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THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the jury notes should have been read verbatim to counsel, not paraphrased:

.. [T]he jury submitted a note stating, “We would like to see the difference between first and second degree murder. (Powerpoint).” The Supreme Court informed counsel, the defendant, and the codefendant that the jurors “want to be recharged on first degree and second degree.” …

The jury submitted another note which read, “Phone Records Between Jimmy & Ragene — When Did Communication Start?” During a discussion on the record, the Supreme Court mentioned that the jurors “want to know when did the communications start. And the communications started on June 11. And the stipulation covers it. So we’ll read back the stipulation.”

The record reveals that the Supreme Court did not read the entire contents of these two jury notes into the record, and there was no indication that the entire contents of the notes otherwise were shared with counsel … . Rather, the court improperly paraphrased the notes  … .

Counsel’s awareness of the existence of a note does not effectuate the court’s proper discharge of its statutory duty … . Although defense counsel may have been made aware of the existence and gist of the second note during an off-the-record discussion, this is insufficient to establish that counsel had been made aware of the precise contents of the note … . Where a trial transcript does not show compliance with O’Rama’s procedure, it cannot be assumed that the omission was remedied at an off-the-record conference to which the transcript does not refer … .

As such, the Supreme Court committed a mode of proceedings error when it failed to provide counsel with meaningful notice of the precise contents of substantive juror inquiries, and therefore, reversal is required … . People v Copeland, 2019 NY Slip Op 06507, Second Dept 9-11-19

 

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THE CONDITIONAL ORDER OF DISMISSAL WAS NOT AUTHORIZED BECAUSE ISSUE HAD NOT BEEN JOINED AT THE TIME THE ORDER WAS MADE; THE BANK’S MOTION TO VACATE THE CONDITIONAL ORDER IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; AN UNAUTHORIZED SUPPLEMENTAL RECORD ON APPEAL TO WHICH THE PARTIES STIPULATED WAS NOT CONSIDERED (SECOND DEPT).

The Second Department determined the conditional order upon which dismissal of the complaint was based was not authorized because issue had not been joined at the time the order was made. Therefore the bank’s motion to vacate the conditional order in this foreclosure action should have been granted. However, because of the two year delay in moving to vacate the order, the bank is not entitled to interest, late charges, fees, costs and attorney’s fees incurred after the date of the 2014 conditional order. An unauthorized supplemental record on appeal, which was stipulated to by the parties, contained material that was not in the record and was not considered by the Second Department:

A pleading cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … . While a conditional order of dismissal may have “the same effect as a valid 90-day notice pursuant to CPLR 3216” … , the conditional order here was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute … . Additionally, it appears that the complaint was ministerially dismissed, without a motion, and without the entry of any formal order by the court dismissing the complaint … . U.S. Bank Natl. Assn. v Spence, 2019 NY Slip Op 06529, Second Dept 9-11-19

 

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THE PEOPLE DID NOT SUBMIT SUFFICIENT PROOF THAT A PERIOD OF TIME SHOULD BE EXCLUDED FROM THE STATUTORY SPEEDY TRIAL CALCULATION, APPEAL HELD IN ABEYANCE AND MATTER SENT BACK FOR A HEARING AND REPORT (SECOND DEPT). ​

The Second Department, sending the matter back for a hearing on defendant’s statutory speedy-trial motion to dismiss, determined defendant had met his burden to show a delay greater that six months but the People did not present sufficient evidence that a period of time should be excluded from the speedy trial calculation:

… [T]he defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint (see CPL 30.30[1][a]). In opposition, the People failed to conclusively demonstrate with “unquestionable documentary proof” that any periods within that time should be excluded (CPL 210.45[5][c] …). Moreover, the “court action sheet” provided to this Court on appeal, of which we may take judicial notice … , contained only an ambiguous notation purportedly regarding the defendant’s alleged waiver of his CPL 30.30 rights from May 5, 2014, to July 8, 2014 … . Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing and thereafter a report on the defendant’s motion … . People v Perkins, 2019 NY Slip Op 06516, Second Dept 9-11-19

 

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DEFENDANT CHARGED WITH AN A FELONY AND FACING A POTENTIAL LIFE SENTENCE CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION; JURISDICTIONAL ISSUE PROPERLY CONSIDERED ON APPEAL DESPITE GUILTY PLEA AND FAILURE TO RAISE THE ISSUE BELOW (CT APP).

The Court of Appeals, reversing defendant’s conviction by guilty plea, determined that the NYS Constitution and Criminal Procedure Law 195.10[1] prohibited defendant’s waiver of indictment because defendant was charged with an A felony with a potential life sentence. The defendant was charged with second degree murder, waived indictment and pled to a superior court information charging first degree manslaughter. The court noted that this jurisdictional issue could be considered on appeal despite the guilty plea and the failure to raise the issue below:

The New York State Constitution provides that “[n]o person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury” (NY Const, art. 1 § 6). The Constitution contains a limited exception to this jurisdictional requirement: “a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” (id. ).

In addition, Criminal Procedure Law § 195.10 provides that a defendant may waive indictment by grand jury when, among other conditions, “the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1]). Accordingly, under both the Constitution and Criminal Procedure Law, a defendant who is held for the action of the grand jury on a class A felony punishable by life imprisonment may not waive indictment by the grand jury and agree to be prosecuted for a lesser included offense in order to facilitate a plea bargain on the homicide offense … . People v Monforte, 2019 NY Slip Op 06451, CtApp 9-5-19

 

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ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the interest of justice. The court noted Criminal Procedure Law 710.30 does not apply to statements made voluntarily in a noncoercive, noncustodial setting. Therefore the failure to timely notify the defense of the defendant’s admission to the murder made to a confidential informant was not an error. Based upon the trial judge’s characterization of the defendant at sentencing, the new trial will be before a different judge:

Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness …, which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath. …

… .[T]he prejudice to the defendant arose from (1) the prosecutor’s posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell’s refusal to testify, and (3) the court’s jury instructions that the jury may draw an inference of the defendant’s guilt from Mitchell’s refusal to testify. …

“Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” … . “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . People v Ward, 2019 NY Slip Op 06419, Second Dept 8-28-19

 

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APPELLATE COUNSEL’S BRIEF IN SUPPORT OF LEAVE TO WITHDRAW WAS DEFICIENT, NEW APPELLATE COUNSEL ASSIGNED (SECOND DEPT).

The Second Department determined appellate counsel’s brief in support of a motion to withdraw was deficient:

An appellate court’s role in reviewing an attorney’s motion to be relieved pursuant to Anders v California (386 US 738) consists of two separate and distinct steps … . Step one requires the appellate court to perform “[an] evaluation of assigned counsel’s brief, which must, to be adequate, discuss relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority'” … . Step two requires the appellate court to perform “an independent review of the record’ to determine whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct'” … .

Here, the brief submitted by the defendant’s counsel pursuant to Anders v California (386 US 738) was deficient because it failed to adequately analyze potential appellate issues, including, but not necessarily limited to, whether the defendant’s plea of guilty was entered knowingly, intelligently, and voluntarily … . Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant’s plea of guilty was knowing, intelligent, and voluntary … . Accordingly, under the circumstances, we must assign new counsel to represent the defendant. People v Robinson, 2019 NY Slip Op 06417, Second Dept 8-28-19

 

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LETTERS OF ADMINISTRATION WERE ISSUED ON THE LAST DAY OF THE SIX MONTHS ALLOWED BY CPLR 205 (a) TO REFILE A DISMISSED ACTION, THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED; ARGUMENT THAT SUPREME COURT USED THE WRONG DATE TO CALCULATE THE SIX-MONTH PERIOD PROPERLY RAISED AND CONSIDERED FOR THE FIRST TIME ON APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the medical malpractice/wrongful death action should not have been dismissed because the letters of administration were issued within six months of the prior dismissal. The argument that Supreme Court used the wrong date to calculate the six-month period for re-filing a lawsuit pursuant to CPLR 205 (a) could be raised for the first time on appeal:

On appeal, plaintiff argues for the first time that the prior action was finally terminated when the October 2016 order granting the hospital’s motion was issued, so that the court used the wrong date to calculate when the six-month savings period under CPLR 205(a) began to run. We will consider this argument, since it raises a legal question appearing on the face of the record which could not have been avoided … .

While plaintiff, as voluntary administrator, lacked the legal capacity to enforce decedent’s personal injury and wrongful death claims on behalf of the estate in this second action (Surrogate’s Court Procedure Act § 1306[3] … ), he could remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a) … . In applying CPLR 205(a), we bear in mind that it is designed to ameliorate the potentially “harsh consequence of applying a limitations period where the defending party has had timely notice of the action” … . Because the first action was finally terminated on October 18, 2016, and the letters of administration were issued on April 18, 2017, on the last day of the six-month savings period (CPLR 205[a]), plaintiff timely obtained legal capacity to pursue the claims in this action … . Rodriguez v River Val. Care Ctr., Inc., 2019 NY Slip Op 06370, First Dept 8-27-19

 

