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HEARSAY EVIDENCE TO WHICH NO OBJECTION WAS MADE CAN BE CONSIDERED BY THE COURT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS HIT AND RUN ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department noted that hearsay evidence to which no objection was raised may be considered by the court. Here the hearsay was a GPS document which purported to show the location of vehicle owned by defendant AT&T submitted to demonstrate its vehicle was not involved in the hit and run accident:

… Supreme Court denied the motion on the ground that the GPS document was inadmissible inasmuch as it was submitted to the court without the proper foundation and there was no information as to its reliability. AT & T appeals.

“[I]n civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … . The Supreme Court should not have denied AT & T’s motion on the ground that the GPS document was inadmissible since the plaintiff never raised that issue in opposition to the motion … .

In any event, the other evidence submitted by AT & T established, prima facie, that AT & T’s vehicle was not involved in the subject accident … . In opposition, the plaintiff failed to raise a triable issue of fact as to the identity of the driver or owner of the vehicle which struck him … . Costor v AT&T Servs., Inc., 2020 NY Slip Op 06098, Second Dept 10-28-20

 

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PETITIONER, THE OWNER OF A LEASED CAR DAMAGED IN AN ACCIDENT, SOUGHT A DECLARATION THAT THE RESPONDENT REPAIR SHOP’S GARAGEKEEPER’S LIEN WAS NULL AND VOID ALLEGING IT DID NOT AUTHORIZE THE REPAIR; ALTHOUGH THE NOTICE OF THE SALE TO PAY OFF THE LIEN DID NOT COMPLY WITH THE LIEN LAW, THE PETITION SHOULD NOT HAVE BEEN GRANTED BASED UPON EVIDENCE SUBMITTED IN SURREPLY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the petition, brought by the owner of a leased vehicle damaged in an accident, seeking a declaration that the respondent repair shop’s garagekeeper’s lien was null and void because it did not authorize the repair, should not have been granted. Although the notice of the sale to pay off the lien did not comply with the Lien Law, evidence submitted by the petitioner in suureply should not have been considered. Therefore the petition should not have been granted on the merits and respondent repair shop should have been allowed to submit an answer:

Accepting that respondent attempted “with due diligence” to personally serve the notice upon petitioners within the county where the lien arose, however, the notice was not sent via “certified mail, return receipt requested, and by first-class mail” as required to accomplish service under Lien Law § 201 … . Those service requirements are meant “to insure that [owners] have an adequate opportunity to reclaim their vehicles” … and, inasmuch as a garagekeeper’s lien is a statutory creation in derogation of common law, the failure to comply with them renders service defective … . Accordingly, in view of respondent’s failure to serve the notice in the manner required by the Lien Law, the time in which to commence this proceeding challenging the lien never began to run … . …

Supreme Court did abuse its discretion, however, in rebuffing respondent’s request to serve an answer and instead granting the petition on the merits. There was nothing to show that respondent was not a registered repair shop during the relevant period, and respondent asked petitioners to review a vehicle lease agreement that it believed conferred actual authority upon [the lessee] to authorize repairs on [petitioner’s] behalf … .  Petitioners instead provided that agreement for the first time in their surreply papers, a belated attempt to introduce new factual information to which respondent could not respond and that should have been rejected … . Matter of Daimler Trust v R&W Auto Body, Inc., 2020 NY Slip Op 06187, Third Dept 10-29-20

 

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

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THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT HOLDING A HEARING; THE RECORD WAS NOT SUFFICIENT FOR DIRECT APPEAL AND THE MOTION PAPERS RAISED QUESTIONS REQUIRING A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without holding a hearing. The record was not sufficient for a direct appeal on the issue, and the motion raised ineffective assistance questions requiring a hearing:

Defendant’s motion, alleging ineffective assistance of counsel in various respects, should not have been denied on the ground that the trial record is sufficient to permit appellate review (CPL 440.10[2][b]). The trial record does not establish whether counsel’s alleged deficiencies in handling suppression and trial issues were based on legitimate trial strategy. Moreover, the motion was supported by motion counsel’s affirmation detailing his conversation with trial counsel, which raised serious questions about counsel’s performance as to several matters. Furthermore, the court improvidently exercised its discretion to the extent that it denied the motion, without granting a hearing, based on CPL 440.30(4)(d) … . As noted, motion counsel’s affirmation recounted a conversation with trial counsel that tended to support some of the ineffectiveness claims. Motion counsel also averred that trial counsel ultimately refused to submit an affirmation in support of the motion. Under the circumstances, the motion court should have granted a hearing to enable trial counsel to be subpoenaed to testify or otherwise present evidence explaining whether there were strategic or other reasons for his decisions … . People v McCray, 2020 NY Slip Op 06219, First Dept 10-29-20

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT AND RESISTING ARREST CASE; DEFENDANT KICKED AND FLAILED AS HE WAS SUBDUED BY MORE THAN EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the jury should have been instructed on the justification defense:

Defendant’s request to charge justification, with regard to his kicking and flailing as officers tried to subdue and arrest him, should have been granted … . Penal Law § 35.27 permits a defendant to claim justification where there is a reasonable view of the evidence that he or she is the victim of excessive police force … . When a defendant requests such a charge, the trial court “must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified.” … Viewed in the light most favorable to the defense, the testimony and video evidence show that after defendant resisted police efforts to handcuff him, approximately eight additional officers joined in a struggle, punching and tazing defendant, and the police lieutenant used a baton to roll defendant’s Achilles tendon. These facts warranted a justification charge. People v Banyan, 2020 NY Slip Op 06060, First Dept 10-27-20

 

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DEFENSE COUNSEL WAS GIVEN NOTICE AND THE OPPORTUNITY TO BE HEARD BEFORE THE ISSUANCE OF THE WARRANT TO TAKE A DNA SAMPLE FROM THE DEFENDANT; DEFENSE COUNSEL WAS NOT ENTITLED TO DISCOVERY OF THE WARRANT APPLICATION PRIOR TO THE ISSUANCE OF THE WARRANT TO ASSESS PROBABLE CAUSE; A VIDEO DEPICTING DEFENDANT WAS PROPERLY AUTHENTICATED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, reversing the Appellate Division, determined defendant was not entitled to review the application for the warrant to collect DNA evidence from the defendant’s person before the warrant was issued. Defense counsel was given notice and an opportunity to be heard on the application and did not contest the reasonableness of the bodily intrusion at that time. The Appellate Division held (1) the defense was entitled to review the search warrant application before the warrant was issued (to assess probable cause) and (2) a video depicting the defendant was not properly authenticated. The Court of Appeals reversed on both issues:

The [Appellate Division] held that Supreme Court erred in precluding defense counsel from reviewing the search warrant application and in denying counsel the opportunity to be heard on the issue of probable cause. The Court rejected the People’s argument that Abe A. [56 NY2d 288] requires notice only for the first level of intrusion—seizure of the person—and held that the due process requirement of notice and an opportunity to be heard is likewise required for the subsequent search and seizure of corporeal evidence. The Court also held that the People failed to adequately authenticate the YouTube video … . * * *

It is evident that Abe A.’s requirement of notice and an opportunity to be heard in the pre-execution stage of a warrant authorizing the seizure of evidence by bodily intrusion was satisfied in this case. Defense counsel, having received notice of the hearing on the warrant, was given an opportunity to be heard on the application, other than on the issue of probable cause. Counsel failed to direct any argument to the nature of the intrusion, the value of comparative DNA analysis evidence or the sufficiency of the safeguards preventing unwarranted disclosure of the results of his DNA testing, either at the hearing or in his motion to suppress. …  [T]he method and procedures employed in taking the saliva undoubtedly respected relevant Fourth Amendment standards of reasonableness, and defendant’s claim that the failure to provide him discovery of the extant probable cause and an adversarial hearing nonetheless warrants the invocation of the exclusionary rule is without constitutional basis.

