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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS; THEREFORE THE WITNESS’S STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ALLOWING THE PEOPLE TO MAKE PEREMPTORY CHALLENGES AFTER THE DEFENSE WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined a witness’s out-of-count statement should not have been admitted because the People did not demonstrate defendant procured the witness’s absence and the failure to follow proper procedure in jury selection was reversible error:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

Here, the People failed to establish by clear and convincing evidence that the defendant was responsible for procuring a certain witness’s refusal to testify at trial … . Specifically, the People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … .

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors (see CPL 270.15[2] … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 01993, Second Dept 3-31-21

The same peremptory challenge issue required reversal in People v Taylor, 2021 NY Slip Op 01998, Second Dept 3-31-21

 

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THE FINDING THAT THE COMPLAINANT CONSENTED TO LYING DOWN IN BED WITH PETITIONER FOR THE NIGHT BUT DID NOT CONSENT TO HAVING SEX WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE COLLEGE’S DETERMINATION THAT PETITIONER VIOLATED THE STUDENT CODE OF CONDUCT ANNULLED (SECOND DEPT).

The Second Department, annulling the determination of the Campus Appeals Board of SUNY Purchase College, held the Board’s conclusion petitioner had sexual intercourse with the complainant without the complainant’s consent was not supported by substantial evidence. The Board had found the evidence that complainant was unable to give consent “conflicting and unreliable:”

After the hearing, the Hearing Board found “the complainant’s statements to be conflicting and unreliable as it pertained to her inability to give consent.” The Hearing Board concluded that “[t]here were considerable gaps in the complainant’s memory,” and indicated that it was “concerned that some of her statements after her initial report were tainted by reading the reports that were submitted by other witnesses and parties.” Nevertheless, the Hearing Board found that although there was consent for lying together in bed, kissing, and the removal of the complainant’s pants, the complainant had not consented to the remainder of the sexual activity. …

… [T]he determination that the petitioner violated code C.8 was not supported by substantial evidence. Having rejected the complainant’s testimony that she was incapable of giving consent, the Hearing Board was not left with adequate evidence to support the conclusion that while the complainant consented to spending the night in the petitioner’s bed, kissing, and removing her pants, she did not consent to the remainder of the sexual activity. The Board indicated that its finding of nonconsensual conduct was based on the statements of the petitioner and the complainant “that clear, affirmative consent for these activities was not given.” However, the petitioner, while freely admitting that he did not obtain verbal consent, clearly asserted that the complainant consented with her actions … . Matter of Doe v Purchase Coll. State Univ. of N.Y., 2021 NY Slip Op 01974, Second Dept 3-31-21

 

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THE DRIVER BEING VISIBLY NERVOUS, COUPLED WITH THE VEHICLE HAVING OUT-OF-STATE PLATES AND BEING IN A HIGH CRIME AREA, DID NOT PROVIDE A FOUNDED SUSPICION OF CRIMINALITY; THEREFORE THE POLICE OFFICER WAS NOT JUSTIFIED IN ASKING WHETHER THERE WERE ANY WEAPONS IN THE CAR, A LEVEL TWO INQUIRY (FIRST DEPT).

The First Department, reversing defendant’s conviction of attempted criminal possession of a weapon and dismissing the indictment, determined the police officer did not have a founded suspicion of criminality when he asked whether any weapons were in the vehicle:

Defendant was a passenger in a car, bearing a Massachusetts license plate, that was stopped for driving through a red light in a “high crime” neighborhood. The driver of the car complied with the demands of one of the officers for his driver’s license and that he get out of the car, but was “visibly nervous,” breathing heavily, and stammering in his responses to the officer’s questions. Moments later, one of the other officers asked whether there were any weapons in the car. This ultimately led to the recovery of a pistol from defendant.

