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THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a concurrence, determined the skimmer (a forgery device) was the product of an illegal warrantless search and should have been suppressed:

“To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” … . Specific to this “place” requirement, the item searched must be conducted within the immediate control or grabbable area of the suspect … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… [T]he trooper testified that he removed the fanny pack and backpack from the apartment when he left and then placed defendant — who was in handcuffs — in the patrol vehicle. Thereafter, the trooper made a cursory search of the fanny pack and backpack on the hood of the vehicle. At the time of the search, defendant was incapable of grabbing the items as he was handcuffed and inside the trooper’s vehicle. The fanny pack and backpack were in the exclusive control of the trooper and defendant could not possibly gain possession of them or destroy any evidence in them … . …

[T]he record reflects that defendant’s demeanor and actions were not threatening, he had been pat-frisked earlier in the apartment, he was cooperative and offered no resistance when he was handcuffed and … the circumstances of defendant’s arrest did not give rise to a reasonable belief that the fanny pack or backpack contained a weapon or dangerous instrument. … [T]he trooper’s testimony at the suppression hearing did not demonstrate exigent circumstances. People v Crosse, 2021 NY Slip Op 04636, Third Dept 8-5-21

 

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FAMILY COURT RELIED ON HEARSAY (WHAT MOTHER TOLD THE CASEWORKER) IN THIS NEGLECT PROCEEDING AGAINST FATHER, NEGLECT FINDINGS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court improperly relied upon hearsay to make neglect findings and the evidence was otherwise insufficient. Mother’s neglect petitions were disposed of after she admitted neglect. The instant proceeding concerned the neglect petitions against father (the respondent) to which mother was not a party. The caseworker testified about what mother had told her:

… [P]etitioner’s caseworker testified as to what the mother had told her based upon their conversations. In this regard, the caseworker stated that the mother told her that, while the middle and youngest children were with her, she had been drinking heavily, that the mother believed that she may have assaulted one of the children and that, after respondent took the children for a while, he came back to her with some vodka, which she drank. As respondent and the attorney for the children correctly argue, Family Court improperly relied on this hearsay testimony — i.e., what the mother told the caseworker — in reaching its determination … , and the error in doing so was not harmless … . Matter of Aiden J. (Armando K.), 2021 NY Slip Op 04637, Third Dept 8-5-21

 

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DEFENSE COUNSEL TOLD THE COURT DURING THE PRE-TRIAL SUPPRESSION HEARING THAT DEFENDANT WAS NOT CONTESTING HIS CONSENT TO THE INTOXILYZER BREATH TEST; SUPREME COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO RAISE THAT SAME SUPPRESSION ISSUE DURING TRIAL; THE DISSENT DISAGREED (FIRST DEPT).

The First Department, over a dissent, determined defendant’s attempt, during trial, to suppress the results of the Intoxilyzer breath test was properly denied. Defense counsel had told the court, during the pretrial suppression hearing. defendant did not wish to contest the validity of his consent to the breath test and, consequently,  the prosecutor did not introduce a video of the procedure:

A defendant may move to suppress the results of a chemical test administered pursuant to Vehicle and Traffic Law § 1194(3) (see CPL 710.20[5]) by filing a motion “within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application” (see CPL 255.20[1]). CPL 255.20(3) prescribes that for pretrial motions filed outside the 45-day limitation, the court “must entertain and decide on its merits, at any[]time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified.” The section also provides that any other motion not filed within the specified time “may be summarily denied.”

The record indicates that when counsel made the omnibus motion, dated September 12, 2017, defendant was well aware of the facts underlying the administration of the Intoxilyzer breath test and, for reasons that are not apparent, chose not to file a motion on that ground. People v Marte, 2021 NY Slip Op 04648, First Dept 8-5-21

 

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ALTHOUGH THE WARRANTLESS SEARCH OF THE INTERIOR OF THE CAR FOR MARIJUANA WAS JUSTIFIED, THE FORGED CREDIT CARDS SHOULD NOT HAVE BEEN EXAMINED AND SIEZED; THERE WAS NOTHING ABOUT THE CARDS WHICH INDICATED THEY WERE CONTRABAND UNDER THE “PLAIN VIEW” DOCTRINE; THE COMPREHENSIVE DISCUSSION OF THE CRITERIA FOR WARRANTLESS SEARCHES UNDER THE NYS CONSTITUTION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive decision addressing the criteria for warrantless searches under the NYS Constitution, determined the credit cards seized in a legitimate warrantless automobile search for marijuana should have been suppressed. Although it turned out the credit cards were forged, there was nothing about their appearance which justified ascertaining the names on the cards under the “plain view” doctrine:

