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AFFIRMATION CONTESTING SERVICE DID NOT CONFORM TO NEW YORK LAW AND THEREFORE DID NOT REBUT THE PROCESS SERVER’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined that defendant’s affirmation did not conform to New York law and therefore was not sufficient to rebut the process server’s affidavit of service. Defendant’s made his affirmation in front of a notary in Israel, but the affirmation did not indicate it was made under penalty of perjury:

“[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so,” but such affirmation “must be made before a notary public or other authorized official,” and the affirmant must “be answerable for the crime of perjury should he make a false statement” … . Furthermore, an affirmation from a person physically located outside the geographic boundaries of the United States must comply with the additional formalities of CPLR 2309 (c), and must, in substance, affirm that the statement is true under the penalties of perjury under the laws of New York (see CPLR 2106 [b]). While the defendant’s identity was verified by an authorized official in Israel acting in the capacity of a notary, the affirmation itself failed to indicate that the statements made therein were true under the penalties of perjury. Therefore, the affirmation was without probative value … . U.S. Bank N.A. v Langner, 2019 NY Slip Op 00492 [168 AD3d 1021], Second Dept 1-23-19

 

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PROVIDING ILLEGAL HIV MEDICATIONS TO A PHARMACY FOR RESALE: (1) DID NOT CONSTITUTE GRAND LARCENY BECAUSE THE AGENT OF THE PHARMACY TO WHOM THE DRUGS WERE PROVIDED KNEW THE DRUGS WERE ILLEGAL AND THAT KNOWLEDGE IS IMPUTED TO THE CORPORATION; AND (2) DID NOT CONSTITUTE CRIMINAL DIVERSION OF PRESCRIPTION DRUGS BECAUSE THE DRUGS WERE PROVIDED TO A CORPORATION, NOT TO A PERSON WHO HAD NO MEDICAL NEED FOR THEM. AN UNSEALED COMPILATION OF WIRETAP RECORDINGS CONSTRUCTED FROM SEALED ORIGINALS WAS ADMISSIBLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Sgroi, reversing defendant’s grand larceny and criminal diversion of prescription medications convictions, determined that: (1) the knowledge of the agent of the pharmacy to whom the illegal HIV drugs were provided must be imputed to the corporation, therefore the corporation was deemed to know it was receiving and selling illegal drugs; (2) the statute prohibiting criminal diversion of prescription drugs is aimed at street sales of prescription drugs to those who have no medical need for them, therefore the statute does not apply to supplying illegal drugs to a pharmacy for resale; (3) the moneylaundering convictions and related sentences should be affirmed; and (4) a compilation of wiretap recordings, although not sealed, was made from properly sealed recordings and was properly authenticated, therefore the compilation was admissible:

… [T]here is no statutory requirement that a properly authenticated composite recording be compared against the sealed original recording. Three simultaneous original recordings of the intercepted communications were created in this case. The composite recording was compared against an original version of the recordings, and [a witness] testified that the composite recording was a true and accurate reflection of the content of the original. ,,, [A] sealed version of the original recording existed to deter alteration of, and permit challenge to, the composite, thus satisfying the statute. * * *

[Re; Grand Larceny:] The People’s theory in this case was that the defendant … wrongfully took money from [the pharmacy] by falsely representing that the medications they were selling were lawful to sell, transfer, and dispense. The defendant argues … that the People failed to prove that such a false representation of past or existing fact was made to [the pharmacy] because [the agent] , a high managerial employee of [the pharmacy], knew that the medications were not lawful to sell, transfer, and dispense, and thus, [the pharmacy], by imputation, also knew this fact. We agree. * * *

[Re: Criminal Diversion of Prescription Medications Penal Law § 178.25:] The defendant does not challenge the People’s premises that (1) the medications had left the legitimate stream of commerce rendered them “adulterated,” and (2) one cannot have a “medical need” for adulterated medications, as the term “medical need” is used in the statute. Thus, we do not address the validity of these premises. However, the defendant challenges the applicability of this statute to his alleged conduct on the basis that, by its terms, the statute cannot apply to a transfer of prescription medications to a corporation, as opposed to a person capable of having medical needs. Again, we agree. People v Gross, 2019 NY Slip Op 00461, Second Dept 1-23-19

 

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OFFICER DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VAN AFTER HE LEARNED THAT DEFENDANT, WHO WAS SITTING IN THE PASSENGER SEAT, WAS SMOKING A CIGAR, NOT MARIJUANA, SUPREME COURT’S SUA SPONTE FINDING THAT DEFENDANT DID NOT HAVE STANDING TO CONTEST THE SEARCH WAS ERROR, THERE WAS UNCONTRADICTED EVIDENCE THE VAN WAS DEFENDANT’S WORK VEHICLE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction and dismissing the indictment, determined that the police officer did not have probable cause to search the van where the weapon was found. The defendant was sitting in the passenger seat smoking a cigar when the officer approached and removed him from the van, apparently because the officer thought defendant was smoking marijuana. At the time the officer searched the van, he know defendant was smoking a cigar. Although defendant was sitting in the passenger seat, there was no evidence to contradict his claim that the van was his work vehicle. Contrary to Supreme Court’s contrary finding (made sua sponte), the defendant had standing to contest the search:

The officer testified that he removed the defendant from the minivan and frisked him out of a fear for the officer’s own safety; no weapon was recovered. The officer further testified that, at that time, he realized that the two men were smoking cigars, not marijuana. Nevertheless, the officer went around the minivan to the driver’s side and opened the sliding door on that side, whereupon he observed a firearm sticking out of a bag behind the driver’s seat.