These circumstances did not give rise to the founded suspicion of criminality that was required to authorize this level two inquiry … . Contrary to the People’s contention, neither occurrence of the stop for a traffic violation in a “high crime” area, nor the unproven perception of one of the officers that in general out-of-state license plates are more highly correlated with criminality than New York license plates, elevated the suspicion to the level required to authorize a common-law inquiry. People v Jonathas, 2021 NY Slip Op 01954, First Dept 3-30-21

 

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WHERE THE BANK ATTEMPTS TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIRMENTS OF RPAPL 1304 WITH PROOF OF THE STANDARD OFFICE MAILING PROCEDURE, A DEFENDANT BORROWER MAY REBUT THE PRESUMPTION OF PROPER MAILING AND RECEIPT WITH PROOF OF A MATERIAL DEVIATION FROM THE BANK’S MAILING PROCEDURE; WHERE THERE ARE MULTIPLE BORROWERS, THE BANK NEED ONLY NAME ONE IN THE ELECTRONIC FILING REQUIRED BY RPAPL 1306 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion, answering two certified questions from the Second Circuit, determined: (1) where, in an action for foreclosure, the bank attempts to demonstrate compliance with the mailing and notice requirements of RPAPL 1304 with proof of the standard office mailing procedure, a defendant borrower can rebut the presumption of proper mailing and receipt with proof of a material deviation from the bank’s mailing procedure; and (2) where there are multiple borrowers, the bank need only provide information about one borrower in the bank’s electronic filing required by RPAL 1306. Here the defendants alleged there was a material deviation from the bank’s mailing procedure because the bank averred the envelopes for the RPAPL 1304 notice are “created upon default,” but the notices were dated almost a year after the initial payment default. The Court of Appeals expressed no opinion whether the “nearly one-year gap” was a material deviation from the bank’s mailing procedure such that the presumption of proper mailing and receipt was rebutted. The court noted the borrowers’ claim they never received the notice is not, standing alone, sufficient to rebut the presumption:

What is necessary to rebut the presumption that a RPAPL 1304 notice was mailed will depend, in part, on the nature of the practices detailed in the affidavit. Moreover, contextual considerations may also factor into the analysis. For example, here, [the bank] points out that residential notes and mortgages are negotiable instruments that often change hands at various points during their duration, which may impact the timing of the creation and mailing of RPAPL 1304 notices—a contextual factor a court could consider in assessing whether a purported deviation from routine procedure was material. We reject defendants’ argument that a single deviation from any aspect of the routine office procedure necessarily rebuts the presumption of mailing. Such a standard would undermine the purpose of the presumption because, in practice, it would require entities to retain actual proof of mailing for every document that could be potentially relevant in a future lawsuit. CIT Bank N.A. v Schiffman, 2021 NY Slip Op 01933, CtApp 3-30-21

 

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THERE WAS NO EVIDENCE DEFENDANT POSSESSED THE FIREARM BEFORE FORMING THE INTENT TO SHOOT; THE POSSESSION OF A WEAPON SENTENCE MUST RUN CONCURRENTLY WITH THE SENTENCES FOR THE SHOOTING-RELATED OFFENSES (FOURTH DEPT).

The Fourth Department, directing that the sentences run concurrently, noted there was no evidence defendant possessed the loaded firearm before he formed the intent to shoot the victim:

Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of robbery in the first degree (Penal Law § 160.15 [1], [4]), two counts each of burglary in the first degree (§ 140.30 [2], [4]) and criminal possession of a weapon in the second degree (§ 265.03 [3]), and one count each of assault in the first degree (§ 120.10 [4]), attempted murder in the second degree (§§ 110.00, 125.25 [1]), and criminal possession of stolen property in the fourth degree (§ 165.45 [5]). … . * * *

Where a defendant is charged with both criminal possession of a weapon in violation of Penal Law § 265.03 (3) and a different crime that has an element involving the use of that weapon, consecutive sentencing is permissible if “[the] defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon” such that the possessory crime has already been completed … . The People have the burden of establishing that consecutive sentences are legal, i.e., that the two crimes were committed through separate and distinct acts … . …

The People failed to meet their burden inasmuch as there are no facts alleged in the counts of the indictment to which defendant pleaded guilty or in the plea allocution that would establish that defendant possessed the loaded firearm prior to forming his intent to shoot the victim … or that the act of possessing the loaded firearm “was separate and distinct from” his act of shooting the victim … . People v Boyd, 2021 NY Slip Op 01897, Fourth Dept 3-26-21

 

