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WHETHER THE ENDORSEMENT WAS AFFIXED TO THE NOTE, A STANDING REQUIREMENT, WAS NOT RAISED BY THE DEFENDANTS ON APPEAL AND THEREFORE COULD NOT BE CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, over a partial dissent, determined that the plaintiff had established standing to bring the foreclosure action. The issue whether the endorsement was affixed to the note, the issue raised by the dissent, was not raised on appeal, according to the majority, and therefore could not be considered:

We disagree with our dissenting colleague on the issue of whether the plaintiff established that the note was properly endorsed pursuant to the Uniform Commercial Code and, thus, validly transferred to it. The defendants’ brief, at most, mentions in passing UCC 3-202(1) along with other boilerplate legal discussion, but then relates the UCC provision to an argument that the plaintiff failed to prove the authority of the assignor to negotiate the note. Further, in challenging the endorsement itself, the defendants focus in their brief on the plaintiff’s failure to establish the signature and authority of David A. Spector, whose name is on the endorsement, and the plaintiff’s failure to prove the chain of assignments, but the defendants do not actually raise the issue of the affixation of the endorsement to the note. The defendants’ brief focuses almost entirely upon the enforceability of the assignment, not the issue of physical possession of the note or endorsement. To the extent physical possession is argued by the defendants, their argument is that the plaintiff failed to prove when the note was received and the circumstances of its delivery, without raising any issue about this particular endorsement being firmly affixed to the note. As a result, the dispositive basis of the dissent, having not been argued on appeal, is simply not before us to consider. It is not appropriate for us to decide an appeal “on a distinct ground that we winkled out wholly on our own” … , where no party has had notice and an opportunity to be heard on this ground. Green Tree Servicing, LLC v Molini, 2019 NY Slip Op 02686, Second Dept 4-10-19

 

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DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize or investigate the obvious potential double jeopardy concern at the time of remittal for, if she had, she would have determined — as the People concede — that defendant had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT).

The Second Department determined the defendant was not informed of the deportation consequences of his guilty plea and therefore did not have the opportunity to move to withdraw his plea. Therefore a narrow exception to the preservation requirement applies and the matter was remitted to allow defendant to make the motion:

… [A] narrow exception to the preservation requirement exists “in rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which the court’s attention should have been instantly drawn,’ such that the salutary purpose of the preservation rule is . . . not jeopardized'” … .

In this case, the exception applies. At the plea proceeding, the court merely asked defense counsel if he had discussed with the defendant the potential “immigration consequences” of pleading guilty. Defense counsel responded: “He is here on a Green Card. We have discussed the immigration consequences.” Furthermore, the People’s contention that the written appeal waiver form demonstrates that the defendant was aware of the possibility of deportation prior to the imposition of the sentence is without merit … . Inasmuch as the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation, the defendant had “no practical ability” to object to the court’s statement or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … . People v Mohamed, 2019 NY Slip Op 02557, Second Dept 4-3-19

 

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DEFENDANT WAS NOT AFFORDED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DESPITE COUNSEL’S LIMITED COMMUNICATION WITH DEFENDANT, COUNSEL’S NOT ACTING UNTIL THE APPEAL WAS ON THE DISMISSAL CALENDAR, AND COUNSEL’S SUBMISSION OF A MINIMAL BRIEF WITH SIX LINES OF TEXT IN THE STATEMENT OF FACTS AND NO CITATIONS TO THE RECORD, WHICH INCLUDED A 4000 PAGE TRIAL TRANSCRIPT (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two separate, extensive dissenting opinions, determined defendant was not afforded ineffective assistance by his appellate counsel. The majority acknowledged that the appellate brief was “terse” and was not a model to be emulated, but noted the brief raised substantive issues that were addressed by the Appellate Division on the merits. The failure to raise the harsh and excessive sentence issue, and the failure to seek review by the Court of Appeals did not constitute ineffective assistance:

FROM JUDGE RIVERA’S DISSENT:

… [D]efendant maintains that counsel was ineffective because he initially failed to perfect the appeal, causing the Appellate Division to place the matter on the court’s Dismissal Calendar, thus risking the loss of defendant’s only appeal as of right … .

… [C]ounsel failed to communicate at all with his client in the three years following his appointment to represent defendant, and only as a late-day response to the Dismissal Calendar notification.  … * * *

The failings of the brief are substantial.  … The brief is barely 20 double-spaced pages, including separate pages for the cover, tables of contents and cases, CPLR 5531 statement, and issues presented. … Inexplicably, at the end of the facts section, appellate counsel inserted a photocopy of a six-page letter from trial counsel to the judge requesting an adjournment. The factual recitation consists of two pages and six lines of text. There is not a single citation in this section to the record on appeal, as required by the 1st Department’s Local Rule § 120.8 (b)(4) which requires an appellant’s brief to include a statement of facts “with appropriate citations to the . . . record.” This hardly seems adequate given defendant appealed from a judgment following a three-month joint trial with two co-defendants, resulting in a trial transcript spanning over 4,000 pages, and involving multiple serious counts, including murder. In contrast, the People submitted a brief over 175 pages long, with 60 pages solely devoted to the facts. People v Alvarez, 2019 NY Slip Op 02383, CtApp 3-28-19

 

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ALTHOUGH THE OPERATION OF THE KNIFE WAS DEMONSTRATED AT TRIAL, THERE WAS NO RECORD EVIDENCE THAT THE KNIFE POSSESSED BY DEFENDANT WAS A GRAVITY KNIFE, RELATED CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, under a weight of the evidence analysis, determined that the proof did not support the jury’s finding that the weapon possessed by defendant was a gravity knife:

