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CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT).

The Second Department, reversing defendant’s child pornography convictions and dismissing the indictment, determined the convictions were against the weight of the evidence. The defendant, who speaks Spanish, gave a written statement in English acknowledging he had downloaded child pornography. However, it was revealed at trial that the police provided information that was in the statement and made changes to the statement without defendant’s permission. The defendant had waived a pre-trial Huntley hearing on the voluntariness of the statement, informing the judge he intended to challenge the voluntariness of the statement at trial. The judge, in this bench trial, erroneously ruled defendant had waived his right to challenge the statement a trial. The defendant testified that he did not download the child pornography and that he gave the statement to protect a family member. A family member testified and admitted “unintentionally” downloading the files. Defendant produced evidence he was at work when at least two of the files were downloaded:

The convictions were based on the defendant’s alleged acts of downloading and/or sharing 15 video files and 2 still images, on multiple dates. The People introduced into evidence, inter alia, a written statement in English that the defendant made to law enforcement officials. In that statement, the defendant acknowledged having downloaded approximately 5 videos containing child pornography; he did not specify the names or descriptions of the materials, or the dates of the actions. The defendant’s written statement included the name of the program used to download contraband materials to this computer, as well as a term allegedly used in titles of child pornography files, but a police investigator acknowledged that he had supplied those terms. Apart from the defendant’s statement to the police, the prosecution adduced no other evidence showing that it was the defendant who had downloaded and/or shared the subject materials, consisting of 15 video files and 2 still photographs, on specific dates and times. …

Although we ordinarily accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor…, under the circumstances of this case, we give no deference to the County Court’s assessment of the defendant’s credibility on the issue of the voluntariness of his statements to law enforcement officials, as the court erroneously precluded the defendant from contesting the voluntariness of the written statement during the trial, contrary to his statutory and constitutional right to do so … . People v Vasquez, 2018 NY Slip Op 04761, Second Dept 6-27-18

CRIMINAL LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/CHILD PORNOGRAPHY (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/VOLUNTARINESS OF STATEMENT (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/HUNTLEY HEARING LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))

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BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the bench trial judge had deprived defendant of his Sixth Amendment right to counsel in this misdemeanor case by first ruling defense counsel could give a summation and then rescinding that ruling. The court further determined the judge’s action was appealable because defense counsel did not have an opportunity to object:

We conclude that defendant’s claim is reviewable on appeal. The trial court, in specifically ruling that defendant’s permission to deliver a summation was rescinded and concomitantly rendering a verdict, deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law … .

Turning to the merits, the United States Supreme Court has held that New York’s former CPL 320.20 (3) (c) violated a defendant’s Sixth Amendment right to counsel by allowing the trial court the discretion whether to grant defense counsel the opportunity to give a summation in nonjury trials on indictments … . In this single judge trial on a class B misdemeanor, the trial court’s imposition of a sentence of 90 days in jail required that defendant be afforded the right to counsel at the trial under the Sixth Amendment… . That right was violated when the court denied defense counsel the opportunity to present summation … . People v Harris, 2018 NY Slip Op 04667, CtApp 6-26-18

​CRIMINAL LAW (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/APPEALS (CRIMINAL LAW, (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/RIGHT TO COUNSEL  (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))

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DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT).

The First Department dismissed the appeal of the defendant who had absconded during trial, was subsequently returned on a warrant 20 years later, and filed his brief 30 years after conviction:

The People seek to dismiss defendant’s appeal based on the “failure of timely prosecution or perfection thereof,” pursuant to CPL 470.60(1). Where a defendant’s appeal remained pending for a long time while he or she was a fugitive, whether the appeal should be permitted to proceed once the defendant is returned to custody is “subject to the broad discretion of the Appellate Division”… . In exercising its discretion, the Appellate Division may consider factors including whether defendant’s flight caused “a significant interference with the operation of [the] appellate process”; whether defendant’s absence “so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal”; the length of the defendant’s absence; whether the defendant “voluntarily surrendered”; and the merits of the appeal …

Applying these standards, we exercise our discretion to dismiss the appeal. There was an extensive delay — more than 27 years — from June 12, 1987, when counsel, on defendant’s behalf, filed a notice of appeal, until September 2014, when defendant sought poor person relief and assignment of counsel, and defendant finally filed his appellate brief in June 2017, 30 years after his conviction. The delay was caused entirely by defendant’s own conduct in absconding from trial, and remaining a fugitive for close to 20 years. Defendant did not surrender voluntarily; rather, he was returned involuntarily on the warrant after being arrested and convicted under another name in Massachusetts. An important transcript and the court file, each of which has a bearing on issues defendant seeks to raise on appeal, have been lost, and it is unreasonable to expect a court to preserve such materials forever. The delay of over 30 years would severely prejudice the People if required to retry the case after appeal. Thus, these factors demonstrate that dismissal is appropriate … . We also note that this Court has fully complied with the requirement … that this determination be made after appellate counsel has been assigned and permitted to review the record. People v Perez, 2018 NY Slip Op 04669, First Dept 6-25-18