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DEFENDANT WAS CONVICTED OF FELONY MURDER, TWO COUNTS OF ROBBERY AND CRIMINAL POSSESSION OF A WEAPON BASED PRIMARILY ON HIS CONFESSION; THE ROBBERY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE JUDGE DID NOT MAKE THE REQUIRED MINIMAL INQUIRY WHEN DEFENDANT REQUESTED NEW COUNSEL; COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THE REDACTION OF DEFENDANT’S VIDEO STATEMENT; NEW TRIAL ORDERED ON THE FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, dismissing the robbery counts, and ordering a new trial on the murder and criminal possession of a weapon counts, in a full-fledged opinion by Justice Troutman, determined: (1) conviction of felony murder based upon a confession requires only corroboration of the murder, not the underlying felony (robbery here); (2) the convictions on the two robbery counts were against the weight of the evidence; (3) the judge did not conduct the required “minimal inquiry” when defendant made specific factual complaints about his counsel and asked for new counsel–the error was not cured by the appointment of new counsel right before trial; and (4) defendant’s counsel were ineffective because defendant’s video statement was not redacted to remove reference to defendant’s history of incarceration. The legal discussions are too detailed to fairly summarize here. The facts are:

On October 14, 2013, the victim stumbled home, a fatal knife wound in his back. He was pronounced dead that evening. Two days later, the police interviewed defendant, who provided a video-recorded statement. Defendant admitted that, on the evening of the crime, he was on South Salina Street in the City of Syracuse with three other young men—a cousin of his, a juvenile, and Tony Comer, Jr.—when the victim approached them for the purpose of buying drugs. Comer used the promise of drugs to lure the victim into a cut in the roadway and steal his wallet. When Comer and the victim came out of the cut, the victim was shirtless. Comer was smiling, holding the victim’s torn, white T-shirt. The victim left, shouting that he would come back with a gun and start shooting. Comer told the others that the victim still had $10 on his person, and the juvenile stated that he wanted the victim’s last $10. About 10 or 15 minutes later, the victim returned wearing a sweatshirt, looking for his wallet. Defendant, his cousin, and the juvenile fought the victim. Defendant admitted that, by fighting the victim, he was helping the juvenile to acquire the victim’s last $10 and that, during the fight, defendant stabbed the victim once in the back using a knife that he had concealed in his sleeve. People v Stackhouse, 2021 NY Slip Op 01883, Fourth Dept 3-26-21

 

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DEFENDANT’S CONVICTIONS RELATING TO THE CODEFENDANT’S POSSESSION AND FIRING OF A WEAPON DURING A ROBBERY AT WHICH DEFENDANT WAS NOT PRESENT WERE BASED UPON LEGALLY INSUFFICIENT EVIDENCE; DEFENDANT’S CONVICTION OF POSSESSION OF A WEAPON BASED UPON THE CODEFENDANT’S GETTING INTO DEFENDANT’S CAR WITH THE WEAPON WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and dismissing the indictment, determined the evidence of possession of a weapon and reckless endangerment (stemming from a robbery by the codefendant) was legally insufficient, and the conviction of another possession of a weapon charge (stemming from the codefendant’s getting into defendant’s car after the robbery) was against the weight of the evidence. Shots were fired by the codefendant during the robbery. The defendant was not with the codefendant during the robbery. Then the codefendant, still in possession of the firearm, got into defendant’s car which was parked a couple of blocks away from the robbery scene and defendant drove away with the codefendant. There was no evidence the defendant shared the codefendant’s intent to commit the robbery:

… [T]here is no evidence that defendant and the codefendant were together earlier on the day of the robbery and shooting, no evidence that defendant had prior knowledge either that the codefendant would be armed that day or that he was intending to rob someone, and no evidence that defendant and the codefendant had an ongoing relationship … . * * *

… [T]he evidence is legally insufficient to establish that defendant had any knowledge of the codefendant’s possession of a firearm prior to the shooting or that defendant somehow “solicited, requested, commanded, importuned or intentionally aided [the codefendant] to engage in” the reckless shooting at the vehicle in which the victim was riding … . * * *

… [A]lthough the evidence that defendant knew who the codefendant was prior to the robbery provides a rational basis for questioning defendant’s credibility, we conclude … that the People failed to prove beyond a reasonable doubt that defendant, finding himself in the presence of a man with a loaded weapon, willingly “solicited, requested, commanded, importuned or intentionally aided” the codefendant’s possession of that weapon … , or that defendant “shared a ‘community of purpose’ with [the codefendant]” … . People v Hawkins, 2021 NY Slip Op 01882, Fourth Dept 3-26-21

