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DEFENSE COUNSEL DID NOT INVESTIGATE ALIBI EVIDENCE, DID NOT OBJECT TO EVIDENCE WHICH HAD BEEN RULED OFF LIMITS, AND DID NOT IMPEACH THE COMPLAINANT WITH INCONSISTENT TESTIMONY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defense counsel’s failure to investigate alibi evidence, failure to object to evidence which had been ruled off limits, and failure to impeach the complainant constituted ineffective assistance:

Under the circumstances of this case, where the determination of guilt hinged on sharp issues of credibility, we find that trial counsel lacked a strategic or legitimate justification for the failure to investigate the defendant’s alleged alibi defense … , and to present evidence to impeach the complainant’s testimony as to the duration and frequency of the alleged abuse … . Further, trial counsel failed to impeach the complainant with her sworn testimony given in the grand jury, which contradicted her trial testimony in various respects … . Notwithstanding a pretrial ruling by the court precluding the People from eliciting testimony regarding an early 2010 conversation about the alleged abuse between the complainant and her friend, trial counsel failed to object when such testimony was elicited at the trial. As such, counsel failed in his duty to protect the defendant’s interests by objecting to the People’s introduction of inadmissible evidence … . People v Ramos, 2021 NY Slip Op 03200, Second Dept 5-19-21

 

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THE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ROBBERS WAS LEGALLY SUFFICIENT BUT DEFENDANT’S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the evidence identifying defendant as one of the robbers was legally sufficient but the conviction was against the weight of the evidence:

… [T]he police officer who spoke with the complainant outside the deli testified that the only description given of the perpetrators was four male Hispanics, one with a bleach-blond beard, and that the complainant never mentioned that one of the perpetrators was wearing a bandana. After speaking with the complainant, the officer, accompanied by the complainant, crossed the street and entered the park where the robbery had occurred. The defendant, who was wearing a black shirt and sitting on a bench approximately 100 feet from where the crime took place, was the only person in the park. The officer walked up to the defendant, who did not flee or offer any resistance, told him to stand, and placed him in handcuffs. Upon searching the defendant, the officer found a bandana depicting the Mexican flag in his pocket. According to the arresting officer, upon seeing the bandana, the complainant told the officer for the first time that one of the perpetrators had been wearing a similar bandana. The complainant’s wallet and its contents were never recovered. * * *

In this single-witness identification case, an acquittal would not have been unreasonable. While the defendant was found in possession of a distinctive-looking bandana in close spatial and temporal proximity to the scene of the robbery, none of the police witnesses testified that the complainant had mentioned the existence of such a bandana prior to the defendant’s arrest. Moreover, the record evidence does not explain why the police would have expected to find one of the suspects in the park, when the complainant himself testified that the four suspects left together after the robbery. We also find it significant that the complainant testified that he had seen the man with the bandana on two occasions prior to the night of the robbery, yet he also testified that he had never seen the defendant before the night of the robbery, and in fact identified one of the codefendants in court as the man with the bandana. People v Garcia, 2021 NY Slip Op 03196, Second Dept 5-19-21

 

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of the bank’s compliance with the notice requirements of RPAPL 1304 in this foreclosure action was insufficient:

… [T]he plaintiff relied on an affidavit of James Green, a vice president of loan documentation for Wells Fargo, who averred that, based on his review of Wells Fargo’s business records, the required notice was sent by both certified mail and first-class mail. Green attached evidence of a certified article number, but did not attach any evidence of a first-class mailing. He did not aver that he had personal knowledge of the mailing, did not describe any standard office procedure designed to ensure that the notices are mailed, and did not attach domestic return receipts for the mailing … . Deutsche Bank Natl. Trust Co. v Ezeji, 2021 NY Slip Op 03164, Second Dept 5-19-2021

 

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THE POLICE ACTED ILLEGALLY IN DIRECTING DEFENDANT TO GET OUT OF HIS VEHICLE; HOWEVER THE DEFENDANT’S SUBSEQUENT INDEPENDENT ACT OF RUNNING OVER THE POLICE OFFICER DISSIPATED THE ILLEGALITY OF THE POLICE CONDUCT; THEREFORE DEFENDANT’S MOTION TO SUPPRESS CERTAIN TESTIMONY ABOUT THE ENCOUNTER WITH THE POLICE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress testimony about an encounter with police was properly denied. Although the police acted illegally in directing defendant to get out of his car and in trying to physically remove defendant from his car, the subsequent criminal act by the defendant, running over the police officer, dissipated the taint of the illegal police conduct:

“Where, like here, a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint” … . …

“Under the attenuation exception to the exclusionary rule, ‘[t]he question to be resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the challenged evidence was [obtained] ‘by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'” … . When determining whether an action taken by a defendant following an impermissible seizure dissipated the taint of the illegality, “[t]he test to be applied is whether defendant’s action . . . was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and thus attenuated from it” … .