We disagree with the hearing court’s determination, sua sponte, that the defendant lacked standing to challenge the search of the minivan. The defendant, who had told the police at the police station that the minivan was his work van, had standing to challenge the search. Although the defendant had been sitting in the front passenger seat of the minivan, no evidence was presented to contradict his statements that it was his work van. The defendant’s statements were sufficient to establish that he exercised sufficient dominion and control over the minivan to demonstrate his own legitimate expectation of privacy therein… .

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . Contrary to the People’s contention, under the circumstances here, where the defendant already had been removed from the minivan and no one else was in the minivan, the police lacked probable cause to conduct a warrantless search by opening the sliding door of the minivan, and the weapon found as a result of the unlawful search should have been suppressed … . People v Dessasau, 2019 NY Slip Op 00456, Second Dept 1-23-19

 

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PETITION WAS PROPERLY DISMISSED BECAUSE IT DID NOT DEMONSTRATE SUBJECT MATTER JURISDICTION ON ITS FACE, BUT BECAUSE THE MERITS WERE NOT ADDRESSED THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (THIRD DEPT).

The Third Department determined Family Court properly dismissed a petition because there was no indication that New York had jurisdiction, the petition should not have been dismissed with prejudice because the merits were not reached:

Upon review of the petition, Family Court, sua sponte, found that the children resided in Georgia and dismissed the petition with prejudice for lack of subject matter jurisdiction. Petitioner appeals.

In his petition, petitioner alleged that respondent is an aunt of the children who obtained temporary guardianship of them following the mother’s death and, further, that the children reside with respondent in Georgia; notably, however, he did not allege that a New York court had made a prior custody determination involving the children, nor did he allege any circumstances involving the children that would support a specific basis for jurisdiction. Thus, the petition fails to allege any facts that would provide New York with jurisdiction to make the determination in this case … and, therefore, Family Court did not err by dismissing this proceeding without a hearing … . However, inasmuch as Family Court dismissed the proceeding for lack of subject matter jurisdiction based solely upon a review of petitioner’s sparse pro se petition and without reaching the merits, it erred in dismissing the proceeding with prejudice … . Matter of David EE. v Laquanna FF., 2019 NY Slip Op 00336, Third Dept 1-17-19

 

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TERRORISM CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, THERE WAS NO EVIDENCE DEFENDANT INTENDED TO INFLUENCE THE POLICY OR ACTIONS OF THE SHERIFF’S OFFICE WHEN HE SAID HE WAS GOING TO ‘COME BACK AND SHOOT THE PLACE DOWN’ (THIRD DEPT).

The Third Department, reversing defendant’s “terrorism” conviction after trial, determined there was legally insufficient evidence defendant intended to influence the policy or actions of a governmental body, here the Warren County Sheriff’s Office (WCSO). When defendant was told at the sheriff’s office that his certificate of disposition was insufficient and defendant’s property could not be returned to him, he allegedly said he would “come back and shoot the place down.” He was convicted of making a terroristic threat and sentenced to five years in prison:

… [T]he record contains no evidence of a necessary element of the crime of making a terroristic threat — that defendant intended to influence a policy of a governmental unit by intimidation or coercion, or that he intended to affect the conduct of a unit of government by murder, assassination or kidnapping. [The sheriff’s evidence custodian] testified that as defendant exited the lobby of the WCSO building, he was mumbling to himself and she “heard the word shoot.” She then asked defendant what he had said, and he replied by stating “come back and shoot the place down.” Defendant made no statement relating his threat to any policy of the WCSO or demanding that it take any specific action. People v Kaplan, 2019 NY Slip Op 00329, Third Dept 1-17-19

 

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INSURER SOUGHT A DECLARATION IT WAS NOT OBLIGATED TO DEFEND THE PROPERTY OWNER IN THIS FATAL ACCIDENT CASE, THE COURT ACCEPTED IN EVIDENCE A COPY OF THE POLICY WHICH DID NOT MEET THE REQUIREMENTS OF THE BEST EVIDENCE RULE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined that the best evidence rule was violated when the court accepted a copy of the insurance policy. The plaintiff insurer (PLM) sought a declaration it was not obligated to defend the property owner in the action brought by a worker who fell through a skylight and was killed:

The copy of the policy admitted into evidence … did not specify a location for which the policy applied. Moreover, the copy of the policy admitted into evidence provided a different description of an endorsement titled “Exclusion- Designated Ongoing Operations” than a copy of the policy that PLM had produced during discovery. …

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven … . Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … .

Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a “reliable and accurate portrayal of the original” … . Pennsylvania Lumbermens Mut. Ins. Co. v B&F Land Dev. Corp., 2019 NY Slip Op 00292, Second Dept 1-16-19

 

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CELL PHONE COMPANY WITNESS WAS NOT AN ENGINEER AND SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT HOW FAR DEFENDANT’S PHONE WAS FROM THE TOWER, POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT THE VICTIM’S IDENTIFICATION OF THE DEFENDANT, JUDGE SHOULD NOT HAVE MARSHALED THE EVIDENCE TO FAVOR THE PROSECUTION, THESE ERRORS, AS WELL AS ADDITIONAL JUDICIAL ERRORS, CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (FIRST DEPT).

The First Department, reversing defendant’s conviction, described a number of errors which had the cumulative effect of depriving defendant of a fair trial. Those errors include: (1) the witness from the cell phone company was not an engineer and therefore could not provide competent expert opinion about where defendant’s cell phone was in relation to the cell phone tower which picked up the signal; (2) a police officer should not have been allowed to testify that the victim had twice identified the defendant by name; (3) the charge to the jury improperly marshaled the identification evidence in a light favorable to the prosecution; (4) the court should have given the missing witness jury instruction for two lead detectives who had interviewed the victim and a witness; and (5) the judge should not have referenced the defendant’s failure to testify (twice). With respect to the cell tower and identification evidence, the court wrote:

“[T]estimony on how cell phone towers operate must be offered by an expert witness” because an analysis of the possible ranges of cell phone towers and how they operate is beyond a juror’s day-to-day experience and knowledge … . [The witness] was not an engineer and was not qualified, without an engineering background, to reach further conclusions about why defendant’s cell phone hit the Starling Avenue tower, i.e. whether it was because it was closest or strongest … . …

The trial court also permitted a police officer to testify twice, over defense objection, that the victim had identified her attacker as “male Hispanic, bald, by the name of Jose Ortiz.” This too was error. “Testimony by one witness (e.g., a police officer) to a previous identification of the defendant by another witness (e.g., a victim) is inadmissible” … . People v Ortiz, 2019 NY Slip Op 00221, First Dept 1-15-19

 

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NO EVIDENCE THE VICTIM, AS OPPOSED TO AN EYEWITNESS, SAW A FIREARM, ROBBERY FIRST CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s robbery first conviction, determined that, although a witness saw a firearm, the victim did not:

… [T]he evidence did not establish the element of display of what appeared to be a firearm … . The robbery was accomplished by assaulting the victim and taking his wallet. Although an eyewitness saw the display of what appeared to be a firearm, there was no evidence that the victim ever saw it … . People v Allende, 2019 NY Slip Op 00195, First Dept 1-10-19

 

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PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT).

The Second Department, reversing Supreme Court, set aside the verdict in this medical malpractice case in the interest of justice. The defendants (Kirschen, Roberts and Winthrop) were involved in emergency treatment of the plaintiff for back pain. Subsequently surgery was performed by two additional (non-party) doctors (Obedian and Sonstein) to deal with an abscess on plaintiff’s spine. At trial the defendants were not allowed to cross-examine plaintiff’s experts about the possible negligence of the surgeons, which was deemed reversible error. The Second Department further held plaintiff’s experts should not have been allowed to testify as experts in emergency medicine because no specialized knowledge of emergency medicine was demonstrated:

” A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise'”… . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … . …

… [T]the evidence at trial failed to demonstrate that the plaintiff’s injuries were capable of any reasonable or practicable division of allocation among Kirschen, Roberts, and Winthrop, and Obedian and Sonstein … . Thus, if, as Kirschen, Roberts, and Winthrop propose, a jury were to find that Obedian and Sonstein departed from accepted medical practice and that this departure was a substantial factor in depriving the plaintiff of a substantial chance for an improved outcome, Obedian and Sonstein could be found at fault together with Kirschen, Roberts, and Winthrop … . As a result, any evidence as to the culpability of Obedian and Sonstein was relevant under CPLR 1601(1) … . The court’s error in precluding Kirschen, Roberts, and Winthrop from cross-examining two of the plaintiff’s expert witnesses on this issue deprived Kirschen, Roberts, and Winthrop of “substantial justice” … . Daniele v Pain Mgt. Ctr. of Long Is.. 2019 NY Slip Op 00093, Second Dept 1-9-19

 

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DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THAT PLAINTIFF BANK DID NOT HAVE STANDING IN THIS FORECLOSURE ACTION BY MERELY POINTING OUT ALLEGED GAPS IN PLAINTIFF’S CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, THEREFORE, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not make a prima facie showing that plaintiff bank lacked standing in this foreclosure action, as opposed to pointing to alleged gaps in plaintiff’s case. Therefore defendant’s motion for summary judgment should not have been granted:

“On a motion for summary judgment, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied'” … . “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant merely pointed to alleged gaps in the plaintiff’s case and failed to meet her burden of establishing, prima facie, the plaintiff’s lack of standing as a matter of law … . Cenlar FSB v Lanzbom, 2019 NY Slip Op 00092, Second Dept 1-9-19

 

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