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THE GRAND JURY WAS PROPERLY INSTRUCTED ON THE DEFINITION OF “IMPAIRED” IN THE CONTEXT OF VEHICLE AND TRAFFIC LAW 1192 (4-A) (FELONY AGGRAVATED DRIVING WHILE INTOXICATED); THE FOURTH DEPARTMENT DISAGREED WITH THE DEFINITION OF “IMPAIRED” ADOPTED BY THE THIRD DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s dismissal of the felony aggravated driving while intoxicated count, in a full-fledged opinion by Justice Curran, determined the grand jury was properly instructed on the definition of “impaired.” The Fourth Department noted its disagreement with the Third Department on this issue:

… [T]he People correctly instructed the grand jury that the term “impaired” in the context of Vehicle and Traffic Law § 1192 (4-a) is defined as the defendant’s consumption of a combination of drugs and alcohol to the point that it “has actually impaired, to any extent, the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

In reaching that conclusion, we also note our respectful disagreement with the Third Department’s decision in People v Caden N. (189 AD3d 84 [3d Dept 2020], lv denied 36 NY3d 1050 [2021]), which defined the term “impaired” in the context of drug consumption in accordance with the heightened standard typically applicable in cases of “intoxication” by alcohol … . Ultimately, we conclude that the term “impaired” should be defined consistently across the Vehicle and Traffic Law—whether in the context of impairment by alcohol or in the context of impairment by drugs or a combination of drugs and alcohol. * * *

… [T]he Court of Appeals, in Cruz, clearly defined the term “impaired” to mean—in the context of alcohol consumption—that a defendant “has actually impaired, to any extent, the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (48 NY2d [419] at 427 …). In defining “impaired” that way, the Court sharply distinguished the term “impaired” from the separate term “intoxication,” as used in Vehicle and Traffic Law § 1192 (3), noting that the latter term denoted “a greater degree of impairment which is reached when [a] driver has voluntarily consumed alcohol to the extent that [they are] incapable of employing the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (Cruz, 48 NY2d [419] at 428). The Court concluded that the terms impaired and intoxicated are not interchangeable … . People v Dondorfer, 2024 NY Slip Op 06432, Fourth Dept 12-20-24

Practice Point: In the Fourth Department “impaired” in the context of felony aggravated driving while intoxicated (Vehicle and Traffic Law 1104 (4-a)” means impairment “to any extent [of] the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

 

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A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

The Fourth Department, reversing County Court and reinstating the reduced count, determined the handgun with which the victim was allegedly struck was a “dangerous instrument” despite the fact it had not been fired. County Court had reduced the charge from Burglary first to Burglary second on the ground the handgun had not been shown to be a “dangerous instrument:”

The People were required to present competent evidence to the grand jury demonstrating that defendant or another participant in the crime used, or threatened the immediate use of, a dangerous instrument (see Penal Law § 140.30 [3]). A dangerous instrument is defined as “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (§ 10.00 [13]).

At the grand jury hearing, the victim testified that three men entered her apartment and the first man who walked in had a gun. She further testified that, at one point, “the guy with the gun” became “more upset” and hit her “upside the head” with the gun.

It is well established that “a ‘gun [that is] used as a bludgeon’ is a dangerous instrument” … because it ” ‘is readily capable of causing death or other serious physical injury’ ” … . Here, County Court ruled that the evidence before the grand jury was legally insufficient to establish that the item used by defendant or another participant in the crime was a dangerous instrument because it was not discharged during the incident and there was no evidence that the item was recovered or tested. That was error. We agree with the People that they were not required to submit evidence that the item described by the victim as a gun was an operable or loaded firearm in order to meet the dangerous instrument element of the crime … . We further agree with the People that they were not required to prove that the victim suffered an injury but, rather, needed only to establish that “under the circumstances in which [the instrument, article, or substance was] used . . . or threatened to be used, [it was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13] …). It is reasonable for a grand jury to infer that hitting the victim on the side of the victim’s head with a gun could cause serious physical injury. Thus, the evidence was sufficient to permit the inference that defendant or another participant in the crime used a dangerous instrument … . People v Delee, 2024 NY Slip Op 06491, Fourth Dept 12-20-24

Practice Point: A handgun used as a bludgeon is a “dangerous instrument” within the meaning of the Penal Law and the Burglary First Degree statute. The People need not show the handgun was operable or that the victim suffered a serious injury.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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PLAINTIFFS WERE PREJUDICED BY THE JURY SELECTION PROCESS WHICH DID NOT ALTERNATE THE PEREMPTORY CHALLENGES; THE FIRST QUESTION POSED TO THE JURY EFFECTIVELY PRECLUDED THE JURORS FROM CONSIDERING THE APPROPRIATE LEGAL ISSUE, I.E., WHETHER THE PLAINTIFF SUFFERED A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW (THIRD DEPT).

