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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the evidence of a sexual touching of complainant by defendant captured on video in the laundromat was legally insufficient; (2) the evidence that defendant attacked the complainant after she left the laundromat was legally sufficient; (3) but the convictions stemming from the attack on the complainant after she left the laundromat were against the weight of the evidence because of the weakness or absence of identification evidence. So this is a rare decision where the evidence was explicitly found legally sufficient but the related convictions were found to be against the weight of the evidence:

Viewing the evidence in the light most favorable to the prosecution, here, there was legally sufficient evidence to support the defendant’s convictions of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation. The surveillance video footage showed the defendant leaving the laundromat just after the complainant had left. Both the complainant and the defendant were shown walking down Woodhaven Boulevard, and the defendant’s clothing matched the complainant’s description of the clothes worn by her assailant. Therefore, a rational juror could have concluded that the defendant was the perpetrator of the assault on the complainant that occurred near her home.

However, the evidence was not legally sufficient to support the defendant’s conviction of sexual abuse in the third degree. …

… [O]ur viewing of the video recording taken inside the laundromat did not establish that the contact between the defendant and the complainant as he was exiting the laundromat was of a sexual nature. At best, the video was ambiguous as to the nature of the touching depicted. * * *

In the face of the markedly disparate descriptions offered by the detectives and the complainant, and in the absence of an in-court identification, the verdict of the jury finding the defendant guilty of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation was against the weight of the evidence … . People v Kassebaum, 2020 NY Slip Op 05529, Second Dept 10-7-20

 

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PLAINTIFF WAS A THIRD-PARTY BENEFICIARY OF THE CONTRACT WITH THE ARCHITECTS; THEREFORE THE ARCHITECTURAL MALPRACTICE ACTION ACCRUED WHEN THE CONSTRUCTION WAS COMPLETE, RENDERING THE ACTION TIME-BARRED (FOURTH DEPT).

The Fourth Department determined the architectural malpractice action accrued when the construction was complete, despite the fact that plaintiff was not a party to the contract with the architects. Therefore the action was time-barred. The court noted that Supreme Court should have settled the record on appeal by including the transcript of the motion to dismiss the complaint as well as the accompanying memorandum of law to demonstrate preservation of the issues for appeal:

Before breaking ground on the project, plaintiff entered into an agreement with an engineering firm, pursuant to which the engineering firm agreed to provide professional engineering services on the project. The engineering firm, in turn, entered into a contract with defendant, pursuant to which defendant agreed to provide professional architectural services on the project.  * * *

A claim against an architect accrues upon the completion of performance … . “This rule applies ‘no matter how a claim is characterized in the complaint’ because ‘all liability’ for defective construction ‘has its genesis in the contractual relationship of the parties’ ”  … . “Even if the plaintiff is not a party to the underlying construction contract, the claim may accrue upon completion of the construction where the plaintiff is not a ‘stranger to the contract,’ and the relationship between the plaintiff and the defendant is the ‘functional equivalent of privity’ ” … .

Despite the lack of privity between plaintiff and defendant, plaintiff was “not a stranger to the contract” … . Indeed, we conclude that plaintiff was an intended third-party beneficiary of the contract … . * * *

Because plaintiff “is not a ‘stranger to the contract,’ ” its professional malpractice cause of action accrued upon completion of performance by defendant … . Town of W. Seneca v Kideney Architects, P.C., 2020 NY Slip Op 05323, Fourth Dept 10-2-20

 

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THE APPEAL WAS HELD IN ABEYANCE AND THE MATTER WAS SENT BACK FOR A RECONSTRUCTION HEARING ON WHETHER DEFENSE COUNSEL CONSENTED TO ANNOTATIONS ON THE VERDICT SHEET; THE RECONSTRUCTION HEARING WAS HELD BUT SUPREME COURT DID NOT MAKE A RULING; THE MATTER WAS REMITTED AGAIN FOR THE RULING (FOURTH DEPT). ​

The Fourth Department, holding the appeal in abeyance, had sent the matter back for a reconstruction hearing on whether defense counsel consented to annotations on the verdict sheet. The hearing was held but Supreme Court did not make a ruling. So the matter was remitted for that purpose:

We previously held this case, reserved decision, and remitted the matter to Supreme Court “to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet” … . Upon remittal, the court convened a reconstruction hearing, heard testimony of the parties’ trial counsel, and closed the hearing without making any determination. That was error. The intent of our prior decision was for the court to make a determination, not merely to conduct a hearing … . It is of course better for the hearing court, which has the advantage of seeing the witnesses and hearing their testimony, to make the determination following a reconstruction hearing, particularly where, as here, witness credibility is at issue … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine whether defense counsel consented to the annotated verdict sheet … . People v Wilson, 2020 NY Slip Op 05385, Fourth Dept 10-2-20

 

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WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).

