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THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined the People did not meet their burden of going forward at the suppression hearing because they did not make a minimum showing of reasonable suspicion for the traffic stop. Whether the People meet that burden has been deemed a question of law which the Court of Appeals can address. Whether a stop was justified by reasonable suspicion is usually a mixed law and fact question which the Court of Appeals can not review. Here the traffic stop was based on a so-called “similarity hit” generated by the Department of Motor Vehicles database. A “similarity hit” apparently indicates some possible connection between the registered owner of a vehicle and an outstanding warrant. But, at the suppression hearing, the People did not present any evidence of the basis for the “similarity hit;”

According to the officer, a “similarity hit” is generated “based on the name of the registered owner, the date of birth[,] and other aliases.” He testified that the system considers “certain parameters” when identifying “similarity hits,” but he did not know how the Department of Motor Vehicles set those parameters. Nor did he testify as to any specifics of this match.

… [T]he officer did not think that the driver was the subject of the “similarity hit” because the driver was female and the registered owner was male. As the officer stepped around the vehicle to look at the registration and inspection stickers, he spotted a handgun on the floor under the front passenger seat, in which defendant was sitting. After defendant was arrested, the officer checked the MDT [mobile data terminal] information and discovered that the person with the warrant did not, in fact, match the vehicle’s registered owner or anyone else in the vehicle. The officer did not testify as to the name, date of birth, or address of the registered owner, or provide the specific identifying facts of the person set forth in the arrest warrant. …

While information generated by running a license-plate number through a government database may provide police with reasonable suspicion to stop a vehicle …, the information’s sufficiency to establish reasonable suspicion is not presumed … . Thus, when police stop a vehicle based solely on such information, and the defendant, as here, challenges its sufficiency, the People must present evidence of the content of the information … . People v Balkman, 2020 NY Slip Op 06838, CtApp 11-19-20

 

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THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT).

The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made:

… [T]he complainant testified that she was unable to send large amounts of money to Peru and had asked the defendant to assist her with sending money to her family in Peru. She testified that on November 3, 2014, she gave the defendant $11,000 to $12,000 to transfer to her family in Peru and approximately $40 for his assistance. She testified that she accompanied the defendant to four different money transfer agencies. However, according to the complainant’s testimony, she learned on November 4, 2014, that the money transfers did not go through due to an error she had made in the recipient’s name. The complainant testified that the defendant was able to fix two of the transactions over the phone and agreed to meet her the next day, November 5, 2014, to go to the other two money transfer agencies (hereinafter the subject money transfer agencies) to correct the mistake in the recipient’s name. She testified that the defendant did not meet her on November 5, 2014, she subsequently learned that her family never received the funds from the subject money transfer agencies, and the defendant had withdrawn the money without her permission. Business records from the subject money transfer agencies indicated that the transactions had been cancelled with the money refunded. Representatives from the subject money transfer agencies testified that their policies required cancellations to be done in person by the person who initiated the transaction.

On appeal, the defendant contends that the evidence was legally insufficient to establish that he obtained the subject funds by means of a false representation and that he had the requisite intent not to perform at the time he made the representation that he would meet the complainant and help her fix the recipient’s name on the transactions at the subject money transfer agencies. People v Bravo, 2020 NY Slip Op 06804, Second Dept 11-18-20

 

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THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after trial and dismissing the indictment, in a full-fledged opinion by Justice Troutman, over a concurring opinion, determined the robbery conviction was against the weight of the evidence and the showup identification should have been suppressed. The opinion is comprehensive, well worth study, and cannot be fairly summarized here:

… [T]here is considerable objective evidence supporting defendant’s innocence. Defendant was found standing in a driveway half a mile from the crime scene only seven minutes after it occurred, wearing clothing different from the clothing worn by the gunman. He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced. The possibility that he changed clothes and hid the items in his companion’s residence across the street was questionable in the first instance given the timing of the events, and was severely undercut by the fact that the police obtained permission to search the residence and did so without finding anything linking defendant to the crime. Furthermore, the police investigation established that a person other than defendant possessed the fruits of the robbery, particularly the victim’s cell phone, and that person’s act in fleeing from the police when the phone alarm sounded was indicative of consciousness of guilt … . Other objective evidence, particularly the dog tracking, established that the gunman never turned west off of Genesee Street toward the place where defendant was found, but continued to run down Genesee Street in a southerly direction. * * *​

The testimony of the officer who initiated this street encounter established that he explored only “one of” several side streets in a residential neighborhood and seized the first young black man in a hooded sweatshirt who he found. It must be plainly stated—the law does not allow the police to stop and frisk any young black man within a half-mile radius of an armed robbery based solely upon a general description.