The record here established that Officer Zaleski had probable cause to search the center console of the vehicle—and the small zippered wallet that was contained within it—for the presence of marihuana … . * * *

Although Officer Zaleski lawfully encountered the three credit cards when he opened the zippered wallet to see whether there was marihuana inside it, the facts available to Officer Zaleski at the time he opened the zippered wallet would not “warrant a [person] of reasonable caution in the belief that [the credit cards] may be contraband” … . Indeed, at the time Officer Zaleski opened the zippered wallet, there was no evidence connecting the defendant to any burglary, or any other reason to believe that the three credit cards in the zippered wallet were stolen, forged, or otherwise illicit … . * * *

On this record, Officer Zaleski’s discovery of three credit cards stacked inside a small zippered wallet was insufficient, without more, to justify an additional search that went beyond the search for marihuana. People v Mosquito, 2021 NY Slip Op 04620, Second Dept 8-4-21

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY OR SPECULATIVE; THE AFFIDAVIT DEMONSTRATED THE EXPERT WAS QUALIFIED TO RENDER AN OPINION ON PROPER WOUND CARE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit should not have been rejected on the ground the expert was not qualified to give an opinion on proper wound care, or on the ground the affidavit was conclusory:

… [T]he plaintiff raised a triable issue of fact through the expert affirmation of Craig A. Nachbauer, a thoracic surgeon and Medical Director of the University of Vermont Health Network-CVPH Wound Center, who opined within a reasonable degree of medical certainty that the respondents departed from the accepted standard of care and that such departure resulted in decubitus ulcers and the disfigurement of the plaintiff’s knees … . … [T]he plaintiff’s expert raised a triable issue of fact as to whether the respondents failed to take appropriate measures to prevent the decubitus ulcers … , including allowing him to remain prone without turning or repositioning him for over 90 hours, without the use of pillows, foam, and gel pads to protect his hips or knees … .

… [T]he plaintiff’s expert established that his qualifications were sufficient to render an opinion as to the propriety of the wound care provided to the plaintiff in 2008 … . … [T]he plaintiff’s expert averred … that he had practiced surgery and wound care for approximately 30 years and that by virtue of his training and experience, he was fully familiar with the standards of accepted practice in the field of wound care, and with the responsibilities of hospital staff and physicians in the prevention and treatment of pressure/decubitus ulcers, as they existed in 2008. Cerrone v North Shore-Long Is. Jewish Health Sys., Inc., 2021 NY Slip Op 04593, Second Dept 8-4-21

 

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DEFENDANTS’ DEFAULT IN MAKING MORTGAGE PAYMENTS WAS NOT SUPPORTED BY THE SUBMISSION OF THE RELEVANT BUSINESS RECORDS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of defendants’ default in mortgage payments was based upon business records which were not produced:

… [T]he plaintiff failed to establish, prima facie, the defendants’ default in payment by submitting the affidavit of Haley Pope, the Foreclosure Manager for its loan servicer. Pope did not specifically state that she had personal knowledge of the defendants’ default in payment. To the extent Pope relied on her review of business records, she did not identify which records she relied on to assert a default in payment, or attach any business records to her affidavit to substantiate the alleged default in payment. Thus, the plaintiff failed to meet its prima facie burden by relying on Pope’s conclusory assertion that the defendants defaulted in payment, which was not supported by a factual basis … . Wilmington Sav. Fund Socy., FSB v McLaughlin, 2021 NY Slip Op 04576, Second Dept 7-28-21

 

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ALTHOUGH DEFENDANT WAS IN DEFAULT IN THIS FORECLOSURE ACTION, SHE STILL CAN CONTEST THE AMOUNT OWED; THE REFEREE’S REPORT HERE WAS REJECTED BECAUSE IT WAS BASED IN PART ON UNPRODUCED BUSINESS RECORDS AND THE MATTER WAS REMITTED FOR RECALCULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should have been rejected because it was based in part on business records which were not produced. Although defendant was in default, she still could contest the amount owed:

The fact that the defendant defaulted in appearing did not mean that she was precluded from contesting the amount owed … . The Supreme Court should not have confirmed the referee’s report because the referee’s recommendation that the plaintiff be awarded tax and hazard insurance disbursements was premised upon unproduced business records … . Consequently, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Accordingly, we reject the referee’s report and remit the matter to the Supreme Court, Kings County, for a new report computing the amount due to the plaintiff, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter. Wells Fargo Bank, N.A. v Campbell, 2021 NY Slip Op 04574, Second Dept 7-28-21