The Fourth Department, reducing defendant’s sentence, noted that a waiver of appeal at the underlying plea proceeding did not prohibit the appeal of the severity of the sentence for a subsequent violation of probation. The court further noted there is no preservation requirement for the appeal of an excessive sentence:

… [E]ven if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass his challenge to the severity of the sentence imposed following his violation of probation … . Contrary to the People’s contention, defendant’s challenge to the severity of the sentence is not subject to a preservation requirement … . “A claim that a sentence is excessive is, by definition … , addressed to this Court’s interest of justice jurisdiction, and does not need to be preserved as a question of law … . Contrary to the People’s further contention, in reviewing that challenge, “it is inappropriate for this Court to address whether the sentencing court abused its discretion” … . Rather, this Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and such “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . We agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of five years … . People v Kibler, 2020 NY Slip Op 05365, Fourth Dept 10-2-20

 

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ALTHOUGH THE DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE INVOLVING A LIMOUSINE BUS WAS REVERSED ON APPEAL, PLAINTIFFS DID NOT ADDRESS ON APPEAL THE ASPECT OF THE DECISION WHICH DISMISSED THE FAILURE-TO-PROVIDE-SEATBELTS CAUSE OF ACTION; THEREFORE ANY CHALLENGE TO THAT ASPECT OF THE DISMISSAL WAS ABANDONED BY PLAINTIFFS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s dismissal of the complaint in this traffic accident case, noted that the plaintiffs’ failure to address an aspect of the decision granting defendants’ motion for summary judgment constituted an abandonment of any challenge to that portion of the decision. The motion court had dismissed the complaint in its entirety including plaintiffs’ cause of action alleging defendants were negligent in not providing seatbelts for the limousine in which plaintiff was a passenger. However the seatbelt ruling was not challenged by the plaintiffs on appeal. Therefore Supreme Court’s dismissal of the seatbelt cause of action remained in effect:

Supreme Court erred in granting that part of defendants’ motion seeking summary judgment dismissing the complaint based on application of the emergency doctrine. ” ‘The existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact’ ” … . Upon our review of the record, we conclude that “whether the emergency doctrine precludes liability presents a question of fact and, therefore, summary judgment for defendants . . . was inappropriate” … .

We note, however, that the court also granted that part of defendants’ motion seeking to dismiss plaintiffs’ claim that defendants were negligent in failing to provide seatbelts on the ground that defendants were under no duty to do so. Plaintiffs failed to brief any argument with respect to the dismissal of that claim, thereby abandoning any challenge to that part of the order … . We therefore modify the order by denying the motion in part and reinstating the complaint except insofar as the complaint, as amplified by the bill of particulars, alleges that defendants were negligent in failing to provide seatbelts. VanEpps v Mancuso, 2020 NY Slip Op 05359, Fourth Dept 10-2-20

 

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WHEN THE MERITS OF A MOTION TO REARGUE ARE ADDRESSED THE DENIAL IS APPEALABLE; THE PERSONAL SERVICE REQUIREMENTS FOR THE NOTICE OF SALE PURSUANT TO THE LIEN LAW WERE NOT MET, THEREFORE THE 10-DAY PERIOD FOR BRINGING A SPECIAL PROCEEDING TO CONTEST THE VALIDITY OF THE LIEN DID NOT START TO RUN (THIRD DEPT).

