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THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).

The Court of Appeals, reversing the Appellate Division and remitting the case for consideration of the suppression claim, upon the People’s concession, determined the waiver of appeal was invalid:

… [O]rder reversed and case remitted to the Appellate Division, Second Department, for further proceedings. Under the totality of the circumstances and upon the People’s concession that the appeal waiver was invalid because the plea court conflated the right to appeal with those rights automatically forfeited by a guilty plea, defendant’s appeal waiver did not foreclose consideration of his suppression claim … . People v Johnson, 2022 NY Slip Op 00909, CtApp 2-10-22

 

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THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the proof of compliance with the notice requirements of RPAPL 1304 was insufficient. Therefore plaintiff in this foreclosure action was not entitled to summary judgment:

Since HSBC failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . MTGLQ Invs., L.P. v Cutaj, 2022 NY Slip Op 00858, Second Dept 2-9-22

Similar issues and result in U.S. Bank N.A. v Adams, 2022 NY Slip Op 00896, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v Davidson, 2022 NY Slip Op 00901, Second Dept 2-9-22 which also held the bank’s failure to comply with the “one envelope” rule for the RPAPL 1304 notice can be raised for the first time on appeal.

 

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THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD IN THE INDUCEMENT, AS OPPOSED TO AN INSINCERE PROMISE OF FUTURE PERFORMANCE; ALTHOUGH THE ISSUE WAS RAISED IN REPLY AND WAS NOT RAISED BELOW, IT WAS CONSIDERED ON APPEAL BECAUSE IT WAS DETERMINATIVE, DID NOT ALLEGE NEW FACTS, AND COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the complaint did not support a cause of action for fraud in the inducement. Plaintiff ordered an artistic silk floral display but rejected it when delivered on the ground the display did not match what plaintiff ordered. Defendants refused to refund the money. Although the inadequacy of the fraud in the inducement allegations was first raised in reply, the First Department considered it because it was determinative, did not allege new facts and could not have been avoided if raised below:

As for the fraud in the inducement claim, defendants challenged this claim in their reply brief in Supreme Court. While, normally, arguments set forth for the first time in reply should not be considered … , this Court will consider this argument as it is determinative, does not allege new facts, and is a legal argument on the face of the record that would not have been avoidable if raised in defendants’ moving brief below, and because the record is sufficient to resolve the issue … . Here, plaintiff merely alleged that defendants “grossly misrepresented the quality and nature of the Decorations” to induce plaintiff into retaining them and compensating them, and the representations were false when made. This simply alleges “an insincere promise of future performance under the contract, which is insufficient to plead fraud” … . As such, the fraud in the inducement claim is dismissed. Newport E. Inc. v Sviba Floral Decorators, Inc., 2022 NY Slip Op 00819, First Dept 2-8-22

 

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MANSLAUGHTER FIRST DEGREE IS NOT AN “ARMED FELONY” WITHIN THE MEANING OF CRIMINAL PROCEDURE LAW 720.10; COUNTY COURT WAS REQUIRED TO DETERMINE WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, determined County Court was required to decide whether defendant in this Manslaughter First Degree case should be afforded youthful offender status:

… [W]e note that defendant’s “waiver of his right to appeal was invalid . . . and, in any event, [would] not bar his contention that [County] Court failed to properly consider youthful offender treatment” … . On the merits, … the court erred in determining that he was ineligible for youthful offender status. … [M]anslaughter in the first degree is not an “armed felony” for purposes of CPL 720.10 (2) (a) (ii) … . Thus, defendant’s eligibility for youthful offender status did not turn … on the existence of a statutory mitigating factor enumerated in CPL 720.10 (3) … . Inasmuch as defendant is otherwise eligible for youthful offender status on this conviction (see CPL 720.10 [1], [2]), the court was obligated to make a discretionary youthful offender determination before imposing sentence (see CPL 720.20 [1] … ). We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record a determination whether defendant should be afforded youthful offender status … . People v Graham, 2022 NY Slip Op 00784, Fourth Dept 2-4-22

 

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NO APPEAL LIES FROM DICTA (SECOND DEPT).

