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DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, vacating defendant’s murder conviction and ordering a new trial, determined the DNA evidence (from under the victim’s fingernails) procured after the trial may have resulted in a verdict more favorable to the defendant. Defendant was identified as the perpetrator by an 88-year-old witness who had poor vision. The DNA recovered from the victim was that of the victim’s boyfriend. There was no other evidence tying defendant to the scene:

… [T]he defense theory at trial was one of mistaken identity. The defendant posited that the perpetrator was actually Samuels’s [the victim’s] boyfriend, Jermaine Robinson. No physical evidence linked the defendant to the crime. The only identity evidence offered by the People at trial was the testimony of a single eyewitness, Marchon, who was 88 years old at the time of the incident and suffered from significantly impaired vision. Marchon’s description to the police of the perpetrator’s appearance was not conclusive and was, in part, more consistent with Jermaine Robinson’s appearance. Under the facts of the case, it would not have been unreasonable to conclude that Marchon confused Samuels’s estranged husband with her current boyfriend in making her identification to the police. Marchon also was not able to conclusively identify the defendant at trial. Moreover, various members of the defendant’s family provided alibi evidence for his whereabouts on the day of the attack. Finally, two Allen charges … were required before the jury was able to reach a verdict.

Under all of these circumstances, while not a “virtual certainty,” there existed a reasonable probability that the verdict would have been more favorable to the defendant had the DNA evidence been admitted at trial … . People v Robinson, 2023 NY Slip Op 01533, Second Dept 3-22-23

Practice Point: Here in this murder case DNA evidence discovered after the trial pointed to a different perpetrator and the single eyewitness was 88 years old and had poor vision. Had the DNA evidence been admitted at trial the verdict may have been more favorable to defendant. New trial ordered.

 

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IN THIS NO-FAULT INSURANCE CASE, THE INSURER REQUESTED AN EXAMINATION UNDER OATH (EUO) WITHOUT AFFORDING THE MEDICAL PROVIDER SPECIFIC, OBJECTIVE JUSTIFICATION FOR THE REQUEST; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE INSURER (FIRST DEPT).

​The First Department, reversing Supreme Court in this no-fault insurance case, determined the insurer did not provide the medical provider with objective justification for its request for an examination under oath (EUO). Summary judgment should not have been awarded to the insurer:

Although plaintiff timely requested an EUO and subsequently issued a timely denial … , the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO … . This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer … . Country-Wide Ins. Co. v Alicea, 2023 NY Slip Op 01474, First Dept 3-21-23

Practice Point: In a no-fault insurance matter, the insurer’s request for an examination under oath (EUO) must be supported by “specific objective justification.” Here the failure to afford the medical provider objective justification precluded summary judgment in favor of the insurer.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR UNPAID OVERTIME WITHOUT SPECIFYING PARTICULAR DATES OR WEEKS; AFFIDAVITS ARE NOT DOCUMENTARY EVIDENCE WHICH WILL SUPPORT A “DOCUMENTARY EVIDENCE” MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for unpaid overtime wages pursuant to the Labor Law and the proof submitted by defendant did not support a motion to dismiss based on documentary evidence:

Plaintiffs’ complaint sufficiently states a claim for unpaid overtime wages in violation of Labor Law §§ 191 and 663 and 12 NYCRR 142-2.2 … . Plaintiffs allege that they were not compensated for hours spent before and after their shift, loading company vehicles and receiving job assignments, before traveling to construction sites throughout the New York City region … . Although the complaint does not contain the particular dates or weeks that plaintiffs were allegedly underpaid, it provides sufficient notice of their causes of action for unpaid wages and overtime based on pre-shift and post-shift work performed at defendant’s yard … .

In addition, defendant’s documentary evidence is insufficient to support a motion to dismiss under CPLR 3211(a)(1). Dismissal on the basis of documentary evidence is appropriate only if that evidence “utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Affidavits are not documentary evidence that can support a 3211(a)(1) motion … . The documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts began or after their shifts had purportedly ended. Rosario v Hallen Constr. Co., Inc., 2023 NY Slip Op 01490, First Dept 3-21-23

Practice Point: Here the complaint stated a cause of action for unpaid overtime despite the absence of specific dates or week when plaintiffs were allegedly underpaid.