[With respect to the video,] …defendant did not dispute that he was the individual who appeared in the video reciting certain words [and] the video contains distinctive identifying characteristics … . … [T]estimony … provided evidence pertinent to the timing of the making of the video—including defendant’s admission of his future intent to make the video the next morning … —and the video was uploaded to YouTube close in time to the homicide. … [T]he video was introduced for its relevance to defendant’s motive related to territorial gang activity—which is not an element of the offense—rather than specifically offered for its truth. People v Goldman, 2020 NY Slip Op 05977, Ct App 10-22-20

 

 

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IN A VEHICULAR MANSLAUGHTER CASE, THE STANDARD OF PROOF OF IMPAIRMENT FROM MARIJUANA IS THE SAME AS THE STANDARD OF PROOF OF IMPAIRMENT FROM ALCOHOL (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Lynch, affirmed defendant’s conviction stemming from a collision with a motorcycle at a time when defendant was impaired by marijuana (THC). The decision, which lays out the law of vehicular manslaughter, carefully goes through evidence of impairment and causation. The opinion is too detailed to be fairly summarized here. It is worth noting that, on the issue of impairment, the opinion indicates a prior decision describing a different standard of proof of impairment for marijuana, as opposed to alcohol, should no longer be followed. The same standard of proof of impairment is applied to the drugs enumerated in Public Health Law 3306, including marijuana, as is applied to alcohol:

… [T]he degree of impairment necessary to convict a motorist of vehicular manslaughter in the second degree based upon a death that was caused while such motorist was under the influence of one of the drugs enumerated in Public Health Law § 3306 (which includes marihuana) is the same degree of impairment as would be necessary to sustain a conviction of driving while intoxicated by alcohol — namely, the People must prove that such motorist was “incapable of employing the physical and mental abilities which he [or she was] expected to possess in order to operate a vehicle as a reasonable and prudent driver” … . To the extent that this Court’s decision in People v Rossi (163 AD2d 660, 662 [1990], lv denied 76 NY2d 943 [1990]) can be read as holding that a conviction of vehicular manslaughter in second degree based upon a violation of Vehicle and Traffic Law § 1192 (4) only requires proof that the motorist was impaired “to any extent,” it should no longer be followed. People v Caden N., 2020 NY Slip Op 05979, Third Dept 10-22-20

 

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RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE JULY 2015 MENTAL HYGIENE ARTICLE 10 TRIAL; COUNSEL WAS INEFFECTIVE IN NOT REQUESTING A FRYE HEARING ON THE VALIDITY OF THE OSPD DIAGNOSIS; MATTER REMITTED FOR A FRYE HEARING BASED UPON WHAT WAS KNOWN ABOUT THE DIAGNOSIS AT THE TIME OF THE 2015 TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, remitting the matter for a Frye hearing, determined respondent was deprived of effective assistance of counsel in the July 2015 Mental Hygiene Article 10 trial because counsel did not request a Frye hearing on the validity of the “other specific paraphilic disorder (nonconsent)” (OSPD) diagnosis. It was not until just after the July 2015 trial that courts recognized it was an abuse of discretion to deny a Frye hearing regarding OSPD, but there was a substantial amount of literature calling the diagnosis into question at the time of the trial:

When evaluating whether counsel’s failure to request a pretrial Frye hearing in this case constituted ineffective assistance, counsel’s posttrial motion practice sheds light on what counsel knew, or should have known, prior to trial about the acceptance of paraphilic disorders. Counsel filed a posttrial motion, apparently at respondent’s urging, to preclude from the dispositional hearing evidence of OSPD (nonconsent) and other paraphilic disorders by any name. In his motion papers, counsel not only cited to several of the foregoing trial court cases that had been recently issued, but also annexed several scientific articles from 2014, 2011 and 2008 that highlight the controversial nature and forensic misuse of paraphilic disorders generally or outright reject PNOS (nonconsent) or OSPD (nonconsent) as diagnoses reliable enough for the courtroom. At least one of these articles, as well as counsel’s cross-examination of [an expert] at trial, reveal that counsel was at least generally aware that defined nonconsent paraphilias or paraphilic disorders had been rejected for inclusion in various versions of the Diagnostic and Statistical Manual … . * * *

