You are here: / Evidence
, , , ,

THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

,

PROBABLE CAUSE FOR SEARCH OF DEFENDANT’S VEHICLE UNDER THE AUTOMOBILE EXCEPTION WAS PROVIDED BY THE ODOR AND OBSERVATION OF MARIJUANA; SEIZURE OF A TRANSPARENT BAG OF PILLS WAS NOT JUSTIFIED BY THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT BECAUSE IT WAS NOT IMMEDIATELY APPARENT THE PILLS WERE CONTRABAND AND THERE WAS NO MARIJUANA IN THE BAG (SECOND DEPT).

The Second Department, reversing defendant’s conviction stemming from a transparent plastic bag of pills seized from defendant’s vehicle after a traffic stop. determined the seizure of the pills was not justified by the plain view exception to the warrant requirement. The court noted that the Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively and therefore the marijuana odor and the observation of the marijuana provided probable cause for a search pursuant to the automobile exception to the warrant requirement here:

The plain view doctrine is not applicable where the object must be moved or manipulated before its illegality can be determined … . The movement or manipulation of an object from its original state in a manner that goes beyond the objectives of the original search constitutes an independent search or seizure … . Such a search or seizure may not be upheld without proof that the officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated … .

Here, Cruz [the officer] testified that he did not know what the pills in the ziploc bag were when he seized them. * * *

Since it was obvious that the transparent ziploc bag seized by Cruz did not contain marihuana, and since it was not immediately apparent that the ziploc bag contained any other type of contraband, there was no justification for seizing the bag … . People v Rodriguez, 2022 NY Slip Op 07080, Second Dept 12-14-22

Practice Point: The Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively.

Practice Point: If an object, i.e., a transparent plastic bag of pills, must be manipulated before it can be determined to be contraband, seizure under the plain view exception is not justified. Here the odor and observation of marijuana provided probable cause for the search of the vehicle, and containers within the vehicle, for marijuana. Because the transparent bag of pills did not contain marijuana, the plain view exception did not apply.

 

,

THE USE OF PEPPER SPRAY BY JAIL PERSONNEL (AFTER A WARNING) WHEN DEFENDANT REFUSED TO TAKE OFF HIS SHOES WAS NOT “EXCESSIVE FORCE;” THEREFORE DEFENDANT, WHO ASSAULTED THE OFFICER FIVE SECONDS AFTER HE WAS SPRAYED, WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN HIS ASSAULT TRIAL (CT APP). ​

The Court of Appeals, reversing the appellate division, determined there was no reasonable view of the evidence which would support a jury instruction on the justification defense. At the jail, the defendant was ordered to take off his shoes. When he refused, after being warned, he was sprayed in the face with pepper spray. Five seconds after he was sprayed, defendant charged the officer and punched him in the head:

The Appellate Division concluded that, viewing the evidence in the light most favorable to defendant, there was a “reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario” … . …

… [T]here is no reasonable view of the evidence that the sergeant’s use of pepper spray was excessive or otherwise unlawful. The trial evidence was that defendant was given a lawful command to remove his footwear, that he was given that verbal command several times yet persisted in his refusal, and that he was specifically warned that he would be pepper sprayed if he did not comply. The officers further testified that the use of pepper spray was considered a “minimal” use of force compared to using “hands on” force to remove the footwear. People v Heiserman, 2022 NY Slip Op 07024, CtApp 12-12-22

Practice Point: Jail personnel ordered defendant to take off his shoes. He refused and continued to refuse after he was warned he would be pepper-sprayed. Hw assaulted the officer five seconds after being sprayed. The Court of Appeals, reversing the appellate division, determined the use of pepper spray was not excessive force and the defendant was not entitled to a jury instruction on the justification defense.

 

,

THE PROOF THE VICTIM SUFFERED “SERIOUS OR PROTRACTED DISFIGUREMENT” IN THIS ASSAULT FIRST CASE WAS INSUFFICIENT; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction and reducing it to attempted assault first, determined the People did not prove the scar on the victim’s cheek met the definition of “serious and protracted disfigurement.” The People introduced two photos of the scar and the doctor who treated the injury testified. The victim did not testify:

Defendant’s convictions were not supported by legally sufficient evidence because the People failed to prove that the victim suffered serious and permanent disfigurement, which was the basis of both counts (see Penal Law §§ 120.10[1], [2]). The People relied solely on two photos of the victim depicting a scar on his cheek, and the scar was briefly described by the doctor who treated the victim on the day of the slashing. Despite the scar’s prominent location, neither the photos nor the doctor’s testimony warrant an inference that the scar rendered the victim’s appearance “distressing or objectionable” to a reasonable observer … . The victim did not testify, so the jury had no opportunity to observe the actual scar and evaluate whether it was seriously disfiguring, nor was any other evidence adduced regarding the scar’s effects on the victim’s appearance, health, and life … . People v McBride, 2022 NY Slip Op 07034, First Dept 12-13-22

Practice Point: Here defendant was charged with assault first for causing “serious and protracted disfigurement” to the victim. Although two photos of the scar were introduced in evidence and the treating doctor testified, the victim did not testify. It appears that the jury’s inability to see the victim at the time of trial rendered the proof legally insufficient.

 

, ,

DEFENSE COUNSEL DID NOT WAIVE HIS CLIENT’S RIGHT TO HAVE HIM ATTEND THE LINEUP IDENTIFICATION BY SENDING HIS PARALEGAL, WHO WAS TURNED AWAY; DEFENSE COUNSEL SHOULD HAVE BEEN TOLD HIS PRESENCE WAS REQUIRED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defense counsel did not waive his client’s right to have his attorney attend the lineup identification procedure by sending his paralegal. The paralegal was turned away:

Defendant was deprived of his right to have counsel present at a … postindictment lineup. It is undisputed that defendant had a right to counsel at this lineup, which was conducted at a time when he already had representation. Although defendant’s counsel was notified of the lineup and did not attend, a paralegal employed by counsel attempted to attend the lineup but was turned away by the police.

The attorney did not waive his client’s right to counsel at the lineup by failing to appear. The police should have briefly paused this nonexigent, postindictment lineup, conducted long after the crime … , in order to advise the attorney he needed to attend personally, or to have the paralegal so advise counsel. People v Bennett, 2022 NY Slip Op 07007, First Dept 12-8-22

Practice Point; Defense counsel sent his paralegal to attend his client’s lineup, but the police sent the paralegal away. The police should have informed counsel his presence was required before going ahead with the lineup. Counsel’s failure to attend did not waive his client’s right to have his attorney present.

 

,

DEFENDANT’S TESTIMONY ABOUT HIS FELONY CONVICTIONS DID NOT OPEN THE DOOR TO A MODIFICATION OF THE COURT’S SANDOVAL RULING TO ALLOW QUESTIONING ABOUT THE FACTS UNDERLYING THE CONVICTIONS; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the court should not have modified its original Sandoval ruling. The initial Sandoval ruling allowed defendant to be questioned about the number of felony conviction on his record but not about any of the underlying facts. When defendant was on the stand the court allowed the prosecutor to ask about the underlying facts:

On direct examination, when asked if he had ever been convicted of a crime in New York, defendant answered, “[y]es.” When asked,”[d]o you know how many,” he testified, “[a]pproximately maybe two or three felonies. Maybe four or five misdemeanors.”

On cross-examination, when the prosecutor asked defendant if he had been convicted of three felonies, defendant replied, “I guess so.” In response to the prosecutor’s next question, defendant said he was not sure how many felony convictions he had. The court then modified its Sandoval ruling and permitted the People to exceed the scope of the initial Sandoval ruling by inquiring about the underlying facts of those felony convictions, which included drug and theft-related crimes.

Defendant’s trial testimony did not open the door to a prejudicial modification of the court’s Sandoval ruling. Defendant was entitled to rely on the trial court’s original Sandoval ruling as a matter of “plain fairness” … .

None of defendant’s responses on direct or cross-examination were so incorrect or misleading as to permit the court’s modification … . People v Henderson, 2022 NY Slip Op 07009, First Dept 12-8-22

Practice Point: The court’s initial Sandoval ruling allowed defendant to be about the number of felony convictions on his record. When the defendant was on the stand, the judge modified the Sandoval ruling to allow questioning about the underlying facts. There was nothing about the defendant’s testimony which justified the Sandoval modification and defendant’s conviction was reversed.

