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Emails Can Suffice as “Documentary Evidence” to Support a Motion to Dismiss—Here the Documentary Evidence About Aspects of an Employment Agreement that Were In Contention Did Not Utterly Refute the Allegation that an Employment Contract Had Already Been Entered

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined the documentary evidence submitted by the defendant, which dealt with several aspects of an employment agreement that were in contention, did not utterly refute plaintiff’s allegation that an employment contract had already been entered.  Therefore defendant’s motion to dismiss the breach of contract cause of action was properly denied.  The opinion is long and detailed, as is the dissent, and cannot fairly be summarized here.  With respect to what constitutes documentary evidence in this context, the court wrote:

On a motion to dismiss pursuant to CPLR 3211(a)(1), a court is obliged “to accept the complaint’s factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory” … . Moreover, dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” … . If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

Preliminarily, we reject Supreme Court’s conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1). This Court has consistently held otherwise. For example, in Schutty v Speiser Krause P.C. (86 AD3d 484, 484-485 [1st Dept 2011]), this Court found drafts of an agreement and correspondence sufficient for purposes of establishing a defense under the statute. Similarly, in Langer v Dadabhoy (44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008]), this Court found “documentary evidence in the form of emails” to be sufficient to carry the day for a defendant on a CPLR 3211(a)(1) motion. Likewise, in WFB Telecom. v NYNEX Corp. (188 AD2d 257, 259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]), this Court granted a CPLR 3211(a)(1) motion on the basis of a letter from the plaintiff’s counsel that contradicted the complaint. Therefore, there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute. Kolchins v Evolution Mkts., Inc., 2015 NY Slip Op 02863, 1st Dept 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

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Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15

 

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Mother Was Not Afforded a Full Hearing in a Custody-Modification Proceeding

The Third Department determined Family Court erred by not affording mother the opportunity to fully cross-examine father or present her own proof in a custody-modification proceeding:

It is well settled “that modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . Family Court plainly deprived the mother of such a hearing by preventing her from fully cross-examining the father or submitting her own proof before imposing a custody arrangement to which she had not consented … . Matter of Richardson v Massey, 2015 NY Slip Op 02817, 3rd Dept 4-2-15

 

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Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment

The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff’s expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitor a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . Elements of res ipsa loquitur are: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15

 

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Concise Description of the Application of the DeBour Street-Encounter Criteria Leading to the Seizure of a Weapon

The Second Department, in finding the seizure of a gun from the defendant proper, provided a concise application of the DeBour street encounter factors:

The arresting officer testified that he saw, from a distance of “[l]ess than a foot” away, “what looked to be” “two to three inches” of “the butt of a firearm” that was “pulling down” the defendant’s rear pants pocket. These observations gave the officer an objective, credible reason to approach the defendant … . Upon seeing the officer, the defendant immediately turned sideways to obscure his rear pants pockets from the officer’s view, giving the officer a “founded suspicion that criminal activity [was] afoot,” justifying greater intrusion to conduct an inquiry … . At that point, when the defendant lowered his hands in the direction of his waist area, the officer had reason to suspect that he was in danger of physical injury and was authorized to conduct a protective frisk (see CPL 140.50[3]…). Probable cause for the defendant’s arrest arose after the officer grabbed the defendant’s hands for his own safety and, upon “wrestling” with the defendant, saw that the item in the defendant’s back pocket was, in fact, a firearm … . Thus, the record establishes that the officer’s conduct was justified at its inception and reasonably related in scope and intensity to the circumstances of the encounter as it developed … . Moreover, given the legality of the officer’s actions, the defendant’s claim that his post-arrest statement to police should be suppressed as the product of an illegal search or seizure is without merit… . People v Owens, 2015 NY Slip Op 02790, 2nd Dept 4-1-15

 

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Frye Hearing Should Have Been Held to Determine Admissibility of an Actuarial Recidivism Risk Assessment Tool as Proof of a Mental Abnormality

The Second Department determined defendant was entitled to a new trial because the trial court refused defendant’s request for a Frye hearing.  The People introduced the Hare PCL-R Instrument (an actuarial recidivism risk assessment tool), which measures psychopathy, during the mental abnormality phase of the trial. The use of the PCL-R to prove a mental abnormality was deemed “novel” by the Second Department.  Therefore, a Frye hearing should have been held to determine its admissibility for the “novel” purpose:

…[T]he Supreme Court erred in denying that branch of the appellant’s pretrial motion which was to conduct a hearing pursuant to Frye v United States (293 F 1013) concerning the admissibility of the Hare PCL-R Instrument (hereinafter the PCL-R), which measures psychopathy, during the mental abnormality phase of the trial … . While the use of actuarial risk assessment instruments is scientifically accepted as a means to measure the risk of recidivism, the use of such instruments to determine the existence of a mental abnormality is novel, and the State’s bare statement to the contrary was insufficient to satisfy the “general acceptance” test of admissibility … . For these same reasons, the court erred in concluding that the probative value of the PCL-R outweighed any prejudicial effect of the terms “psychopath” or “psychopathy.” Significantly, the State’s expert … testified that the PCL-R is not a “direct assessment of mental abnormality” and was “not designed” to measure “[h]ow much more difficult [it is] for somebody who has a high psychopathy score to control their behavior [as compared to] somebody who has a low score” and that “would be [a] misuse of the test.” Under the particular circumstances of this case, it cannot be said that this error was harmless, since there is a reasonable possibility that the jury could have reached another verdict had it not heard such testimony … . Matter of State of New York v Ian I., 2015 NY Slip Op 02771, 2nd Dept 4-1-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

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Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant’s right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant’s testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:

…[T]he federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]…). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” … and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” … . Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial—-‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” … . “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” … .

But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” … . Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” … may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a ” proper limiting instruction[]’ “… . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15

 

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Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

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