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MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the defendant’s murder conviction was against the weight of the evidence. The majority stated that the evidence demonstrated the defendant was probably guilty, but did not rise to proof beyond a reasonable doubt. The dissenters stated they “agreed” with the majority’s “implicit” determination that there was sufficient evidence to support the verdict, but they disagreed with the majority’s conclusion that the conviction was against the weight of the evidence. The decision describes the evidence in great detail which cannot be fairly summarized here. In a nutshell, there was evidence the defendant went into a motel room with the victim, where the victim was found dead. But the majority noted there was other evidence to suggest the victim had left the motel room at some point and someone other than the defendant was also in the room:

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The People’s case thus rested on three pillars of circumstantial evidence: (1) the fact that defendant entered the hotel with the victim at approximately 7:00 p.m., some 15 hours before his dead body was found in the hotel room; (2) the fact that defendant repeatedly lied to the police when he said that he did not know the victim and had never met him; and (3) the fact that the victim’s vehicle was found abandoned on a city street approximately six-tenths of a mile from defendant’s residence.

… [D]efendant’s presence in the room, although incriminating, is by no means conclusive considering that other people may have been in the room with the victim and that the Medical Examiner could not determine the time of death. As for defendant’s lies to the police, it appears that he may not have been living as an openly gay man—he had a girlfriend and children from different women— and he may have said that he did not know the victim so as not to reveal his sexual orientation. Finally, although the presence of the vehicle so close to defendant’s residence is suspicious, the victim was known to drive around the city looking for sexual partners … . * * *

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Although the police cannot be faulted for arresting defendant, nor the People for prosecuting him, the evidence at trial simply failed to prove defendant’s guilt beyond a reasonable doubt. There are too many unanswered questions for us to be comfortable that the right person is serving a life sentence for the victim’s murder.

From the dissent:  We agree with the implicit determination of our colleagues that there is sufficient evidence to support the jury’s verdict of murder in the second degree  … , but we respectfully disagree with their conclusion that the verdict is against the weight of the evidence. People v Carter, 2018 NY Slip Op 00711, Fourth Dept 2-2-18

CRIMINAL LAW (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE/AGAINST THE WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT))

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FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the arresting officer did not have cause to frisk the defendant, which revealed a weapon. The motion to suppress the weapon should have been granted. The officer had responded to a call about a shooting at a bar which described the suspect as a male Hispanic. The officer found a bullet fragment and some blood in a parking lot and he approached a group of people who were about 10 to 25 feet away. One person in the group appeared to the officer to be a male Hispanic. Someone in the group said they didn’t hear or see anything. The officer then frisked the defendant, who is black, not Hispanic:

… [T]he police had an objective, credible reason to approach the group of five people in the parking lot and to request information in light of the report of a shooting at or near that location at some unidentified earlier time. Thus, we conclude that the police encounter was lawful at its inception… . The People correctly concede, however, that the officer’s encounter with defendant constituted a level three forcible detention under the four-tiered De Bour framework …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … .

We conclude that, “[b]ecause of the lack of correspondence between defendant’s appearance and the description of the suspected [shooter that was] transmitted to the officer[] . . . , the officer[] had no basis for concluding that the reported crime had been committed by defendant” … . “Nor can the [frisk of defendant] and seizure of the gun be justified as having been in the interests of the officer[‘s] safety, since there was no testimony that the officer[] believed defendant to be carrying a weapon” … ,and the People presented no other evidence establishing that the officer had reason to fear for his safety … . People v Roberts, 2018 NY Slip Op 00725, Fourth Dept 2-2-18

 

CRIMINAL LAW (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE  (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, FRISK OF DEFENDANT WAS NOT JUSTIFIED BY REASONABLE SUSPICION, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, reinstated the jury’s damages award in this personal injury case. Plaintiffs moved to set aside the damages award unless the defendant stipulated to an increased amount and Supreme Court granted the motion. The Fourth Department explained that the jury was free to disregard expert opinion and the jury could have concluded that plaintiff had exaggerated her injuries or that the injuries were preexisting:

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“It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury . . . , the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony” … .. Thus, “even in cases where there is evidence which could support a conclusion different from that of a jury, its verdict will still be accorded great deference and respect so long as there is credible evidence to support its interpretation” … . In addition, ” a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ “… . In short, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … . Mecca v Buffalo Niagara Convention Ctr. Mgt. Corp., 2018 NY Slip Op 00735, Fourth Dept 2-2-18

NEGLIGENCE (DAMAGES, PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EVIDENCE (EXPERT OPINION, DAMAGES,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/EXPERT OPINION (DAMAGES, LAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/DAMAGES (PERSONAL INJURY,  PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))/CPLR 4404 (PLAINTIFFS’ MOTION TO SET ASIDE THE JURY’S DAMAGES AWARD IN THIS PERSONAL INJURY CASE SHOULD NOT HAVE BEEN GRANTED, THE JURY WAS FREE TO DISREGARD EXPERT OPINION (FOURTH DEPT))

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POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT).

The Fourth Department determined defendants’ motion for summary judgment in this car-bicycle accident case was properly denied. The police report was not authenticated and was not submitted in admissible form, so it could not be considered. The defendant driver failed to eliminate a question of fact whether she was comparatively negligent for failing to see what should have been seen:

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Although “reports of police officers made upon their own observation and while carrying out their police duties are generally admissible in evidence”… , the report in this case was inadmissible because it was “not authenticated” and, “[b]ecause the report was not submitted in evidentiary form, it should not have been considered on the summary judgment motion” … . Here … the parties failed to “provide[] an acceptable excuse” for failing to tender the evidence in admissible form … .

With respect to the merits, ” [w]hether a plaintiff [or defendant] is comparatively negligent is almost invariably a question of fact and is for the jury to determine in all but the clearest cases’ ” … . In support of their motion, defendants submitted the deposition testimony of defendant, which raised a question of fact regarding her attentiveness as she drove her vehicle… . It is well settled that every driver of a motor vehicle has “the common-law duty to see that which he [or she] should have seen . . . through the proper use of his [or her] senses’ ” … , and that “a motorist is required to keep a reasonably vigilant lookout for bicyclists, . . . and to operate the vehicle with reasonable care to avoid colliding with anyone on the road” … . Here, the evidence submitted by defendants established that defendant had an unobstructed view of the street as plaintiff’s bicycle approached her vehicle, yet she failed to see him or his bicycle prior to the collision. Thus, we conclude that defendants “failed to establish that there was nothing [defendant] could do to avoid the accident and therefore failed to establish that she was free of comparative fault” … . Chilinski v Maloney, 2018 NY Slip Op 00744, Fourth Dept 2-2-18

NEGLIGENCE (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/EVIDENCE (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/POLICE REPORTS (EVIDENCE, POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/TRAFFIC ACCIDENTS  (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))/BICYCLES (POLICE REPORT WAS NOT AUTHENTICATED AND WAS NOT SUBMITTED IN ADMISSIBLE FORM, THEREFORE IT COULD NOT BE CONSIDERED ON THE SUMMARY JUDGMENT MOTION IN THIS CAR-BICYCLE ACCIDENT CASE, PLAINTIFF DID NOT ELIMINATE A QUESTION OF FACT ABOUT WHETHER SHE WAS COMPARATIVELY NEGLIGENT IN NOT SEEING WHAT SHOULD HAVE BEEN SEEN (FOURTH DEPT))

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DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the attempted assault conviction was against the weight of the evidence:

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The only witness who identified the defendant prior to trial admitted to being intoxicated at the time of the stabbing incident. That witness failed to identify the defendant at trial. Although the People presented the testimony of three other witnesses who identified the defendant at the trial, those witnesses did not identify the defendant at any point prior to the trial, even though they were present at the scene of the crime when the defendant was apprehended and they appeared at a police precinct for questioning later that day. Two of the witnesses’ descriptions of the perpetrator’s clothing varied significantly from the clothing worn by the defendant upon his apprehension, which occurred within minutes of the incident. At the scene, those witnesses provided no further description of the defendant. Despite testimony that the victim began “gush[ing]” blood after he was stabbed during a physical struggle, the arresting officer did not remember having seen any blood on the defendant’s person or clothing when he was apprehended. That police officer testified that, after witnesses pointed to the perpetrator, he briefly “lost sight” of that person before apprehending the defendant. People v Serrano, 2018 NY Slip Op 00573, Second Dept 1-31-18

