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THE BANK DID NOT DEMONSTRATE IT WAS THE HOLDER OR ASSIGNEE OF THE NOTE AT THE TIME THE ACTION TO RECORD THE MORTGAGE WAS BROUGHT; THE BANK DID NOT HAVE STANDING TO BRING THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing in 2017 to record a mortgage securing a note issued in 2008:

A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the . . . action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … . “[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery” .. .

Here, the affidavits of Fernandez were insufficient to establish the plaintiff’s standing to record the mortgage. Although Fernandez’s second affidavit provided a proper foundation for the admission of business records, and attached a business record … , “[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . The business record attached to Fernandez’s second affidavit failed to establish, prima facie, that the plaintiff had possession of the note prior to commencing the instant action, as it failed to mention the defendant or otherwise identify the note to which it was referring. Moreover, the business record identifies itself merely as a “Certification.” It does not state when the note was either delivered to or assigned to the plaintiff. Bayview Loan Servicing, LLC v Healey, 2024 NY Slip Op 04054, Second Dept 7-31-24

Practice Point: Here the note was issued in 2008 and plaintiff bank sought to record the mortgage in 2017. The bank did not have standing to record the mortgage because it did not present proof it was the holder or assignee of the note when the action was brought.​

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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DEFENDANT WAS ACQUITTED OF MENACING AT THE FIRST TRIAL BUT THE EVIDENCE SUPPORTING THE MENACING CHARGES WAS ALLOWED IN THE SECOND TRIAL; THE COLLATERAL ESTOPPEL DOCTRINE PRECLUDED PRESENTATION OF THAT EVIDENCE IN THE SECOND TRIAL; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s acquittal of menacing in his first trial precluded evidence defendant displayed a firearm during a confrontation in the second trial:

At his second trial, the People were permitted to introduce in their case-in-chief, over defendant’s objection, the testimony of an eyewitness that, during a confrontation in a park that occurred prior to the shooting, defendant had pulled out a gun and waved it at the victim, and had cocked the gun and pointed it at the eyewitness. We agree with defendant that, under the circumstances here, the People were collaterally estopped by the earlier verdict from presenting evidence at defendant’s second trial concerning the alleged display of a gun during the earlier confrontation at the park … .

The doctrine of collateral estoppel “operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” … . “[W]here the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place” … . Only those facts that were “necessarily decided” by a prior acquittal will have collateral estoppel effect in a subsequent prosecution … . Although it may “normally be impossible to ascertain the exact import of a verdict,” we are charged with giving “a practical, rational reading to the record of the first trial” to determine “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” … .

Here, the two menacing counts alleged that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying what appeared to be a firearm, on the basis of his alleged actions at the park shortly before the murder. The eyewitness’s testimony at the first trial was the only evidence supporting the menacing counts. People v Moore, 2024 NY Slip Op 03941, Fourth Dept 7-26-24

Practice Point: Evidence supporting charges of which defendant was acquitted in the first trial cannot be presented in the second trial.

 

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THE PEOPLE DID NOT DEMONSTRATE DUE DILIGENCE IN ASCERTAINING THE EXISTENCE OF A FORENSIC REPORT AND DISCIPLINARY RECORDS; TURNING THEM OVER UPON DISCOVERING THEM AND SUMBITTING A SUPPLEMENTAL CERTIFICATE OF COMPLIANCE (COC) DID NOT CURE THE OMISSION (FOURTH DEPT).

The Fourth Department determined the People did not meet their burden of demonstrating compliance with their discovery obligations before filing the Certificate of Compliance (COC):

… [W]e conclude that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the July 2022 COC … . The People failed to put forward any evidence of their efforts “to ascertain the existence” of either the forensic report or the disciplinary records prior to filing the July 2022 COC (…CPL 245.50 [1]). Rather, the People’s submissions established that, after they became aware of the materials’ existence, they promptly provided them to defense counsel—an assertion that is undisputed. As the Court of Appeals stated in Bay, “post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed” … . We note in particular that the forensic report was completed more than six months before, upon the case being assigned to a new prosecutor, it was discovered and provided …  . People v Baker, 2024 NY Slip Op 04006, Fourth Dept 7-26-24

Practice Point: The People must demonstrate due diligence in ascertaining the existence of discovery material. It is not enough to quickly turn them over upon becoming aware of their existence.