FROM THE CONCURRENCE:

In my view, reversal is required here solely on the ground that Supreme Court erred in refusing to suppress the showup identification testimony because it was not sufficiently attenuated from the police officer’s unlawful stop and detention of defendant … . People v Miller, 2020 NY Slip Op 06667, Fourth Dept 11-13-20

 

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THE FINDING THAT DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT).

The Fourth Department, reversing the reckless assault conviction, determined the allegation the defendant used the concrete sidewalk as a dangerous instrument was not supported by legally sufficient evidence:

Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault]), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. * * *

Although a sidewalk or concrete surface can be “used” as a dangerous instrument … , the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim’s head would have contact with the concrete … . Under the circumstances presented, there is no “valid line of reasoning and permissible inferences from which a rational [person]” could conclude that defendant recklessly used the sidewalk as a dangerous instrument … . People v Desius, 2020 NY Slip Op 06611, Fourth Dept 11-13-20

 

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DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, over an extensive dissent, determined the evidence was legally insufficient. Defendant was arrested two years after the victim’s death based upon DNA found on the victim. No evidence placing defendant near the scene of the crime was presented:

On the morning of October 3, 2013, the 23-year-old victim, who had a history of drug use, was found dead in a wooded area known as Froehlich Farms, in Suffolk County. The victim’s injuries, as well as the condition in which her body was found, indicated that she had been sexually assaulted and killed by strangulation within 12 hours to a day before her body was found. More than two years after her death, the defendant was charged with murder in the second degree after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim.

At the trial, the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place. People v Romualdo, 2020 NY Slip Op 06559, Second Dept 11-12-20

 

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CYNTHIA G SHOULD NOT HAVE BEEN INVOLUNTARILY CONFINED BASED UPON A FINDING SHE WAS MENTALLY ILL IN THE ABSENCE OF A HEARING; THE FINDING WAS MADE BASED SOLELY UPON CYNTHIA G’S BEHAVIOR IN THE COURTROOM; ALTHOUGH CYNTHIA G HAS BEEN RELEASED THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have ruled Cynthia G was mentally ill based solely on her behavior in the courtroom without holding a hearing. Although Cynthia G has been released from the involuntary confinement ordered by Supreme Court, the appeal was heard as an exception to the mootness doctrine because situation is likely to reoccur:

On June 20, 2019, Cynthia G. was involuntarily confined to the Hospital pursuant to Mental Hygiene Law § 9.27. On June 27, 2019, Cynthia G. made an application pursuant to Mental Hygiene Law § 9.31 for a hearing on the question of need for involuntary care and treatment. While the parties appeared in court for the hearing, the Supreme Court did not hold the hearing. Rather, Cynthia G. was escorted out of the courtroom based on her behavior, which included “yelling and screaming,” acting “verbally aggressive,” and making “threatening movements.” Over the objection of Cynthia G.’s counsel, the court determined that it could not proceeded with a hearing due to Cynthia G.’s behavior. The court indicated that it would deny Cynthia G.’s application for release, finding that her courtroom behavior in and of itself constituted clear and convincing evidence that she suffered from a mental illness which was likely to result in serious harm to herself or others.

By order dated July 2, 2019, the Supreme Court denied Cynthia G.’s application pursuant to Mental Hygiene Law § 9.31 to compel the Hospital to release her from involuntary confinement. …

… [T]he Supreme Court erred in failing to hold a hearing pursuant to Mental Hygiene Law § 9.31(c), and in determining, in effect, that Cynthia G. was mentally ill, in need of further care or treatment, and posed a substantial threat of physical harm to herself or others, without taking any testimony or evidence by either Cynthia G. or the Hospital … . Matter of G., 2020 NY Slip Op 06525, Second Dept 11-12-20

 

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THE APPEAL WAS MOOT BECAUSE THE PETITION SOUGHT TO HALT THE CONSTRUCTION OF A MINING SHAFT APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE SHAFT HAD BEEN COMPLETED AT THE TIME OF THE APPEAL (THIRD DEPT).

The Third Department determined the appeal was moot because the action sought to halt the construction of a mining shaft approved by the Department of Environmental Conservation (DEC) but the shaft had already been constructed at the time of the appeal:

“[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” … . Whether the controversy has become moot requires the consideration of various factors, including how far the construction work has progressed towards completion, whether the work was undertaken in bad faith or without authority and whether the substantially completed work cannot be readily undone without substantial hardship … . A chief consideration to be assessed is whether the challenger to the construction work “fail[ed] to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … .

This Court has been advised that, during the pendency of the underlying proceeding and this appeal, the construction of the surface shaft has been completed to the point that it cannot be safely halted and that substantial construction costs have been incurred. Furthermore, there is no indication that petitioners promptly sought injunctive relief to maintain the status quo … or that [respondent] proceeded with the construction in bad faith or without the authority to do so … . Based on the foregoing, petitioners’ appeal is moot … . Matter of City of Ithaca v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06322, Third Dept 11-5-20

 

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SUBPOENA SEEKING 1099 FORMS SHOWING THE INSURER’S PAYMENTS TO TWO DOCTORS WHO PERFORM MEDICAL EXAMS FOR THE INSURER IN PERSONAL INJURY CASES SHOULD NOT HAVE BEEN QUASHED; WITH RESPECT TO THE SUBPOENA FOR THE MEDICAL RECORDS ASSOCIATED WITH THE EXAMS, THAT ISSUE WAS NOT ADDRESSED BY SUPREME COURT AND CAN NOT, THEREFORE, BE ADDRESSED ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry addressing a matter of first impression in the Third Department, determined the plaintiffs’ subpoena seeking 1099 forms (encompassing several years) issued by the insurer to the two doctors (Seigel and Hughes) who performed the medical examination of the plaintiff in this traffic accident case should not have been quashed. The payment records may provide information relevant to the doctors’ bias in favor of denying coverage. However the subpoena for the medical records for the examinations conducted by the two doctors was not addressed by the motion court and therefore could not be addressed on appeal:

The CPLR extends “full disclosure of all matters material and necessary in the prosecution or defense of an action” to nonparties (CPLR 3101 [a] [4] …). “The words, ‘material and necessary,’ are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … . “A subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” … . …

… [T]he 1099 forms that plaintiffs seek would disclose the amount of compensation that Siegel and Hughes received for performing evaluations on defendant’s behalf and, with questioning, may reveal a financial incentive that the physicians have in testifying. A financial incentive is a relevant consideration in “ascertain[ing] any possible bias or interest on the part of [the physicians]” … . Given the liberal interpretation afforded the terms “material and … necessary” used in the CPLR … , and the general acceptance of testing a witness for bias and interest , we thus find that the financial records are discoverable … . Loiselle v Progressive Cas. Ins. Co., 2020 NY Slip Op 06325, Third Dept 11-5-20

 

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THE DENIAL OF A MOTION TO RESETTLE WHICH IMPROPERLY SOUGHT THE MODIFICATION OF A SUBSTANTIVE PART OF AN ORDER, AS OPPOSED TO MERELY THE CORRECTION OF A MISTAKE, IS NOT APPEALABLE (THIRD DEPT).

The Third Department determined the denial of the motion to resettle was not appealable and explained the criteria. The motion sought the modification of a substantive part of an order, which is not available pursuant to a motion to resettle:

“‘Resettlement of an order is a procedure designed solely to correct errors or omissions as to form, or for clarification. It may not be used to effect a substantive change in or to amplify the prior decision of the court'” … . “Under established precedent, no appeal lies from the denial of a motion to resettle or clarify a substantive portion of an order” . [The instant] … motion does not seek to amend or clarify the prior order, but seeks to modify a substantive portion of the prior order….  As such, the denial of said motion is not appealable … . Hutchings v Garrison Lifestyle Pierce Hill, LLC, 2020 NY Slip Op 06327, Third Dept 11-5-20

 

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THE FEDERAL OFFENSE DID NOT REQUIRE THAT THE FIREARM BE OPERABLE BUT THE NEW YORK OFFENSE DOES; THEREFORE THE FEDERAL OFFENSE IS NOT A PREDICATE OFFENSE FOR SENTENCING PURPOSES; THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the federal felony was not equivalent to a New York felony and therefore could not serve as a predicate offense. Defendant, therefore, should not have been sentenced as a second felony offender. Although the issue was not preserved, it was considered on appeal in the interest of justice:

The defendant’s contention that his prior federal conviction of unlawful possession of a firearm in violation of 18 USC § 922(g)(l) did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 is unpreserved for appellate review … . However, we reach the issue in the exercise of our interest of justice jurisdiction … .

“An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[g][1] …) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Cabassa, 2020 NY Slip Op 06282, Second Dept 11-4-20

 

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