CRIMINAL LAW (EVIDENCE, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Cohen, in a matter of first impression, determined the defendant did not have standing to move to suppress firearms found in his bedroom in an apartment. Defendant had been living with the family who leased the apartment. Based on failure to pay rent, the marshal changed the locks, leaving the possessions inside, thereby tendering “legal possession” of the apartment to the landlord. Answering a complaint of trespass, police officers entered the apartment and found one of the family members who had been renting it inside. The police searched the apartment and seized several handguns in defendant’s room. The defendant argued that the People did not demonstrate the eviction (legal possession) had been done legally, and therefore he had standing to move to suppress. But the Second Department noted that defendant, who had relied on the evidence presented by the People, did not demonstrate the eviction (legal possession) was illegal and therefore did not meet his burden of proof on that issue. The defendant also argued that he had an expectation of privacy in the bedroom at the time it was searched. But the Second Department determined once the legal possession was accomplished, defendant had no right to enter the apartment, and therefore had no expectation of privacy in his former bedroom:

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… [T]he defendant, to establish his standing, relied on the evidence presented by the People regarding the execution of the warrant of eviction…. [W]hile the defendant is correct that the “Marshal’s Legal Possession” letter did not establish that the legal possession had been obtained legally, it likewise did not establish that the legal possession had been obtained illegally.

… [T]he defendant failed to satisfy his burden of establishing that he had standing to challenge the search of his former bedroom and seizure of the guns and ammunition based upon the alleged illegality of the legal possession … . * * *

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Here, the legal possession gave the landlord the right to possess the apartment and remove the tenants and occupants. Although their belongings remained in the apartment, thereby necessarily creating a bailment, the tenants and occupants no longer had a legal right to possess or control the subject apartment, nor to enter or remain therein. Given that the defendant had no legal right to possess or control the subject apartment after the landlord was given legal possession thereof, any subjective expectation of privacy he manifested in the bedroom which he had occupied in the apartment was not objectively reasonable … . People v McCullum, 2018 NY Slip Op 00570, Second Dept 1-31-18

CRIMINAL LAW (SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/STANDING (CRIMINAL LAW, SEARCH AND SEIZURE, SUPPRESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/LANDLORD-TENANT (LEGAL POSSESSION, CRIMINAL LAW, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/LEGAL POSSESSION (LANDLORD-TENANT,  ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EXPECTATION OF PRIVACY (CRIMINAL LAW, SEARCH AND SEIZURE, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))/EVICTION (CRIMINAL LAW, SEARCH AND SEIZURE, LEGAL POSSESSION, ONCE THE LOCKS ON THE APARTMENT WERE CHANGED PURSUANT TO A LEGAL POSSESSION, DEFENDANT NO LONGER HAD A LEGITIMATE EXPECTATION OF PRIVACY IN HIS BEDROOM, DEFENDANT DID NOT DEMONSTRATE THE LEGAL POSSESSION WAS ILLEGAL, DEFENDANT DID NOT HAVE STANDING TO SEEK SUPPRESSION OF THE FIREARMS FOUND IN HIS BEDROOM (SECOND DEPT))

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INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the attempted grand larceny counts should not have been dismissed or reduced based upon the grand jury evidence. The defendant was attempting to remove mail from a mailbox in which envelopes containing money orders had been planted by the police. There was no evidence any of the envelopes defendant had removed contained the planted money orders. The motion court reduced the grand larceny counts because it could not be proven defendant intended to steal property of a certain value. The First Department held that the intent requirement does not attach to the value element of the offense:

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The court erred in dismissing one count of the indictment, and reducing another, on the ground that the People were required to present proof of intent with regard to the property value elements of attempted grand larceny in the third and fourth degrees. These elements are strict liability aggravating factors when the completed crimes are charged. While the Penal Law definitions of attempt (Penal Law § 110.00) and intentionally (Penal Law § 15.05[1]) may be susceptible to the interpretation accorded them by the motion court, any ambiguity has been resolved by the Court of Appeals’ holding in People v Miller (87 NY2d 211 [1995]), that a strict liability aggravating factor of a completed crime is not a “result” to which an intent requirement attaches when an attempt to commit the completed crime is charged. Accordingly, the mental culpability requirements for an attempt and a completed crime are identical… , and the court erred in finding that the attempted grand larceny charges required evidence of intent to steal property of a certain value. People v Deleon, 2018 NY Slip Op 00531,  First Dept 1-30-18

CRIMINAL LAW (INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/EVIDENCE (ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/GRAND LARCENY (ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))/INTENT (CRIMINAL LAW, ATTEMPTED GRAND LARCENY, INTENT REQUIREMENT OF ATTEMPTED GRAND LARCENY DOES NOT ATTACH TO THE VALUE OF THE PROPERTY, GRAND LARCENY COUNTS SHOULD NOT HAVE BEEN DISMISSED OR REDUCED BASED ON THE GRAND JURY EVIDENCE WHICH DID NOT INCLUDE EVIDENCE OF THE INTENT TO STEAL PROPERTY OF A CERTAIN VALUE (FIRST DEPT))

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PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT).

The First Department determined plaintiff Zaccaro was a real estate broker, not a finder, and was not entitled to a real estate commission because plaintiff acted as a broker for the buyer and the seller (impermissible dual agency without full disclosure):

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Plaintiffs’ argument that Zaccaro was merely a finder instead of a real estate broker is unavailing. The amended complaint, which was verified by Zaccaro’s president, alleges that plaintiffs were [the buyer’s] real estate brokers. This statement constitutes a formal judicial admission …”.

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Furthermore, a finder has no obligation to negotiate the real estate transaction in order to obtain its fee … . Here, the amended complaint indicates that plaintiffs were obligated to negotiate the sale of the premises. In particular, the amended complaint alleges that [the buyer] authorized plaintiffs “to act as the licensed real estate brokers … . …

Plaintiffs’ contention that the seller was not injured by Zaccaro’s dual agency is unavailing. Where, as here, the duty of undivided loyalty is breached, plaintiff broker forfeits its right to a commission, “regardless of whether damages were incurred” … . P. Zaccaro, Co., Inc. v DHA Capital, LLC, 2018 NY Slip Op 00458, First Dept 1-25-18

REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/BROKERS, REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/DUAL AGENCY (REAL ESTATE, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/FINDER (REAL ESTATE, (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/EVIDENCE (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/JUDICIAL ADMISSION (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/ADMISSION (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Wilmington’s) motion for summary judgment should have been denied in this foreclosure proceeding. The bank’s papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

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Wilmington submitted an affidavit of the managing director of its loan servicer, who attested to the defendant’s default in payment. While he attested to the mailing of a notice of default in accordance with the mortgage and a 90-day notice in accordance with RPAPL 1304, his affidavit did not contain a statement that he was familiar with JP Morgan’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . J.P. Morgan Mtge. Acquisition Corp v Kagan, 2018 NY Slip Op 00416, Second Dept 1-24-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, NOTICE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department determined the bank’s motion for leave to enter a default judgment in this foreclosure proceeding was properly denied because the motion relied on documents verified and affirmed by counsel and an affidavit by a person with no first-hand knowledge of the facts asserted. The Second Department noted that the bank’s motion to amend the caption, by substituting named parties for “John Does” should have been granted and the complaint should not have been dismissed sua sponte:

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… [T]he plaintiff failed to submit the requisite proof of the facts constituting the claim …  “While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge”… . ” [A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'”… . On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed. First Franklin Fin. Corp. v Alfau, 2018 NY Slip Op 00409, Second Dept 1-24-18

FORECLOSURE (BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/EVIDENCE (FORECLOSURE, DEFAULT JUDGMENT, ANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (FORECLOSURE, DISMISSA OF COMPLAINT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, EVIDENCE, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

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