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THE PROOF DID NOT SUPPORT A FINDING THAT THE ASSAULT SECOND AND CRIMINAL POSSESSION OF A WEAPON THIRD CONVICTIONS WERE BASED ON SEPARATE AND DISTINCT ACTS, THEREFORE CONSECUTIVE SENTENCES WERE NOT WARRANTED; DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A NEW JERSEY CONVICTION WHICH WAS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined consecutive sentences were not supported by the proof and defendant should not have been adjudicated a second felony offender based upon a New Jersey conviction of burglary in the third degree which is not a felony under New York law:

The defendant contends that the Supreme Court erred in imposing consecutive sentences upon his convictions of assault in the second degree and criminal possession of a weapon in the third degree under count 7 of the indictment. Under Penal Law § 70.25(2), a sentence imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other . . . must run concurrently” … . Further, “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (id. [internal quotation marks omitted]). Here, the defendant correctly argues, and the People correctly concede, that because there was no designation of the alleged dangerous instrument used in committing the offense of assault in the second degree, the People failed to establish that this count and the charge of criminal possession of a weapon in the third degree under count 7 of the indictment were based upon separate and distinct acts … . Therefore, the court erred in sentencing the defendant to consecutive prison terms on the second-degree assault count and the criminal possession of a weapon in the third degree count with respect to his possession of pepper spray … .

Further, although the defendant failed to preserve for appellate review his contention that he was improperly sentenced as a second felony offender, we consider this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] … ). The defendant’s prior conviction of burglary in the third degree in New Jersey does not constitute a felony in New York for the purposes of enhanced sentencing … . People v Frank, 2024 NY Slip Op 05452, Second Dept 11-6-24

Practice Point: If the record does not demonstrated two convictions were based separate and distinct acts, consecutive sentences are not available.

Practice Point: The New Jersey “burglary third degree” offense is not a felony under New York law and cannot be the basis for second felony offender status.

 

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother had demonstrated a change in circumstances warranting a modification of custody:

… [T]he record reveals that, in support of her petition, the mother established more than conflict between the parties and difficulties in co-parenting. The evidence at the hearing showed that the parties’ relationship had deteriorated to the point that they do not communicate other than by text and do not engage in joint decision-making with respect to the child … . Therefore, joint legal custody is no longer feasible … .

The totality of the circumstances justifies modifying the stipulation so as to award sole legal and residential custody of the child to the mother. The mother has more involvement with the child’s needs on a day-to-day basis, and the record reflects that the mother made decisions regarding the child’s social and emotional needs … . Moreover, the Family Court failed to give sufficient weight to the strong preference of the child, who was 12 years old at the time of the hearing, to reside with the mother … .

Accordingly, the Family Court should have granted that branch of the mother’s petition which was to modify the stipulation so as to award her sole legal and residential custody of the child. Matter of Llanos v Barrezueta, 2024 NY Slip Op 05446, Second Dept 11-6-24

Practice Point: Consult this decision for some insight into the criteria for finding the relationship between mother and father had deteriorated to the point a modification of custody is warranted.​

 

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MOTHER MADE OUT A PRIMA FACIE CASE FOR RELOCATING WITH THE CHILD IN THIS CUSTODY PROCEEDING; CREDIBILITY ISSUES PLAY NO ROLE AT THE MOTION-TO-DISMISS STAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother had made out a prima facie case for relocating to a different county with the child. The petition for a modification of custody should not have been dismissed:

“In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom” … . “The question of credibility is irrelevant, and should not be considered” … .

Here, accepting the petitioner’s evidence as true and affording her the benefit of every favorable inference, the petitioner presented sufficient evidence to establish a prima facie case that relocating with the child to Bergen County might be in the child’s best interests … . At the hearing, the petitioner and her spouse testified that they wanted to relocate to Bergen County because they would have family support there and the child liked spending time with family members living in that area. The petitioner further testified that if she were permitted to relocate, she would continue the respondent’s parental access schedule set forth in the stipulation of settlement and would agree to additional parental access for the respondent. We note that the Family Court did not ascertain from the attorney for the child the position of the then 11-year-old child or conduct an in camera interview with the child … . Matter of Fortune v Jasmin, 2024 NY Slip Op 05443, Second Dept 11-6-24

Practice Point: In considering a motion to dismiss a petition for a modification of custody credibility issues are irrelevant.​

 

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PLAINTIFF DID NOT DEMONSTRATE SANCTIONS FOR SPOLIATION OF EVIDENCE WERE WARRANTED; THE VIDEO FOOTAGE FOR THE DAY OF THE FALL HAD BEEN AUTOMATICALLY DELETED BEFORE THE PRESERVATION LETTER WAS RECEIVED; HOWEVER DEFENDANTS HAD PRESERVED 52 SECONDS OF VIDEO SHOWING JUST BEFORE THE FALL, THE FALL AND PLAINTIFF WALKING AWAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the restrictions placed on defendants’ presentation of evidence of liability relevant to plaintiff’s slip and fall constituted an abuse of discretion. Plaintiff fell on March 24, 2018, and defendants received a letter requesting that 12 hours of video footage be preserved on April 9, 2018. By April 9 the video had been automatically deleted. Defendants had preserved 52 seconds of the video which included just before the fall, the fall, and plaintiff walking away:

The plaintiff did not establish that the defendants were placed on notice that the video evidence might be needed for future litigation before the surveillance footage was automatically deleted … . Further, the defendants’ preservation of only a portion of the surveillance footage did not indicate a culpable state of mind, as the defendants’ representative averred in an affidavit that, on the date of the accident, she saved a 52-second clip of the incident. The representative testified at her deposition that to locate this clip, she had entered the date and time that the alleged accident occurred, and she averred that, by the time she received the preservation letter, the surveillance footage had been automatically deleted … . In addition, the plaintiff did not establish that the absence of the additional surveillance footage deprived her of the ability to prove her case … . De Abreu v Syed Rests. Enters., Inc., 2024 NY Slip Op 05326, Second Dept 10-30-24

Practice Point: The criteria for spoliation of evidence were not met by the facts here. The video footage for the day of the fall was automatically deleted before the preservation letter was received. Defendants preserved video footage of just before the fall, the fall and plaintiff walking away.​

 

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FATHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the denial of father’s petition for permission to relocate with the children was not supported by the evidence:

The father’s testimony demonstrated that he was unable to continue renting his grandmother’s house in New York, where he and the children had been residing, and that the mother provided only $25 per month in child support for both children … . The father’s testimony also demonstrated that, if permitted to relocate, he would be able to obtain employment in his field of experience with at least the same salary as he earned in New York and that his living expenses would be lower in South Carolina than they were in New York … . Additionally, the father would have support from extended family in South Carolina, including the paternal grandmother, a certified behavioral analyst and special education administrator who has assisted the father in addressing one of the children’s special needs … .

With respect to the mother’s relationship with the children, the hearing testimony demonstrated that the father has been the children’s primary caregiver since 2017 and that the mother was not involved in the children’s day-to-day lives, education, or healthcare … . Although the father’s relocation will have an impact upon the mother’s ability to spend time with the children, the Family Court can fashion an appropriate parental access schedule that will allow the mother to foster a relationship with the children … . Matter of Scotto v Alexander, 2024 NY Slip Op 05348, Second Dept 10-30-24

Practice Point: Consult this decision for insight into when a petition to relocate to another state with the children should be granted.

 

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IN ORDER TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE THE RIGHT TO COUNSEL, THE DEFENDANT NEED NOT BE INFORMED OF HIS MAXIMUM SENTENCING EXPOSURE IN YEARS; THE “SPEEDY TRIAL” TIME ASSOCIATED WITH THE JOINDER OF A CO-DEFENDANT FOR TRIAL IS CHARGED TO THE DEFENDANT, EVEN WHERE THE DEFENDANT HAD NOT YET BEEN ARRAIGNED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion by Judge Rivera, affirming the Appellate Division, determined (1) in order to effectively waive the right to counsel, a defendant need not be informed of his maximum sentencing exposure in years, and (2) the pre-arraignment delay associated with the joinder for trial with a co-defendant is not chargeable to the People:

Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel.

Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a co-defendant. Blue contends this provision does not apply to pre-arraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue’s co-defendant were also chargeable to Blue, even though he had not yet been arraigned. People v Blue, 2024 NY Slip Op 05175, CtApp 10-22-24

Practice Point: A defendant can effectively waive the right to counsel without being informed of his maximum sentencing exposure in years.

Practice Point: Even though defendant had not yet been arraigned, the time associated with joining a co-defendant for trial was chargeable to the defendant.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR AN INTOXICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the denial of defendant’s request for the intoxication jury instruction was reversible error:

… County Court improperly refused to instruct the jury as to the defense of intoxication. “An intoxication charge is warranted if, viewing the evidence in the light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . The charge should be given when there is “evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant’s ability to form the necessary criminal intent” … . It is true that more is required than “a bare assertion by a defendant that he was intoxicated,” but the threshold to demonstrate entitlement to the charge is nevertheless “relatively low” … . We find that the evidence presented at trial regarding defendant’s consumption of alcohol during the afternoon and evening on the date in question easily surpassed this low bar. People v Smith, 2024 NY Slip Op 05158, Third Dept 10-17-24

Practice Point: The evidence of defendant’s consumption of alcohol was more than sufficient to warrant instructing the jury on the intoxication defense.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the denial of defendant’s request for a cross-racial identification jury instruction was reversible error:

As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification” … . Here, at the close of proof, defendant requested that the jury be given a cross-racial identification instruction pursuant to Boone. County Court denied his request noting, among other things, that in the present case, the identifying witness … knew defendant. County Court, however, misinterpreted the Boone standard and erred in denying defendant’s request for a cross-racial identification jury instruction upon defendant’s request for same … . People v Alexander, 2024 NY Slip Op 05160, Third Dept 10-17-24

Practice Point: Where the witness who identifies the defendant as the perpetrator and the defendant appear to be of different races, defendant’s request for a cross-racial identification jury instruction must be granted.

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY TO DETERMINE THE WAIVER WAS VOLUNTARY AND INTELLIGENT; THE INFORMATION IN THE WARRANT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT’S CELL PHONE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the judge should not have summarily denied defendant’s request to represent himself and the motion to suppress evidence retrieved from the defendant’s cell phone should have been granted:

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 … . * * *

… [T]he warrant was supported by [the investigator’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 05152, Third Dept 10-17-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge must conduct a colloquy to ensure the waiver of the right to counsel is voluntary and intelligent.

Practice Point: Here the search warrant did not demonstrate probable cause to believe the search of defendant’s cell phone would reveal evidence of criminal possession of a controlled substance.

 

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