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DESTRUCTION (SPOLIATION) OF EVIDENCE WARRANTED STRIKING THE PLEADINGS.

The First Department determined defendant's pleadings were properly struck because defendant destroyed emails relevant to plaintiff's defamation action:

Defendant undertook an affirmative course of action resulting in destruction of relevant emails, though she represented otherwise during sworn testimony. As the documents received from third-party recipients confirm, the files defendant destroyed are highly relevant and tend to substantiate plaintiffs' claims. Evidence of defendant's willful and prejudicial destruction of evidence warrants the sanction of striking her pleadings … . Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful … . Willfulness may also be inferred from a party's repeated failure to comply with discovery directives … . It should also be noted that this Court has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence … . Chan v Cheung, 2016 NY Slip Op 02731, 1st Dept 4-12-16


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MOVING PARTY CANNOT RELY ON GAPS IN OPPOSING PARTY’S PROOF IN MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT; WITNESS-CREDIBILITY SHOULD NOT BE TAKEN INTO ACCOUNT AT THE SUMMARY JUDGMENT STAGE.

The First Department, over a partial dissent, reversing (modifying) Supreme Court, determined neither plaintiff nor defendant was entitled to summary judgment in this contract dispute. Defendant, KLT, represented a concert artist, Akon, who cancelled a performance, allegedly due to illness. The question was whether, under the terms of the contract, plaintiff was entitled to its money back. KLT moved for summary judgment, arguing that the “force majeure” clause applied and plaintiff was not entitled to relief. Plaintiff cross-moved for summary judgment alleging breach of contract. The court found that KLT's proof of Akon's illness was insufficient and summary judgment was properly denied for that reason. The court went on to find Supreme Court should not have granted plaintiff's cross-motion because plaintiff did not demonstrate illness was not the reason for the cancellation of the concert. The decision presents another example of how appellate courts analyze summary judgment motions. Plaintiff could not rely on the gaps in KLT's proof of illness. Rather plaintiff was required to affirmatively prove illness was not the reason for the cancellation. The court further noted that witness-credibility cannot be taken into account at the summary judgment stage (the dissent argued Akon's testimony about illness was not to be believed):

… [P]laintiff, in its cross motion for summary judgment, was required to establish that Akon was able to perform at the concert and was not unable to do so due to sickness. Instead, plaintiff merely pointed to gaps in KLT's evidence — the missing medical records that would have proven Akon was ill, and thus its cross motion was improperly granted … .

The dissent merely points to additional gaps in KLT's evidence, such as proof of travel arrangements to demonstrate Akon intended to travel to Brussels [to perform the concert], and notes the limited value of the affidavit of Akon's surgeon. However, these gaps do not equate to plaintiff meeting its burden to establish an absence of a genuine issue of fact as to whether Akon was ill. Plaintiff acknowledges that it lacks any documentary evidence refuting that Akon was unable to perform, and has no evidence that he was physically capable of performing. The dissent, like the Supreme Court, appears to completely dismiss the value of Akon's deposition testimony, yet it is “not the court's function on a motion for summary judgment to assess credibility” … . Belgium v Mateo Prods., Inc., 2016 NY Slip Op 02730, 1st Dept, 4-12-16


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THE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO A MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS.

The Second Department, modifying Supreme Court’s order, determined defendant was not entitled to summary judgment in a foreclosure proceeding. Defendant alleged plaintiff, Aurora Loan Services, did not have standing to bring the action (i.e., did not have possession of the note at the time the action was commenced). Aurora Loan Services was unable to demonstrate standing because the evidence submitted did not meet the requirements of the business records exception to the hearsay rule. Aurora’s summary judgment motion was therefore properly denied. However, the flaws in Aurora’s proof of standing did not entitle defendant to summary judgment on defendant’s cross motion. In the summary judgment context, the court first looks only at the moving party’s papers to determine whether the moving party has made a prima facie showing justifying summary judgment. Here the defendant’s papers did not demonstrate Aurora lacked standing. Therefore the cross motion should have been denied, notwithstanding the flaws in the plaintiff’s opposing papers.

… Supreme Court erred in granting the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him for lack of standing and to cancel the notice of pendency filed against the subject property. “[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant, as the moving party, failed to make a prima facie showing that the plaintiff lacked standing … . Aurora Loan Servs., LLC v Mercius, 2016 NY Slip Op 02599, 2nd Dept 4-6-16

FORECLOSURE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/EVIDENCE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/SUMMARY JUDGMENT MOTIONS (SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)

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DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER.