… [H]ad counsel been successful at a pretrial Frye hearing in precluding consideration of OSPD (nonconsent), it is possible that respondent could have had the petition dismissed before trial … . … In other words, counsel “had everything to gain and nothing to lose” by challenging OSPD (nonconsent) in a Frye hearing … . … [T]his single failing deprived respondent of the effective assistance of counsel … . Accordingly, we hold the appeal … in abeyance and remit the matter to Supreme Court for a posttrial Frye hearing to consider the reliability of OSPD (nonconsent) based on the information that was available prior to the July 2015 trial, and to report back on its findings … . Matter of State of New York v Kenneth II, 2020 NY Slip Op 05980, Third Dept 10-22-20

 

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UNDER THE CIRCUMSTANCES, A LINCOLN HEARING WILL PROVIDE INFORMATION PERTINENT TO FATHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, remitted the matter to determine whether a change in circumstance warranted a modification of the child custody order. The order did not address where the child should attend school after eighth grade and father sought an modified order allowing the child to attend a public high school and expanding his parenting time. Family Court refused to use information learned in a Lincoln hearing in connection with the father’s burden to show a change in circumstances. The Third Department remitted the matter noting that a Lincoln hearing, under the circumstances, would provide the court with pertinent information:

… [T]he father established a change in circumstances requiring a thorough best interests analysis. To that end, it is undisputed that there is no current order governing where the child is to attend school. Also, the father’s uncontested testimony established that the father and the mother cannot reach an agreement as to where the child should attend school, thus requiring judicial intervention … . …

Family Court erred in denying the father’s motion requesting a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. “Although a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative” … . Although “[t]he decision whether to conduct such a hearing is discretionary, . . . it is ‘often the preferable course’ to conduct one” … . Here, given that the child was 14 years old at the time of the fact-finding hearing and had expressed a preference to attend public school, that this preference was one of the changed circumstances alleged by the father and that the attorney for the child joined in the father’s request for the Lincoln hearing, a Lincoln hearing “would have provided the court with significant pieces of information it needed to make the soundest possible decision” … . Matter of Edwin Z. v Courtney AA., 2020 NY Slip Op 05987, Third Dept 10-22-20

 

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FATHER WAS NOT ENTITLED TO SUMMARY JUDGMENT TERMINATING HIS PARENTAL RIGHTS ON THE GROUND HIS 18-YEAR-OLD CHILD HAD ABANDONED HIM (THIRD DEPT).

The Third Department, reversing Family Court, determined father was not entitled to summary judgment on his petition to terminate his parental rights on the ground that the 18-year-old had abandoned him:

… [T]he father did not establish his entitlement, as a matter of law, to termination of his child support obligation on the ground of abandonment. Although the father’s submissions detailed his efforts to establish a relationship with the child and the child’s repeated rebuffs of those efforts, the father’s proof failed to demonstrate as a matter of law that the child’s refusal to have contact with him was totally unjustified, particularly given the father’s prolonged absence from the child’s life and the child’s developmental disability and other diagnoses. Such factual issues warranted a full evidentiary hearing and should not have been summarily resolved by Family Court … . Although Family Court had knowledge of prior proceedings between the parties, the justification issue had never been squarely before Family Court and required the presentation of evidence, including potential expert testimony, concerning the impact of the child’s developmental disability and other diagnoses on the child’s refusal to have contact with the father. Matter of Thomas GG. v Bonnie Jean HH., 2020 NY Slip Op 05988, Third Dept 10-22-20

 

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