​CRIMINAL LAW (APPEALS, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))/FUGITIVES (CRIMINAL LAW, APPEALS, DEFENDANT ABSCONDED DURING TRIAL, WAS INVOLUNTARILY RETURNED ON A WARRANT 20 YEARS LATER, AND FILED HIS APPELLATE BRIEF 30 YEARS AFTER CONVICTION, APPEAL DISMISSED FOR FAILURE TO PROSECUTE (FIRST DEPT))

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DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Devine, determined that the defendant did not have statutory authorization to appeal from a ruling by County Court which allowed the prosecutor access to a pre-sentence investigation report (PSI) prepared in connection with defendant’s prior conviction:

Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in Saratoga County, and a presentence investigation report (hereinafter PSI) was prepared for County Court prior to his 2006 sentencing. Several years later, an indictment was handed up in Schenectady County charging defendant with various offenses. The Schenectady County District Attorney believed that the PSI contained information relevant to the new criminal action and, as a result, applied to County Court for the limited disclosure and use of the PSI. County Court granted that request, prompting this appeal by defendant. * * *

… [T]he Schenectady County District Attorney’s Office applied for disclosure of the PSI with the aim of using it in a pending criminal action against defendant. The application therefore “relate[s] to a prospective, pending or completed criminal action” so as to constitute a criminal matter, and statutory authorization is required to appeal from any order emanating from it (CPL 1.20 [18] [b]). No such authorization can be found in CPL 450.10 or 450.15 and, thus, the present appeal must be dismissed … . People v Young, 2018 NY Slip Op 04596, Third Dept 6-21-18

​CRIMINAL LAW (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT)).PRE-SENTENCE INVESTIGATION REPORT (PSI) (DEFENDANT DID NOT HAVE STATUTORY AUTHORITY TO APPEAL COUNTY COURT’S RULING GIVING THE DISTRICT ATTORNEY ACCESS TO A PRE-SENTENCE INVESTIGATION REPORT (PSI) RELATING TO DEFENDANT’S PRIOR CONVICTION (THIRD DEPT))

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BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank was required to provide notice of its motions for an order of reference and a judgment of foreclosure which were made more than a year after defendant’s default. Therefore defendant’s motion to vacate the order of reference and judgment of foreclosure should have been granted. The court noted that the failure of notice was properly raised for the first time on appeal:

The defendant was entitled to notice of the plaintiff’s motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215(g)(1), which provides, in relevant part, that such notice to a defendant who has not appeared is required “if more than one year has elapsed since the default.” Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff’s contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal … . The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void … . Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527, Second Dept 6-20-18

​FORECLOSURE (BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CPLR 3215 (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))

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MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a change of venue on discretionary grounds was not brought in the correct county and should not have been granted. The issue was properly before the appellate court despite not having been raised below:

It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced … . A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]…). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a] …). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties’ motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County … . Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court … . Fensterman v Joseph, 2018 NY Slip Op 04532, Second Dept 6-20-18

​CIVIL PROCEDURE (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 503 (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 2212  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/VENUE  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, VENUE, MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))

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DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, affirming defendant’s criminal mischief conviction and the restitution order, looked at the evidentiary issues raised on appeal through the lens of the relevant jury instructions. Where there is no objection to the jury instructions, the proof required of the People is that which is laid out in the jury instructions. The indictment alleged that the defendant and several others vandalized cars at a dealership by scratching the cars with keys causing total damage in the amount of $40,000. On appeal defendant argued (1) the charged offense requires damage to property owned by a “person” and the People did not demonstrate that the car dealership was a “person” within the meaning of the statute, (2) the precise amount of damage attributable to the defendant was not proven, and (3) ordering defendant to pay restitution in the full amount of the damages was error. All of defendant’s arguments were rejected:

The court told the jury that defendant must have damaged the property of “another person” — not “another human being” — and it is common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals …. Indeed, the Court of Appeals has written that personhood is “not a question of biological or natural’ correspondence”…, and we can “presume[]” that the jurors had ” sufficient intelligence’ to make [the] elementary logical inferences presupposed by the language of [the court’s] charge” … . In short, defendant’s personhood argument effectively transforms an undefined but commonly understood term into an incorrectly defined term, and we decline to follow him down that path. …

… [T]he jury was instructed — without objection — that “[i]f it is proven . . . that the defendant acted in concert with others, he is thus criminally liable for their conduct. The extent or degree of the defendant’s participation in the crime does not matter” … . Perhaps this instruction was inconsistent with section 20.15 … but it still forecloses defendant’s claim of factual insufficiency as to value. …

… [T]he Court of Appeals previously upheld a restitution award that imposed the full value of the victim’s loss on a single perpetrator, instead of apportioning the loss among the defendant and his accomplices …— as defendant appears to seek here. People v Graves, 2018 NY Slip Op 04503, Fourth Dept 6-15-18

​CRIMINAL LAW (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))

SUPREME COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT).

