Criminal Law Update February 2019

Course #CRM0339 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 27, 2020, through February 26, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between February 1, 2019 and February 28, 2019 which address issues in “Criminal Law.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet February 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Criminal Law Update Pamphlet February 2019

Criminal Law Update February 2019 Attorney Affirmation

Criminal Law Update February 2019 Evaluation Form

Topics Covered in the “Criminal Law Update February 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet February 2019”

APPEALS, ATTORNEYS.

FAILURE TO IDENTIFY AN APPEALABLE ISSUE IN AN ANDERS BRIEF ARGUING THAT THERE ARE NO NONFRIVOLOUS ISSUES WARRANTING APPEAL DOES NOT NECESSARILY REQUIRE THE ASSIGNMENT OF NEW APPELLATE COUNSEL, HERE THE MISSING ISSUE WAS DEEMED INCONSEQUENTIAL AND THEREFORE THERE WAS NO NEED FOR ANOTHER ASSESSMENT BY ANOTHER ATTORNEY (SECOND DEPT). 5

ATTORNEYS, MISTRIAL.

WHETHER TO MOVE FOR A MISTRIAL IS A DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, THE JUDGE’S ALLOWING DEFENDANT TO DECIDE VIOLATED THE SIXTH AMENDMENT RIGHT TO COUNSEL (FOURTH DEPT). 6

ATTORNEYS, INEFFECTIVE ASSISTANCE.

DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT). 6

ATTORNEYS, JUDGES.

FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT). 7

CONTEMPT.

MOTION TO PURGE THE CONTEMPT ORDER REGARDING THE REMOVAL OF SOLID WASTE THAT HAD BEEN DUMPED ON A FIELD BY DEFENDANTS SHOULD HAVE BEEN GRANTED AND THE INCARCERATED DEFENDANT SHOULD BE RELEASED (THIRD DEPT). 8

GUILTY PLEAS, DEPORTATION, JUDGES.

DEFENDANT WAS NOT INFORMED OF THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MATTER REMITTED TO ALLOW A MOTION TO VACATE THE PLEA (SECOND DEPT). 9

IDENTIFICATION, HEARSAY.

DETECTIVE’S TESTIMONY DEMONSTRATED THE WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY, HEARSAY IS ADMISSIBLE AT A RODRIGUEZ HEARING (FIRST DEPT). 9

IDENTIFICATION.

POLICE OFFICER WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANTS AS THE PERSONS DEPICTED IN VIDEOTAPES (FIRST DEPT). 10

INDICTMENTS, JURISDICTIONALLY DEFECTIVE.

PEOPLE’S FAILURE TO PROCURE ANOTHER ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE CHARGE RENDERED THE INDICTMENT JURISDICTIONALLY DEFECTIVE, REQUIRING DISMISSAL AFTER TRIAL DESPITE DEFENDANT’S FAILURE TO RAISE THE ISSUE AND THE PRESENTATION OF SUFFICIENT EVIDENCE OF THE REDUCED CHARGE (THIRD DEPT). 11

JAIL PHONE CALLS. 12

MONITORING AND RECORDING PHONE CALLS MADE BY PRETRIAL DETAINEES WHO ARE NOTIFIED THE CALLS ARE MONITORED AND RECORDED DOES NOT VIOLATE THE FOURTH AMENDMENT, THE RECORDINGS MAY BE SHARED WITH LAW ENFORCEMENT AND PROSECUTORS WITHOUT A WARRANT (CT APP). 12

JURY INSRUCTIONS, JUSTIFICATION DEFENSE.

TRIAL COURT FAILED TO INSTRUCT THE JURY THAT FINDING DEFENDANT NOT GUILTY OF THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE LESSER COUNTS, NEW TRIAL REQUIRED (SECOND DEPT). 13

JURY INSTRUCTIONS, ACCESSORIAL LIABILITY, PHOTOGRAPHS.

