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THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined there was legally insufficient evidence that the defendant shared the co-defendant’s intent to kill, and the verdict was against the weight of the evidence. The co-defendant walked up to the defendant on the street and shot him. The defendant was present at the scene and picked the co-defendant up and drove away after the shooting. The defendant was convicted under an accomplice or accessorial liability theory:

A “defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … . Indeed, evidence that a defendant was at the crime scene and even assisted the perpetrator in removing evidence of that crime is insufficient to support a defendant’s conviction where the People fail to offer evidence from which the jury could rationally exclude the possibility that the defendant was without knowledge of the perpetrator’s intent … . “An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose”… . We have no difficulty concluding that there is a valid line of reasoning and permissible inferences by which the jury could have found that defendant intentionally aided the codefendant after the murder, but we cannot conclude that there is legally sufficient evidence to support the inference that defendant shared the codefendant’s intent to kill the victim … . The People offered no motive for the crime … , and the evidence indicating that defendant was staring at the victim 40 minutes before the shooting and that defendant may have dropped off the codefendant at the bar prior to the shooting was plainly insufficient to establish that defendant was aware of and shared the codefendant’s intent to kill the victim … . * * *

Even assuming, arguendo, that the evidence is legally sufficient, viewing the evidence in light of the elements of the crime as charged to the jury … , we further conclude that the verdict is against the weight of the evidence … . A review of the weight of the evidence requires us to first determine whether an acquittal would not have been unreasonable … . If so, we must ” weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . We conclude that an acquittal would not have been unreasonable in this case and, based on the weight of the evidence, we further conclude that the jury was not justified in finding defendant guilty beyond a reasonable doubt. People v Mcdonald, 2019 NY Slip Op 03494, Fourth Dept 5-3-19

 

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BY JOINING IN A PRE-ANSWER MOTION TO DISMISS DEFENDANT EXTENDED ITS TIME TO ANSWER UNTIL TEN DAYS AFTER NOTICE OF ENTRY OF THE ORDER DECIDING THE MOTION TO DISMISS, SINCE DEFENDANT WAS NOT IN DEFAULT, IT COULD APPEAL THE ORDER FINDING IT IN DEFAULT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not default. Defendant (Advisors) had joined in a pre-answer motion to dismiss, which extended the time for serving an answer until ten days after notice of entry of the order deciding the motion to dismiss. Because defendant was not in default, it could appeal:

Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants, pursuant to CPLR 3211(f) (see also CPLR 320[a]; 3012[a], [c]). Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it … . Here, Advisors did not default, but appeared by joining in defendants’ motion to dismiss the causes of action asserted against the individual named defendants, thereby extending its time to answer the complaint … . Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).

Defendant’s appeal from the order granting the default motion was proper, as it appeared and contested the application for entry of a default order below … . Accordingly, CPLR 5511, which generally prohibits an appeal from an order or judgment entered upon default, is inapplicable … . Levine v Singal, 2019 NY Slip Op 03438, First Dept 5-2-19

 

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BECAUSE NO PETITION HAD BEEN FILED IN THIS SUPPORT ENFORCEMENT PROCEEDING, FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION, A DEFECT THAT MAY BE BROUGHT UP AT ANY TIME (THIRD DEPT).

The Third Department determined Family Court did not have subject matter jurisdiction over the support enforcement proceeding because no petition had been filed. The support magistrate had erroneously treated a request by Florida to register the Florida support judgment in New York as an “enforcement petition:”

The Uniform Interstate Family Support Act (see Family Ct Act art 5-B) provides that “[a] registered support order issued in another state . . . is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state” (Family Ct Act § 580-603 [b]). In New York, proceedings for the violation of a support order “shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful [support] order,” and Family Court lacks subject matter jurisdiction to determine a violation claim without that petition (Family Ct Act § 453 … ). DSS was free to, and eventually did, file a petition alleging that the father had failed to comply with the support provisions contained in the 2014 judgment (see Family Ct Act §§ 453 [a]; 580-603 [b]). This proceeding did not arise out of that petition, however, and was not rendered viable by its filing … . Family Court accordingly lacked subject matter jurisdiction to render the appealed-from order, and “the claim that a court lacked subject matter jurisdiction ‘may be raised at any time and may not be waived'” … . Matter of Pudvah v Pudvah, 2019 NY Slip Op 03414, Third Dept 5-2-19

 

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ORDER ENTERED UPON CONSENT IS NOT APPEALABLE, COERCION ARGUMENT MUST BE RAISED IN A MOTION TO VACATE THE ORDER (THIRD DEPT).

