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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANTS AN EXTENSION OF TIME TO ANSWER IN THIS FORECLOSURE ACTION, RELIEF WHICH WAS NOT REQUESTED BY DEFENDANTS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief in this foreclosure action which was not requested by the defendant:

“The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the defendants did not request an extension of time to answer, and the Supreme Court’s determination to, sua sponte, grant that relief was an improvident exercise of discretion. Indeed, to extend the time to answer the complaint, a defendant must generally provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action … . Here, the only excuse offered by the defendants for their default was the plaintiff’s alleged failure to properly serve them, which excuse was rejected by the Supreme Court. Further, the defendants did not proffer any potentially meritorious defense to the action. We note also that the court’s sua sponte determination to extend the time within which the defendants had to answer the complaint is fundamentally inconsistent with its determination to deny that branch of the defendants’ motion which was to vacate the judgment of foreclosure and sale. Since the judgment determined the action and the rights of the parties, allowing the defendants to interpose an answer was without practical import. U.S. Bank N.A. v Halevy, 2019 NY Slip Op 07438, Second Dept 10-16-19

 

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DEFENSE COUNSEL’S QUESTIONS WHETHER COMPLAINANTS HAD HIRED LAWYERS AND HAD SUED DEFENDANT-TEACHER AND THE SCHOOL DISTRICT IN THIS CHILD SEX ABUSE CASE DID NOT OPEN THE DOOR TO ALL EVIDENCE OF DEFENDANT’S ALLEGED PRIOR SEXUAL ABUSE OF CHILDREN, CONVICTION REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL; JUDGE SHOULD NOT HAVE PARTICIPATED IN A READBACK OF TESTIMONY (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this child sex abuse prosecution, determined that the trial court should not have allowed the prosecution to present all evidence of defendant’s alleged prior sexual abuse of children after defense counsel asked complainants whether they had hired a lawyer and were suing the defendant-teacher and the school district based upon defendant’s alleged sexual abuse of children. Re-direct should have been limited to only the evidence necessary to clarify and explain the reasons for the witness’s hiring a lawyer and bringing a lawsuit. The Second Department also noted that the trial judge should have participated in the readback of testimony and the harmless error analysis is not applicable:

… [D]efense counsel asked questions regarding the civil actions in an attempt to impeach credibility and establish that a motivation for some of the complainants’ testimony against the defendant was monetary gain or a pecuniary interest. This line of inquiry did not open an unfettered passageway for the People to elicit extensive and prejudicial evidence regarding alleged uncharged complaints. The extraneous testimony of alleged uncharged complaints did not serve to explain or clarify whether the civil actions provided certain complainants with a financial incentive to testify.

Moreover, the admission of evidence of alleged uncharged complaints violated the basic principle underlying Molineux and its progeny that “a criminal case should be tried on the facts and not on the basis of a defendant’s propensity to commit the crime charged …”. …

The Court of Appeals has explained that “if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction” … . People v Watts, 2019 NY Slip Op 07426, Second Dept 10-16-19

 

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JUDGE HAD THE AUTHORITY TO SEVER TWO COUNTS IN AN INDICTMENT AND REMOVE THE MATTER, INVOLVING A JUVENILE, TO FAMILY COURT; THE PEOPLE’S ARTICLE 78 SEEKING PROHIBITION DENIED AND DISMISSED (FIRST DEPT).

The First Department denied the People’s Article 78 action seeking to vacate an order by the respondent judge severing two counts which had been combined in an indictment and removing the charges to Family Court. The People objected to removing the prosecution of a 16-year-old to Family Court. In order the facilitate the removal, respondent judge severed the two counts. The People unsuccessfully argued the judged did not have the authority to sever the counts, and therefore could not send the charges to Family Court:

“[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” … . “Use of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings” … .

There is no merit in the People’s contention that the court lacks the authority to sever charges that were joined in a single indictment. This argument would have validity in cases where charges were properly joinable in a single indictment. However, the law is clear that the determination of whether the charges were, in fact, properly joinable in the first instance, is a duty of the court that is not delegated to the prosecution or the grand jury.

The court has a duty to examine the indictment to determine whether joinder is proper pursuant to CPL 200.20(a) or (b). Notably, the People have not provided any precedent to support their position to the contrary. Courts routinely rule on the issue of whether charges in an indictment are properly joinable under CPL 200.20(2) and sever those charges that are not … .

While the People disagree with the court’s finding that the … charges were not properly joinable under CPL 200.20(2)(b), determination of this issue is not before us in this article 78 proceeding. Rather, we are only asked, and we only have the authority, to determine whether the court acted without jurisdiction or in excess of its authority. Matter of Vance v Roberts, 2019 NY Slip Op 07358, First Dept 10-10-19

 

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RAPE THIRD IS NOT AN INCLUSORY CONCURRENT COUNT OF RAPE FIRST; THE VERDICT SHEET INCLUDED AN IMPERMISSIBLE ANNOTATION, MATTER REMITTED TO DETERMINE WHETHER DEFENSE COUNSEL CONSENTED TO THE ANNOTATION (FOURTH DEPT).

The Fourth Department determined: (1) rape third is not an inclusory concurrent count of rape first; and (2) the verdict sheet included an impermissible annotation. The matter was remitted to determine whether defense counsel consented to the annotation:

… [T]he verdict sheet, which states in relevant part “Fourth Count: Rape in the Third Degree (lack of consent/totality of circumstances),” contains an impermissible annotation. Specifically, the “totality of circumstances” language is impermissible because it is not “statutory language” (CPL 310.20 [2]; see Penal Law § 130.25 [3]). Rather, it is language from the pattern jury instructions (see CJI 2d[NY] Penal Law § 130.25 [3]). Supreme Court was therefore required to obtain defense counsel’s consent prior to submitting the annotated verdict sheet to the jury … . Although “consent to the submission of an annotated verdict sheet may be implied where defense counsel fail[s] to object to the verdict sheet after having an opportunity to review it’ “… , here, the record does not reflect whether defense counsel had that opportunity. We therefore hold the case, reserve decision and remit the matter to Supreme Court to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet … . People v Wilson, 2019 NY Slip Op 06900, Fourth Dept 9-27-19

 

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DEFENSE COUNSEL’S PEREMPTORY CHALLENGE TO A JUROR WAS SLIGHTLY LATE; TO DENY THE REQUEST IN THE ABSENCE OF DISCERNABLE INTERFERENCE OR UNDUE DELAY WAS AN ABUSE OF DISCRETION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the denial of defense counsel’s slightly late peremptory challenge to an unsworn juror was an abuse of discretion:

The court named prospective juror number one to be assigned a seat and said, “We now have ten, need two. Looking at Chavez – -,” when defense counsel interrupted, stating that he had made an error and had intended to exercise a peremptory challenge to prospective juror number one. Defense counsel acknowledged that the challenge was “a couple of seconds” late, and requested permission to excuse prospective juror number one. The court summarily denied the request.

The defendant contends that the Supreme Court improvidently exercised its discretion in denying his belated peremptory challenge. We agree. Under CPL 270.15, “the decision to entertain a belated peremptory challenge is left to the discretion of the trial court” … . Where a belated peremptory challenge to as-yet unsworn prospective jurors “would interfere with or delay the process of jury selection,” it is a proper exercise of the court’s discretion to refuse to permit the challenge … . However, where there is “no discernable interference or undue delay caused by defense counsel’s momentary oversight that would justify [the court’s] hasty refusal to entertain [the] defendant’s challenge,” it is an improvident exercise of discretion to deny it … . Here, the delay in challenging prospective juror number one was de minimis …. There was no discernable interference or undue delay caused by defense counsel’s momentary oversight, and the voir dire of the next subgroup of jurors was still to be conducted … . People v Price, 2019 NY Slip Op 06629, Second Dept 9-18-19

 

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JUDGE DID NOT HAVE THE DISCRETION TO DENY PLAINTIFF’S MOTION FOR ARREARS AND COUNSEL FEES MADE AFTER THE JUDGMENT OF DIVORCE; ANY DISPUTE ABOUT THE AMOUNT MUST BE RESOLVED BY A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to enter a money judgment for arrears and counsel fees should not have been denied. The motion for arrears was properly made after the judgment of divorce and any question of the amount owed should have been resolved by a hearing:

A party to a matrimonial action may make an application for a judgment directing the payment of arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244 … ). Here, the court did not have the discretion to deny the plaintiff’s application for leave to enter a money judgment since she established that arrears were due and unpaid … . Where, as here, there are triable issues of fact as to the amount of arrears, an evidentiary hearing should be held … . Furthermore, upon determining the amount of arrears owed, the court should have considered the plaintiff’s request for prejudgment interest … and an award of counsel fees … . Uttamchandani v Uttamchandani, 2019 NY Slip Op 06645, Second Dept 9-18-19

 

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THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the jury notes should have been read verbatim to counsel, not paraphrased:

.. [T]he jury submitted a note stating, “We would like to see the difference between first and second degree murder. (Powerpoint).” The Supreme Court informed counsel, the defendant, and the codefendant that the jurors “want to be recharged on first degree and second degree.” …

The jury submitted another note which read, “Phone Records Between Jimmy & Ragene — When Did Communication Start?” During a discussion on the record, the Supreme Court mentioned that the jurors “want to know when did the communications start. And the communications started on June 11. And the stipulation covers it. So we’ll read back the stipulation.”

The record reveals that the Supreme Court did not read the entire contents of these two jury notes into the record, and there was no indication that the entire contents of the notes otherwise were shared with counsel … . Rather, the court improperly paraphrased the notes  … .

Counsel’s awareness of the existence of a note does not effectuate the court’s proper discharge of its statutory duty … . Although defense counsel may have been made aware of the existence and gist of the second note during an off-the-record discussion, this is insufficient to establish that counsel had been made aware of the precise contents of the note … . Where a trial transcript does not show compliance with O’Rama’s procedure, it cannot be assumed that the omission was remedied at an off-the-record conference to which the transcript does not refer … .

As such, the Supreme Court committed a mode of proceedings error when it failed to provide counsel with meaningful notice of the precise contents of substantive juror inquiries, and therefore, reversal is required … . People v Copeland, 2019 NY Slip Op 06507, Second Dept 9-11-19

 

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SUPREME COURT SHOULD NOT HAVE IGNORED THE NOTICE REQUIREMENTS IN THE BUSINESS CORPORATION LAW AND SHOULD NOT HAVE DISSOLVED THE CLOSELY HELD CORPORATION WITHOUT A HEARING (SECOND DEPT).

The Second Department determined Supreme Court should not have ignored the statutory notice requirements in this action to dissolve a closely held corporation (VJN) and should not have dissolved the corporation without a hearing:

Business Corporation Law § 1106(a) provides, inter alia, that, upon the filing of a petition for dissolution of a corporation, “the court shall make an order requiring the corporation and all persons interested in the corporation to show cause before it . . . why the corporation should not be dissolved.” The statute further provides, in relevant part, that “[a] copy of the order to show cause shall be published as prescribed therein, at least once in each of the three weeks before the time appointed for the hearing thereon, in one or more newspapers, specified in the order,” and that a copy of the order be served upon the New York State Tax Commission (hereinafter the Tax Commission) … . Here, it is undisputed that the petitioner’s order to show cause contained a provision providing for its publication; however, that provision was stricken, and therefore, the order to show cause ultimately was not published. It is also undisputed that the order to show cause was never served on the Tax Commission. …

… [W]e disagree with the Supreme Court’s determination that the petitioner established his entitlement to the dissolution of VJN. The affidavit submitted by the respondent in opposition to the petition raised questions of fact regarding the merits of the petition and the appropriate remedy … . Indeed, there is no indication that the court gave any consideration as to whether a remedy other than dissolution would have been appropriate … . Under these circumstances, the court should not have ordered the dissolution of VJN and the sale of the subject property without conducting a hearing … . Matter of Nicastro v VJN Real Estate Corp., 2019 NY Slip Op 06495, Second Dept 9-11-19

 

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JUDGE SHOULD NOT, SUA SPONTE, HAVE RAISED ISSUES ABOUT THE ADEQUACY OF SERVICE BY MAIL WHICH WERE NOT RAISED OR ADDRESSED BY THE PARTIES; DEFENDANTS’ MOTION TO DISMISS THE ORIGINAL COMPLAINT FOR LACK OF JURISDICTION SHOULD NOT HAVE BEEN GRANTED; AMENDED COMPLAINT, FOR WHICH LEAVE OF COURT WAS NOT SOUGHT, WAS A NULLITY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that the judge should not have raised, sua sponte, issues not raised by the parties in granting defendants’ (the Wirths’) motion to dismiss the complaint for lack of personal jurisdiction. The process server filed an affidavit stating that the summons and complaint had been timely mailed to defendants. The affidavit did not state that the envelope was marked “personal and confidential” or that the envelope indicated it was from an attorney. There was no proof the envelope was not properly marked and the defendants had not raised these issues. The defendants merely asserted they never received the mailing. The Second Department also determined the amended complaint, adding additional parties, was a nullity because the court did not grant leave to amend:

Given that the Wirths argued that they did not receive the summons and complaint in the mail, the Supreme Court should not have determined, sua sponte, that jurisdiction was not acquired over the Wirths because the process server did not attest that the mailed copies of the summons and complaint were contained in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof that the communication is from an attorney or concerns an action against the person to be served (see CPLR 308[2] …). Courts are “not in the business of blindsiding litigants,” who expect the courts to decide issues on rationales advanced by the parties, not arguments that were never made … . By raising the CPLR 308(2) envelope requirement on its own, the court deprived the plaintiffs of the opportunity to show compliance with that requirement. …

CPLR 3025(a) provides that a “party may amend his [or her] pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.” A plaintiff’s failure to seek leave pursuant to CPLR 1003 to add a new defendant is a jurisdictional defect, and an amended complaint that is not filed in accordance with CPLR 1003 and 3025 is a legal nullity … . Hulse v Wirth, 2019 NY Slip Op 06483, Second Dept 9-11-19

 

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ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the interest of justice. The court noted Criminal Procedure Law 710.30 does not apply to statements made voluntarily in a noncoercive, noncustodial setting. Therefore the failure to timely notify the defense of the defendant’s admission to the murder made to a confidential informant was not an error. Based upon the trial judge’s characterization of the defendant at sentencing, the new trial will be before a different judge:

Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness …, which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath. …

… .[T]he prejudice to the defendant arose from (1) the prosecutor’s posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell’s refusal to testify, and (3) the court’s jury instructions that the jury may draw an inference of the defendant’s guilt from Mitchell’s refusal to testify. …

“Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” … . “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . People v Ward, 2019 NY Slip Op 06419, Second Dept 8-28-19

 

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