The First Department determined Supreme Court properly considered a release that defendant had signed after the matter had been reversed on appeal and before the case was heard on remittal:

While Supreme Court is powerless to change a remittitur from this Court, “nevertheless, in order to avoid an obviously unjust result it may mold its procedure and adapt its relief to the exigencies of any new facts or conditions which were not before the [appellate court] when it made its original determination and entered its remittitur”… . Here, the release is a “new fact” that was not considered by this Court, and Supreme Court properly determined that it would be unjust to ignore its existence and proceed with the litigation. Gramercy Park Residence Corp. v Ellman, 2018 NY Slip Op 04424, First Dept 6-14-18

APPEALS SUPREME (COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT))/REMITTITUR (APPEALS, COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT))

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FAILURE TO RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two judge dissenting opinion, determined defendant’s objection to a juror who spoke out during the about defense counsel’s repeated use of a racial slur was not preserved for appeal. Defense counsel did not make the specific objection relied upon on appeal and was silent when objections were made by another defense attorney. The court further held that references to gang structure in the prison where the assault occurred were admissible to show the defendant’s motive and intent to join the assault:

To preserve an issue of law for appellate review, “counsel must register an objection and apprise the court of grounds upon which the objection is based at the time’ of the allegedly erroneous ruling or at any subsequent time when the court had an opportunity of effectively changing the same'” … . * * *

We are unpersuaded, first, by defendant’s argument that because his counsel referred to Juror Six as “grossly unqualified,” he preserved his Buford claim that the trial court had to make an inquiry into the juror’s ability to be impartial. What defendant ignores is that counsel’s reference to Juror Six being grossly unqualified was raised solely in relation to his consistent position that the only way to protect defendant’s right to a fair and impartial jury was to grant the specific remedy of a mistrial. Counsel argued vigorously that Juror Six had irreversibly tainted the entire jury——a defect in the process that would require more than the discharge of a single juror … . That being the case, counsel’s failure to join another codefendant’s request for a Buford inquiry after the court denied the mistrial motion makes plain the singular course set by counsel. …

Defendant’s alternative argument, that he preserved the issue for appellate review by way of his codefendant’s objection, is similarly unpersuasive. The Court has, in a different context, rejected the proposition that an issue is preserved for appellate review, notwithstanding a defendant’s failure to expressly present the matter to the trial court, merely because another party or codefendant protested or objected. * * *

… [T]he testimony elicited by the People about the Bloods was probative of defendant’s motive and intent to join the assault on complainant, and provided necessary background information on the nature of the relationship between the codefendants, thus placing the charged conduct in context … . The testimony was intended to explain why defendant and one of the codefendants were quick to join in the fight, as well as the gang-related meaning of the words complainant alleged that the codefendant used during and after the attack. In fact, very little of the investigator’s testimony focused on sensational details about the Bloods. The testimony described how members are identified and briefly discussed how carrying out an act of violence on behalf of a member might allow another member to rise in the gang’s hierarchy. People v Bailey, 2018 NY Slip Op 04383, CtApp 6-14-18

CRIMINAL LAW (APPEALS, EVIDENCE, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/APPEALS (CRIMINAL LAW, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/EVIDENCE (CRIMNAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/GANGS (CRIMINAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))

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FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT). ​

The Second Department, reversing Family Court, determined Family Court should not have relieved mother’s attorney as counsel and entered a default judgment on mother’s failure to appear. Mother was not notified of her attorney’s intent to withdraw and, therefore, Family Court should not have entered an order on mother’s default. Because the order should not have been entered, an appeal, rather than a motion to vacate the default, was the proper remedy:

Generally, no appeal lies from an order made upon the default of the appealing party (see CPLR 5511…). Rather, the proper procedure is to move to vacate the default and, if necessary, appeal from any denial of that motion (see CPLR 5015[a][1]…). Here, however, there was no proper order entered upon default. An attorney of record may withdraw as counsel only upon sufficient cause and upon notice to the client (see CPLR 321[b][2]…). Indeed, a purported withdrawal without proof of proper notice to the client is ineffective …, and a court may not enter a default order in the absence of a proper withdrawal … . There is no indication on the record that the mother’s attorney informed her that he was seeking to withdraw as counsel. Accordingly, the Family Court should not have relieved the mother’s attorney as counsel or entered an order on the mother’s default… . Inasmuch as no order was properly entered upon default, the mother’s appeal is not precluded … . Matter of Menghi v Trotta-Menghi, 2018 NY Slip Op 04324, Second Dept 6-13-18

​FAMILY LAW (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/APPEALS (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/DEFAULT (ATTORNEYS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CIVIL PROCEDURE (APPEALS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5511  FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5015 FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 321 (FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))

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