The Third Department, reversing the jury verdict and ordering a new trial in this Insurance Law 5102(d) “serious injury” case, determined the plaintiffs were prejudiced by the jury selection method used the trial judge, and the first question on the verdict sheet was improper because it effectively precluded the jury from considering the relevant question, whether plaintiff suffered a “serious injury:”

The court’s failure to alternate the peremptory challenge process … placed plaintiffs in the untenable position of having to utilize a peremptory challenge for a prospective juror that may not have been necessary had defendants been required to go first. This error compromised the fairness of the jury selection process.

Plaintiffs further contend that Supreme Court erred by including the first question on the verdict sheet — i.e., “[h]ave the plaintiffs . . . established that the incident . . . was a substantial factor in causing [Mormile’s] injuries?” We agree.  The specific issue for the jury to resolve was whether, as a result of the subject accident, Mormile sustained a “serious injury” as set forth in question 2 on the verdict sheet (did Mormile “sustain a significant limitation of use of a body function or system”); question 3 (did Mormile “sustain a permanent consequential limitation of use of a body organ or member”); question 4 (did Mormile “sustain a injury that resulted in a significant disfigurement”); and question 5 (did Mormile “suffer a medically determined injury or impairment of a non-permanent nature . . . that prevented him from performing all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident?”).

The first question effectively only asks whether there was probable cause to establish that Mormile’s injuries resulted from the accident (see PJI 2:70). Having answered “No” to that global question, the jury did not answer questions 2 through 5. In effect, the jury did not resolve the appropriate legal issue, i.e., whether Mormile sustained a “serious injury” in the accident, as defined under each of the four distinct categories at issue … . Mormile v Marshall, 2024 NY Slip Op 06390, Third Dept 12-19-24

Practice Point: Failure to alternate the peremptory challenges compromised the fairness of the jury selection process.

Practice Point: The first question on the verdict sheet effectively precluded the jury from considering the appropriate legal issue, i.e., whether plaintiff suffered a “serious injury” within the meaning of the Insurance Law.

 

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WHERE A MOTION TO RENEW IS NOT BASED UPON A CHANGE IN THE LAW, THERE IS NO TIME LIMIT FOR BRINGING THE MOTION (SECOND DEPT),

The Second Department, reversing Supreme Court, noted that there was no time limit for bringing a motion to renew:

Contrary to the court’s determination, “[e]xcept where a motion to renew is based upon a change in the law, which is not the case here, CPLR 2221 does not impose a time limit for making a motion for leave to renew” … . Since the plaintiff’s prior motion had been denied with leave to renew, the plaintiff was not required to demonstrate a reasonable justification for his failure to submit the new facts on the prior motion … . Smith v Realty on Fox Croft Corp., 2024 NY Slip Op 06371, Second Dept 12-18-24

Practice Point: If a motion to renew is not based upon a change in the law, there is no time limit for bringing the motion.

 

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A PERMANENT INJUNCTION IS NOT APPROPRIATE WHERE PLAINTIFFS DO NOT ALLEGE ANY NONECONOMIC DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the issuance of a permanent injunction was error because the injury can be adequately compensated by money damages:

“‘A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction'” …  To establish prima facie entitlement to a permanent injunction, a plaintiff must demonstrate: (a) that there was a violation of a right presently occurring, or threatened and imminent; (b) that he or she has no adequate remedy at law; (c) that serious and irreparable harm will result absent the injunction; and (d) that the equities are balanced in his or her favor … . Further, irreparable injury, for the purposes of equity, means any injury for which money damages are insufficient … . In contrast, where an injury can be adequately compensated by money damages, injunctive relief is inappropriate … .

Here, the plaintiffs failed to allege any noneconomic damages. Rockefeller v Leon, 2024 NY Slip Op 06370, Second Dept 12-18-24

Practice Point: If plaintiffs do not allege any noneconomic damages, a permanent injunction is not an appropriate remedy.

