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ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an accomplice. In rejecting an argument on appeal that was not part of the ruling below, the Fourth Department explained that its appellate jurisdiction is limited to grounds relied on by the trial court which were adverse to the appellant:

… [W]e conclude that the evidence in question is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g] …). Scott’s deposition testimony establishes that defendant possessed the loaded machine gun, provided it to Scott, transported Scott to the vicinity of the crime, and had a motive to harm the victims because his family had “beef” with theirs, thus providing sufficient evidence to support a verdict of guilty as an accomplice to the weapons possession of which he was convicted … . ” ‘[W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant’ ” … .

Defendant requests that we affirm on the ground, which he asserted in the court below, that consideration of the new evidence in light of a theory of accessorial liability requires an impermissible amendment to the indictment. We agree with the People that we have no authority to affirm on that basis … .

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” * * * The Appellate Division engages in “the type of appellate overreaching prohibited by CPL 470.15 (1)” when it “renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in [the appellant’s] favor” … .

Here, the court determined that “the accessorial liability theory, if presented at a new trial, would not constitute an impermissible amendment to the indictment in violation of the defendant’s constitutional rights,” clearly resolving that issue in the People’s favor.  People v Dixon, 2024 NY Slip Op 06473, Fourth Dept 12-20-24

Practice Point: New evidence indicated defendant was not the shooter but had provided the weapon to the shooter with the requisite intent. Because the new evidence would not have resulted in a more favorable verdict on the criminal possession of a weapon charge, defendant’s motion to vacate the judgment of conviction should have been denied.

Practice Point: An intermediate appellate court can only consider grounds for rulings relied on by the trial court or rulings adverse to the appellant.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant police officer’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff was struck by defendant’s police van when plaintiff stepped into the road from between two parked cars. Defendant police office was responding to an “assault in progress” when plaintiff was struck:

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that he was responding to a radio call about an “assault in progress” at the time of the accident … . The police officer therefore was privileged to drive in the wrong direction on the roadway … , and can be found liable only if he operated the vehicle in reckless disregard for the safety of others … .

Defendants demonstrated that the officer did not act with reckless disregard based on his testimony that he entered the eastbound lane after ascertaining that there was no traffic, turned on the siren and lights, and was unable to avoid striking plaintiff when she stepped out in front of the police van, despite hitting the brakes hard … . Yuet C. Chiu-Yu v Chin, 2024 NY Slip Op 06273, First Dept 12-12-24

Practice Point: Defendant police officer was responding to an “assault in progress” and testified he had activated his siren and lights and had checked for pedestrians prior to striking plaintiff as she stepped into the road from between parked cars. The officer testified he braked hard but could not avoid striking plaintiff. Defendants were entitled to summary judgment because the officer demonstrated he did not operate his vehicle in “reckless disregard” for the safety of others.

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY; THE SEARCH WARRANT DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S CELL PHONES; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined (1) defendant’s request to represent himself should not have been summarily denied, and (2) the search warrant did not provide probable cause for the search of defendant’s cell phones:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant’s cell phones. … [T]he warrant was supported by [investigator] Bruno’s affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 06239, Third Dept 12-12-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge should conduct a colloquy to determine whether defendant is making a voluntary and intelligent waiver of his right to counsel.​

Practice Point: The assertion in an affidavit that defendant’s cell phones “may” contain evidence of a drug offense does not provide probable cause for the search of the cell phones.

 

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, the People presented evidence the U-turns were, in fact, illegal and the court denied suppression:

… [I]f the People have had a full and fair opportunity to oppose suppression, and the suppression court has issued a ruling on the merits, the People may not have an additional “opportunity to shore up their evidentiary or legal position” … . Under the circumstances of this case, where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness, the same principle should apply.

At a suppression hearing, the People bear the burden of showing the legality of the police conduct in the first instance … . Here, the court granted defendant’s motion for suppression because the People failed to demonstrate that defendant’s U-turns were illegal and therefore that the stop was lawful. Neither the Assistant District Attorney nor the arresting officer could identify any traffic law provision violated by defendant. Moreover, the People did not request a recess or adjournment to determine the statutory basis for the stop, nor did they request permission to furnish a post-hearing submission to identify any relevant provision of law. Instead, the People returned a month after the court granted suppression, offering a different legal theory that they had not raised at the original suppression hearing. On that new legal theory, the court changed course and denied defendant’s motion to suppress.

