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BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to foreclose. Therefore the bank’s motion for summary judgment should not have been granted. Among other failings, the requirements of the business records exception to the hearsay rule were not met:

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Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the appellant’s default. However, the plaintiff failed, prima facie, to establish its standing. Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action … . The plaintiff attempted to establish its standing through the affidavit of Myron D. Keyes, Vice President Loan Documentation of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent to the plaintiff. However, Keyes averred only that the plaintiff was “in possession of” the note. The plaintiff subsequently submitted a further affidavit from April J. Linn, another Vice President Loan Documentation of Wells Fargo. Unlike Keyes, Linn submitted documentary evidence showing that Wells Fargo was appointed the plaintiff’s servicing agent on February 21, 2014. Linn further averred, based on her familiarity with the business records maintained by Wells Fargo, that the plaintiff “had possession of the [note] as of November 28, 2006.” However, Linn’s affidavit failed, among other things, to explain how a review of the business records of a servicing agent appointed in 2014 could prove that the plaintiff had obtained physical possession of the note more than seven years earlier. In sum, Keyes’ affidavit, as well as Linn’s subsequent affidavit, provided neither sufficient factual details to establish the physical delivery of the note to the plaintiff prior to the commencement of this action … , nor the foundational knowledge required to admit such factual details under the business records exception to the hearsay rule … . U.S. Bank N.A. v Brody, 2017 NY Slip Op 08873, Second Dept 12-20-17

FORECLOSURE (STANDING, EVIDENCE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STANDING (FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS EXCEPTION,  BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (HEARSAY EXCEPTION, FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment by jury verdict, determined the photographs taken of the sidewalk where plaintiff fell should not have been excluded from evidence. Plaintiff took the pictures herself a few days after her fall:

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The plaintiff commenced this action to recover damages for injuries she allegedly sustained in a trip and fall on an uneven sidewalk condition on premises possessed by the defendant … (…CSC). The case proceeded to a trial against CSC, at which the plaintiff attempted to introduce into evidence photographs of the area where she fell, but the Supreme Court refused to admit them into evidence on the ground that the plaintiff did not lay a proper foundation for their admission. …

In order to admit the photographs proffered at trial into evidence, the plaintiff was required to authenticate them by laying a proper foundation, which generally requires proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident… . Contrary to the determination of the Supreme Court, the plaintiff properly authenticated the photographs by testifying that she took them a few days after the accident, and that they fairly and accurately depicted the area where she fell at the time of her accident. … [T]his error was not harmless, since the photographs were illustrative of the plaintiff’s trial testimony and were highly relevant to the issues of constructive notice and trivial defect that were raised at trial … . Davidow v CSC Holdings, Inc., 2017 NY Slip Op 08655, Second Dept 12-13-17

 

NEGLIGENCE (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SLIP AND FALL (EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, EVIDENCE, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))/PHOTOGRAPHS (EVIDENCE, SLIP AND FALL, PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT))

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STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITHIN STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Sgroi, determined that a detained sex offender, Kerry K, was entitled to a new civil commitment trial on the issue of mental abnormality and, if necessary, a new dispositional hearing. The finding that Kerry K suffered from a mental abnormality was based in part on hearsay about a conviction which had been vacated based upon DNA evidence (after defendant served 11 years in prison). The Second Department further held that the fact that the probable cause hearing and trial did not occur within the statutory time-frames was not a jurisdictional defect or a violation of due process. And the fact that sealed criminal records were relied upon by the state’s experts was deemed proper:

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… [T]he failure to conduct the probable cause hearing and trial within the statutory time frames did not deprive the court of jurisdiction or, under the circumstances, violate Kerry K.’s due process rights. … Mental Hygiene Law § 10.08(c) permits the State to obtain, from local government entities, sealed records relating to an offender’s commission or alleged commission of a sex offense. … [W]e conclude that the court erred in admitting the hearsay basis testimony regarding convictions of which Kerry K. was exonerated … . * * *

The experts’ testimony about the vacated 1982 convictions … did not satisfy the reliability and relevance requirements for admission of hearsay basis evidence. As the Court of Appeals has observed, “unlike adjudications and admissions of guilt, an acquittal cannot provide the basis for reliability” … . Further, “[c]harges that resulted in acquittal are surely more prejudicial than probative on the question of the respondent’s mental abnormality” … . Thus, “acquittal of criminal charges bars admission of those accusations, absent some other basis to substantiate them” … .