 

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THE ALLEGED INCAPACITATED PERSON (AIP) MUST BE GIVEN THE OPPORTUNITY TO BE PRESENT AT GUARDIANSHIP PROCEEDINGS PURSUANT TO THE MENTAL HYIGIENE LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an alleged incapacitated person (AIP) must be given the opportunity to be present during guardianship proceedings:

The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of her adult daughter Nima B. R., an alleged incapacitated person (hereinafter the AIP). At a hearing on the petition, which was conducted virtually due to the COVID-19 pandemic, the AIP was not present. Although the AIP had indicated to her counsel that she intended to appear, she advised her counsel that she was not feeling well and needed an extra hour to get to the courthouse, and subsequently advised her counsel that she did not feel well and would not be attending. The Supreme Court conducted the hearing in the AIP’s absence, finding that she had “voluntarily absented herself” and noting that she was represented by counsel, had no burden of proof, and was not required to testify. …

Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards … . Mental Hygiene Law § 81.11(c) provides that a hearing to determine whether the appointment of a guardian is necessary for an alleged incapacitated person “must be conducted in the presence of the person alleged to be incapacitated,” including at the alleged incapacitated person’s place of residence if necessary … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person'” … . Accordingly, we remit the matter … for a new hearing at which the AIP shall be afforded an opportunity to be present and a new determination thereafter. Matter of Nima B.R. (Rae-Garwood), 2024 NY Slip Op 06347, Second Dept 12-18-24

Practice Point: An alleged incapacitated person (AIP) has the right to be present at a guardianship proceeding pursuant to the Mental Hygiene Law. Here the AIP said she was not feeling well and would not attend. The matter was remitted for a new hearing after affording the AIP the opportunity to attend.

 

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ABSENT SUBSTANTIAL PREJUDICE OR OTHER IMPROPER RESULTS, A MOTION FOR LEAVE TO DISCONTINUE THE ACTION WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to discontinue the action without prejudice should have been granted:

The plaintiff and the defendants own abutting real properties located in Brooklyn. In 2019, the plaintiff commenced this action against the defendants, inter alia, for injunctive relief, alleging that the defendants, among other things, erected a concrete wall and planted grass and trees on portions of the plaintiff’s property without the plaintiff’s permission. The defendants, inter alia, asserted a counterclaim for adverse possession of the disputed portions of the plaintiff’s property. Thereafter, the plaintiff moved pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice. In an order dated November 17, 2022, the Supreme Court denied the plaintiff’s motion. …

The Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 3217(b) for leave to discontinue the action without prejudice. The determination of a motion pursuant to CPLR 3217(b) for leave to discontinue an action without prejudice is within the sound discretion of the court … . “Generally such motions should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results” … . Here, the court improvidently exercised its discretion in denying the plaintiff’s motion, as there was no showing of substantial prejudice or other improper results … . KNG Realty NY Co., LLC v Halpern, 2024 NY Slip Op 06329, Second Dept 12-18-24

Practice Point: If there is no showing of substantial prejudice, a motion for leave to discontinue an action without prejudice should be granted.​

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY; THE SEARCH WARRANT DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S CELL PHONES; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined (1) defendant’s request to represent himself should not have been summarily denied, and (2) the search warrant did not provide probable cause for the search of defendant’s cell phones:

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 … . * * *

While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant’s cell phones. … [T]he warrant was supported by [investigator] Bruno’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 06239, Third Dept 12-12-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge should conduct a colloquy to determine whether defendant is making a voluntary and intelligent waiver of his right to counsel.​

Practice Point: The assertion in an affidavit that defendant’s cell phones “may” contain evidence of a drug offense does not provide probable cause for the search of the cell phones.

 

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, the People presented evidence the U-turns were, in fact, illegal and the court denied suppression:

… [I]f the People have had a full and fair opportunity to oppose suppression, and the suppression court has issued a ruling on the merits, the People may not have an additional “opportunity to shore up their evidentiary or legal position” … . Under the circumstances of this case, where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness, the same principle should apply.

At a suppression hearing, the People bear the burden of showing the legality of the police conduct in the first instance … . Here, the court granted defendant’s motion for suppression because the People failed to demonstrate that defendant’s U-turns were illegal and therefore that the stop was lawful. Neither the Assistant District Attorney nor the arresting officer could identify any traffic law provision violated by defendant. Moreover, the People did not request a recess or adjournment to determine the statutory basis for the stop, nor did they request permission to furnish a post-hearing submission to identify any relevant provision of law. Instead, the People returned a month after the court granted suppression, offering a different legal theory that they had not raised at the original suppression hearing. On that new legal theory, the court changed course and denied defendant’s motion to suppress.

Of course, “[b]efore sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes” … , which may include granting leave to reargue. Although the People may be permitted to reargue the legal or factual issues of the suppression proceedings, allowing the suppression court to grant the People’s motion to reargue in these circumstances would run afoul of our “full and fair opportunity” principle and the policies of finality and judicial efficiency underlying it. People v Lawson, 2024 NY Slip Op 06238, CtApp 12-12-24

Practice Pont: As a general rule, the People should have only one chance to demonstrate the legality of a traffic stop in the context of a suppression hearing. Once a suppression motion is granted, the People should not be allowed to reopen the hearing to present evidence which could have been presented the first time around.

 

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