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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY TO DETERMINE THE WAIVER WAS VOLUNTARY AND INTELLIGENT; THE INFORMATION IN THE WARRANT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT’S CELL PHONE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the judge should not have summarily denied defendant’s request to represent himself and the motion to suppress evidence retrieved from the defendant’s cell phone should have been granted:

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 … . * * *

… [T]he warrant was supported by [the investigator’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 05152, Third Dept 10-17-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge must conduct a colloquy to ensure the waiver of the right to counsel is voluntary and intelligent.

Practice Point: Here the search warrant did not demonstrate probable cause to believe the search of defendant’s cell phone would reveal evidence of criminal possession of a controlled substance.

 

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FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT FORUM FOR THIS CUSTODY MATTER WAS NOT SUPPORTED BY EXPLICIT REFERENCE TO THE STATUTORY FACTORS OR ANY TESTIMONY OR SUBMISSIONS BY THE PARTIES; THE RECORD WAS THEREFORE INSUFFICIENT FOR APPELLATE REVIEW AND THE MATTER WAS REMITTED (THIRD DEPT).

The Third Department, reversing Family Court’s ruling that a Massachusetts court was the most convenient forum for this custody matter, determined Family Court’s failure to place on the record the factors it considered in making its ruling, combined with absence of any testimony, rendered the record inadequate for review, requiring remittal:

“Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” … . A court is obliged to consider eight statutory factors in rendering that determination, and “[t]hose statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (… Domestic Relations Law § 76-f [2] [a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute” … .

… Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court, which was essentially a back-and-forth between the judges on issues that included the language of the prior custody orders, the nature of the cases presently before them and the differences between New York and Massachusetts laws governing custody proceedings. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Matter of Mark AA. v Susan BB., 2024 NY Slip Op 05173, Third Dept 10-17-24

Practice Point: Here Family Court did not make an adequate record to support its ruling that a Massachusetts court was the more convenient forum for this custody matter. There were no submissions by the parties and there was no testimony. The statutory factors were not explicitly referenced. The matter was remitted.

 

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DEFENDANT HAD A RIGHT TO BE PRESENT DURING THE SANDOVAL/MOLINEUX DISCUSSIONS OF THE ADMISSIBILITY OF HIS PRIOR CONVICTIONS; THE FACT THAT THE JUDGE ANNOUNCED HIS SANDOVAL/MOLINEUX RULINGS IN THE DEFENDANT’S PRESENCE WAS NOT ENOUGH; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction, in a full-fledged opinion by Judge Rivera, determined defendant had a right to be present during the Sandoval/Molineux discussions concerning the admissibility of defendant’s prior convictions. The fact that the judge announced his rulings in defendant’s presence was not enough:

We reverse defendant’s conviction and grant him a new trial. The trial court held a conference in defendant’s absence on the prosecution’s motion to cross examine him on his prior criminal conduct, in violation of his right to be present (see CPL 260.20 …). The court held a subsequent hearing on the motion in defendant’s presence. However, the court did not hear arguments on the merits, did not confirm defendant’s understanding of the underlying facts or the merits of the application, and merely announced its decision. Thus, the subsequent proceeding did not provide for defendant’s meaningful participation in the determination of the merits of the motion and did not cure the earlier violation. People v Sharp, 2024 NY Slip Op 05132, CtApp 10-17-24

Practice Point: Defendant’s right to be present at trial includes the right to be present during the arguments about the admissibility of defendant’s prior convictions under Sandoval/Molineux. Defendant’s presence when the judge announced the Sandoval/Molineux rulings is not sufficient.