PHOTOGRAPH OF DEFENDANT WITH A WEAPON PROPERLY ADMITTED DESPITE THE ABSENCE OF EVIDENCE THE DEPICTED WEAPON WAS USED IN THE CHARGED OFFENSE, JURY WAS PROPERLY INSTRUCTED ON ACCESSORIAL LIABILITY DESPITE THE ABSENCE OF AN ALLEGATION OF ACCESSORIAL LIABILITY IN THE INDICTMENT AND DESPITE THE PEOPLE’S THEORY THAT DEFENDANT WAS THE SHOOTER (FIRST DEPT). 14

JURY INSTRUCTIONS, ADVERSE INFERENCE.

DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT). 15

JURY INSTRUCTIONS, JUSTIFICATION DEFENSE.

DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT CASE, EVEN THOUGH THE DEFENDANT DENIED ASSAULTING THE VICTIM AT TRIAL (FOURTH DEPT). 16

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES.

THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES IF THEY FOUND DEFENDANT NOT GUILTY OF THE HIGHER OFFENSE ON THE BASIS OF JUSTIFICATION, NEW TRIAL ORDERED (SECOND DEPT). 17

JURY INSTRUCTIONS, LESSER INCLUDED OFFENSES, ASSAULT 3RD.

TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE, TWO-JUSTICE DISSENT (FOURTH DEPT). 17

JURY SELECTION, BATSON.

PROSECUTION’S REVERSE-BATSON CHALLENGE TO PEREMPTORY JUROR CHALLENGES BY THE DEFENSE SHOULD NOT HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT). 18

JUVENILE DELINQUENCY, JUDGES.

FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT). 18

MENTAL HYGIENE LAW, SEALING.

COURT RECORDS RELATED TO PROCEEDINGS FOR THE COMMITMENT AND RETENTION OF DANGEROUS MENTALLY ILL ACQUITTEES ARE NOT CLINICAL RECORDS AND THEREFORE ARE NOT SUBJECT TO THE AUTOMATIC SEALING REQUIREMENT IN THE MENTAL HYGIENE LAW (CT APP). 19

MERGER, KIDNAPPING.

DEFENDANT’S KIDNAPPING CONVICTIONS VACATED PURSUANT TO THE DOCTRINE OF MERGER, DEFENDANT WAS ALSO CONVICTED OF MURDER, BURGLARY AND ROBBERY, APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). 20

ORDERS OF PROTECTION.

ORDER OF PROTECTION ISSUED IN THE CRIMINAL PROCEEDING PROHIBITING CONTACT BETWEEN FATHER AND DAUGHTER SHOULD BE SUBJECT TO ANY SUBSEQUENT CUSTODY OR VISITATION ORDERS BY FAMILY OR SUPREME COURT (FOURTH DEPT). 21

SENTENCING, ATTORNEYS, JUDGES, APPEALS.

WAIVER OF APPEAL DID NOT PRECLUDE CONSIDERATION OF AN ISSUE WHICH AROSE AFTER THE WAIVER, AT SENTENCING ALL WERE UNDER THE MISCONCEPTION DEFENDANT WAS A SECOND FELONY OFFENDER, SENTENCING JUDGE HAD SINCE BECOME THE PUBLIC DEFENDER, THE PUBLIC DEFENDER’S OFFICE COULD NOT, THEREFORE, REPRESENT DEFENDANT (THIRD DEPT). 21

SENTENCING, PREDICATE FELONY STATUS.

WHERE A DEFENDANT HAS BEEN RESENTENCED BECAUSE THE ORIGINAL SENTENCE WAS ILLEGAL, THE DATE OF THE ORIGINAL SENTENCE CONTROLS FOR DETERMINATION OF PREDICATE FELONY STATUS (CT APP). 22

SEX OFFENDER REGISTRATION ACT (SORA).

NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT). 23

SEX OFFENDER REGISTRATION ACT (SORA).