Of course, “[b]efore sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes” … , which may include granting leave to reargue. Although the People may be permitted to reargue the legal or factual issues of the suppression proceedings, allowing the suppression court to grant the People’s motion to reargue in these circumstances would run afoul of our “full and fair opportunity” principle and the policies of finality and judicial efficiency underlying it. People v Lawson, 2024 NY Slip Op 06238, CtApp 12-12-24

Practice Pont: As a general rule, the People should have only one chance to demonstrate the legality of a traffic stop in the context of a suppression hearing. Once a suppression motion is granted, the People should not be allowed to reopen the hearing to present evidence which could have been presented the first time around.

 

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THE ORDER OF FACT-FINDING IN THIS JUVENILE DELINQUENCY PROCEEDING WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STREET STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION; AND THE SHOWUP IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE (SECOND DEPT). ​

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the order of fact-finding was against the weight of the evidence, the appellant was stopped by the police in the absence of reasonable suspicion, and the victim’s identification of the appellant should have been suppressed. The victim was struck from behind and saw only the backs of the assailants’ heads. The identification was made from a police car at a distance of 240 feet, and the show-up identification procedure was unduly suggestive:

… [W]hile the complainant initially claimed that he had a momentary opportunity to see his alleged assailants’ faces after he stood up, he later acknowledged that he merely observed “the backs of their heads” as they fled. Moreover, the credibility of the complainant’s testimony was undermined by his claim to have been able to identify the appellant during a showup identification procedure from a significant distance in the backseat of a police car using only one eye. * * *

… [T]he testimony presented at the suppression hearing established that the police, using two police cars, stopped the appellant and two companions because they fit the general description given by the complainant of “black male[ ]” “youths” riding bicycles. The presentment agency did not present any evidence at the suppression hearing that the appellant and his companions were engaged in any suspicious behavior at the time of the police stop. Moreover, at the time of the police stop, the appellant was with only two companions, which conflicted with the complainant’s description of “five youths.” Under these circumstances, the evidence presented at the suppression hearing was insufficient to establish that the police had reasonable suspicion to stop the appellant … . * * *

Wayne Bowman, a police officer who accompanied the complainant during the showup identification procedure, testified at the suppression hearing that he assured the complainant that “[w]e’re far enough back they’re not going to be able to see you” and acknowledged that he and the complainant were positioned about the distance of “[a] football field” away from the appellant and his companions during the showup identification procedure. Moreover, the complainant acknowledged at the suppression hearing that prior to the showup identification procedure, Bowman told him that the police “had stopped people that fit the description.” Under these circumstances, the Family Court improperly determined that the showup identification procedure was reasonable and not unduly suggestive … . Matter of Ahmand T., 2024 NY Slip Op 06051, Second Dept 12-4-24

Practice Point: The identification-evidence in this juvenile delinquency proceeding was too weak to support the order of disposition.

Practice Point: The street stop was not supported by reasonable suspicion.

Practice Point: The showup identification procedure was unduly suggestive.

 

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THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AND THE MOTION FOR LEAVE TO RENEW SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION AGAINST THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYCHHC); CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim against the New York City Health and Hospitals Corporation (NYCHHC) for medical malpractice, as well as the motion for leave to renew based upon recently disclosed medical records, should have been granted:​

… [P]etitioner established a reasonable excuse for the delay, to wit, the serious medical condition of the infant, which required hospitalization of the infant after his birth, feeding through a feeding tube, and numerous medical appointments while the condition of the infant was being assessed … . Considering the overall circumstances, including the petitioner’s natural predisposition to be more concerned with the infant’s medical condition and the treatment those injuries required, rather than with commencing legal action during the prescribed time period, the delay in serving a late notice of claim should have been excused … . Further, in support of that branch of the petitioner’s motion which was for leave to renew the petition, the petitioner submitted her medical records and an expert’s affidavit, which established that NYCHHC had actual knowledge of the essential facts constituting the claim since the alleged malpractice was apparent from an independent review of the medical records … . The medical records were not submitted earlier because, although the petitioner sought her medical records in August 2022, she only received those records on December 22, 2022 … . Further, the medical records were voluminous.

Since the conduct at issue was fully documented in the medical records, the petitioner made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice. ​​​​​Matter of Bergado v New York City Health & Hosps. Corp., 2024 NY Slip Op 06039, Second Dept 12-4-24

Practice Point: Here the mother of the injured infant proffered an adequate excuse for failing to timely file a notice of claim in this medical malpractice action against the NYC Health and Hospitals Corporation (NYCHHC) and demonstrated the NYCHHC had timely notice of the nature of the action and suffered no prejudice from the delay through the medical records.

Practice Point: The motion for leave to renew was properly based upon mother’s recent receipt of medicals records not previously provided.

 

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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):

… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *

Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24

Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.​

 

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