 

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DEFENDANT WAS NOT IN “CLOSE PROXIMITY” TO THE DRUGS WITHIN THE MEANING OF THE “ROOM” OR “DRUG FACTORY” PRESUMPTION; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession-of-drugs convictions and ordering a new trial, determined the “room” or “drug factory” presumption was not applicable:

… [S]ection 220.25 (2) provides that “[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.” “Penal statutes ‘must be construed according to the fair import of their terms to promote justice and effect the objects of the law’ ” … . The drug factory presumption is “intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” … . According to its drafters, the presumption is “designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a ‘drug factory,’ only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such ‘factories,’ who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare” … . …

… [T]he phrase “close proximity” in Penal Law § 220.25 (2) means “when the defendant is sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . “[T]he proximity determination requires careful consideration of the underlying facts related to defendant’s location on the premises” … . Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of “close proximity” … , and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police … .  …

… [D]efendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not “sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just “moments before,” been engaged in drug distillation or packaging … . People v Campbell, 2024 NY Slip Op 03995, Fourth Dept 7-26-24

Practice Point: Consult this decision for an explanation of the “room” or “drug factory” presumption re: the possession of drugs.​

 

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PRIMARILY BECAUSE OF CREDIBILITY ISSUES CONCERNING THE IDENTIFICATION OF THE DEFENDANT, THE SECOND DEPARTMENT REVERSED THE ROBBERY CONVICTION AS AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A DISSENT (SECOND DEPT).

The Second Department, over a dissent, determined the defendant’s robbery conviction, which was based primarily on the complainant’s identification evidence, was against the weight of the evidence:

Here, an acquittal would not have been unreasonable since the defendant did not possess the complainant’s wallet, no physical evidence tied him to the scene of the theft or to the Lincoln in which the complainant had been abducted, and the clothing that the defendant was wearing did not match the description of the perpetrator’s clothing. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we find that the rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Initially, while the People speculate that the defendant could have put on the sweater at some time after he stole the complainant’s wallet, by the complainant’s version of events, the defendant was either engaged in a struggle with the complainant or under the constant watch of the complainant and his friend from the moment of the theft. Furthermore, the taxicab driver candidly admitted that he lost sight of the Lincoln and never saw it again, which cannot be reconciled with the complainant’s testimony that the two vehicles were “bumper to bumper” the entire time the taxicab followed the Lincoln.

The testimony of the complainant and his friend that they saw the defendant exiting the Lincoln cannot be credited.

The testimony of the complainant and his friend suffered other credibility issues. People v Delvalle, 2024 NY Slip Op 03896, Second Dept 7-24-24

Practice Point: Credibility issues can support the reversal of a conviction as against the weight of the evidence.

 

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PLAINTIFF BICYCLIST’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; BUT PLAINTIFF’S MOTION TO DISMISS DEFENDANT DRIVER’S CONTRIBUTORY NEGLIGENCE AFFIRMATIVE DEFENSE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist’s motion for summary judgment on liability in this traffic accident case should have been granted. However, plaintiff’s motion to dismiss defendant’s contributory negligence affirmative defense was properly denied. Defendant suddenly backed up in and attempt to parallel park and struck plaintiff. The court noted that Supreme Court properly refused to consider an uncertified police report submitted by defendant in opposition to summary judgment:

The plaintiff … demonstrated that the defendant reversed her vehicle on the roadway “without taking proper precautions” in violation of Vehicle and Traffic Law § 1211(a) … . In opposition, the defendant failed to raise a triable issue of fact. “The defendant did not submit an affidavit describing the events surrounding the accident which rebutted the version of events presented in the plaintiff’s affidavit” … . Further, “[c]ontrary to the defendant[‘s] contention, the [Supreme Court] properly declined to consider a particular uncertified police accident report in determining the motion as it would have provided the sole basis for denying summary judgment” …

“With few exceptions . . . , a person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle” (… Vehicle and Traffic Law § 1231). Therefore, “[a] bicyclist is required,” inter alia, “to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . Dieubon v Moore, 2024 NY Slip Op 03881, Second Dept 7-24-24

Practice Point: Backing up without taking precautions violates the Vehicle and Traffic Law and constitutes negligence per se.

Practice Point: A bicyclist must use reasonable care for his or her safety and may therefore be contributorily negligent in a car-bicycle collision.