 

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THE BANK FAILED TO PROVE STANDING TO FORECLOSE BECAUSE THE NECESSARY BUSINESS RECORDS WERE NOT ATTACHED TO THE FOUNDATIONAL AFFIDAVITS; HOWEVER, THE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THEY FAILED TO AFFIRMATIVELY PROVE THE BANK DID NOT HAVE STANDING (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action failed to prove it had standing to foreclose because the necessary business records were not attached to the foundational affidavits. The court noted that Supreme Court properly denied defendants’ motion for summary judgment because the defendants did not prove the bank did not have standing:

“Although [t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Without the introduction of the records themselves, “a witness’s testimony as to the contents of the records is inadmissible hearsay” … .

Here, the plaintiff relied on the affidavits from Jackson and Smith to demonstrate that it had possession of the note prior to commencing this action. The defendants correctly contend that neither Jackson nor Smith attached any business records to their affidavits. Thus, the assertions of Jackson and Smith that the plaintiff had possession of the note prior to commencing this action were inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Bank of N.Y. v Levy, 2024 NY Slip Op 05085, Second Dept 10-16-24

Similar failure of proof in the context of the confirmation of the referee’s report in a foreclosure proceeding, i.e., the failure to produce the business records relied upon by the affiant. Deutsche Bank Natl. Trust Co. v Quaranta, 2024 NY Slip Op 05090, Second Dept 10-16-24

​Practice Point: In a foreclosure proceeding, the failure to attach or produce the business records relied upon by an affiant renders the affidavit inadmissible hearsay.

Practice Point: The bank’s failure to prove it has standing to foreclose (due to the failure to attach the relevant business records to a foundational affidavit) does not entitle defendants to summary judgment on the standing issue. Defendants must affirmatively prove the bank does not have standing to warrant summary judgment in their favor.

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DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT OF THE SORA RISK-LEVEL PROCEEDING TO ALLOW REVIEW OF DOCUMENTS WHICH MAY BE RELEVANT TO A DOWNWARD DEPARTURE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing County Court and ordering a new SORA risk-level assessment, determined defendant’s attorney’s request for an adjournment to allow review of documents relevant to a downward departure should have been granted:

… County Court improvidently exercised its discretion when it denied the defendant’s request for an adjournment. The defendant’s open release date two days after the hearing was not a sufficient reason to deny the defendant’s request for an adjournment (see Correction Law § 168-l[8]). Further, the documents discussed by the defendant, including documents relating to his participation in treatment programs, may be relevant to support an application for a downward departure from his presumptive risk level. “A defendant seeking a downward departure from the presumptive risk level has the initial burden of ‘(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the . . . Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence'” … . “In making the determinations the court shall review . . . any relevant materials and evidence submitted by the sex offender” … . “An offender’s response to treatment, if exceptional, can be the basis for a downward departure” … . As the documents cited by the defendant were potentially material, the adjournment request was not made for the purposes of delay, and the necessity of the request was not due to a failure of due diligence, the court should have granted the request to adjourn the SORA hearing so that the defendant’s counsel could review the documents and determine whether they should be offered to the court as evidence at the hearing. People v Eldridge, 2024 NY Slip Op 05117, Second Dept 10-16-24

Practice Point: Here defense counsel’s request for an adjournment of the SORA risk-level proceeding to allow review of documents which may be relevant to a downward departure should have been granted. Defense counsel was not able to meet with the defendant until 15 minutes before the hearing, the request was not made to delay, and the fact that defendant had an upcoming open release date was not a sufficient reason to deny an adjournment.

 

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THE STIPULATION SIGNED BY DEFENSE COUNSEL, IN AN EFFORT TO AVOID SHOWING CHILD PORNOGRAPHY TO THE JURY, EFFECTIVELY REMOVED THE MENS REA ELEMENT OF THE CHILD PORNOGRAPHY CHARGES FROM THE JURY’S CONSIDERATION; CONVICTION REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (SECOND DEPT). ​

The Second Department, reversing defendant’s child-pornography conviction, over a two-justice dissent, determined that the stipulation signed by defense counsel and presented to the jury (in an effort to avoid showing the pornography to the jury) effectively removed from the jury consideration of the mens rea element. Therefore, defendant did not receive effective assistance of counsel:

A few days before the trial commenced, defense counsel and the prosecutor executed a stipulation entitled “Stipulation Elements of Crime.” Among other things, they stipulated to the fact that certain videos underlying the counts of promoting a sexual performance by a child “depicted . . . a performance, which included sexual conduct by a child less than 17 years of age,” and similarly stipulated as to the content of certain images underlying the counts of possessing a sexual performance by a child. …

… [T]he stipulation went on to state, in pertinent part, that “whoever possessed each of the . . . videos, promoted a performance, which included sexual conduct by a child . . . with knowledge of the character and content of the videos,” and “whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child” … . A reasonable reading of this additional language in the stipulation is that possession alone is tantamount to promoting a performance with knowledge “of the character and content of” the videos, which is required to support a conviction of promoting a sexual performance by a child under Penal Law § 263.15, and that possession alone is tantamount to knowing “possession or control” or “access[ ] with intent to view,” which is required to support a conviction of possessing a sexual performance by a child under Penal Law § 263.16. Thus, this additional language in the stipulation set forth definitions of the crimes that had no mens rea element … , under which possession alone could support a guilty verdict for each crime. People v Guerra, 2024 NY Slip Op 04978, Second Dept 10-9-24

Practice Point: Defense counsel signed a stipulation in an effort to avoid showing child pornography to the jury. The majority concluded the stipulation effectively eliminated the mens rea element from the jury’s consideration. The conviction was reversed on ineffective assistance grounds.

 

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STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION FOR PLAINTIFF’S FAILURE TO RESPOND TO DISCOVERY DEMANDS; $2500 PENALTY IMPOSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined sanctions were in order for plaintiff’s failure to respond to discovery demands, but striking the complaint was too severe. A monetary penalty was imposed:

… [T]he plaintiff’s failure to comply with discovery demands and orders directing discovery or respond to the letters from the defendants’ counsel concerning discovery, without providing a reasonable excuse, supports an inference of willful or contumacious conduct … . However, under the circumstances, the sanction imposed was too drastic a remedy and the defendants’ motion pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of directing the plaintiff’s counsel to personally pay the sum of $2,500 as a sanction to the defendants … . Mirabile v Kuwayama, 2024 NY Slip Op 04958, Second Dept 10-9-24

Practice Point: This case presents another instance of an appellate court’s determination the striking of a pleading as a sanction is too severe a penalty. Here plaintiff failed to respond to discovery demands and a $2500 penalty was deemed an appropriate sanction by the Second Department.

 

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IN THIS CHILD VICTIMS ACT CASE, THE SCHOOL DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTFF STUDENT BY TWO TEACHERS; THE FREQUENCY OF THE ALLEGED ABUSE RAISED QUESTIONS ABOUT NOTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the school defendants did not eliminate questions of fact about constructive notice of the sexual abuse of plaintiff student by two teachers. The relevant law is described in detail and should be consulted as a complete overview of the relevant issues:

… [T]o the extent the complaint is premised on the conduct of the music teacher, the defendants failed to establish, prima facie, that they lacked constructive notice of the music teacher’s alleged abusive propensities and conduct … . The defendants’ own submissions established that the plaintiff testified that the alleged abuse by the music teacher occurred once or twice a week during the school year … . In light of the frequency of the alleged abuse, the defendants did not eliminate a triable issue of fact as to whether they should have known of the alleged abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the music teacher or the plaintiff was not negligent … .

Although the single incidence of alleged sexual abuse by the English teacher occurred off of school property and outside of school hours, the defendants’ own submissions demonstrate that the music teacher introduced the plaintiff to the English teacher, describing the plaintiff as his “friend” and a “good girl,” and that, in the presence of the music teacher, the English teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school when the alleged abuse by the English teacher took place … . C. M. v West Babylon Union Free Sch. Dist., 2024 NY Slip Op 04954, Second Dept 10-9-24

Practice Point: Here the frequency of the alleged sexual abuse of plaintiff student by a teacher raised a question of fact about constructive notice by the school defendants.

