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THE DEFENDANT’S ACCOMPLICE TO MURDER CONVICTION RESTED ENTIRELY ON THE TESTIMONY OF A JAILHOUSE INFORMANT WHICH WAS AT ODDS WITH THE SURVEILLANCE VIDEO; THE TESTIMONY OF THE INFORMANT WAS REJECTED, RENDERING DEFENDANT’S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s accomplice-to-murder conviction, determined the conviction was against the weight of the evidence. There was evidence the shooter came to and left the area where the shooting took place in a white sedan. Defendant owned a white sedan but it was not possible to tell whether the white sedan in the surveillance video was defendant’s. The People presented the testimony of a jailhouse informant who claimed defendant admitted dropping off and picking up the shooter. But the evidence given by the informant did not comport with the video surveillance of the white sedan and was therefore rejected by the Fourth Department:

… [W]e find that the version of events that the informant attributed to defendant is completely at odds with the video evidence establishing that the codefendant took an efficient, one-block circuitous route from the side street where the white sedan parked to the bar and then back to the sedan. The timing of events as established by the video evidence is too tight to permit any potential diversions or alternate routes to have been taken by the codefendant, much less the irrational choice of running along a busy thoroughfare several blocks away from the white sedan. Further, the informant’s testimony is too specific to permit the conclusion that any inconsistency between it and the video evidence is the innocuous result of an imprecise account. We therefore conclude that this is an appropriate case to substitute our own credibility determination for that made by the jury and find that the informant’s testimony is not credible ,,, . Absent the informant’s testimony, there is no evidence from which to reasonably infer that defendant shared the codefendant’s intent to cause the death of another person … or that defendant knew that the codefendant was armed at the time defendant transported him to the bar … . People v Ramos, 2023 NY Slip Op 03755, Fourth Dept 7-6-23

Practice Point: This decision is a clear example of the difference between a “legal sufficiency of the evidence” and a “weight of the evidence” analysis. Here the informant’s testimony describing a jailhouse confession by the defendant rendered the evidence legally sufficient. However the informant’s testimony was deemed incredible because it conflicted with the video evidence. The informant’s testimony was rejected by the appellate court rendering the conviction against the weight of the evidence.

Practice Point: If you search this website by clicking on the category “Criminal Law” and type “weight of the evidence” in the search bar, you will find many cases which are decided using the “weight of the evidence” label but which actually find the evidence legally insufficient. Appellate courts are now willing to reverse convictions as against the weight of the evidence where the legal sufficiency argument was not raised in the trial order of dismissal motion or where the TOD motion was not renewed upon the close of proof. Therefore, if there are deficiencies in the proof at trial, even if the legal insufficiency argument cannot be raised on appeal because it was not preserved, the “weight of the evidence” argument should be raised.

 

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, PETITIONER DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO ASSIST RESPONDENT MOTHER IN ADDRESSING HER MENTAL HEALTH; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner did not prove it made diligent efforts toward reunification of mother and child, given mother’s mental health and the incomplete measures to address her mental health needs. Therefore mother’s parental rights should not have been terminated. The facts are far too complex to summarize here:

The petitioning agency “bears the burden of proving . . . that such diligent efforts were made,” and must do so by clear and convincing evidence … . To satisfy that burden, the agency “must develop a plan that is realistic and tailored to fit [the] respondent’s individual situation” … , and “make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … . The petitioning agency “should mold its diligent efforts to fit the individual circumstances so as to allow the parent to provide for the child’s future’ ” … .

… [The] “terms and conditions” placed upon respondent required … that she “undergo a complete mental health evaluation by a licensed professional approved by [petitioner]”; engage in a domestic violence program; attend all of the child’s medical appointments and all scheduled visitation; and “successfully complete Family Services of Chemung County’s Protective Parenting Program.” We agree with respondent and the AFC that petitioner did not prove, by clear and convincing evidence, that it made diligent efforts to assist respondent in satisfying these conditions. Matter of Willow K. (Victoria L.), 2023 NY Slip Op 03730, Third Dept 7-6-23

Practice Point: Here mother had serious mental health issues and the “terms and conditions” imposed upon mother required those issues to be addressed in specific ways. Petitioner did not prove it diligently provided sufficient assistance to mother in her attempts to meet those terms and conditions. Therefore mother’s parental rights should not have been terminated.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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A ROCKY LEDGE UNDER FOUR INCHES OF WATER IN A NATURAL SWIMMING HOLE SURROUNDED BY IRREGULAR ROCK WAS OPEN AND OBVIOUS AND PLAINTIFF ASSUMED THE RISK OF STRIKING HER FOOT ON THE ROCK LEDGE (THIRD DEPT).

The Third Department, reversing (modifying) the Court of Claims, determined defendant (a state-owned park with a natural swimming area surrounded by irregular rock) was not liable for plaintiff’s injury caused by striking a rock ledge covered by four inches of water. Defendant demonstrated the water was clear and the rock ledge was open and obvious. Defendant further demonstrated the swimming area had been made as safe as possible. In addition plaintiff assumed the risk of swimming there:

The open and obvious nature of the rock shelf obviated any duty on defendant’s part to warn park users of its presence … . * * *

While it may be true that a rocky underwater surface could be less optimal for swimming than an engineered swimming pool, it nevertheless remains the case that claimant’s striking of her foot on a rock ledge was a reasonably foreseeable risk inherent in swimming in the gorge, and the swimming conditions were as safe as they appeared to be … . McQuillan v State of New York, 2023 NY Slip Op 03734, Third Dept 7-6-23

Practice Point: A rocky ledge under four inches of water in a natural swimming hole surrounded by irregular rock was open and obvious. Plaintiff assumed the risk of striking her foot on the rock ledge.

 

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence:

… [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only that defendant intended to purchase dealer quantities of cocaine from Sanchez and cooked crack cocaine for Sanchez when requested, but wholly fails to connect defendant to Sanchez’s broader cocaine dealing network, as defendant was not linked to any of the stash houses or the other individuals with whom Sanchez was in contact. Although Penal Law § 220.77 (1) does not contain a defined mens rea term, it is not a strict liability crime (see Penal Law § 15.15 [2]), and its plain language requires proof that defendant engaged in conduct constituting the administration, organization or leadership of a controlled substance organization. The proof offered by the People does not set forth a valid line of reasoning to permissibly infer that this specific intent was met here. While defendant’s purchase of dealer quantities of cocaine from Sanchez and an agreement to cook crack cocaine for him might be sufficient to establish his knowledge of a broader cocaine distribution network … , they are not sufficient to infer that defendant intended Sanchez to administer, organize or lead a controlled substance organization, as the knowledge of such an organization is not equivalent to the intent to control one. People v Lundy, 2023 NY Slip Op 03727, Third Dept 7-6-23

Practice Point: Conspiracy is a specific intent crime. Here the fact that defendant intended to purchase dealer quantities of cocaine from a dealer and cooked crack cocaine for the dealer was not legally sufficient evidence of the intent that the dealer administer, organize or lead a drug organization. The conspiracy conviction was vacated.

 

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ALLOWING A POLICE OFFICER TO NARRATE A VIDEO ALLEGEDLY DEPICTING THE DEFENDANT COMMITTING ASSAULT WAS REVERIBLE ERROR; THE FUNCTION OF THE JURY WAS USURPED (SECOND DEPT).

The Second Department, vacating some of defendant’s convictions, determined it was error to allow a police officer to interpret the video alleged to depict defendant committing assault:

… [T]he trial court should have precluded the testimony of a police detective regarding his opinion as to what a video of the assault on the first victim depicted. Such testimony improperly usurped the jury’s function by interpreting, summarizing, and marshaling the evidence, and was improperly admitted into evidence as relevant to the detective’s investigation. Rather than aiding the jury in understanding the investigation, the detective improperly narrated the video and the detective’s interpretation of the video, which was not necessarily supported by the video itself, also improperly “instruct[ed] the jury on the existence of the facts needed to satisfy the elements of the charged offense” … . The error cannot be deemed harmless with regard to the convictions of assault in the first degree and gang assault in the first degree, which stemmed from the assault upon the first victim, and with regard to the conviction of criminal possession of a weapon in the third degree, since the evidence of the defendant’s guilt of those crimes, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant on those charges had it not been for the error … . People v Ramos, 2023 NY Slip Op 03709, Second Dept 7-5-23

Practice Point: It was the jury’s role to interpret a video of the assault. Allowing a police officer to narrate the video usurped the function of the jury.

