relevant testimony (re: defendant’s whereabouts at the time of the robbery), coupled with the grant of the People’s request to give the missing-witness jury instruction, deprived defendant of a fair trial. The jury-instruction issue was not preserved and was considered in the interest of justice.

 

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MARIJUANA AND GRAVITY-KNIFE CONVICTIONS VACATED IN THE INTEREST OF JUSTICE BECAUSE THE “OFFENSES” HAVE BEEN DECRIMINALIZED (SECOND DEPT).

The Second Department vacated defendant’s marijuana and gravity-knife convictions because the “offenses” had been decriminalized:

The defendant’s conviction of criminal possession of marihuana in the third degree “‘became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,'” pursuant to CPL 160.50(5) … . Consequently, the appeal from so much of the judgment as convicted the defendant of criminal possession of marihuana in the third degree must be dismissed as academic … . * * *

The defendant contends that the conviction of criminal possession of a weapon in the fourth degree predicated on the defendant’s possession of a gravity knife should be vacated because Penal Law § 265.01(1) has since been amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be modified by vacating that conviction. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 … , under the circumstances of this case, we vacate that conviction and the sentence imposed thereon, and dismiss that count of the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Lester, 2022 NY Slip Op 04977, Second Dept 8-17-22

Practice Point: Here the marijuana and gravity-knife convictions were vacated in the interest of justice because the offenses had been decriminalized. The gravity-knife conviction was vacated even though the offense was not decriminalized at the time of its commission.

 

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A JURY NOTE WHICH REQUIRES NO ACTION BY THE COURT NEED NOT BE SHARED WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department determined there was no need for the judge to notify defense counsel of a jury note which did not require any action by the court, Also, jury notes requesting exhibits did not need to be shared with counsel because counsel agreed at the outset of deliberations that the jury could request exhibits:

In the defendant’s view, the Supreme Court’s failure to read note 6 into the record constituted a mode of proceedings error. We disagree.

Note 6 did not request “further instruction or information with respect to the law, [or] with respect to the content or substance of any trial evidence” (CPL 310.30). Nor did it indicate that the jury was deadlocked or struggling to reach a verdict on any or all of the counts submitted to it, or otherwise apprise the court of a significant development in the deliberations … . All the note conveyed was that the jury was continuing to deliberate on all of the charges, and that they were nearing a verdict on the first count in the defendant’s case, as well as the two counts in the codefendant’s case. Plainly, then, there was no action for the Supreme Court to take, and, concomitantly, no input or participation from defense counsel was necessary to ensure that the defendant’s rights were “adequately protect[ed]” … . Note 6 was, in short, not a substantive communication from the jury. People v Edwards, 2022 NY Slip Op 04818, Second Dept 8-3-22

Practice Point: A jury note which does not require action by the judge need not be shared with defense counsel. Here the note informed the judge that they were near a verdict on certain counts.

 

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PETITIONER SEX OFFENDER’S APPEAL FROM THE DENIAL OF HIS HABEAS CORPUS PETITION WAS MOOT BECAUSE APPROPRIATE HOUSING HAD BEEN FOUND WHILE THE APPEAL WAS PENDING; THE THIRD DEPARTMENT CONSIDERED THE APPEAL UNDER THE EXCEPTION-TO-THE-MOOTNESS-DOCTRINE AND REITERATED THAT WHEN A LEVEL THREE SEX OFFENDER HAS COMPLETED HIS MAXIMUM PRISON TIME AND SUITABLE HOUSING IS NOT AVAILABLE, HE MUST BE TRANSFERRED TO A RESIDENTIAL TREATMENT FACILITY (RTF) (THIRD DEPT).

The Third Department, finding the appeal from the denial of petitioner’s habeas corpus petitioner moot, over a dissent, considered the appeal as an exception to the mootness doctrine. The Third Department held that when a level three sex offender has completed his maximum prison time, and Sexual Assault Reform Act (SARA) compliant housing cannot be found, the inmate must be placed in a residential treatment facility (RTF) to await housing. Here, while the appeal was pending, proper housing was found for petitioner. The dissent argued there was nothing novel about the case and invoking the exception-to-the-mootness-doctrine to hear the appeal was not necessary:

This Court has previously held, and we reiterate, that “when a risk level three sex offender reaches his or her maximum expiration date, [the Department of Corrections and Community Supervision] must release the individual to either an approved residence or to an [appropriate] RTF” … . People ex rel. Jones v Collado, 2022 NY Slip Op 04768, Second Dept 7-28-22

Practice Point: Here the appeal from the denial of petitioner-sex-offender’s habeas corpus petition was moot because appropriate post-release housing had been found. The Third Department considered the appeal pursuant to the exception-to-the-mootness-doctrine to reiterate that when a level three sex offender has completed his maximum prison time he must be placed in SARA compliant housing or, or if housing is not available, in a residential treatment facility (RTF).