Although deemed harmless error in this drug conspiracy prosecution, the Second Department determined a detective should not have been allowed to testify (as an expert) about the alleged roles played by people overheard in recorded phone calls:

It was proper to permit the detective to describe certain practices and define certain terms that have a “fixed meaning . . . within the narcotics world” … . However, it was error to permit the prosecutor to elicit testimony as to the roles played by the individuals overheard in the phone calls, and the relationships among them, for example, that several were “runners or workers” for the defendant or codefendant, and the meanings of certain “case-specific” terms that he had discovered in the course of the investigation. As the Court of Appeals cautioned in People v Inoa, where, as here, “the trial court qualifie[s] a government agent, intimately involved in the investigation of the case and development of the prosecution, to testify as an expert,” there is a danger that the agent will end up “testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case” (id. at 473), thereby usurping the role of the jury. Also improper was the testimony, elicited by the prosecutor from members of the surveillance teams who observed the defendant and his associates at the locations described in the phone calls, that what they witnessed was consistent with a drug transaction … . Nevertheless, we find that the improperly admitted testimony was harmless, as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is “no significant probability that, but for the error, the verdict . . . would have been less adverse” … . People v Melendez, 2016 NY Slip Op 02667, 2nd Dept 4-6-16

CRIMINAL LAW DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EXPERT OPINION (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)

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PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY; CRITERIA FOR AMENDMENT OF A COMPLAINT TO CONFORM TO TRIAL PROOF DESCRIBED.

In an action to foreclose a mechanic’s lien, the Second Department determined Supreme Court properly allowed amendment of the pleadings to conform with the proof, which was consistent with an action for quantum meruit. Plaintiff contractor was unable to show the value of the work performed, so plaintiff’s Lien Law and quantum meruit actions failed. Similarly, the defendants failed to prove they ended up paying more than the original agreed price for the work. So defendants’ counterclaims for breach of contract and damages failed. With respect to the amendment of the complaint to conform to the proof, and the flaws in plaintiff’s proof of the value of plaintiff’s work, the court wrote:

Pursuant to Lien Law § 3, a contractor who performs labor or furnishes materials for the improvement of real property with the consent, or at the request of, the owner “shall have a lien for the principal and interest, of the value, or the agreed price, of such labor . . . or materials upon the real property improved or to be improved and upon such improvement.” “A lienor may seek amounts due from both written contracts and from change orders for extras, depending on whether the owner gave his consent for the extra work” … . The lienor’s right to recover is limited by the contract price or the reasonable value of the labor and materials provided … . The lienor has the burden of establishing the amount of the outstanding debt by proffering proof either of the price of the contract or the value of labor and materials supplied … .

… [P]laintiff failed to offer bills, invoices, receipts, time sheets, checks, or any other evidence which would establish the cost of materials, work done by subcontractors, or the number of hours he worked on the job and proffered no explanation for his failure to present this evidence. He likewise failed to provide any detailed description of the work performed, the cost of any portion of the work, or the hourly rate at which he valued his labor. Indeed, at trial, the plaintiff admitted that the sum asserted in his lien was only an estimate. … .

Pursuant to CPLR 3025(c), a trial court may permit the amendment of pleadings before or after judgment to conform them to the evidence “upon such terms as may be just” … .Here, although the complaint sought recovery in the form of foreclosure on his mechanic’s lien, at trial, the plaintiff sought to conform the pleadings to the proof and assert a cause of action for recovery in quantum meruit. The Supreme Court granted that motion, and therefore, contrary to the defendants’ contention, that theory of recovery was properly before the court. * * *

Here, although the plaintiff presented evidence satisfying … three elements [of quntum meruit], this cause of action must fail for the same reason that the cause of action to foreclose his mechanic’s lien must fail; namely, his failure to present any evidence of the value of the materials supplied or services rendered. DiSario v Rynston, 2016 NY Slip Op 02611, 2nd Dept 4-6-16

CONTRACT LAW (PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY)/QUANTUM MERUIT (PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY)/MECHANIC’S LIEN (PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY)/LIEN LAW (PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY)/EVIDENCE (PLAINTIFF-CONTRACTOR’S FAILURE TO PROVE THE VALUE OF THE WORK PRECLUDED RECOVERY UNDER THE LIEN LAW AND UNDER A QUANTUM MERUIT THEORY)/CIVIL PROCEDURE (CRITERIA FOR AMENDMENT OF A COMPLAINT TO CONFORM TO TRIAL PROOF DESCRIBED)/COMPLAINT, AMENDMENT OF (CRITERIA FOR AMENDMENT OF A COMPLAINT TO CONFORM TO TRIAL PROOF DESCRIBED)