 

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DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. An accomplice, Brenda, testified that another accomplice, Roberto, had pled guilty for his role in the shooting and Roberto’s cooperation agreement was placed in evidence with Brenda on the stand. Brenda also testified that defendant made incriminating statements after the shooting. Although the prosecution had informed defense counsel Roberto would be called as a witness, Roberto was not called. Defendant was therefore deprived of right to confront Roberto. In addition, the accomplice jury instruction was not requested or given and the missing witness jury instruction was not requested or given:

… [D]efense counsel failed to object to evidence elicited by the People pertaining to the guilty plea of Roberto, a nontestifying alleged accomplice, including the introduction into evidence of the cooperation agreement in which Roberto agreed to give “meaningful and truthful information” concerning the shooting. The admission of this evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him … . * * *

… [D]efense counsel failed to request either an accomplice-in-law or accomplice-in-fact jury instruction with respect to Brenda’s testimony. Since accomplice testimony is “marked by obvious self-interest,” a defendant “‘may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense'” … . * * *

… [D]efense counsel failed to timely request a missing witness charge … . People v Alvarenga, 2023 NY Slip Op 03704, Second Dept 7-5-23

Practice Point: Defense counsel was deemed ineffective (1) for failing to assert defendant’s right to confront the witnesses against him when an accomplice testified about a non-testifying participant in the shooting, (2) for failing to request the accomplice jury instruction, and (3) in failing to request the missing witness jury instruction.

 

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IN THIS SIDEWALK/CURB SLIP AND FALL CASE, THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION AND THE ABUTTING PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION OR CAUSE THE CONDITION BY SPECIAL USE (SECOND DEPT).

​The Second Department, reversing Supreme Court in this sidewalk/curb slip and fall case, determined (1) the defendant village did not have written notice of the alleged dangerous condition. and (2), the defendant abutting property owner did create the condition or cause the condition by special use. Therefore the complaint against both defendants should have been dismissed:

… [T]he Village correctly contends that, contrary to the Supreme Court’s conclusion, it was not required to establish both that it lacked prior written notice of the defect and that it had not created the defect … . Rather, upon the Village’s prima facie showing that it lacked prior written notice of the defect, the burden shifted to the plaintiff to demonstrate that an exception to the prior written notice statute applied … . As the plaintiff did not meet this burden, the court should have granted the Village’s motion, in effect, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

… Scipione [defendant abutting property owner] demonstrated, prima facie, that he did not create the defect, that he did not cause the defect to occur because of a special use, and that the relevant section of the Village Charter did not make abutting landowners liable for injuries caused by sidewalk defects … . With respect to the issue of special use, Scipione’s evidence showed that the intended use of the step on which the plaintiff allegedly fell was “the normal intended use of the public way,” and that he did not “derive[ ] a special benefit from that property unrelated to the public use” … . Morales v Village of Ossining, 2023 NY Slip Op 03690, Second Dept 7-5-23

Similar “written notice” issue and result in O’Connor v City of Long Beach, 2023 NY Slip Op 03702, Second Dept 7-5-23

Practice Point: Here the village demonstrated it did not have written notice of the sidewalk/curb defect which caused plaintiffs fall. Therefore the action against the village should have been dismissed.

Practice Point: Here the abutting property owner demonstrated he did not create the sidewalk/curb defect and did not cause the defect by special use. Therefore the action against the property owner should have been dismissed.

 

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant City of New York did not demonstrate when the area where plaintiff slipped and fell was last cleaned or inspected. Therefore the city did not demonstrate a lack of constructive notice of the dangerous condition:

… [T]he defendants failed to establish … that they did not have constructive notice of the alleged hazardous snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants in support of their motion did not show when the staircase was last cleaned or inspected in relation to when the subject accident occurred, but rather merely described their general cleaning and inspection practices for the staircase … . Islam v City of New York, 2023 NY Slip Op 03685. Second Dept 7-5-23

Practice Point: Once again an appellate court reiterates that proof of general cleaning or inspection practices does not prove a lack of constructive notice of the condition which caused a slip and fall.

 

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