SCHOOL-GROUNDS RESTRICTION APPLIES ONLY TO OFFENDERS SERVING A SENTENCE FOR ONE OF THE OFFENSES ENUMERATED IN THE EXECUTIVE LAW AT THE TIME OF RELEASE, SINCE PETITIONER, WHO WAS A LEVEL THREE SEX OFFENDER, WAS SERVING A SENTENCE FOR BURGLARY AT THE TIME OF RELEASE, THE SCHOOL-GROUNDS RESTRICTION DID NOT APPLY TO HIM (THIRD DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA), STATUORY RAPE.

SORA COURT MAY HAVE OVERASSESSED THE RISK IN A STATUTORY RAPE CASE, MATTER REMITTED FOR PROPER APPLICATION OF THE CRITERIA ANNOUNCED BY THE COURT OF APPEALS IN PEOPLE V GILLOTTI (FIRST DEPT). 25

STATUTES, ADMINISTRATIVE CODE, AMMUNITION.

THE EXCLUSIONARY LANGUAGE IN THE NYC ADMINISTRATIVE CODE PROVISION WHICH CRIMINALIZES POSSESSION OF AMMUNITION IS AN EXCEPTION THAT MUST BE AFFIRMATIVELY PLED, CONVICTION REVERSED (FIRST DEPT). 26

TESTIMONIAL HEARSAY, DNA.

IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT). 27

WAIVER OF INDICTMENT, JURISDICTIONALLY DEFECTIVE.

THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE APPROXIMATE TIME AND PLACE OF THE OFFENSES, THIS IS A MODE OF PROCEEDINGS ERROR, PLEA TO THE SUPERIOR COURT INFORMATION VACATED (FOURTH DEPT). 27

YOUTHFUL OFFENDERS, JUDGES.

DENIAL OF YOUTHFUL OFFENDER STATUS WAS AN ABUSE OF DISCRETION (SECOND DEPT). 28

YOUTHFUL OFFENDERS, JUDGES.

SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER STATUS EVEN WHERE IT IS NOT REQUESTED OR WHERE DEFENDANT AGREES TO FORGO IT AS PART OF A PLEA BARGAIN (SECOND DEPT). 29

Civil Procedure Update February 2019

Course #MSC1143 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 27, 2020, through February 26, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between February 1, 2019 and February 28, 2019 which address issues in “Civil Procedure.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Revised Civil Procedure Update Pamphlet January 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Revised Civil Procedure Update Pamphlet February 2019

Civil Procedure Update February 2019 Attorney Affirmation

Civil Procedure Update February 2019 Evaluation Form

Topics Covered in the “Civil Procedure Update February 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Revised Civil Procedure Update Pamphlet February 2019”

APPEALS, PRESERVE STATUS QUO.

PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AND THE POWER PLANT BECAME OPERATIONAL AT THE OUTSET OF THE MOTION PRACTICE SEEKING TO VACATE CERTAIN PERMITS WHICH ALLOWED THE PLANT TO RESUME OPERATIONS, THE APPEAL WAS DEEMED MOOT AND THE PETITION WAS DISMISSED (FOURTH DEPT). 6

ATTORNEY’S FEES, CIVIL RIGHTS LAW.

PLAINTIFF’S ACTION WAS NOT FRIVOLOUS WITHIN THE MEANING OF 42 USC 1988, PREVAILING PARTY SHOULD NOT HAVE BEEN AWARDED ATTORNEY’S FEES (FOURTH DEPT). 7

ATTORNEYS, PRIVILEGE.

MEMORANDUM PREPARED BY PLAINTIFF’S GENERAL COUNSEL PROTECTED FROM DISCLOSURE BY COMMON INTEREST PRIVILEGE (FIRST DEPT). 8

BANKRUPTCY, SEVERANCE.

PLAINTIFF IN THIS SLIP AND FALL CASE ENTITLED TO SEVERANCE OF THE ACTION AGAINST THE PROPERTY OWNER, WHICH FILED FOR BANKRUPTCY, AND THE SNOW REMOVAL CONTRACTOR (SECOND DEPT). 8

COLLATERAL ESTOPPEL, ARBITRATION.

