You are here: / Judges
, ,

AS LONG AS PLAINTIFF TAKES SOME ACTION THAT WOULD LEAD TO ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NINETY DAYS OF THE DEFAULT, THE ACTION SHOULD NOT BE DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing the sua sponte dismissal of the foreclosure complaint, noted that as long as a plaintiff initiates some action for the entry of judgment within one year and ninety days after a default, the action should not be dismissed as abandoned. Here the plaintiff made a request for judicial intervention within one year and ninety days:

… [P]laintiff demonstrated that, within one year after the defendants’ default, it filed a request for judicial intervention which sought a foreclosure settlement conference within the foreclosure action as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after the defendants’ default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action (see CPLR 3215[c] …). US Bank N.A. v Jerriho-Cadogan, 2024 NY Slip Op 00790, Second Dept 2-14-24

Practice Point: Here in this foreclosure action the bank made a request for judicial intervention within one year and ninety days of the default. The action should not have been dismissed as abandoned.

 

, , ,

THE SEARCH WARRANT SEEKING CELL SITE LOCATION INFORMATION (CSLI) FROM THE NEW JERSEY CELL PHONE COMPANY WAS FAXED TO NEW JERSEY FROM NEW YORK; THEREFORE THE WARRANT WAS “EXECUTED” IN NEW YORK AND DID NOT VIOLATE THE NEW YORK CONSTITUTION OR CPL ARTICLE 690 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice LaSalle, determined the search warrant for cell site location information (CSLI) was executed in New York, where the warrant was faxed from, not in New Jersey, where the T-Mobile records were located. Therefore there was no violation of the New York Constitution or Criminal Procedure Law 690.2-(1). The CSLI was used to place the defendant at the location of the stabbing at the time of the stabbing:

Just as the term “executed” is not defined in CPL article 700, it is also not defined in the New York Constitution or CPL article 690. Nevertheless, in determining where a warrant is “executed” within the meaning of CPL 700.05(4), the Court of Appeals looked to where the actions of the law enforcement officers took place. It follows that in determining where a search warrant is “executed” within the meaning of the New York Constitution and CPL 690.20(1), we similarly must look to where the actions of the law enforcement officers took place. Here, the action of the subject law enforcement officer—the act of faxing the search warrant to T-Mobile—took place in New York … .

The “core” of the Fourth Amendment is to “protect the right of privacy from arbitrary police intrusion” … . A service provider accessing and retrieving its subscribers’ CSLI and call detail information located in the service provider’s own business records does not implicate its subscribers’ right to privacy protected by the Fourth Amendment … . It is only when agents of the government act that the subscribers’ Fourth Amendment rights are implicated. Since the actions of the government’s agents that encroached on the defendant’s Fourth Amendment rights—the faxing of the warrant—took place in New York, we conclude that this is where the search warrant was executed. People v Riche, 2024 NY Slip Op 00785, Second Dept 2-14-24

Practice Point: Here a search warrant seeking cell site location information (CSLI), which was faxed from New York to the cell phone company in New Jersey, was “executed” in New York and therefore did not violate the New York Constitution or Criminal Procedure Law Article 690.

 

, ,

THE STATEMENT GIVEN BY THE DEFENDANT WHEN HE WAS UNDER MEDICATION AT THE HOSPITAL SHOULD HAVE BEEN SUPPRESSED; AT TRIAL THE JURY SHOULD HAVE BEEN INSTRUCTED TO REJECT THE STATEMENT IF THEY FOUND IT WAS INVOLUNTARILY MADE; AND THE DEFENSE BATSON CHALLENGE TO THE EXCLUSION OF FOUR AFRICAN-AMERICAN PROSPECTIVE JURORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the statement given by the defendant when he was under medication at the hospital should have been suppressed; (2) at trial the judge should have instructed the jury to reject the statement if they found the statement was not voluntarily made; and (3) the defense Batson challenge to the prosecutor’s exclusion of four African-American prospective jurors should have been granted:

At the time of the interrogation, the defendant had recently been in a medically induced coma, had come out of surgery only hours before, and his condition “was still sufficiently serious that he was in the intensive care unit” … . The defendant “was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus” when the detective approached him … . At the time of the police questioning, the defendant was drowsy from painkillers administered to him, his right arm was handcuffed to the hospital bed, and his left arm was bandaged and immobilized from the earlier surgery. The defendant was positioned upright so that the detective could question him, and when the defendant expressed that this caused him pain and requested medical assistance, the detective denied the request and coerced the defendant by stating that he would obtain medical assistance after he had questioned the defendant. * * *

Where, as here, the defendant has placed in issue the voluntariness of his statements to law enforcement officials, “the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made” … . * * *

… [T]he record demonstrates that the articulated reasons were not applied equally to exclude other prospective jurors … . Under these circumstances, the prosecutor’s explanations as to the four prospective jurors were pretextual, and the defendant is entitled to a new trial on this ground … . People v Parker, 2024 NY Slip Op 00783, Second Dept 2-14-24

Practice Point: The statement given by defendant when he was under medication at the hospital should have been suppressed.

Practice Point: At trial, where defendant has placed the voluntariness of his statement in issue, the jury must be instructed to reject the statement if they find it was not voluntarily made.

Practice Point: Here the prosecutor accepted a juror who was a college student living at home but who was not African-American, and the prosecutor rejected four African-American prospective jurors because they were college students living at home with limited life experience. The Batson challenge should have been granted.

 

,

THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

, , ,

RE-READING THE ORIGINAL JURY INSTRUCTION DID NOT ADDRESS THE CONFUSION EXPRESSED IN THE NOTE FROM THE JURY; IN ADDITION, THE JUDGE FAILED TO MAKE THE INITIAL DETERMINATION WHETHER A WITNESS WAS QUALIFIED TO OFFER EXPERT OPINION EVIDENCE; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction, over a dissent, determined the judge’s response to a jury note was inadequate and the judge did not make the required initial determination that a witness was qualified to offer expert-opinion evidence on the child sexual abuse accommodation syndrome (CSAAS). The jury wanted to know whether a guilty verdict required that the three alleged acts of sexual abuse take place within the three-month period described in the indictment. The answer was “es,” but the judge merely re-read the original charge about which the jury was confused. With respect to the CSAAS witness, the judge left it up to the jury to decide whether she was qualified as an expert:

… [T]he jury had already been provided with a complete written copy of the court’s original instructions for its reference during deliberations. Under these circumstances, County Court’s response to the jury’s inquiry was not meaningful, as it did nothing to clarify the very specific point on which the jury was confused. “[I]n our view, this is one of those rare cases where interest of justice review is warranted. Where the court fails to give information requested upon a vital point no appellate court may disregard the error” … . * * *

Although “[t]he court is not required to explicitly declare a witness an expert before permitting [expert] testimony” … , “the trial court is vested with the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Here, County Court abdicated its responsibility to make the initial determination as to whether [the witness] qualified as an expert. People v Goff, 2024 NY Slip Op 00656, Third Dept 2-8-24

Practice Point: A response to a jury note must clarify the confusion expressed in the note. Here, re-reading the original instruction was not sufficient.

Practice Point: Although a judge is not required to explicitly declare a witness an expert, the judge must make the initial determination whether the witness is qualified to offer reliable testimony.

 

, , ,

THE DEFENSE CHALLENGE TO A JUROR WHO EXPRESSED SERIOUS DOUBTS ABOUT BEING ABLE SERVE SHOULD HAVE BEEN GRANTED, DESPITE HER ULTIMATE STATEMENT SHE COULD DO WHAT IS NECESSARY TO SERVE; THE NEW CPL ARTICLE 245 DISCOVERY STATUTES IMPOSE NEW BURDENS ON THE PEOPLE ENCOMPASSING ROSARIO AND BRADY MATERIAL AND EXTENDING TO DOCUMENTS WHICH ARE NOT IN THE PEOPLE’S POSSESSION, EVEN WHERE THE DEFENSE CAN ACCESS THOSE DOCUMENTS (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, offered important, substantial discussions of (1) how to handle a juror who expresses doubt about the ability to serve on the jury, and (2) the new, much broader and far-reaching disclosure requirements imposed upon the People by the CPL Article 245. The juror expressed doubt about her ability to serve because of her family obligations, her indecisiveness and her inability to follow the orders and instructions of the court. Ultimately when asked if she thought she could do what is necessary to be a juror, she said “yes.” The Fourth Department held the defense challenge to the juror should not have been denied. On the CPL Article 245 issue, the Fourth Department explained that the statute goes far beyond the old, pre-statute, criteria for turning over Rosario and Brady material, to include collecting and turning over discovery from agencies outside the prosecutor’s office, even if the defendant could gain access to those that discovery him or herself: The Fourth Department held the prosecutor committed numerous violations of CPL Article 245 and left it to the judge in the next trial to impose sanctions:

… [T]he prospective juror never stated, unequivocally or otherwise, that she would follow the court’s instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial.

Just as a “general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient” … , a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. * * *

Although transcripts that are not in the People’s possession and control are not subject to Brady and Rosario disclosure requirements … , that fact is of no moment for purposes of CPL 245.20. Even where documents are “beyond the prosecutor’s control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness, … the duty to maintain the flow of information … , the continuing duty to disclose … , and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process” … . People v Heverly, 2024 NY Slip Op 00524, Fourth Dept 2-2-24

Practice Point; A juror who expresses serious doubts about being able to serve, doubts which are not addressed by further questioning, should be excluded, even if the juror ultimately states he or she can do what is necessary to serve.

Practice Point: CPL Article 245 has drastically expanded the burden on the People to timely turn over discovery, including Rosario and Brady material and documents which are not in the People’s possession, even where the defense also has access to those documents. The is an important discussion of the new criminal discovery rules which should be required reading for defense counsel, prosecutors and judges.

 

, ,

THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). ​

The Fourth Department, reversing Family Court in this termination of parental rights proceeding, determined the bias of the judge deprived mother of due process of law. In another decision issued on February 2, 2024, the Fourth Department criticized the same Family Court judge for abandoning her judicial role and acting as an advocate in a child placement proceeding (Matter of Zyion B …, 2024 NY Slip OP 00550):

… [T]he record demonstrates that Family Court “had a predetermined outcome of the case in mind during the hearing” … . During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, “Then I’m going to do it.” At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights … . Those comments were impermissibly coercive (see generally Social Services Law § 383-c [6] [d]). That the court made good on its promise to terminate the mother’s parental rights cannot be tolerated.

The record further demonstrates that the Family Court Judge was annoyed with the mother’s refusal to surrender her parental rights to the child. We are compelled to remind the Family Court Judge “that even difficult or obstreperous litigants are entitled to ‘patient, dignified and courteous’ treatment from the court, and that judges must perform their duties ‘without bias or prejudice’ ” … . Matter of Anthony J. (Siobvan M.), 2024 NY Slip Op 00574, Fourth Dept 2-2-24

Practice Point: Here the judge made it clear she had already decided mother’s parental rights should be terminated at the outset of the hearing. The judge’s bias deprived mother of her right to due process of law.

 

,

FAMILY COURT JUDGE CRITICIZED BY THE FOURTH DEPARTMENT FOR ABANDONING HER ROLE AS A JUDGE AND ACTING AS AN ADVOCATE (FOURTH DEPT). ​

Although the appeal was moot, the Fourth Department took the opportunity to criticize the Family Court judge for acting as an advocate in this child placement proceeding:

At the hearing, the Judge “took on the function and appearance of an advocate” by choosing which witnesses to call and “extensively participating in both the direct and cross-examination of . . . witnesses” … , with a clear intention of strengthening the case for removal. For example, she asked a … caseworker whether the mother was “hostile, aggressive, violent or out of control,” and repeated questions to that caseworker using the same or similar phrasing at least 10 times. When the mother’s counsel objected to the Judge’s leading questions of another witness regarding incidents outside the relevant time period, the Judge overruled the objection, stating that “there’s no one else to run the hearing except for me.” She also introduced and admitted several written documents during the mother’s testimony over the objection of the mother’s counsel, and despite the mother’s statement that she could not read and was not familiar with the documents. In short, the Judge “essentially ‘assumed the parties’ traditional role of deciding what evidence to present’ ” while simultaneously acting as the factfinder … and thereby “transgressed the bounds of adjudication and arrogated to [herself] the function of advocate, thus abandoning the impartiality required of [her]” … .

This ” ‘clash in judicial roles,’ ” in which the Judge acted both as an advocate and as the trier of fact, “[a]t the very least . . . created the appearance of impropriety” … , particularly when the Judge aggressively cross-examined the mother regarding topics that were not relevant to the issue of the child’s removal and seemed designed to embarrass and upset the mother … . One such area of cross-examination concerned the fact that the mother had become pregnant several months before the hearing, but had been forced to terminate the pregnancy when it was determined to be ectopic. The Judge repeatedly questioned the mother regarding how many times the mother had engaged in sexual intercourse with the father of the terminated fetus, even though such information does not appear to have been relevant to the issue of the subject child’s placement inasmuch as, inter alia, there was no indication that the man was ever in the subject child’s presence. The Judge also asked the mother baseless questions about whether that man was a pedophile. Matter of Zyion B. (Fredisha B.), 2024 NY Slip Op 00550, Fourth Dept 2-2-24

Practice Point: Here the Fourth Department criticized the Family Court judge for acting as an advocate in this child placement proceeding.

 

, ,

THE JUDGE’S FAILURE TO READ THE NOTE FROM THE JURY VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL OF DEFENDANT’S MURDER CONVICTION (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined the judge committed a mode of proceedings error by paraphrasing the note from the jury instead of reading it verbatim:

The jury note … stated … “[w]e, the Jury, request: to hear the read-back of [a restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant. She indicates that she had seen him 2 times while she was working at the counter, and multiple times while she was not at the counter but through the security camera play-back. We wish to hear this portion read back. We also request to hear the portion of the cross-examination where she is asked and answers when she identified [a shooter shown in the surveillance video] as the defendant to the police” … . The court did not read the note aloud verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court addressed the note before counsel and the jury by stating, “the readback that you have requested of [the restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant will now be read back for you along with the second portion of that which reads, ‘We also request to hear that portion of the cross-examination where she is asked and answers when she identified [the shooter] as the defendant to the police.’ We’ll read both those portions.” The court failed to read the second and third sentences contained within the jury note. We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . People v Crawford, 2024 NY Slip Op 00528, Fourth Dept 2-2-24

Practice Point: Here the judge’s failure to read the note from the jury verbatim was deemed a mode of proceedings error requiring reversal of a murder conviction.

 

, , ,

SUCCESSIVE SUMMARY JUDGMENT MOTIONS WHICH ARE NOT BASED ON INFORMATION WHICH WAS NOT AVAILABLE AT THE TIME OF THE PRIOR MOTIONS SHOULD NOT BE ENTERTAINED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, held that the bank violated the prohibition of successive summary judgment motions:

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . “Evidence is not newly discovered simply because it was not submitted on the previous motion” … . “Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means” … . “Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment” … .

Here, the plaintiff failed to submit any newly discovered evidence on the subject motion that could not have been submitted on either of its prior two motions, and did not demonstrate sufficient cause why the third motion should have been entertained … . Thus, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . U.S. Bank N.A. v Kelly, 2024 NY Slip Op 00448, First Dept 1-31-24

Practice Point: Unless based on new evidence not available for a prior motion, successive summary judgment motions should not be entertained by the court.

 

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