Practice Point: A motion to dismiss based on documentary evidence is not supported when the documents are affidavits.

 

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IN A TAX FORECLOSURE PROCEEDING, EVIDENCE THE LETTERS PROVIDING NOTICE OF THE FORECLOSURE WERE NOT RETURNED TO THE TAXING AUTHORITY DOES NOT PRECLUDE RAISING A QUESTION OF FACT WITH PROOF NOTICE WAS NOT RECEIVED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the controlling statute, Real Property Tax Law (RPTL) 1125(1)(b), does not preclude plaintiff in a tax foreclosure proceeding from presenting evidence the statutory notice requirements were not complied with. The statute states that notice of the foreclosure “shall be deemed received” if neither the certified letter nor the letter sent by first class mail are returned within 45 days. The taxing authority presented evidence the letters were not returned. Plaintiff presented evidence notice was sent to the wrong address and the certified letter lacked a postmark. The Court of Appeals held plaintiff had raised a question of fact about compliance with the statutory notice requirement, notwithstanding the evidence the letters were not returned:

By its unambiguous terms, RPTL 1125 (1) (b) (i) relates to whether notice will be “deemed received,” not whether the taxing authority has complied with the statutory mailing requirements. Although the taxing authority must ensure that “[a]n affidavit of mailing of such notice [is] executed” … , the statute expressly provides that “[t]he failure of an intended recipient to receive any such notice shall not invalidate any tax or prevent the enforcement of the same as provided by law” … . It is only when both the certified mailing and the first class mailing are returned that the statute requires the taxing authority to take additional action beyond the requirements set forth in RPTL 1125 (1) (b) (i) … .

That is not the end of the analysis, however, in cases where the interested party argues, as plaintiff does here, that the taxing authority failed to comply with the mailing requirements set forth in RPTL 1125 (1) (b) (i). … RPTL 1125 (1) (b) (i) contains no “presumption of service” … . Nor does section 1125 (1) (b) (i) bar an interested party from submitting evidence that would call the taxing authority’s compliance with its requirements into issue or limit the proof an interested party may use to raise an issue of fact with respect to that compliance only to evidence that both the certified and first class mailings were returned. Courts “may not create a limitation that the legislature did not enact” … . James B. Nutter & Co. v County of Saratoga, 2023 NY Slip Op 01469, CtApp 3-21-23

Practice Point: In a tax foreclosure proceeding, proof that the letters notifying the property owner of the foreclosure were not returned to the taxing authority (RPTL 1125(1)(b)) does not preclude the owner from raising a question of fact with evidence notice was not received (here evidence the certified letter did not have a postmark and a letter was sent to the wrong address).

 

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FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).

The Fourth Department determined that a .22 caliber magazine found in defendant’s pocket in a street stop should have been suppressed. Although the defendant fled, that alone was not enough to justify the search and seizure:

… [T]he police witness testified that he received a report that two black males wearing dark clothing had fled the scene of an armed robbery. Soon after receiving the report, while driving in the vicinity of the incident, the officer observed two individuals in dark clothing, who fled as soon as the officer stopped his vehicle. The officer could not determine the gender or race of the individuals as he approached because they were facing away from him. Assuming, arguendo, that police lawfully approached defendant and the second individual to request information about the robbery … , we conclude that the subsequent pursuit of defendant was unlawful. The officer’s testimony did not establish that he determined that the individuals matched the sex or race of the robbery suspects before he undertook pursuit, and the evidence was therefore insufficient to demonstrate that the officer had ” ‘a reasonable suspicion that defendant ha[d] committed or [was] about to commit a crime’ ” … . Although defendant ran from the officer, “[f]light alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . People v Austin, 2023 NY Slip Op 01442, Fourth Dept 3-17-23

Practice Point: The flight of someone approached by the police on the street, standing alone, is not enough to justify a pursuit, seizure and search of the person.

 

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence:

… [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding … . Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer’s forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer’s arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm … . People v Dowdell, 2023 NY Slip Op 01432, Fourth Dept 3-17-23

Practice Point: Here the evidence of “physical injury” was deemed legally insufficient to support the assault second conviction. The decision analyzes all of the relevant aspects of “physical injury” including pain.