 

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ALTHOUGH DEFENDANT WAS SPEEDING AT THE TIME HE LOST CONTROL OF THE CAR, WENT DOWN AN EMBANKMENT AND STRUCK A TREE, KILLING A PASSENGER, THE EVIDENCE DID NOT DEMONSTRATE “DANGEROUS SPEEDING;” THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CRIMINALLY NEGLIGENT HOMICIDE AND RECKLESS DRIVING CHARGES; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was not legally sufficient. Although the issue was not preserved, it was considered in the interest of justice. Defendant attempted to exit a highway at 74 miles per hour where the ramp speed limit was 45 miles per hour and the highway speed limit was 65 miles per hour. Defendant lost control, went down an embankment, and hit a tree. A passenger was killed:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” … in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . The People’s evidence established only that the defendant attempted to navigate the curved profile of the exit ramp at an excessive speed, and was late in attempting corrective measures by manually steering the wheel. While this conduct reflected poor judgment in the defendant’s operation of his vehicle given the roadway environment … , it failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of criminal negligence or recklessness … . Accordingly, we vacate the convictions of criminally negligent homicide and reckless driving … . People v Cardona, 2022 NY Slip Op 04733, Second Dept 7-27-22

Practice Point: Defendant was speeding (74 miles per hour on an exit ramp) when he lost control of the car and struck a tree, killing a passenger. The evidence did not demonstrate “dangerous speeding.” Therefore the criminally negligent homicide and reckless driving convictions were not supported by legally sufficient evidence.

 

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ON REMAND FROM THE US SUPREME COURT, THE COURT OF APPEALS FOUND THAT THE VIOLATION OF DEFENDANT’S RIGHT OF CONFRONTATION WAS HARMLESS ERROR (CT APP).

The Court of Appeals, on remand from the US Supreme Court, determined the evidentiary error was harmless and affirmed defendant’s conviction. The defendant was convicted of murder. The plea allocution of Morris, who was initially prosecuted for the same murder (but exonerated by DNA evidence). was allowed in evidence in defendant’s trial, a violation of defendant’s right to confront the witnesses against him. The Court of Appeals held the evidence against defendant was overwhelming rendering the violation of defendant’s right of confrontation harmless:

… “[T]here is no reasonable possibility” that the erroneously admitted plea allocution “might have contributed to defendant’s conviction” (People v Crimmins , 36 NY2d 230, 237 [1975]). The plea allocution neither exculpated Morris nor inculpated defendant as the shooter, thus allowing defendant to argue to the jury that Morris was the perpetrator. Indeed, it merely supported a conclusion that Morris possessed a .357 magnum revolver on the day in question, and [a witness] had already testified to that alleged fact. … [T]he prosecutor’s reliance on the plea was exceedingly minimal. Under these circumstances and in light of the other, overwhelming evidence of defendant’s guilt, the error below was “harmless beyond a reasonable doubt” (id. at 237, citing Chapman v California , 386 US 18 [1967]). People v Hemphill, 2022 NY Slip Op 04663, CtApp 7-21-22

Practice Point: It is worth remembering that even a constitutional error, here the violation of defendant’s right to confront the witnesses against him, is subject to a harmless-error analysis.

 

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THE PRINCIPAL WITNESS AGAINST DEFENDANT IN THIS FIRST DEGREE MURDER (MURDER-FOR-HIRE) TRIAL WAS AN ACCOMPLICE AS A MATTER OF LAW; IT WAS REVERSIBLE ERROR TO FAIL TO SO INSTRUCT THE JURY; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED IN THE INTEREST OF JUSTICE; THE DEFENDANT’S ALLEGED SILENCE IN RESPONSE TO AN ACCUSATION (ADOPTIVE ADMISSION) WAS INADMISSIBLE BECAUSE THE PEOPLE DID NOT PROVE DEFENDANT HEARD THE ACCUSATION (SECOND DEPT). ​

The Second Department, reversing defendant’s murder-first-degree conviction and ordering a new trial, determined the jury should have been instructed that the defendant’s paramour, Lovell, who was involved the plot to have the victim killed by a third-party, and who testified against the defendant at trial, was an accomplice as a matter of law. Despite defense counsel’s failure to preserve the error, the issue was considered on appeal in the interest of justice. The Second Department also held that the “adoptive admission” by the defendant should not have been admitted in evidence. It was alleged the defendant remained silent when her mother-in-law accused her of killing the victim. The People did not prove defendant actually heard the accusation:

Supreme Court failed to instruct the jury that Lovell was an accomplice and subject to the statutory corroboration requirement. Although the court was “under a duty to charge . . . even without a request from the defendant … , the rule of preservation requires that defense counsel object to the court’s failure in order to preserve a question of law for appellate review … . Notwithstanding defense counsel’s failure to object at trial, under the circumstances of this case, we reach the unpreserved error in the interest of justice and find that the failure to properly instruct the jury constituted reversible error … …. [T]he evidence of the defendant’s guilt, which consisted principally of Lovell’s testimony, was not overwhelming … . * * *

“To use a defendant’s silence or evasive response as evidence against the defendant, the People must demonstrate that the defendant heard and understood the assertion, and reasonably would have been expected to deny it” … . Here, the People failed to establish that the defendant actually heard the mother-in-law’s accusations or that the defendant had an opportunity to respond to the accusations prior to the mother-in-law disconnecting the phone call. Therefore, the court should not have admitted the evidence. People v Noel, 2022 NY Slip Op 04647, Second Dept 7-20-22

Practice Point: The testimony of defendant’s paramour, who was involved in the murder-for-hire, was the principal evidence against the defendant. The failure to instruct the jury that the paramour was an accomplice as a matter of law whose testimony must be corroborated was reversible error. Although the error was not preserved the Second Department considered it ion appeal in the interest of justice. The defendant’s silence in the face of an accusation (an adoptive admission) should not have been admitted in evidence because the People did not prove the defendant heard the accusation.

 

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