COLLATERAL ESTOPPEL CONTROLLED THIS ARBITRATION PROCEEDING TO DETERMINE HEALTH BENEFITS FOR RETIRED FIREFIGHTERS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (THIRD DEPT). 9

CONTINUOUS TREATMENT DOCTRINE.

QUESTIONS OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE ACTION, REQUESTING MEDICAL RECORDS AND MEETING WITH AN ATTORNEY TO EXPLORE A MALPRACTICE ACTION DID NOT NECESSARILY INDICATE THE TERMINATION OF TREATMENT (FOURTH DEPT). 10

CORPORATION LAW, SUCCESSOR LIABILITY, MERGER.

MOTION TO DISMISS THE NEGLIGENCE ACTION AGAINST DEFENDANT SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED, THE EVIDENCE SUBMITTED BY THE DEFENDANT DID NOT RULE OUT LIABILITY BASED UPON THE RELATIONSHIP BETWEEN THE DEFENDANT SECURITY COMPANY AND THE COMPANY PROVIDING SECURITY AT THE TIME OF THE ASSAULT (SECOND DEPT). 11

DEBTOR-CREDITOR, BANKRUPTCY, RECOMMENCE ACTON.

DEBTOR’S LAWSUIT WAS DISMISSED BECAUSE IT WAS NOT LISTED AS AN ASSET IN THE BANKRUPTCY FILINGS, BANKRUPTCY TRUSTEE WAS ENTITLED TO RECOMMENCE THE SUIT PURSUANT TO CPLR 205 (a) WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT). 12

DEFAULT, DAMAGES.

ALTHOUGH THE MOTION TO SET ASIDE THE DEFAULT JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED, A FULL EVIDENTIARY HEARING WAS REQUIRED TO DETERMINE THE APPROPRIATE DAMAGES AMOUNT (SECOND DEPT). 13

EXPERT OPINION, DAMAGES.

EXPERT TESTIMONY PROPERLY PRECLUDED BECAUSE OF LATE NOTICE, NEW TRIAL REQUIRED BECAUSE JURY WAS NOT INSTRUCTED ON MITIGATION OF DAMAGES (FOURTH DEPT). 14

FIDUCIARY DUTY.

BREACH OF FIDUCIARY DUTY CAUSE OF ACTION MUST BE PLED WITH PARTICULARITY (FOURTH DEPT). 15

FORECLOSURE, JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION WHEN PLAINTIFF BANK ATTEMPTED TO BRING PREVIOUSLY FILED PAPERS INTO COMPLIANCE WITH SUBSEQUENT ADMINISTRATIVE ORDERS (SECOND DEPT). 15

FORECLOSURE, STATUTE OF LIMITATIONS.

STIPULATION OF DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT, INSTANT FORECLOSURE ACTION IS THEREFORE TIME-BARRED (SECOND DEPT). 16

FORUM NON CONVENIENS.

MOTION TO DISMISS SUIT SEEKING RETURN OF A PAINTING ALLEGEDLY LOOTED BY THE NAZI-OCCUPIED FRENCH GOVERNMENT DURING WORLD WAR II PROPERLY DENIED (FIRST DEPT). 16

FRAUD.

ALLEGATIONS OF COMPENSABLE DAMAGES INSUFFICIENT, MOTION TO DISMISS FRAUD COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 17

INDEMNIFICATION.

COMMON LAW INDEMNIFICATION ONLY AVAILABLE TO A PARTY WHO IS VICARIOUSLY LIABLE, AS OPPOSED TO LIABLE FOR THE PARTY’S OWN NEGLIGENCE (FIRST DEPT). 18

JURISDICTION.

COURT OF CLAIMS DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A WORKERS’ COMPENSATION ISSUE, REVIEW OF AN AGENCY DETERMINATION MUST BE BROUGHT AS AN ARTICLE 78 PROCEEDING (THIRD DEPT). 18

MISCONDUCT BY PLAINTIFF WARRANTED DISMSSAL.

PLAINTIFF’S DEPLORABLE MISCONDUCT, INCLUDING ACCESSING DEFENDANT’S ATTORNEY-CLIENT COMMUNICATIONS, DELETING RELEVANT DOCUMENTS AND LYING UNDER OATH, IN DELAWARE COURT PROCEEDINGS REQUIRED DISMISSAL OF PLAINTIFF’S PERSONAL INJURY ACTION AGAINST THE SAME DEFENDANT IN NEW YORK (FIRST DEPT). 19

REPLY PAPERS.

EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT). 20

SPOLIATION.

SANCTIONS FOR SPOLIATION OF VIDEOTAPE IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT). 21

STATUTE OF LIMITATIONS, AMEND COMPLAINT.

THE MOTION TO AMEND THE COMPLAINT WAS MADE BEFORE THE STATUTE OF LIMITATIONS RAN, BUT THE SUPPLEMENTAL SUMMONS WAS NOT ATTACHED TO THE MOTION PAPERS, THEREFORE THE STATUTE OF LIMITATIONS WAS NOT TOLLED BY THE MOTION (FIRST DEPT). 21

STATUTE OF LIMITATIONS, REAL PROPERTY TAX LAW.

EXTENSION OF TIME TO FILE A MOTION TO VACATE A TAX FORECLOSURE JUDGMENT SHOULD NOT HAVE BEEN GRANTED, CPLR 2004 DOES NOT APPLY TO TIME LIMITS SPECIFICALLY CALLED FOR IN THE REAL PROPERTY TAX LAW (RPTL) (FOURTH DEPT). 22

STATUTE OF LIMITATIONS, RECOMMENCE ACTION.

THE SOLE REMEDY PROVISION OF THE CONTRACT IN THIS RESIDENTIAL MORTGAGE BACKED SECURITIES CASE, WHICH REQUIRED THAT THE DEFENDANT BE NOTIFIED AND GIVEN THE OPPORTUNITY TO REPURCHASE DEFECTIVE MORTGAGES, WAS NOT COMPLIED WITH PRIOR TO THE RUNNING OF THE STATUTE OF LIMITATIONS, PLAINTIFF’S TIMELY COMPLAINT WAS PROPERLY DISMISSED WITHOUT PREJUDICE, DESPITE THE FAILURE TO COMPLY WITH THE SOLE REMEDY PROVISION, ALLOWING PLAINTIFF TO REFILE THE COMPLAINT WITHIN SIX MONTHS PURSUANT TO CPLR 205 (CT APP). 23

STATUTE OF LIMITATIONS, RELATION-BACK, RECOMMENCE ACTION, APPEALS.

TRUSTEE’S BREACH OF CONTRACT ACTION IN THIS RESIDENTIAL MORTGAGE BACKED SECURITIES CASE WAS TIME-BARRED, THE ACTION COULD NOT RELATE BACK PURSUANT TO CPLR 203 BECAUSE THE TIMELY ACTION BY ANOTHER PARTY WAS PRECLUDED BY THE CONTRACT, THE COURT OF APPEALS COULD NOT CONSIDER WHETHER THE ACTION WAS TIMELY PURSUANT TO CPLR 205, EVEN THOUGH THE ISSUE WAS ADDRESSED BY THE APPELLATE DIVISION, BECAUSE THE ISSUE WAS NOT FULLY ADDRESSED IN SUPREME COURT (CT APP). 24

STATUTE OF LIMITATIONS.

MOTION TO EXTEND TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED IN THE INTEREST OF JUSTICE, THE STATUTE OF LIMITATIONS HAD RUN AT THE TIME THE MOTION TO EXTEND WAS MADE (SECOND DEPT). 25

STATUTE OF LIMITATIONS.

THE STATUTE OF LIMITATIONS DID NOT TOLL WHILE DEFENDANT WAS OUT OF STATE BECAUSE THE DEFENDANT COULD HAVE BEEN SERVED OUT OF STATE, PLAINTIFFS’ ACTION WAS TIME-BARRED (SECOND DEPT). 26

STIPULATIONS.