 

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IN THIS RESENTENCING PROCEEDING, THE JUDGE SHOULD HAVE CONSIDERED DEFENDANT’S CONDUCT SINCE THE ORIGINAL SENTENCE WAS IMPOSED IN 1998-99 AND SHOULD HAVE ORDERED AN UPDATED PRESENTENCE REPORT WHICH INCLUDED AN INTERVIEW WITH DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this resentencing proceeding, determined the sentencing judge could consider defendant’s conduct after the original sentence was imposed and should have ordered an updated presentence report, including an interview with the defendant. Defendant had been sentenced in 1998 and 1999 to 125 years of imprisonment. In 2019 defendant moved to set aside his sentence on the ground that is was vindictive and the People consented to setting the sentence aside:

The Supreme Court erred in determining that it had no discretion to consider the defendant’s conduct after the original sentence was imposed. In People v Kuey (83 NY2d 278, 282), the Court of Appeals noted that when a defendant comes before the court for resentencing, “the proper focus of the inquiry is on the defendant’s record prior to the commission of the crime.” However, the Court of Appeals did not purport to limit the sentencing court’s discretion. Indeed, in Kuey, the Court of Appeals further noted that the defendant was “afforded the opportunity to supply information about his subsequent conduct,” and that the court had discretion to order an updated presentence report regarding the defendant’s subsequent conduct, if it determined that such was necessary … .

Critically, unlike the resentencing proceeding in Kuey, the resentencing proceeding here was held because the original sentence was claimed to be vindictive, which is not merely a technical defect in the original sentence … , but implicates the original sentencing court’s failure to have observed sentencing principles before imposing sentence. Given the context under which the resentence was directed, the resentencing court must exercise discretion and give due consideration “to, among other things, the crime charged, the particular circumstances of the individual before the [resentencing] court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . People v Garcia, 2021 NY Slip Op 04558, Second Dept 7-28-21

 

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THE CLIMATOLOGICAL RECORDS WERE NOT CERTIFIED AS BUSINESS RECORDS AND THEREFORE COULD NOT BE RELIED UPON TO SHOW A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL; PROOF OF A GENERAL INSPECTION ROUTINE COULD NOT BE RELIED UPON TO SHOW THE ABSENCE OF CONSTRUCTIVE NOTICE OF THE BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this black-ice slip and fall case should not have been granted. The climatological records submitted to demonstrate there was a storm in progress at the time of the fall were not certified as business records and were otherwise insufficient. The evidence of a routine inspection practices was not sufficient to demonstrate a lack of constructive notice:

… [T]he defendant relied upon, among other things, climatological data for Poughkeepsie Airport and Danbury Municipal Airport in Connecticut, as well as spotter reports of snowfall accumulation in neighboring towns. However, because these records were not certified as business records, they were inadmissible (see CPLR 4518[a] …). In any event, the climatological data and spotter reports gathered from nearby areas were insufficient to demonstrate, prima facie, that the storm in progress rule applied … . Moreover, the climatological data was inconsistent and contradicted the parties’ deposition testimony, transcripts of which the defendant also submitted in support of its motion, as to whether precipitation was falling at or near the time of the plaintiff’s accident … . * * *

… “[M]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the testimony of the defendant’s witness, at best, established the defendant’s general inspection practices with respect to snow and ice on the defendant’s property … . Thus, absent specific evidence that this area was inspected prior to the plaintiff’s fall, the defendant cannot rely on this testimony in meeting its prima facie burden … . Johnson v Pawling Cent. Sch. Dist., 2021 NY Slip Op 04543, Second Dept 7-28-21

 

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THE BUSINESS RECORDS REFERRED TO IN THE SUPPORTING AFFIDAVIT WERE NOT ATTACHED; THE BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for a default judgment in this foreclosure action should not have been granted. The business records referred in the affidavit of the banks servicing agent were not attached:

Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party'” … . Here, in support of its motion, the plaintiff submitted an affidavit of merit executed by a “Document Execution Specialist” who was employed by the plaintiff’s servicing agent … . The affiant asserted that she had personal knowledge of the merits of the plaintiff’s cause of action based upon her review of various business records. However, as the defendants correctly contend, since the plaintiff failed to attach the business records upon which the affiant relied in her affidavit, her factual assertions based upon those records constituted inadmissible hearsay, and her affidavit was insufficient to demonstrate “proof of the facts constituting the claim” … . Deutsche Bank Natl. Trust Co. v Hossain, 2021 NY Slip Op 04480, Second Dept 7-21-21

 

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