 

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THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VEHICLE IN WHICH DEFENDANT WAS A PASSENGER WHEN AN OFFICER ENTERED THE VEHICLE TO RETRIEVE THE REGISTRATION AND SAW A HANDGUN; THE DEFENDANT HAD STANDING TO CONTEST THE SEIZURE BECAUSE OF THE PEOPLE’S RELIANCE ON THE STATUTORY AUTOMOBILE PRESUMPTION; THE HANDGUN SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the handgun seized from the vehicle in which defendant was a passenger should have been suppressed. The police arrived after an accident and defendant was standing outside the car. When an officer asked for the vehicle registration, defendant offered to retrieve it, but a police officer standing near the car said he would retrieve it. The officer then saw a handgun that had been hidden from view by the deployed air bag. The court noted defendant had standing to contest the search and seizure because of the People’s reliance on the statutory automobile presumption:

As an initial matter, there is no dispute that defendant has standing as a passenger of the vehicle to challenge its search by virtue of the People’s reliance on the statutory automobile presumption … . … [U]nder the circumstances of this case, we agree with defendant that the officer who conducted the search lacked probable cause to do so … . In reaching that conclusion, we reject the People’s assertion that, based on the holdings of People v Branigan (67 NY2d 860 [1986]) and People v Philbert (270 AD2d 210 [1st Dept 2000] … ), the officer was entitled to enter the vehicle for the purpose of obtaining the vehicle’s registration certificate. Unlike in Branigan, there were no ” ‘safety reasons’ ” in this case preventing the officer from allowing defendant to retrieve the registration himself … . and, here, defendant did not initially fail to produce the registration when prompted to do so by law enforcement (cf. id. at 861-862). Unlike in Philbert … , the officer here, as he confirmed at the suppression hearing, lacked probable cause to search the vehicle and had no reason to believe that the vehicle contained evidence of a crime. People v Lawrence, 2021 NY Slip Op 01921, Fourth Dept 3-26-21

 

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EVIDENCE THE CHILD WAS OFTEN ABSENT FROM SCHOOL WARRANTED A HEARING ON FATHER’S PETITION FOR A MODIFICATION OF CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition for modification of custody should not have been dismissed without holding a hearing. There was evidence the child, now in third grade, was often absent from school:

In seeking to modify the stipulated custody order, the father was required to show “a change in circumstances ‘since the time of the stipulation’ ” … . Here, the father and respondent mother entered into the stipulated order shortly after the child’s fifth birthday, before she would have entered kindergarten. At the hearing on the petition, the court received the child’s third-grade school attendance records in evidence. Although we cannot discern the precise number of absences from our review of the appellate record, the court expressed that it was “concerned” with the number of absences up to that point in the school year, of which there were approximately 30. Thus, we conclude that the father established a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child because the child’s school records demonstrate that she had excessive school absences in the third grade … . Therefore, we reverse the order, reinstate the petition, and remit the matter to Family Court for a hearing on the best interests of the child … . Matter of Myers v Myers, 2021 NY Slip Op 01916, Fourth Dept 3-26-21

 

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ALTHOUGH THE COMPLAINT WAS DEFECTIVE, AFFIDAVITS AND OTHER EVIDENCE DEMONSTRATE A POTENTIALLY MERITORIOUS CLAIM; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a defective complaint will survive a motion to dismiss if affidavits or other evidence demonstrate a potentially meritorious claim:

The amended complaint is defective because it merely alleges that the Bluestone defendants participated in fraudulent transfers, without alleging that they were a transferee of the assets or benefited in any way from the transfers … . However, a defective complaint will not be dismissed where affidavits and other evidence amplify inartfully pleaded but potentially meritorious claims … . Plaintiffs rely on evidence submitted by the Goldman defendants in opposition to the Bluestone defendants’ motion to dismiss which suggests that the Bluestone defendants may have participated in and benefitted from the alleged fraudulent transfers. This evidence indicates that plaintiffs have potentially meritorious fraudulent conveyance claims against the Bluestone defendants. Ninth Space LLC v Goldman, 2021 NY Slip Op 01853, First Dept 3-25-21

 

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