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A PROSECUTION WITNESS’S WRITTEN STATEMENT DID NOT MEET THE CRITERIA FOR PAST RECOLLECTION RECORDED AND SHOULD NOT HAVE BEEN ADMITTED; THE JUDGE’S USE OF THE PHRASE “POTENTIALLY AIDS” INSTEAD OF “INTENTIONALLY AIDS” IN THE ACCOMPLICE LIABILITY JURY INSTRUCTION PREJUDICED THE DEFENDANT; ALTHOUGH THE JURY INSTRUCTION ERROR WAS NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined: (1) a written statement by a prosecution witness should not have been admitted as “past recollection recorded;” and (2) the jury instruction on accomplice liability prejudiced defendant. The jury-instruction error was not preserved but was considered in the interest of justice:

“The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded”  … . ,,,

… [T]he prosecution witness in question did not testify that his written statement accurately represented his knowledge and recollection when made. To the contrary, the witness testified that the statement was not accurate when given because he was under the influence of narcotics at that time … . Moreover, because the statement was made more than six months after the alleged events recorded therein, the recollection was not “fairly fresh” when recorded … . …

Penal Law § 20.00 provides that a “person is criminally liable for [the conduct of another] when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” ,,, . … [W]e conclude that the court’s use of the phrase “potentially aids” rather than “intentionally aids” significantly prejudiced defendant, who was alleged to have aided and abetted the principal by driving him to and from the crime scene…. . People v Gardner, 2022 NY Slip Op 02911, Fourth Dept 4-29-22

Practice Point: Here the written statement did not meet the criteria for admissibility as past recollection recorded. The witness testified the statement was not accurate when given because he was high and the statement was not “fresh” because it was made six months after the events described in it.

 

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DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the criminal-negligence element of assault third was not proven. Defendant was driving with a passenger when he crossed into the oncoming lane, pulled back into his lane, lost control and crashed, injuring the passenger:

In cases involving criminal negligence arising out of automobile accidents involving excess rates of speed, such as here, “it takes some additional affirmative act by the defendant to transform ‘speeding’ into ‘dangerous speeding’ ” … . With respect to the issue of defendant’s rate of speed, the trial testimony from the prosecution’s expert witness that defendant was driving at the excessive speed of approximately 92 miles per hour at the time of the incident was speculative … . The expert’s calculation of the vehicle’s speed was based on the assumption of “100 percent braking,” but there was no evidence that defendant braked at all before his vehicle collided with the mailbox, tree and utility pole and came to a stop. Moreover, the People’s version of the events, that defendant deliberately attempted to “flatten out the curve” by crossing the double line of the curve, does not rise to the level of moral blameworthiness to constitute criminal negligence … . People v Palombi, 2022 NY Slip Op 02896, Fourth Dept 4-29-22

Practice Point: In the context of an assault third charge alleging a car accident was the result of defendant’s “criminal negligence,” proof of speeding, as opposed to proof of “dangerous speeding,” will not support a conviction. This case is a good example of “legally sufficient evidence” resulting in a conviction which is determined on appeal to be “against the weight of the evidence.” The expert evidence presented to show the speed at which defendant was driving was speculative and based upon an unproved assumption. That evidence was deemed too weak to support a conviction, thereby rendering the conviction “against the weight of the evidence.”

 

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TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) to facilitate appellate review, the court should have written a decision explaining the burdens of proof and its reasoning in granting plaintiffs summary judgment and awarding attorney’s fees and costs; (2)  the plaintiffs did not demonstrate the contract was unambiguous and therefore were not entitled to summary judgment on the breach of contract claims; and (3) summary judgment should not have been awarded on plaintiffs’ fraudulent misrepresentation cause of action. A fraudulent misrepresentation cause of action cannot be based upon an alleged intent to breach a contract:

Although the court granted plaintiffs’ motion insofar as it sought summary judgment, it failed to address the burdens of proof or any specific cause of action. In addition, the court awarded costs and attorneys’ fees without providing the basis therefor. As noted, this case involved a motion for summary judgment and for costs, attorneys’ fees, and sanctions, and the court chose not to write. This is an unacceptable practice … .. To maximize effective appellate review, we must remind our colleagues in the trial courts to provide their reasoning instead of simply issuing orders.  …

… [P]laintiffs did not meet their initial burden on those parts of the motion seeking summary judgment … inasmuch as plaintiffs failed to submit sufficient evidence to establish that their interpretation of the relevant contracts is the only reasonable interpretation thereof. …

… “[F]ar from being collateral to the contract, the purported misrepresentation was directly related to a specific provision of the contract” … .. In addition, CPLR 3016 (b) provides that, “[w]here a cause of action . . . is based upon . . . fraud, the circumstances constituting the wrong shall be stated in detail,” and we conclude that the cause of action here failed to satisfy that requirement … . Wilsey v 7203 Rawson Rd., LLC, 2022 NY Slip Op 02905, Fourth Dept 4-29-22

Practice Point: Here not only was the judge wrong to award plaintiffs summary judgment, attorney’s fees and costs on the breach of contract and fraudulent misrepresentation causes of act, but the judge made appellate review difficult by issuing orders without a decision explaining the burdens of proof and reasoning, characterized as an “unacceptable practice” by the Fourth Department.

 

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MOTHER WAS ENTITLED TO A HEARING ON HER CLAIM SHE ADMITTED TO PERMANENT NEGLECT BECAUSE HER COUNSEL WAS INEFFECTIVE; MOTHER ALLEGED COUNSEL DID NOT INFORM HER OF THE RELEVANT BURDENS OF PROOF AT TRIAL (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was entitled to a hearing on whether her counsel was ineffective in failing to inform her of the applicable burdens of proof and in allowing her to admit to permanent neglect:

 “‘A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel'” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Effective assistance is predicated on the standard of “meaningful representation” … .

… [M]other submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission “because [she] was advised that it was necessary in order to have [her] children returned.” She further alleged that she “would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights.” The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possible consequences of the finding, including termination of her parental rights … . Matter of Skylar P. J., 2022 NY Slip Op 02793, Second Dept 4-27-22

Practice Point: A party in a neglect proceeding has a right to effective assistance of counsel. Here mother was entitled to a hearing on her claim she would not have admitted to permanent neglect had she been informed of the relevant burdens of proof at trial.

 

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THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.

 

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IN THIS NEGLECT PROCEEDING AGAINST STEPMOTHER, THE STATUTORY REQUIREMENTS FOR THE ISSUANCE OF ORDERS OF PROTECTION IN FAVOR OF THE CHILDREN WERE NOT MET (FOURTH DEPT).

The Fourth Department, vacating the five-year orders of protection in favor of the children (re: respondent stepmother) in this neglect proceeding, determined the statutory criteria for issuance of the orders of protection were not met:

… [T]he stepmother contends that the court erred in issuing orders of protection in favor of the children with a duration of five years. We agree, and we therefore reverse the orders of protection … . In an article 10 proceeding, the court may issue an order of protection, but such order shall expire no later than the expiration date of “such other order made under this part, except as provided in subdivision four of this section” (Family Ct Act § 1056 [1]). Subdivision (4) of section 1056 allows a court to issue an independent order of protection until a child’s 18th birthday, but only against a person “who was a member of the child’s household or a person legally responsible . . . , and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child’s household.” Here, the orders of protection do not comply with Family Court Act § 1056 (1) and (4) because no other dispositional orders were issued with respect to the children at the time the court issued the orders of protection and the stepmother, although no longer living in the home, remains married to the children’s mother … . Moreover, the court erred in issuing the dispositional orders of protection without first holding a dispositional hearing. “The Family Court Act directs that a dispositional hearing be held as a condition precedent to the entry of a dispositional order such as the order of protection granted by Family Court here” … . Matter of Kayla K. (Emma P.-T.), 2022 NY Slip Op 02668, Fourth Dept 4-22-22

 

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ALTHOUGH THE ISSUE WAS NOT PRESERVED, DEFENDANT’S GUILTY PLEA WAS VACATED BECAUSE IT WAS INDUCED BY THE JUDGE’S PROMISE THAT ALL THE COURT’S ORDERS COULD BE APPEALED; IN FACT, THE DEFENDANT’S CONTENTION THAT TWO COUNTS OF THE INDICTMENT WERE DUPLICITOUS COULD NOT BE RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence in the interest of justice, determined the defendant’s guilty plea was induced by the judge’s promise that defendant could appeal from all the court’s orders. In fact, however, by pleading guilty defendant could not appeal the order rejecting his argument that the first two counts of the indictment were duplicitous:

We agree … with defendant that his plea was not knowingly, voluntarily, and intelligently entered. Although defendant failed to preserve that contention for our review … , we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … , and where “a guilty plea has been induced by an unfulfilled promise, the plea must be vacated or the promise must be honored” … . Here, the court repeatedly promised defendant, who was proceeding pro se, that he would retain the right to appeal from all of its orders. The court reiterated that promise during the plea colloquy and did not advise defendant that he was forfeiting any challenge by pleading guilty. We conclude, however, that “[b]y pleading guilty, defendant forfeited his . . . contention that the first two counts of the indictment were duplicitous” … . Consequently, “[i]nasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea” … . People v Mothersell, 2022 NY Slip Op 02661, Fourth Dept 4-22-22

Practice Point: Here the defendant’s guilty plea was induced by the judge’s promise all the court’s orders could be appealed. In fact, the guilty plea precluded raising on appeal defendant’s contention two indictment counts were duplicitous. Even though the issue was not preserved for appeal, the Fourth Department vacated the guilty plea.

 

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THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:

… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22

Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.

 

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FAMILY COURT IMPROPERLY DELEGATED TO FATHER THE COURT’S AUTHORITY TO DETERMINE MOTHER’S ACCESS TO THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father should not have been given the power to suspend mother’s access to the child:

… [T]he Family Court erred in including two provisions in the order appealed from that effectively allow the father to determine whether parental access with the mother should be suspended. These provisions do not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child … , and, consequently, constitute an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother … . Matter of Felgueiras v Cabral, 2022 NY Slip Op 02410, Second Dept 4-13-22

Practice Point: Here Family Court should not have allowed father to control mother’s access to the child—an improper delegation of the court’s authority.

 

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ABSENT A SHOWING OF GOOD CAUSE FOR THE DELAY, A MOTION TO SET ASIDE A VERDICT MADE MORE THAN 15 DAYS AFTER THE VERDICT WAS RENDERED SHOULD NOT BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to set aside the verdict as against the weight of the evidence should not have been granted because it was made more than 15 days after the jury verdict:

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay … . Galarza v Heaney, 2022 NY Slip Op 02395, Second Dept 4-13-22

Practice Point: A motion to set aside a verdict made more than 15 days after the verdict was rendered, without a demonstration of good cause for the delay, should not be granted.

 

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