 

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ONCE AGAIN THE FAILURE TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 REQUIRED REVERSAL IN A FORECLOSURE ACTION; THE SECOND DEPARTMENT CAREFULLY EXPLAINED ALL THE FLAWS IN THE PROOF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof requirements for sending the RPAPL 1304 notice of foreclosure to the defendants were not met. This frequently recurring error was carefully explained by the Second Department, perhaps in an effort to instruct the bar:

… [T]he plaintiff submitted an affidavit of Kimberly Dutchess, an authorized representative of M & T Bank (hereinafter M & T), the plaintiff’s loan servicer and attorney-in-fact, along with a power of attorney authorizing M & T to act on the plaintiff’s behalf … . Although Dutchess laid a proper foundation for the admission of various business records annexed to her affidavit, inter alia, by attesting to her “familiar[ity] with business records maintained by M & T for the purpose of servicing mortgage loans,” she “failed . . . to attest that [s]he personally mailed the subject notices or that [s]he was familiar with the mailing practices and procedures of [M & T]” at the time the notices were sent … . Nor was Dutchess’s assertion that she “acquired personal knowledge of the matters stated in [her] affidavit by examining the [relevant] business records” sufficient to demonstrate her personal knowledge of M & T’s mailing procedures, since “a review of records maintained in the normal course of business does not vest an affiant with personal knowledge” … . Therefore, Dutchess “failed to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, although Dutchess’s affidavit laid a proper foundation for the admission of the business records annexed thereto, the content of those records did not demonstrate, prima facie, the plaintiff’s strict compliance with RPAPL 1304 … . The only purported proof of first-class mailing attached to Dutchess’s affidavit was a letter log, which “failed to establish that the 90-day notice was actually mailed to both of the defendants . . . by first-class mail” … . Among other issues, the letter log did not contain any information regarding the method of mailing for any of the documents contained therein. It also contained only one entry for the 90-day notice allegedly mailed to both of the defendants in February 2018, notwithstanding that a “plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … . Furthermore, although the letter log listed Alexander W. Swanson III as the borrower, it did not mention Nancy L. Swanson’s name, and the plaintiff did not provide any records showing that the 90-day notice was mailed to Nancy L. Swanson by first-class mail … . Notably, “[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . In any event, even if Dutchess had established that she had personal knowledge of M & T’s mailing procedures, her affidavit did not sufficiently clarify any of these issues … . Since the plaintiff did not demonstrate that it mailed the 90-day notices to both of the defendants by first-class mail, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . Lakeview Loan Servicing, LLC v Swanson, 2024 NY Slip Op 04952, Second Dept 10-9-24

Practice Point: It is not easy to prove compliance with the foreclosure notice requirements in RPAPL 1304 by affidavit. The same flaws in the proof have been the basis for foreclosure reversals for a decade now.​

 

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DEFENDANT DID NOT PRESENT A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S STATEMENT THAT HIS “BRAKES FAILED” WAS DEEMED SELF-SERVING AND INADMISSIBLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to offer a nonnegligent explanation for the rear-end collision warranted the award of summary judgment to plaintiff. The statement attributed to defendant in a certified police report claiming his “brakes failed” was deemed self-serving and inadmissible:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting their respective affidavits, which demonstrated, inter alia, that the plaintiffs’ vehicle was traveling at a constant speed of 35 miles per hour in the right lane for at least one minute when it was struck in the rear by the defendants’ vehicle … . The plaintiffs also established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ first affirmative defense, alleging comparative negligence, by demonstrating that they were not comparatively at fault in the happening of the accident … . Barr v Canales, 2024 NY Slip Op 04944, Second Dept 10-9-24

Practice Point: Defendant’s statement that his “brakes failed” was deemed self-serving and inadmissible in this rear-end collision case.

 

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