 

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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution:

… [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered … . We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it … . People v Ross, 2023 NY Slip Op 01381, Fourth Dept 3-17-23

Practice Point: Here is was deemed reversible error to instruct the jury on construction possession of a weapon because there was no evidence defendant exercised control over the area where the weapon was found.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither officer had any training in making visual speed estimates:

It is undisputed that the officers did not use radar at any point, nor did they pace the vehicle—i.e., follow it at a consistent distance—to confirm their visual estimates before initiating the stop. When questioned regarding their training to visually estimate a vehicle’s speed without pacing, one officer stated that he did not recall receiving such training, and the other testified that he did not believe such training existed. On further questioning, one of the officers testified that he had experience visually estimating speed due to the amount of time he spent on the road as a patrol officer, but failed to provide a reasoned explanation of how the time he spent driving on city streets enabled him to acquire the ability to visually estimate speed.

… [T]he People failed to establish the officers’ training and qualifications to support their visual estimates of the speed of the vehicle in which defendant was a passenger … . … [I]nasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping the vehicle in which defendant was a passenger in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized as a result of the traffic stop. People v Suttles, 2023 NY Slip Op 01380, Fourth Dept 3-17-23

Practice Point: Here the traffic stop was based on the officers’ visual estimate of speed (40 to 45 mph in a 30 mph zone). At the suppression hearing no evidence of the officers’ training or qualifications re: a visual speed estimate was presented. The People, therefore, did not prove the legality of the traffic stop.

 

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HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, affirming defendant’s conviction, determined the rule that evidence of a victim’s prior violent acts should not be admitted in support of the justification defense unless defendant was aware of those prior violent acts at the time of the incident. Here there was evidence the victim had four youthful offender adjudications in which the victim acted violently. The defendant stabbed the victim with a pen knife and claimed the victim was attacking him with a broken beer bottle. The trial judge instructed the jury on the justification defense:

Defendant stabbed the victim in the chest with a small knife, causing life-threatening injuries. At trial, the court determined that defendant was entitled to raise a justification defense. Defendant sought to introduce evidence of the specific violent conduct underlying four of the victim’s prior youthful offender adjudications to prove that the victim was the initial aggressor with respect to deadly physical force … . Supreme Court, in accordance with Miller, prohibited the jury from considering that evidence for that purpose. The Appellate Division affirmed … .

“Youthful Offender status provides youth four key benefits: relief from [a] record of a criminal conviction, reduced sentences, privacy from public release of the youth’s name pending the Youthful Offender determination on misdemeanor offenses only, and confidentiality of the Youthful Offender record” (Report of the Governor’s Commission on Youth, Public Safety, and Justice 135 [2014]). Youthful offender designations are given to those who have “a real likelihood of turning their lives around,” and the protection gives these individuals “the opportunity for a fresh start, without a criminal record” … . Given these policy concerns, we see no reason to revisit the Miller rule in this case. People v Guerra, 2023 NY Slip Op 01352, CtApp 3-16-23

Practice Point: Where the defendant raised the justification defense, proof of prior violent acts by the victim is not admissible unless the defendant was aware of them at the time of the incident (not the case here).

 

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CONFLICTING EXPERT EVIDENCE ABOUT ICE ON THE PARKING LOT BEFORE THE SNOW STORM BEGAN PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact raised by conflicting expert evidence in this ice slip and fall case. Although it was snowing at the time of the fall, there were questions of fact whether the ice was there before it began snowing:

… [W]e find that [defendant] established triable issues of fact as to whether the ice that he slipped on existed prior to the storm that was in progress and whether defendants had actual or constructive notice of same … . Plaintiff’s experts based their opinions on weather data similar to that of defendant’s expert, as well as additional sources of meteorological data. In reviewing this data, it cannot be said that plaintiff’s experts’ affidavit was not based on data or was conclusory … . Significantly, any disagreements between the experts would present a credibility determination appropriate for the finder of fact, such that summary judgment was inappropriate … . Marra v Zaichenko, 2023 NY Slip Op 01335, Third Dept 3-16-23

Practice Point: Where there is conflicting expert evidence in a slip and fall case, here concerning the presence of ice before the snow began to fall, summary judgment is not appropriate.

 

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