Penal Law § 265.00(5) defines a “[g]ravity knife” as a “knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” “[A] gravity knife, as so defined, requires that the blade lock in place automatically upon its release and without further action by the user” … . …

Although an officer demonstrated the operation of the knife at trial, the record contains “no contemporaneous description of what the jury saw” during that demonstration … . Further, there is no other evidence in the record that established whether or how the blade locked. In short, the People failed to create a record proving that the knife satisfied the statutory definition of a gravity knife  … . Thus, the weight of the evidence before us does not support a finding that the defendant’s knife was, in fact, a gravity knife … . People v Sauri, 2019 NY Slip Op 02359, Second Deplt 3-27-19

 

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DEFENDANT WAS 17 WHEN HE COMMITTED THE CRIMES AND WAS CONVICTED OF MURDER IN 1992, THAT CONVICTION WAS OVERTURNED AND DEFENDANT PLED GUILTY TO MANSLAUGHTER IN 2016, ALTHOUGH DEFENDANT WAIVED HIS RIGHT TO APPEAL, HE WAS ENTITLED TO CONSIDERATION OF WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).

The Fourth Department remitted the matter for consideration whether defendant should be afforded youthful offender status. The original murder conviction was in 1992. Defendant was granted a new trial and pled guilty to manslaughter in 2016. The youthful offender issue survives a waiver of appeal:

Defendant was 17 years old at the time he committed the underlying crimes and, based on the record before us, he appears to be an eligible youth within the meaning of CPL 720.10 (2). Defendant was sentenced, however, without the benefit of an updated presentence report. The court obtained from defendant a waiver of an updated report, which is generally permissible where, as here, the “defendant had been continually incarcerated between the time of the initial sentencing and resentencing and at the time of . . . resentencing [the defendant] was afforded the opportunity to supply information about his [or her] subsequent conduct” … . Nonetheless, “[w]hen determining whether a defendant is an eligible youth, the defendant’s status at the time of the conviction—in this case at the time of his plea of guilty—is controlling” … . The original presentence report prepared in 1992 on which the court relied is insufficient to establish that defendant was an eligible youth at the time he pled guilty to the manslaughter counts in 2016. We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record a determination whether defendant is an eligible youth within the meaning of CPL 720.10 (2) with the benefit of an updated presentence report and, if so, whether defendant should be afforded youthful offender status. People v Jarvis, 2019 NY Slip Op 02206, Fourth Dept 3-22-19

 

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PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT).

The Fourth Department determined the period of postrelease supervision was not authorized for the indeterminate sentence imposed on the tampering with physical evidence conviction:

Supreme Court imposed a period of postrelease supervision in connection with defendant’s conviction of tampering with physical evidence. That was error inasmuch as a period of postrelease supervision is not authorized in connection with an indeterminate sentence (see Penal Law § 70.45 [1] … ). Although the issue is not raised by either party, we cannot allow an illegal sentence to stand … . We therefore modify the judgment by vacating that period of postrelease supervision … . People v Harvey, 2019 NY Slip Op 02250, Fourth Dept 3-22-19

 

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SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT).

The Fourth Department, over a two-justice concurrence, determined that defendant juvenile offender waived his right to appeal but found that the surcharge, DNA databank fee and crime victim assistance fee should not have been imposed on a juvenile offender. The concurrence argued that the waiver of appeal precluded the challenge to the imposed fees, but the People waived defendant’s appeal-waiver on that narrow issue:

As defendant contends and the People correctly concede, we conclude that the surcharge, DNA databank fee, and crime victim assistance fee imposed by County Court must be vacated because defendant is a juvenile offender … . People v Works, 2019 NY Slip Op 02247, Fourth Dept 3-22-19

 

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IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:

CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the rules of evidence, may be used . . . by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not admissible under CPLR 3117 (a) (3) … . …

Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s 2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s deposition testimony should have been admitted into evidence at this trial. Although a live witness may be impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier actions and selectively playing those portions they believed supported their respective contentions. The jury was essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19

 

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MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT DEFENDANT LACKED STANDING, OTHER GROUNDS FOR SUPPRESSION NOT RAISED BELOW COULD NOT BE CONSIDERED ON APPEAL, DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT A CIVIL SUIT AGAINST HIM (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant’s motion to suppress the weapon he dropped should not have been denied on the ground defendant lacked standing and defense counsel should not have been precluded from cross-examining a police officer about allegations made in a federal civil suit against him.  The First Department noted it could not consider alternative grounds for suppression not raised below:

Two officers testified at the hearing to the effect that the pistol was recovered immediately after it fell from defendant’s person. Since this Court lacks jurisdiction to affirm the denial of defendant’s motion to suppress the pistol on the alternative ground that the police had reasonable suspicion to stop and frisk him, a ground upon which the hearing court did not rule, we “reverse the denial of suppression and remit the case to Supreme Court for further proceedings”… .

Defendant is also entitled to a new trial, because the trial court improperly precluded his counsel from cross-examining the only police officer who allegedly saw the pistol falling from his person about allegations raised in a federal civil action against the officer, which had settled. Counsel had a good faith basis for seeking to impeach the officer’s credibility by asking him about allegations that he and other officers approached and assaulted the plaintiff in that case without any basis for suspecting him of posing a danger and filed baseless criminal charges against him … . Although trial courts “retain broad discretion” over the admission of prior bad acts allegedly committed by a police witness or other witness … , the court improvidently exercised its discretion by entirely precluding any cross-examination about the allegations at issue here without any valid … . People v Holmes, 2019 NY Slip Op 02033, First Dept 3-19-19