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ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

… [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) … . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and “the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” … . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker … . …

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were “being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . .” The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was “a significant probability . . . that the jury would have acquitted the defendant had it not been for the error” … . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was sufficient circumstantial evidence of the cause of plaintiff’s fall down a set of stairs to survive summary judgment. The plaintiff alleged there was inadequate lighting:

The defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs could not identify the cause of the injured plaintiff’s fall. “[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury”… . Here, the defendant failed to eliminate triable issues of fact as to whether the alleged inadequate lighting condition for the subject staircase was a proximate cause of the injured plaintiff’s fall… . Such a finding, given the eyewitness account of the circumstances surrounding the fall and the injured plaintiff’s own statement just before the fall, warning his companions to “watch out, it is dark, you cannot see,” would be based on logical inferences, not speculation … . Pajovic v 94-06 34th Rd. Realty Co., LLC, 2017 NY Slip Op 05831, 2nd Dept 7-25-17

NEGLIGENCE (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (SLIP AND FALL, THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

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RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

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THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the conviction was against the weight of the evidence. Defendant raised the justification defense in this manslaughter case. Once the defense was raised, the People were required to prove, beyond a reasonable doubt, the defendant’s act was not justified. The Fourth Department held that the jury’s finding the defendant’s act was not justified was against the weight of the evidence:

… [T]he People were required to prove either that defendant lacked a subjective belief that her use of deadly physical force was necessary to protect herself against decedent’s use or imminent use of deadly physical force, or that “a reasonable person in the same situation would not have perceived that deadly force was necessary”… . Although the jury found that the People met that burden, we conclude, upon our independent assessment of the proof… , that the jury “failed to give the evidence the weight it should be accorded”… . Defendant’s statements at the scene and in her police interview evinced a belief that deadly force was necessary to protect her from decedent, and we conclude that the People did not demonstrate beyond a reasonable doubt that her belief was objectively unreasonable. Instead, the credible evidence established that decedent was in a drunken rage during a heated argument with defendant, that he had threatened “trouble” if the police came, that he had repeatedly forced open doors in the course of pursuing defendant through the apartment, that he was not deterred even when she armed herself with a knife, that he had cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair to prevent her from leaving the bathroom just before she stabbed him. Under those circumstances, we conclude that the People failed to meet their burden of establishing that defendant lacked a reasonable belief that decedent was about to use deadly physical force against her, even though decedent was not armed … . In other words, this is not a case in which the force employed by defendant ” exceeded that which was necessary to defend [herself]’ ” … . People v Marchant, 2017 NY Slip Op 05918, 4th Dept 7-27-17

CRIMINAL LAW (JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/JUSTIFICATION DEFENSE (MANSLAUGHTER,  THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)

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ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT.

The Third Department determined abuse findings were supported by substantial evidence, which was entirely hearsay. The court explained how hearsay is evaluated in the context of a ruling by an administrative agency, here the Justice Center for the Protection of People with Special Needs. Petitioner is an employee of the Office of People with Developmental Disabilities and was accused of abusing a service recipient. It was alleged petitioner held the service recipient down while another employee, Roberts, kicked her:

Petitioner contends that hearsay evidence cannot prevail over credible sworn testimony adduced at an administrative hearing. However, it is well established that “an administrative determination may be based entirely upon hearsay evidence provided such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” … . In addition, an administrative determination may be based entirely on such hearsay evidence even where there is contrary sworn testimony … .

Here, there is substantial evidence in the record to support the Justice Center’s final determination that petitioner engaged in conduct constituting category three abuse. In interviews conducted by an investigator, three eyewitnesses to the incident — two residents of the unit and Monica Sutton, a service provider — made consistent statements about the material facts of the incident, specifically, that petitioner restrained the service recipient on the floor while she was kicked by Roberts. Although the eyewitness statements received at the hearing were hearsay, there were sufficient indicia of their reliability. The accounts of the eyewitnesses, who were interviewed separately, are consistent with each other, and, as noted by the Justice Center, were “unwavering as to the core allegations.” Further, the statements from the residents were obtained in personal interviews conducted only three days after the incident, and, although Sutton’s statement was obtained approximately four months after the incident, it is corroborated by the written report of abuse that she made on the date of the incident. Notably, petitioner and Roberts each testified that Sutton witnessed the incident and, although each denied that Roberts kicked the service recipient, both admitted that the service recipient fell to the floor, where she grabbed Roberts by the legs, Roberts moved her legs in an effort to free herself, and petitioner touched or held the service recipient by the shoulder when she was on the floor; these admissions are consistent with the eyewitness reports. Accordingly, the hearsay evidence in the record was sufficiently reliable to provide substantial evidence to support the Justice Center’s determination. Matter of Watson v New York State Justice Ctr. for The Protection of People With Special Needs, 2017 NY Slip Op 05780, 3rd Dept 7-20-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/HEARSAY (ADMINISTRATIVE LAW, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)

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FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the trial judge should have given the jury the accomplice-in-fact instruction concerning the need for corroboration of the testimony of an accomplice:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1]). A witness in a criminal action is an accomplice if he or she “may reasonably be considered to have participated in . . . the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged”… . A witness who is a criminal facilitator is an accomplice for corroboration purposes … . The factual issue of whether a particular witness is an accomplice should be submitted to the jury if different inferences may reasonably be drawn from the proof regarding complicity … .

Here, different inferences may reasonably be drawn … as to whether the second eyewitness drove Gill and the shooter to the scene, with the knowledge that one or the other of them intended to use the gun. Under these circumstances, the Supreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The error was not harmless, because the evidence of the defendant’s guilt was not overwhelming. It is possible that the jury, properly charged on whether to treat the second eyewitness as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the events. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt … . People v Riley, 2017 NY Slip Op 05755, 2nd Dept 7-19-17

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/JURY INSTRUCTIONS (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT.

​The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient proof that the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 were met:

… [W]here, as here, the plaintiff in a residential foreclosure action alleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, a plaintiff moving for summary judgment must “prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304” … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 … . Moreover, contrary to the plaintiff’s contention, the unsubstantiated and conclusory statement of a vice president of the plaintiff that “a 90-day default letter was sent in accordance with [ ] RPAPL 1304” was insufficient to establish that the required notice was mailed to the defendant by first-class and certified mail… . Since the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, its motion for summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition papers … . M&T Bank v Joseph, 2017 NY Slip Op 05587, 2nd Dept 7-12-17

FORECLOSURE (STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/EVIDENCE (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)

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EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … .  Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY  (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

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