 

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AN EXPERT IN A MED MAL CASE NEED NOT BE A SPECIALIST IN THE RELEVANT FIELD; HERE A PRIMARY CARE PHYSICIAN LAID A PROPER FOUNDATION FOR AN OPINION ABOUT PLAINTIFF’S CARE; PLAINTIFF ALLEGED DEFENDANTS NEGLIGENTLY FAILED TO DIAGNOSE HER HEART CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this med mal case should not have been granted summary judgment. Plaintiff alleged a negligent failure to diagnose her heart condition. Plaintiff’s expert was a primary care physician, not a cardiologist. The Second Department noted that an expert need not be a specialist and found plaintiff’s expert had laid a proper foundation for his opinion:

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” … . However, the expert must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” … . Here, the expert, who was in the practice of internal medicine and primary care for more than 35 years, demonstrated based on experience and knowledge that he or she was qualified to render an opinion regarding the symptomology and diagnosis of heart disease and as to whether the defendants properly examined the decedent and investigated her symptoms in accordance with accepted medical practices … . Rosenzweig v Hadpawat, 2024 NY Slip Op 03838, Second Dept 7-17-24

Practice Point: An expert in a med mal case need not be a specialist. Here a primary care physician laid a proper foundation for an opinion re: the defendants’ failure to diagnose plaintiff’s heart condition.

 

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THE TRAFFIC STOP WAS A PROPER EXERCISE OF THE POLICE “COMMUNITY CARETAKING FUNCTION;” BUT THERE WAS NO SHOWING THE SUBSEQUENT QUESTIONING WHICH LED TO DEFENDANT’S DWI ARREST WAS “COMMENSURATE WITH ANY PERCEIVED NEED FOR ASSISTANCE;” INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing County Court and dismissing the indictment, determined the statements made to police after a traffic stop, including his refusal to submit to a breath test, should have been suppressed. Defendant was behind the police car when he flashed his lights several times. The police pulled over but defendant just drove past them. The police then followed the defendant, pulled him over and asked why he flashed his lights and whether he was ok. Defendant’s response was not in the record. After it was clear defendant gave the police a phony birth date, he was asked to step out of the car. At that point the police suspected he was intoxicated:

… [T]he Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” … . Deemed the “community caretaking function[ ]” by the United States Supreme Court … , this concept recognizes that police do not just fight crime, but “perform varied public service roles, including protecting citizens from harm” … . The police’s community caretaking function is “‘totally divorced from the detection, investigation, or acquisition of evidence’ of criminal conduct” … .

The Court of Appeals has determined that the police may stop an automobile in an exercise of their community caretaking function if two criteria are met. “First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution” … .

​… [T]he People failed to establish … that the police intrusion in this matter was narrowly tailored to address the perceived need for assistance. Upon permissibly stopping the defendant’s vehicle, [Officer} Pavinski appropriately asked the defendant why he had flashed his lights and whether everything was okay. However, there is no evidence as to the defendant’s response to this inquiry. Without such evidence, and in light of [Officer} Spilotros’s testimony that the defendant did not appear to be in distress, the People have not demonstrated that the continued questioning of the defendant was an intrusion “commensurate with [any] perceived need for assistance” … . … [T]here is nothing in the record indicating that the officers had suspicions that the defendant was intoxicated until after they determined that he had lied about his birth date and asked him to exit the vehicle. People v Serrano, 2024 NY Slip Op 03833, Second Dept 7-17-24

Practice Point: The police can stop a vehicle if they believe the driver may be in distress (community caretaking function). But the subsequent questioning of the driver must address the perceived need for assistance and should stop once it is determined no assistance is required.

 

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MOTHER BROUGHT A PETITION TO MODIFY CUSTODY AND ALLEGED SHE DID NOT CONSENT TO THE STIPULATION UNDERLYING THE EXISTING CUSTODY ORDER; BECAUSE THE STIPULATION WAS NOT IN THE RECORD AND ITS TERMS WERE NOT IN THE CUSTODY ORDER, A HEARING WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was required after mother alleged in her petition to modify custody she did not consent to the stipulation underlying the custody order. The stipulation was not part of the record and the custody order did not recount the terms of the agreement:

Pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since “settlement agreements must abide by the principles of contract law, ‘for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent'” … . CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation … . Here, in light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there is an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. Matter of Izzo v Salzarulo, 2024 NY Slip Op 03751, Second Dept 7-11-24

Practice Point: If a custody order is based upon a stipulation which was not reduced to writing and the terms of the stipulation are not in the order, the order is subject to collateral litigation, here based on mother’s allegation she did not agree to the terms.

 

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