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FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined father’s recording of threats made to his infant son by mother’s boyfriend was not eavesdropping, which is prohibited by statute. Rather, father was deemed to have consented to the recording on his son’s behalf. Father had attempted to call the child’s mother. For some reason, the cell phone call went through but was not picked up by anyone. Father could hear the boyfriend threaten to beat his son. Using a cell phone function, the boyfriend’s words were recorded. The boyfriend was subsequently arrested for assault against the child and endangering the welfare of a child. The recording was played at trial. Recording conversations is prohibited in New York as illegal eavesdropping, unless one of the parties to the conversation consents. Here, the Court of Appeals determined the eavesdropping prohibition did not apply because the child was deemed to have consented to the recording. In addition, the Court of Appeals found the trial judge’s erroneous jury instruction, which allowed the jury to consider an accomplice theory not charged in the indictment, constituted harmless error. The court concluded, based upon the trial evidence, the jury could not have convicted the defendant of any offense other than what was charged. With respect to the recorded conversation, the court wrote:

There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child’s best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable. People v Badalamenti, 2016 NY Slip Op 02556, CtApp 2016

CRIMINAL LAW (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EVIDENCE (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EASVESROPPING FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/PARENT-CHILD (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)

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COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY; THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE; RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined, under an abuse of discretion standard, evidence of third-party culpability was properly excluded as speculative. Defendant was not, therefore, deprived of his constitutional right to present a complete defense when the trial court precluded evidence the defendant’s brother, Warren, was the beneficiary of a $500,000 life insurance policy taken out by the murder victim.  Here defense counsel made no specific attempt to demonstrate Warren killed the victim. Defense counsel made only vague assertions “others” could have committed the crime. The Court of Appeals made it clear there is no heightened standard for the admissibility of evidence of third-party culpability. Rather courts should apply the usual balancing test and exclude such evidence where it has slight probative value and a strong potential for undue prejudice, delay and confusion or where the evidence is so remote it does not connect the third party to the crime:

… [A]dmission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime. For example, a proffer of an unknown DNA profile may be sufficient. And we reject the trial court’s assertion that such a specific accusation “is an essential element of third-party culpability.” Such a requirement would conflict with the balancing analysis that we … reaffirm today. Nevertheless, defense counsel’s argument must be assessed based on the proffer as articulated … . The trial court was within its discretion in finding that proffer speculative and in determining the evidence to support it would have caused undue delay, prejudice, and confusion. People v Powell, 2016 NY Slip Op 02555, CtApp 4-5-16

CRIMINAL LAW (CRIMINAL LAW, COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, THIRD-PARTY CULPABILITY, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)/THIRD PARTY CULPABILITY (CRIMINAL LAW, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER, THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)

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DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a concurring opinion by Judge Pigott, rejected defendant’s challenge to the use at trial of recordings of his phone calls made from Rikers Island during pre-trial incarceration. Prosecutors routinely request recordings of nonprivileged inmate phone calls and pour through them for use at trial. The Court of Appeals did not condone the practice, and the concurring opinion laid out how access to the phone calls prejudices defendants who cannot make bail:

In order to properly address and frame defendant’s legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate’s attorney. Nor does defendant assert that the intention of the City’s regulation or the Department’s Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.

Defendant instead challenges what he describes as the Department’s practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department’s recordings to District Attorneys’ offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without defendant’s consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial. People v Johnson, 2016 NY Slip Op 02552, CtApp 4-5-16

CRIMINAL LAW (EVIDENCE, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/INMATES (RECORDED PHONE CALLS, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)

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DEFENSE COUNSEL’S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over an extensive two-judge dissenting opinion, determined defense counsel's failure to request the reopening of the suppression hearing based upon trial testimony did not constitute ineffective assistance. The Appellate Division had previously reversed the trial court's suppression of defendant's statements. At trial the detective who took the statements from the defendant gave an account which differed from the detective's hearing testimony. The inconsistent testimony related to the second of the two statements made by the defendant during interrogation. In response to defendant's motion to vacate the judgment of conviction on ineffective-assistance grounds, the People provided an affidavit from defense counsel which explained the strategy underlying the decision to forego a request to reopen the suppression hearing. “… Counsel averred that he had believed that defendant's second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant's more incriminating subsequent comments.” The court found the explanation of the defense strategy to be sound:

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing … . Because the Appellate Division had rejected counsel's original arguments for suppression of the [second] statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a longshot motion to reopen the hearing, he decided to use the exculpatory portion of defendant's first statement to undermine the credibility of the second statement and place it in context. People v Gray, 2016 NY Slip Op 02476, CtApp 3-31-16

CRIMINAL LAW (DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)

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FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE.

The Court of Appeals determined defendant, who was charged with criminal possession of a weapon, was not afforded effective assistance of counsel in that defense counsel did not move to suppress the weapon. The matter was remitted for a suppression hearing. The underlying facts were not addressed in the decision. People v Bilal, 2016 NY Slip Op 02475, CtApp 3-31-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)

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