The Third Department, dismissing the appeal in this neglect proceeding, noted that an order entered upon consent is not appealable. The argument that the consent was coerced must be raised in a motion to vacate the order:

Following consultation with her counsel, respondent … consented on the record to a finding of neglect. Family Court then entered an order that adjudicated the children to be neglected and contained the agreed-upon terms of disposition. Respondent appeals.

It is well settled that an order entered upon consent is not appealable … . Respondent’s claim that her consent was involuntary because she was coerced into accepting the settlement offer should have been raised in Family Court by way of a motion to vacate the order (see Family Ct Act § 1051 [f] … ). As the record does not reveal that any such application was made, the appeal is not properly before this Court. Matter of Vicktoriya DD. (Sheryl EE.), 2019 NY Slip Op 03411, Third Dept 5-2-19

 

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ASSIGNED COUNSEL’S FAILURE TO FILE A NOTICE OF APPEAL IN A NEGLECT PROCEEDING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, FAMILY COURT TO ISSUE REPLACEMENT ORDER FROM WHICH AN APPEAL MAY BE TAKEN (SECOND DEPT).

The Second Department determined that assigned counsel’s failure to file a notice of appeal in a neglect proceeding constituted ineffective assistance:

“A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Further, “certain Family Court proceedings, although civil in nature, implicate constitutional due process considerations because they involve issues relating to the custody and welfare of children” … .

Here, the father demonstrated that his assigned counsel’s failure to timely file a notice of appeal from the order of fact-finding and disposition constituted ineffective assistance of counsel. Under the circumstances of this case, reversal of the order appealed from is warranted, and we grant the father’s motion to vacate the order of fact-finding and disposition and remit the matter to the Family Court … . Upon remittitur, the court should issue a replacement order of fact-finding and disposition so that the father’s time to appeal will run anew. Matter of Ricardo T. (Ricardo T.), 2019 NY Slip Op 03347, Second Dept 5-1-19

 

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FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, because there will be a new trial, the Fourth Department indicated the court erred in finding defendant’s cell phone was lawfully seized from defendant’s vehicle incident to arrest to protect evidence in defendant’s grabbable area from destruction or concealment. The Fourth Department noted it could not consider the People’s argument the cell phone was lawfully seized pursuant to the automobile exception to the warrant requirement because Supreme Court didn’t rule on that issue. The Fourth Department directed Supreme Court to make a ruling. The Fourth Department further directed Supreme Court to rule on whether an unavailable witness’s hearsay statement should be admitted pursuant to defendant’s rights to put on a defense and due process. Defendant had raised that issue but Supreme Court did not rule on it. With respect to the for cause juror challenges, the court wrote:

“It is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial’ “… . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or talismanic’ words . . . , [a prospective] juror[] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [him or her] from reaching an impartial verdict” … . People v Clark, 2019 NY Slip Op 03231, Fourth Dept 4-26-19

 

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DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT).

The Fourth Department, in an extensive, fact-specific decision, over a dissent, affirmed defendant’s predatory sexual assault against a child and rape first degree convictions. The child was four when the alleged incident occurred and 11 at the time of the third trial. There was a hung jury in the first trial and the conviction after the second trial was reversed based upon the judge’s handling of a jury note. The principal physical evidence was sperm found on the child’s underwear. No semen was found on the underwear or on the child. There was no injury to the child’s genitals. The defense theory was that the sperm was transferred to the child’s underwear during a wash. The People’s expert testified such a transfer was possible. The appeal came down to a weight of the evidence analysis. The dissent argued the proof did not rise to the level of beyond a reasonable doubt, noting the absence of semen, the lack of injury, the victim’s poor memory and implausible description of the rape, the victim’s affirmative response to the prosecutor’s mistaken question about a second rape (the prosecutor mistakenly thought the two counts of rape in the indictment alleged two separate incidents), and the fact that defendant had no criminal record and no other allegation of inappropriate sexual conduct had ever been made against him. People v Garrow, 2019 NY Slip Op 03238, Fourth Dept 4-26-19

 

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VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).