The Third Department noted that where the court addresses the merits of a motion to reargue it will be deemed to have granted the motion to reargue for purposes of appeal. Therefore, although the denial of a motion to reargue is not appealable, the denial after addressing the merits is appealable. In that case the motion is treated as if the motion to reargue were granted and then the original decision was adhered to. The court also noted that the requirements for the personal service of a notice of sale were not met in this case. Therefore the 10-day period for bringing a special proceeding to determined the validity of the lien did not start to run:

“Although, generally, no appeal lies from an order denying a motion to reargue, where the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . * * *

Under Lien Law §201-a, petitioner’s 10-day time period to “commence a special proceeding to determine the validity of the lien” does not begin to run until service upon it of the “notice of sale” by respondent, the lienor. Service of such notice of sale by the lienor must be effectuated by personal service “within the county where [the] lien arose,” unless the person to be served “cannot with due diligence be found within such county” (Lien Law § 201). … As Supreme Court correctly found, and as the record reflects, respondent failed to submit any proof that it exercised due diligence in seeking to effect personal service upon petitioner of the notice of lien and sale before improperly resorting to the statutory alternative of certified mail service. As a result, the 10-day time limitation for petitioner to challenge the lien under Lien Law § 201-a did not begin to run … . Matter of Manufacturers & Traders Trust Co. v J.D. Mar. Serv., 2020 NY Slip Op 05260, Third Dept 10-1-20

 

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SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have required that defense counsel seek court approval before allowing investigators or other employees access to recordings:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in requiring defense counsel to seek approval of the court before exhibiting the subject recordings to investigators or others employed by counsel. Under the particular circumstances of this case, the court should have permitted defense counsel to disclose the recordings to those employed by counsel or appointed to assist in the defense, without prior approval from the Supreme Court … . People v Clarke, 2020 NY Slip Op 05221, Second Dept 9-30-20

 

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INSUFFICIENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED WEAPONS FOUND IN A LOCKED ROOM BELONGING TO DEFENDANT’S DECEASED BROTHER; WEAPONS POSSESSION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon convictions, determined the evidence of constructive possession was insufficient and the convictions were therefore against the weight of the evidence:

The evidence demonstrated that the defendant resided in the third bedroom of the searched premises, and that the defendant’s brother had resided in the first bedroom up until his death in 2014 or 2015. There was also testimony that, after the defendant’s brother passed away, the door to the first bedroom was locked and remained locked. There was no evidence that the defendant frequented the first bedroom, had a key to that room or kept his belongings in that room. Although the police witnesses testified that they could not recall any damage to the door to the first bedroom, the defense introduced a photograph depicting damage to the door and frame after the search.

Moreover, although the police officers recovered a magazine containing seven 9 millimeter cartridges from the defendant’s bedroom, the evidence demonstrated that it was not the correct magazine for the pistol recovered from the first bedroom; it had to be manipulated in order to function properly with the pistol. Apart from the magazine, there was no other evidence connecting the defendant to the first bedroom or the weapons found therein. People v Branch, 2020 NY Slip Op 05220,  Second Dept 9-30-20

 

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT).

The Second Department, reversing the burglary conviction as against the weight of the evidence, determined the People were held to the proof required by the the jury instructions to which the People did not object. The portion of the instructions which explained that entry into a private area of a building after entering the building through a public area constitutes unlawful entry was left out. Because the defendant entered the building through a public entrance, the People did not prove unlawful entry as charged to the jury. The Second Department also held that defense counsel’s failure to make a speedy trial motion did not constitute ineffective assistance because it was not clear the motion would succeed:

While the failure to make a meritorious speedy trial motion can constitute ineffective assistance of counsel … , the speedy trial violation must have been “clear-cut and dispositive” … . In other words, the motion must not only be meritorious … , it generally must not require resolution of novel issues, or resolution of whether debatable exclusions of time are applicable … . Here, the issue cannot be fairly characterized as “clear-cut and dispositive” so as to render defense counsel ineffective for failing to make such a motion … . * * *

The testimony at trial was unequivocal that the defendant and two cohorts entered the subject premises, a self-storage facility, during business hours, using the entrance designated for use by the public. The defendant’s entry into the premises was therefore lawful … . While the defendant’s subsequent act of entering a nonpublic area of the premises could constitute an unlawful entry (see Penal Law § 140.00[5] … ), in light of the Supreme Court’s charge omitting that portion of the instruction elaborating upon license and privilege as it applies to nonpublic areas within public places, and asking the jury whether the defendant unlawfully entered the premises generally, it was factually insufficient to prove that the defendant’s entry was unlawful. People v McKinnon, 2020 NY Slip Op 05056, Second Dept 9-23-30

 

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