In the present case, the information regarding the 1982 convictions was even less reliable and relevant than information concerning charges of which a respondent has merely been acquitted. An acquittal on a particular charge indicates that the People were unable to prove the defendant’s guilt of that charge beyond a reasonable doubt. Here, in contrast, the 1982 convictions were vacated, on consent of the Suffolk County District Attorney’s Office, based on the results of DNA testing conducted by Kerry K.’s and the State’s experts, and Kerry K. later affirmatively proved his innocence by clear and convincing evidence … . Thus, it was error to permit the State’s experts to testify about the 1982 convictions, and this error deprived Kerry K. of due process … . Matter of State of New York v Kerry K., 2017 NY Slip Op 08671, Second Dept 12-13-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))

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SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s rape conviction, determined Supreme Court should have ordered the victim’s psychiatric records for an in camera review for relevance:

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Prior to trial, the People disclosed that the victim had indicated that she had received treatment for bipolar disorder and depression and, further, produced a copy of the medical record from the sexual assault examination that was conducted on the day after the incident in which the victim had also reported a past medical history of “bipolar” and that she was taking prescription medications for that condition. Defendant requested that the court issue a subpoena duces tecum to obtain the victim’s mental health records and conduct an in camera review to ascertain whether they contained any information relevant and material to the victim’s credibility. …

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Supreme Court erred when it declined to order production of the victim’s mental health records and to review them in camera. Inasmuch as those records were never produced and were not part of the record, we are unable to remit the matter for a reconstruction hearing … . Moreover, without knowing the content of those records, we are unable to determine whether the information that they contain is merely cumulative to the information provided to defendant about the victim’s mental health history that was used as a basis for cross-examination, or whether the records contain additional relevant and material information bearing on her credibility. Similarly, our lack of knowledge of the contents of the victim’s mental health records precludes us from determining whether the court’s error in this regard was harmless. Accordingly, the judgment of conviction must be reversed and the matter remitted for a new trial. People v Kiah, 2017 NY Slip Op 08752, Third Dept 12-13-17

 

CRIMINAL LAW (SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/PSYCHIATRIC RECORD (CRIMINAL LAW, RAPE TRIAL, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/IN CAMERA REVIEW (CRIMINAL LAW, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/VICTIM PSYCHIATRIC RECORD (CRIMINAL LAW, EVIDENCE, RAPE, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/RAPE (EVIDENCE, PSYCHIATRIC RECORD, SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NEW TRIAL ORDERED (THIRD DEPT))/APPEALS (CRIMINAL LAW, PSYCHIATRIC RECORD,  SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT))

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BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure proceeding and therefore the bank’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to meet its prima facie burden of establishing its standing … . In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC … , the loan servicer. Foye averred, based on her review of Bayview’s business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff “maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS [Mortgage Electronic Registration Systems, Inc.], as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff … . Bank of N.Y. Mellon v Alli, 2017 NY Slip Op 08501, Second Dept 12-6-17

 

FORECLOSURE (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, EVIDENCE, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4518 [a] (FORECLOSURE, EVIDENCE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the trial judge should have granted the People’s application to relieve defense counsel. Defense counsel had interviewed a prosecution witness alone. During the interview the witness had recanted his identification of the defendant as the shooter. Defendant wanted defense counsel to continue representing him but did not waive the conflict:

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… [D]efense counsel’s actions of interviewing the prosecution’s main witness alone and being the only person who could testify to the witness’s recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement … . Under the circumstances, especially in light of the defendant’s refusal to waive any conflict, the County Court erred in denying the People’s application to relieve defense counsel. People v Lawrence, 2017 NY Slip Op 08538, Second Dept 12-6-17

 

CRIMINAL LAW (ATTORNEYS, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT OF INTEREST, THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT OF INTEREST. THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, , THE FACT THAT DEFENSE COUNSEL WAS THE ONLY PERSON WHO HEARD A PROSECUTION WITNESS RECANT HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER CREATED A CONFLICT OF INTEREST, PEOPLE’S APPLICATION TO RELIEVE DEFENSE COUNSEL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT).

The Second Department, in upholding a fine imposed upon a bar by the NYS Liquor Authority relating to an altercation, the court explained the use of hearsay in an administrative proceeding:

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“Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence” … . Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . It is “[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” … . ” The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable'” … . The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible… . Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency’s determination, unless it is seriously controverted … . Matter of Bracco’s Clam & Oyster Bar, Inc. v New York State Liq. Auth., 2017 NY Slip Op 08516, Second Dept 12-6-17

 

ADMINISTRATIVE LAW (HEARSAY, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/HEARSAY (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))

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SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT).