Here, the defendant’s action in running over Officer Manzella’s legs and ankles with the vehicle constituted a calculated, independent criminal act, which broke the chain of events and dissipated the taint of the initial unlawful police conduct … . People v Contreras, 2021 NY Slip Op 03048, Second Dept 5-12-21

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants should not have been awarded summary judgment on the medical malpractice and lack of informed consent causes of action:

The affidavit of the defendants’ expert failed to address and rebut the specific allegations of malpractice set forth in the complaint and bill of particulars … , and failed to eliminate all triable issues of fact as to whether [defendant doctor] properly performed the transrectal biopsy procedure and properly discharged the plaintiff despite his repeated complaints of bleeding from his rectum, and whether these alleged departures from good and accepted medical practice were a proximate cause of the plaintiff’s injuries … . …

“The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

… [T]he defendants failed to submit proof sufficient to establish … that the plaintiff was informed of the reasonably foreseeable risks associated with the treatment, or that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Huichun Feng v Accord Physicians, PLLC, 2021 NY Slip Op 03024, Second Dept 5-12-21

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that the issue of plaintiff’s comparative negligence can be considered at the summary judgment stage if raised as an affirmative defense:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence … . Diamond v Comins, 2021 NY Slip Op 03019, Second Dept 5-12-21

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage. Therefore the bank’s motion for summary judgment in this foreclosure action should not have been granted:

… [T]he plaintiff failed to submit proof of the actual mailings, such as the affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Instead, the plaintiff relied on the affidavit of an employee of the plaintiff’s loan servicer, who did not attest that she had personal knowledge that the notices were mailed, or attest to a standard office mailing procedure designed to ensure that items are properly addressed and mailed … .

Likewise, relying on the same affidavit, the plaintiff failed to establish compliance with the requirements for a notice of default pursuant to sections 15 and 22 of the mortgage agreement. Statements in the employee’s affidavit, “which asserted that the notice of default was sent in accordance with the terms of the mortgage, [were] unsubstantiated and conclusory and . . . , even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage” … . U.S. Bank N.A. v Peykar, 2021 NY Slip Op 03077, Second Dept 5-12-21

 

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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

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THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a People’s appeal, determined the district attorney violated the Criminal Procedure Law by refusing to tell the grand jury defendant had requested that two witnesses give testimony, but the violation did not warrant dismissal of two counts of the indictment. The decision includes a detailed discussion of the district attorneys duties and discretion with respect to a defendant’s request for witness testimony before a grand jury:

… [A] prosecutor may not “suppress[ a] defendant’s request to call . . . witness[es] nor strip[ ] the grand jury of its discretion to grant or deny that request” … . Instead, “[a]lthough [a] prosecutor [cannot] avoid presenting [a requested] witness’s name for a vote, the prosecutor [is] free, in the role of advisor to the grand jury, to explain that the witness [does] not have relevant information [or] primarily offer[s] inadmissible hearsay testimony, and if unpersuasive in this effort, the prosecutor [may seek] a court order quashing the subpoena or limiting the witness’s testimony as provided in CPL 190.50 (3)” … . … [T]he court properly determined that the People, despite their stated concerns about the admissibility of the proposed testimony, violated their statutory obligation by refusing to present to the grand jury defendant’s request that two of the vehicle’s other occupants be called as witnesses. * * *

We … conclude that “this was not one of the rare cases of prosecutorial misconduct entitling a defendant to the exceptional remedy of dismissal, because there is no showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” … . … [T]he People did not engage in an overall pattern of willful and pervasive misconduct; instead, the failure to present defendant’s request for witnesses to the grand jury constituted an isolated instance of misconduct involving, at worst, the erroneous handling of an evidentiary matter, which “do[es] not merit invalidation of the indictment” … . People v Wilcox, 2021 NY Slip Op 02893, Fourth Dept 5-7-21

 

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THE EVIDENCE OF ESCAPE IN THE FIRST DEGREE WAS LEGALLY INSUFFICIENT; DEFENDANT WAS NOT YET IN CUSTODY WHEN HE DROVE AWAY AS A POLICE OFFICER ATTEMPTED TO PULL HIM FROM HIS CAR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of escape in the first degree, determined defendant was not yet in custody when he drove away as a police officer attempted to pull him from his car:

… [D]efendant contends that the evidence is legally insufficient to support the conviction of escape in the first degree. We agree. Here, a police officer informed defendant that he was under arrest and attempted to pull him from the driver’s seat of a vehicle, at which time defendant drove off, dragging officers across a parking lot. Under these circumstances, we conclude that defendant was not in custody at the time of the alleged escape … . People v Bagley, 2021 NY Slip Op 02964, Fourth Dept 5-7-21

 

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