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WHETHER MOTHER VALIDLY WAIVED HER RIGHT TO COUNSEL WAS APPEALABLE BECAUSE THE ISSUE WAS CONTESTED BEFORE MOTHER DEFAULTED BY FAILING TO APPEAR, DESPITE THE FACT THAT MOTHER’S REQUEST TO REPRESENT HERSELF WAS GRANTED; MOTHER WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP (FOURTH DEPT). ​

The Fourth Department, over two separate dissents, determined: (1) whether mother was adequately informed of the rights she was giving up by representing herself was appealable because the matter was contested before mother defaulted by failing to appear; (2) the fact mother was granted the right she requested (representing herself) did not preclude her appeal of the adequacy of her waiver of her right to an attorney; (3) mother was adequately informed of the rights she was giving up:

The mother contends … that Family Court erred in failing to ensure, in response to her request to proceed pro se, that her waiver of the right to counsel was knowing, intelligent, and voluntary. Initially, we conclude that the mother’s contention is reviewable on appeal from the orders … despite her default. CPLR 5511 provides, in relevant part, that “[a]n aggrieved party . . . may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” Thus, in general, “[n]o appeal lies from an order [or judgment] entered upon an aggrieved party’s default”… . Nevertheless, “notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those matters which were the subject of contest’ before the [trial court]” … .

… [W]e conclude that “[t]he issue of the mother’s waiver of the right to counsel was the subject of contest before . . . [the c]ourt and, therefore, may be reviewed by this Court …”. * * *

… [M]other was repeatedly advised by the court of the right to counsel, including assigned counsel, and was represented by several attorneys throughout the proceedings. Yet she discharged or consented to the withdrawal of each of those attorneys for her own reasons and ultimately opted to represent herself, even after she was advised that proceeding without the assistance of trained and qualified counsel might be difficult or detrimental and that she would be required to follow the rules of evidence. The mother also demonstrated the ability and preparedness to proceed pro se by, among other things, issuing subpoenas to various witnesses and filing exhibits. The record thus establishes that the court’s inquiry was sufficient to ensure that the mother’s waiver of the right to counsel was knowing, intelligent, and voluntary … . Matter of DiNunzio v Zylinski, 2019 NY Slip Op 06337, Fourth Dept 8-22-19

 

THE WORDING OF THE NOTICE OF APPEAL DID NOT RESTRICT THE APPEAL TO THE DENIAL OF PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT, BUT RATHER INCLUDED THE GRANT OF SUMMARY JUDGMENT TO DEFENDANT; THE DISSENTER DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s grant of summary judgment to defendant, over an extensive dissent, determined the notice of appeal did not restrict the appeal to the denial of plaintiff;s cross motion for summary judgment, but rather encompassed the appeal of the grant of summary judgment dismissing the complaint:

… [W]e reject the assertion of defendant and our dissenting colleague that plaintiff’s notice of appeal limits our review to that part of the order and judgment that denied plaintiff’s cross motion for partial summary judgment. The notice of appeal provides, in relevant part, that plaintiff “hereby appeals . . . from the . . . [o]rder and [j]udgment . . . denying [p]laintiff’s [c]ross[ m]otion for [s]ummary [j]udgment. Plaintiff appeals from each and every part of said [o]rder denying [p]laintiff’s [c]ross[ m]otion.” Contrary to our dissenting colleague’s position, inasmuch as the notice of appeal states that plaintiff sought to appeal from “each and every part” of the order and judgment and does not contain language restricting the appeal to only a specific part thereof, we conclude that the appeal is not limited to review of the denial of plaintiff’s cross motion and that the reference thereto simply constitutes language describing the order and judgment … .

Our determination that the reference to the cross motion in the notice of appeal is descriptive and does not constitute evidence that plaintiff excluded from her appeal that part of the order and judgment granting defendant’s motion is further supported by the fact that, in her cross motion, plaintiff expressly sought as part of the requested relief “[a]n [o]rder denying defendant’s [m]otion for [s]ummary [j]udgment in its entirety.” Cline v Code 2019 NY Slip Op 06251, Fourth Dept 8-22-19

 

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TWELVE YEAR SENTENCE FOR CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE DEEMED UNDULY HARSH AND SEVERE, REDUCED TO SEVEN YEARS IN THE INTEREST OF JUSTICE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, reduced defendant’s sentence in this “criminal possession of a controlled substance third degree” case from 12 to seven years. The period of post-release supervision was reduced from three to one and a half years. Defendant was found in possession of over 35 ounces of cocaine:

… [W]e agree with defendant that, under the circumstances of this case, the resentence is unduly harsh and severe. We therefore modify the resentence as a matter of discretion in the interest of justice by reducing the sentence of imprisonment to a determinate term of seven years and the period of PRS to a period of 1½ years … . People v Loiz, 2019 NY Slip Op 06240, Fourth Dept 8-22-19

 

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