The First Department determined the proof of the “substantial pain” element of assault third was sufficient to support conviction:

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The verdict was supported by legally sufficient evidence and was not against the weight of the evidence … . There is no basis for disturbing the jury’s credibility determinations. The jury reasonably believed that defendant intended to forcibly take the victim’s property when he hit the victim in the head and immediately grabbed at his pocket … .

There was also ample proof of physical injury, because the victim testified that due to the severe pain in his mouth, it was difficult for him to open his mouth for two days, and he could not eat during that time… .. The statutory element of “substantial pain” may be satisfied by relatively minor injuries causing moderate, but “more than slight or trivial pain”…, even in the absence of any medical treatment … . People v Cordero, 2017 NY Slip Op 08466, First Dept 12-5-17

 

CRIMINAL LAW (ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/ASSAULT (CRIMINAL LAW, SUBSTANTIAL PAIN, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/SUBSTANTIAL PAIN (ASSAULT THIRD, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))

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DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s attorney’s conflict of interest deprived defendant of effective assistance of counsel and, upon retrial, the testimony which resulted from the conflict can not be presented:

 

In this observation drug sale case, defendant, an alleged seller, was appointed the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel’s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel’s simultaneous representation of defendant at the time of Jones’s plea constituted an actual conflict, we reverse and remand for a new trial. In addition, because Jones’s testimony is interwoven with a violation of defendant’s New York State and Federal right to the effective assistance of counsel, we preclude the People from using Jones’s testimony at any retrial. * * *

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During cross-examination, Jones admitted that he did tell the Assistant District Attorney, in his office, that defendant did not sell him crack cocaine. During redirect, Jones explained that he believed he did not have to tell the prosecutor the truth in his office, but that, now that he was under oath, he was “not going to perjure [him]self. . . .” * * *

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Here, defendant’s right to the effective assistance of counsel was infringed by an actual conflict. At the time of their simultaneous representation and Jones’s plea, the interests of defendant and Jones were clearly opposed. Jones had an interest in avoiding a criminal conviction by allocuting to identify defendant as one of the people who had sold him drugs. Defendant had an interest in not being so identified. Counsel was thus placed in the “very awkward position of a lawyer subject to conflicting demands” … . Indeed, despite defendant’s right to representation by an attorney single-mindedly devoted to his best interests, counsel pursued a strategy in Jones’s case directly at odds with defending defendant from the drug sale charges that he faced … .. After swearing to a description of one of the sellers that fit defendant, Jones became unavailable to defendant as a trial witness and his strength as a prosecution witness was enhanced … . Counsel’s actions with respect to Jones were inconsistent with representing defendant in the best way possible, so defendant was denied the “right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone” … . People v Peters, 2017 NY Slip Op 08497, First Dept 12-5-17

 

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, CONFLICT, INEFFECTIVE ASSISTANCE,  DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ATTORNEYS, CONFLICT, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CONFLICT OF INTEREST, CRIMINAL LAW (ATTORNEYS, EVIDENCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))/CONFLICT OF INTEREST (ATTORNEYS, CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT))

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FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTORS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, modifying Family Court’s custody/relocation ruling, determined Family Court relinquished its fact-finding role by adopting the findings and recommendations of the forensic evaluator, in the face of the evaluator’s obvious bias in favor of the father. Family Court had granted sole custody to the father in North Carolina, without evaluating the custody/relocation-modification factors, despite the child’s life-long residence in New York and evidence of a supportive home life:

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In its decision and order, Family Court recognized that the testimony given by the forensic evaluator “demonstrated[,] at times[,] a little less than neutral tone” and that it was apparent from her testimony that she was “challenged in her dealings” with the mother and her husband. Nevertheless, Family Court wholly adopted the forensic evaluator’s factual assertions, opinions, conclusions and recommendations, without any perceivable independent consideration given to the best interests of the child. In doing so, the court improperly delegated its fact-finding role and ultimate determination to the forensic evaluator… . We emphasize that “[t]he recommendations of court[-]appointed experts are but one factor to be considered” and, although entitled to some weight, such recommendations are not determinative and should not usurp the trial court’s independent impressions of the evidence and conclusions drawn from that evidence … . …

…[I]n granting the father sole legal and primary physical custody of the child, Family Court did not engage in an assessment of the relocation factors … . Had the court done so, it would have been apparent that the father’s proof was lacking in this regard. Neither the father nor the forensic evaluator offered demonstrable proof, such as photographs or a home study, as to the suitability of the father’s home. In commenting on the quality of the father’s home environment, the forensic evaluator relied solely on her assumptions and the self-serving representations made by the father. Matter of Montoya v Davis, 2017 NY Slip Op 08434, Third Dept 11-30-17

 

FAMILY LAW (FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/CUSTODY (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))

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