The Third Department, noting the validity of questions raised about the evidence that claimant sold the drugs, affirmed the verdict in favor of the state in this malicious prosecution, false arrest and unlawful imprisonment action. The evidentiary issues were noticed and raised by appellate counsel, but were not raised in the Court of Claims:

If taken at face value, this evidence would validate claimant’s testimony that he did not sell drugs to the informant and that defendant should have known as much. Critically important, however, is the fact that this timing discrepancy was never addressed at claimant’s criminal trial or the subject bench trial before the Court of Claims, and appears only to have been discerned by claimant’s counsel in his appellate brief. Defendant points out in its brief that it was unable to verify when the audio recording began because it did not have the original compact disc. The discrepancy between the commencement of the audio recording and the taking of the photographs is a matter of minutes at best. Missing from this record is any testimony expressly validating the timing as to when the audio recording began. Had this discrepancy been called to the attention of the Court of Claims, corresponding testimony could have been entertained … . As such, on this record, we decline to disturb the credibility determination made by the Court of Claims. Jenkins v State of New York, 2019 NY Slip Op 02932, Third Dept 4-18-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, VACATED A DEFAULT JUDGMENT IN THE ABSENCE OF A MOTION OR REQUEST, NO APPEAL AS OF RIGHT FROM A SUA SPONTE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the judge did not have the authority to vacate a default judgment in absence of a request for that relief. The First Department treated the notice of appeal as a motion for leave to appeal, noting that a sua sponte order is not appealable as of right:

While an order entered sua sponte is not appealable as of right … , given the lack of evidence of the timeliness of the service of the answer and given the motion court’s failure to identify a legal basis for vacating the prior order, we deem the notice of appeal a motion for leave to appeal, and grant leave … .

The court exceeded its authority in sua sponte vacating the prior order granting plaintiff’s motion for a default judgment … . In the absence of a motion or other request for relief from the order, the court’s discretion to correct the order was limited to curing any mistake, defect or irregularity “not affecting a substantial right of a party” (CPLR 5019[a]). Betts v Tsitiridis, 2019 NY Slip Op 02970, First Dept 4-22-19

 

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THE CONSEQUENCES OF DEFENDANT’S WAIVER OF APPEAL WERE EITHER NOT EXPLAINED OR WERE WRONGLY EXPLAINED, THE WAIVER WAS INVALID, THE INITIAL COMMUNICATION BY THE POLICE OFFICER WAS NOT A LEVEL ONE DE BOUR INQUIRY, THE SWITCHBLADE DEFENDANT THREW AWAY WHEN THE COMMUNICATION WAS MADE WAS PROPERLY ADMITTED IN EVIDENCE (SECOND DEPT).

The Second Department determined (1) defendant’s waiver of appeal was invalid because the nature and consequences of the waiver were either not explained or were wrongly explained, and (2) the police officer’s (Conaghan’s) initial communication with defendant when the officer was sitting in a moving police vehicle was not a level one De Bour inquiry. Therefore the switchblade defendant threw away upon the officer’s communication was properly admitted in evidence:

We agree with the Supreme Court’s determination that the comment, “fellas, how you doing tonight,” constituted a greeting and not a level-one De Bour inquiry … . Conaghan testified at the suppression hearing that, when he asked the defendant and the two other males how they were doing, the window to the vehicle was already rolled down and his partner did not stop the vehicle. He also testified that he often greeted people on the street in this manner. Moreover, the credibility determinations of a court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record … . A review of the record supports the court’s finding that Conaghan’s testimony was credible.

Since there was no impermissible request for information by Conaghan, the defendant’s “unprovoked and wholly voluntary” act of throwing the switchblade was not in direct and immediate response to any illegal actions by the police … . The recovery of the switchblade was not tainted by any illegality, because no illegal inquiry occurred … . People v Birch, 2019 NY Slip Op 02716, Second Dept 4-10-19