The Second Department noted that no appeal lies from dicta. Here the plaintiff acknowledged her slip and fall complaint was properly dismissed against two defendants, but attempted to appeal the motion court’s statement that “the plaintiff is unable to establish where she fell:”

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a trip and fall accident. On her appeal from an order which granted the motion of the defendants … for summary judgment dismissing the complaint … , she concedes that those motions were properly granted. … [S]he challenges the statement of the Supreme Court that “the plaintiff is unable to establish where she fell.” However, no appeal lies from dicta … . Accordingly, the appeal must be dismissed. Kelly v City of New York, 2022 NY Slip Op 00654, Second Dept 2-2-22

 

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THE IMPOSITION OF A FINE WAS NOT PART OF THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE FINE WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the imposition of a fine was not part of the plea agreement and vacated that part of the sentence:

Defendant’s … contention that his guilty plea was not knowingly, intelligently, and voluntarily entered is actually a contention that County Court erred in imposing a $1,000 fine that was not part of the negotiated plea agreement without affording him an opportunity to withdraw his plea … . Although defendant failed to preserve his contention for our review by failing to object to the imposition of the fine or by moving to withdraw his plea or to vacate the judgment of conviction (see id.), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] …). … [T]he court improperly enhanced defendant’s sentence by imposing “a fine that was not part of the negotiated plea agreement” … . … [W]e conclude that it is “appropriate to vacate the provision of the defendant’s sentence imposing a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty” … . People v Wilson, 2022 NY Slip Op 00593, Fourth Dept 1-28-22

 

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THE JUDGE ADOPTED A DECISION DRAFTED BY COUNSEL AS THE FINAL DETERMINATION OF THE CASE AND THEREBY VITIATED THE PURPOSE SERVED BY JUDICIAL OPINIONS; THE FOURTH DEPARTMENT VACATED THE JUDGMENT (FOURTH DEPT).

The Fourth Department, vacating the judgment, determined the judge erred by adopting a proposed decision drafted by counsel as the final determination of the case:

… [T]he court erred in adopting, almost verbatim, the proposed decision drafted by petitioners’ counsel as the final determination in this case … . “When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions” … . Even assuming, arguendo, that [respondent] CME could or should have objected to the court’s error, we would exercise our discretion to correct that error notwithstanding CME’s failure to object. We therefore vacate the judgment in its entirety and remit the matter to Supreme Court for consideration and determination of any pending issue or motion. Bruckel v Town of Conesus, 2022 NY Slip Op 00580, Fourth Dept 1-28-22

 

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“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal:

… [T]he purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court … . People v Adams, 2022 NY Slip Op 00562, Fourth Dept 1-28-22

Same issue in People v Harris, 2022 NY Slip Op 00568, Fourth Dept 1-28-22

 

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WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice:

… [W]hen the terms of the plea agreement were placed on the record, it was stated that the prison term to be imposed would be two years. County Court then, in discussing defendant’s second felony offender status, stated that the prison term was three years but, thereafter, informed defendant that, if he violated any jail rules prior to sentencing, it would not be bound by the promise of a two-year prison term. The record does not reflect that there was any clarification or correction regarding the misstatements as to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-year prison term was imposed. As “[t]he record thus fails to reveal that defendant was accurately advised of the essential terms and conditions of the plea agreement” … , we find that his plea was not knowing, voluntary and intelligent. People v Lumpkin, 2022 NY Slip Op 00477, Third Dept 1-27-22

 

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THE COMPLAINANT’S IDENTIFICATION OF DEFENDANT FROM A SINGLE PHOTOGRAPH WAS UNDULY SUGGESTIVE; PROOF OF SERIOUS INJURY RE: THE ASSAULT CHARGE WAS LEGALLY INSUFFICIENT; ALTHOUGH THE LEGAL SUFFICIENCY ARGUMENT WAS NOT PRESERVED IT WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over an extensive partial dissent, determined: (1) the defendant was entitled to a new trial on the burglary charge because the identification procedure was unduly suggestive; and (2) the serious injury element of the assault charge was not supported by legally sufficient evidence:

… [A]lthough the burglary complainant’s identification of the Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . …

… [U]pon the exercise of our interest of justice jurisdiction (see CPL 470.05[2]), we conclude that the conviction of assault in the second degree is not supported by legally sufficient evidence that the detective sustained a “physical injury” within the meaning of Penal Law § 10.00(9). …

The record did not support a finding that the detective experienced substantial pain. At the time of his discharge from the hospital, the detective assessed his pain as a “3” and was advised to take Tylenol for pain. His “quality” of pain was characterized as “aching.” Furthermore, there was no evidence as to the duration of any pain. People v Wheeler, 2022 NY Slip Op 00442, Second Dept 1-26-22

 

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