 

, ,

BOTH PARENTS OPPOSED VISITATION WITH THE GRANDPARENTS AND THERE WAS EVIDENCE VISITATION WITH THE GRANDPARENTS HAD NEGATIVE EFFECTS ON ONE OF THE CHILDREN; IT WAS NOT DEMONSTRATED THAT VISITATION WITH THE GRANDPARENTS WAS IN THE CHILDREN’S BEST INTERESTS; MATTER REMITTED FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing Family Court, determined Family Court’s ruling allowing visitation by the grandparents, which was opposed by both parents, was not demonstrated to be in the best interests of the children. The son is autistic and has frequent “meltdowns” which the grandparents allegedly didn’t handle appropriately. The matter was sent back for a new hearing in front of a different judge:

In granting visitation to the grandparents, Family Court essentially based its determination on its belief that the son would benefit from frequent contact with family members who love him, and that “equity demand[ed]” that the daughter have the same level of visitation. While contact with loving family members is certainly a laudable goal for these and any other children, the record does not support the court’s finding that the children’s best interests would be served by visitation with the grandparents. Indeed, to the contrary, the mother and the father, who were separated as of the time of the hearing but were united in their opposition to the grandparents’ visitation petition, offered testimony detailing the negative effects that visitation with the grandparents had on the son. Matter of Virginia HH. v Elijah II., 2022 NY Slip Op 06970, Third Dept 12-8-22

Practice Point: Here both parents opposed visitation with the grandparents and there was evidence such visitation had negative effects on one of the children, who is autistic. It was not demonstrated visitation with the grandparents was in the children’s best interests. The case was remitted for a new hearing before a different judge.

 

,

THE RECORD DOES NOT REFLECT THE MEASURES TAKEN BY THE HEARING OFFICER TO DETERMINE THE BODY CAMERA FOOTAGE REQUESTED BY THE PETITIONER DID NOT EXIST; DETERMINATION ANNULLED AND NEW HEARING ORDERED (THIRD DEPT).

​The Third Department, annulling the misbehavior determination, held that petitioner-inmate’s request for body camera footage was improperly denied:

We … find merit to petitioner’s contention that his request for body camera footage was improperly denied. Upon petitioner’s request for such footage at the hearing, the Hearing Officer responded that the correction officer’s body camera was turned off and, therefore, such footage did not exist. The record does not reflect the measures taken or the basis upon which the Hearing Officer concluded that the footage did not exist … . As such, petitioner’s request for the body camera footage was improperly denied and, under these circumstances, the appropriate remedy is remittal for a new hearing … . Matter of Dorcinvil v Miller, 2022 NY Slip Op 06972, Third Dept 12-8-22

Practice Point: Here the petitioner-inmate requested body camera footage. The hearing officer denied the request, saying that the body camera had been turned off. Because the record did not reflect the steps taken by the hearing officer to defermine the footage didn’t exist, the determination was annulled and a new hearing was ordered.

 

, ,

THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 OR THE NOTICE REQUIREMENTS OF RPAPL 1303 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate compliance with the notice (mailing) requirements of RPAPL 1304 or the notice requirements of RPAPL 1303:

… [T]he letter log submitted by the plaintiff and relied upon by the employee of the plaintiff’s alleged loan servicer in his affidavit failed to establish that the 90-day notice was actually mailed to the defendant by both certified mail and first-class mail … . “‘[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . None of the other documents submitted by the plaintiff, considered individually or together, including the copies of the 90-day notice letters themselves, provided any information as to whether the notice was sent to the defendant by regular first-class mail … . …

… [T]he plaintiff’s submissions did not demonstrate that the notice served upon the defendant complied with the type-size requirements in RPAPL 1303 … .Federal Natl. Mtge. Assn. v Raja, 2022 NY Slip Op 06912, Second Dept 12-7-22

Practice Point: Once again, the bank in this foreclosure action did not submit sufficient proof of strict compliance with the notice and mailing requirements of RPAPL 1303 or 1304.

 

,

THE AFFIDAVIT RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION TO PROVE DEFENDANT’S DEFAULT DID NOT IDENTIFY OR ATTACH THE RELEVANT BUSINESS RECORDS AND THEREFORE THE AFFIDAVIT HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The affidavit attesting to defendant’s default did not identify or attach the business records relied upon:

… [A] plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form” … . Here, in support of its motion, the plaintiff submitted an affidavit from Elizabeth A. Ostermann, a vice president of the plaintiff’s loan servicer, who attested to the borrower’s default in payment. However, Ostermann’s knowledge was based upon her review of unidentified business records, which she failed to attach to her affidavit, and therefore, her assertions regarding the borrower’s alleged default constituted inadmissible hearsay and lacked probative value … . Deutsche Bank Natl. Trust Co. v Unlimited Assets, 2022 NY Slip Op 06907, Second Dept 12-7-22

Practice Point: Here the affidavit submitted by plaintiff in this foreclosure action to prove defendant’s default did not identify or attach the relevant business records. Therefore the affidavit had no probative value.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy