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AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).

The Fourth Department remitted the case for a ruling on defendant’s motion for a trial order of dismissal. An appellate court cannot consider a motion not ruled upon:

Defendant … contends that the evidence is legally insufficient to support the conviction with respect to all counts. At the close of proof, defendant moved for a trial order of dismissal, and the court reserved decision. There is no indication in the record that the court ruled on defendant’s motion (cf. CPL 290.10 [1]). Thus, we may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . People v Johnson, 2021 NY Slip Op 01675, Fourth Dept 3-19-21

 

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THE APPEAL WAIVER WAS INVALID AND THE SENTENCE WAS UNDULY HARSH (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid and his sentence was unduly harsh. The sentences were modified to run concurrently, not consecutively:

We agree with defendant that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant “understood the nature of the appellate rights being waived” … . Here, County Court provided no oral explanation of the waiver of the right to appeal and the written waiver executed by defendant “mischaracterized the waiver of the right to appeal, portraying it in effect as an absolute bar to the taking of an appeal” … . We note that the better practice is for the court to use the Model Colloquy, which “neatly synthesizes . . . the governing principles” … . People v Smith, 2021 NY Slip Op 01666, Fourth Dept 3-19-21

 

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SUPREME COURT SHOULD HAVE DEFERRED TO THE NYC BOARD OF STANDARDS AND APPEALS’ INTERPRETATION OF AN AMBIGUOUS ZONING RESOLUTION WHICH ALLOWED THE CONSTRUCTION OF A 55 STORY CONDOMINIUM BUILDING; THE BUILDING IS COMPLETE AND THE DOCTRINE OF MOOTNESS APPLIES TO PRECLUDE THE APPEAL (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined Supreme Court should have deferred o the judgment of the NYC Board of Standards and Appeals (BSA) which allowed the construction of a 55 story condominium building. At issue was an ambiguous Zoning Resolution and the relationship between zoning lots and tax lots. The First Department held that the BSA had the necessary expertise to interpret the relevant statute and Supreme Court should have allowed the BSA’s interpretation to stand. In addition, the First Department found that the mootness doctrine had not been waived and the doctrine applied to the appeal because the building was fully completed and so steps to halt construction had been taken during the lengthy litigation:

The BSA’s interpretation of the relevant subdivision was “neither irrational, unreasonable nor inconsistent with the governing statutes” … . It rationally interpreted the resolution and properly considered Amsterdam’s reliance on the DOB’s [NYC Department of Building’s] longstanding Minkin Memo and the history of the block, as several other buildings on the block were issued certificates of occupancy, even though they also include partial tax lots. “When an agency adopts a construction which is then followed for ‘a long period of time,’ such interpretation ‘is entitled to great weight and may not be ignored'” … . …

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy”… . In the construction context, “several factors [are] significant in evaluating claims of mootness[,] [c]hief among them [being] a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … . Matter of Committee for Environmentally Sound Dev. v Amsterdam Ave. Redevelopment Assoc. LLC, 2021 NY Slip Op 01228, First Dept 3-2-21

 

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THE ROBBERY COULD NOT BE COMMITTED WITHOUT COMMITTING THE ASSAULT; ASSAULT COUNT DISMISSED AS MULTIPLICITOUS; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s assault first conviction, determined the robbery first and assault first counts were multiplicitous. The redundant count was dismissed in the interest of justice (error was not preserved):

“An indictment is multiplicitous when two separate counts charge the same crime” … . “Multiplicity does not exist where each count requires proof of an additional fact that the other does not” or where “a conviction on one count would not be inconsistent with acquittal on the other” … . “If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed” … . Here, the record reflects that the jury charges regarding the count of assault in the first degree and the count of robbery in the first degree were essentially identical since one cannot commit robbery in the first degree under Penal Law § 160.15(1) without simultaneously committing assault in the first degree under Penal Law § 120.10(4) … . As such, those charges were multiplicitous … . Although the dismissal of the multiplicitous count will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate in this case to dismiss the count charging assault in the first degree in consideration of the stigma attached to the redundant convictions … . People v Edmondson, 2021 NY Slip Op 08201, Second Dept 2-24-21

 

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RPAPL 1304 AND 1302-a DO NOT APPLY WHERE THE LOAN SUBJECT TO FORECLOSURE IS NOT A “HOME LOAN;” COMPLIANCE WITH RPAPL 1303 IS A CONDITION PRECEDENT TO FORECLOSURE BUT FAILURE TO COMPLY CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL; FAILURE TO PROVIDE NOTICE OF DEFAULT CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should have been granted. The Second Department noted: (1) RPAPL 1304 (re: notice) and 1302-a (re: standing) do not apply where the subject loan is not a “home loan” because the property was not defendant’s principal dwelling;  (2) compliance with the notice requirements of RPAPL 1303 is a condition precedent to the commencement of a foreclosure action, but the issue cannot be raised for the first time on appeal; (3) the failure to provide notice of default as required by the mortgage cannot be raised for the first time on appeal. Nationstar Mtge., LLC v Gayle, 2021 NY Slip Op 08194, Second Dept 2-24-21

 

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THE JURY WAS NOT INSTRUCTED THAT ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE LESSER COUNT; ALTHOUGH DEFENSE COUNSEL DID NOT OBJECT TO THE JURY INSTRUCTIONS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, in a full-fledged opinion by Justice Manzanet-Daniels, determined the jury instructions did not make it clear that if defendant was acquitted of the top count (attempted assault first) based upon the justification defense, it must not consider the lesser count (attempted assault second). Defendant was acquitted of attempted assault first and convicted of attempted assault second. Although defense counsel did not object to the jury instruction, the appeal was considered in the interest of justice:

The trial court instructed the jury that defendant had raised justification as a defense with respect to counts one and two and stated that the People were required to prove three elements to establish defendant’s guilt on count one, including “that defendant was not justified.” With respect to count two, the court stated that defendant had also raised the defense of justification. The court stated that as an element of count two the People were required to prove beyond a reasonable doubt that “the defendant was not justified.” * * *

The trial court here did not give the required Velez [131 AD3d 129] instruction. … [T]he trial court indicated to the jury that the attempted first-degree and second-degree assault charges … were wholly independent, even if the prosecution had not disproved justification as to the greater charge. The trial court … charged justification separately with respect to the two counts with no mention on the verdict sheet that acquittal on the greater charge would necessitate an acquittal on the lesser charge … . The court compounded the error by giving the same erroneous instruction in response to a note from the jury. People v Herrera, 2021 NY Slip Op 01148, First Dept 2-23-21

 

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SNATCHING A PURSE DANGLING FROM THE VICTIM’S ARM DID NOT INVOVLE THE PHYSICAL FORCE NECESSARY FOR ROBBERY THIRD, RENDERING THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE; REDUCED TO PETIT LARCENY (FIRST DEPT).

The First Department, reducing defendant’s robbery 3rd conviction to petit larceny, determined that the physical force element was not involved rendering the conviction against the weight of the evidence:

Judgment * * * unanimously modified, on the facts and as a matter of discretion in the interest of justice, to the extent of reducing the robbery conviction to petit larceny and reducing the sentence on that conviction to time served …. .

Defendant’s conduct in snatching the purse that was dangling from the victim’s arm did not involve the physical force required to sustain a conviction of robbery (see People v Dobbs, 24 AD3d 1043 [3d Dept 2005]; People v Middleton, 212 AD2d 809, 810 [2d Dept 1995]; compare People v Santiago, 62 AD2d 572, 579 [2d Dept 1978], aff’d 48 NY2d 1023 [1980]). Accordingly, defendant’s conviction of robbery in the third degree was not supported by legally sufficient evidence, and that verdict was against the weight of the evidence … . People v Kourouma, 2021 NY Slip Op 01011, First Dept 2-16-21

 

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THE TRANSCRIBED RECORD IS WOEFULLY INCOMPLETE; DEFENDANT DID NOT DEMONSTRATE THE RECORD COULD NOT BE RECONSTRUCTED; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, holding the case and reserving decision, remitted the matter for reconstruction of the record which was missing several vital parts:

… [M]issing and otherwise defective transcripts from the trial preclude appellate review of defendant’s conviction. Indeed, the present state of the record on appeal is “deplorable” … inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court’s handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating “omitted,” “untranscribable,” and “blah, blah,” and unintelligible strings of characters that appear to be in code. We reject defendant’s contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The “loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction” … . The Court of Appeals has held that “the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal” … . “To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ ” … . It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial … .

Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available … .There is no indication that defendant’s former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney’s Office. There is also no indication that the now-retired trial judge could not participate as well … . People v Meyers, 2021 NY Slip Op 00919, Fourth Dept 2-11-21

 

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THE FAILURE TO INFORM DEFENDANT AT THE TIME OF THE PLEA THAT HIS SENTENCE WOULD INCLUDE A SPECIFIC PERIOD OF POSTRELEASE SUPERVSION REQUIRED VACATION OF THE PLEA; BECAUSE THE DEFENDANT DID NOT RECEIVE TIMELY NOTICE OF THE POSTRELEASE SUPERVISION, PRESERVATION OF THE ERROR WAS NOT NECESSARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been informed that postrelease supervision (PRS) would be part of his sentence. Under the circumstances preservation of the error for appeal was not necessary:

Pursuant to the plea agreement, defendant entered his plea in exchange for a promise of youthful offender adjudication and a sentence of probation. Following the entry of the plea, the court informed defendant that, if he violated the terms of the plea agreement, the court would “not keep the promise [it] made regarding [his] sentence” and that it could “impose a much more significant or higher sentence.” The court did not specify what that higher sentence could entail, nor did it mention the possibility of postrelease supervision (PRS).

Prior to sentencing, defendant violated the terms of the plea agreement when he failed to cooperate with the probation department and was arrested on new felony charges. The court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]) and determined that there was a valid basis on which to enhance the sentence. The prosecutor then requested that the court sentence defendant as an adult and impose a sentence of 15 years of incarceration with five years of PRS. The court imposed a determinate sentence of 7½ years of incarceration plus five years of PRS.

The court was required “to advise defendant that his enhanced sentence would include PRS, and was also required to specify the length of the term of PRS to be imposed” … . Although defendant did not object to the imposition of PRS or move to withdraw his plea or to vacate the judgment of conviction, this case falls under an exception to the preservation rule inasmuch as “[t]he prosecutor’s mention of PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue” … . People v Stanley, 2021 NY Slip Op 00924, Fourth Dept 2-11-21

 

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THE EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS AND PARAPHERNALIA IN AN APARTMENT IN WHICH DEFENDANT WAS PRESENT WAS INSUFFICIENT; DEFENDANT’S CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after a bench trial, determined the evidence that defendant constructively possessed drug and paraphernalia was insufficient. The “possession” convictions, therefore, were against the weight of the evidence:

Although defendant was present in the apartment at the time the police executed the search warrant, no other evidence was presented “to establish that defendant was an occupant of the apartment or that he regularly frequented it” … . Two of the police officers testified that they did not discover anything that belonged to defendant on the premises. The clothing, cell phone, and identification found on the premises belonged instead to other men who were present in the apartment during the execution of the search warrant. Photographs found on the premises included the other men but not defendant. While defendant admitted that he had been at the apartment on one other occasion, the evidence did not otherwise specifically connect defendant to the apartment in which the contraband was found. We thus conclude that the weight of the evidence does not support a finding that defendant “exercised dominion and control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Ponder, 2021 NY Slip Op 00923, Fourth Dept 2-11-21

 

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