IN COURT STIPULATION OF SETTLEMENT WAS BINDING DESPITE AGREEMENT TO FINALIZE IT IN WRITING (THIRD DEPT 26

VERDICT, MOTION TO SET ASIDE.

PLAINTIFF SLIPPED AND FELL ON ICE INSIDE THE BUILDING SHE WAS WORKING IN, THE JURY COULD RATIONALLY CONCLUDE THE ICE WAS THE RESULT OF NEGLIGENCE ON THE PART OF SOMEONE INVOLVED IN THE CONSTRUCTION PROJECT, THE MOTION TO SET ASIDE THE VERDICT AS BASED ON LEGALLY INSUFFICIENT EVIDENCE IN THIS LABOR LAW 241 (6) ACTION WAS PROPERLY DENIED (SECOND DEPT). 27

VERDICT, MOTION TO SET ASIDE.

PLAINTIFF WAS INJURED WHEN HE FELL THROUGH A FLOOR OPENING IN A HOUSE UNDER CONSTRUCTION, DEFENDANT HAD PLACED CARDBOARD OVER THE OPENING, THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 28

WRIT OF MANDAMUS, STANDING.

MENTAL HEALTH LEGAL SERVICES DOES NOT HAVE STANDING TO SEEK A WRIT OF MANDAMUS TO COMPEL A HOSPITAL TO COMPLY WITH THE MENTAL HYGIENE LAW PROCEDURE WHEN A PATIENT REQUESTS AN ADMISSION OR RETENTION HEARING (CT APP). 29

Civil Procedure Update January 2019

Course #MSC1140 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 5, 2020, through February 4, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between January 1, 2019 and January 31, 2019 which address issues in “Civil Procedure.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Revised Civil Procedure Pamphlet January 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Revised Civil Procedure Pamphlet January 2019

Civil Procedure Update January 2019 Attorney Affirmation

Civil Procedure Update January 2019 Evaluation Survey

Topics Covered in the “Civil Procedure Update January 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Revised Civil Procedure Pamphlet January 2019”

BORROWING STATUTE.

LEGAL MALPRACTICE ACTION BROUGHT BY A NEW JERSEY RESIDENT IS UNTIMELY PURSUANT TO NEW YORK’S BORROWING STATUTE, NEW YORK’S SHORTER STATUTE OF LIMITATIONS WAS APPLIED (FIRST DEPT). 6

DEBTOR-CREDITOR, JOINT TENANTS, SAFETY DEPOSIT BOX.

THE CONTENTS OF A SAFE DEPOSIT BOX CONSTITUTED THE PROPERTY OF JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP, THEREFORE THE CONTENTS ARE AVAILABLE TO SATISFY A JUDGMENT AGAINST ONLY ONE OF THE JOINT TENANTS (FIRST DEPT). 7

DISCOVERY, ATTORNEY-CLIENT PRIVILEGE, WAIVER.

NEW YORK CITY HOUSING AUTHORITY COULD NOT AVOID DISCLOSURE OF RELEVANT DOCUMENTS BY RELYING ON ATTORNEY-CLIENT PRIVILEGE BECAUSE IT HAD PLACED THE KNOWLEDGE OF ITS LAW DEPARTMENT AT ISSUE, MOTION TO COMPEL WAS PROPERLY GRANTED, MONETARY SANCTIONS WERE PROPERLY ORDERED, WILLFUL AND CONTUMACIOUS BEHAVIOR NEED NOT BE SHOWN UNLESS A DRASTIC REMEDY LIKE STRIKING THE PLEADINGS IS IMPOSED (FIRST DEPT). 8

DISCOVERY, CLASS ACTIONS.

TIMELINESS OF A MOTION SEEKING CLASS CERTIFICATION IS MEASURED BY THE INITIAL MOTION, NOT A SUBSEQUENT MOTION TO RENEW AFTER DENIAL WITHOUT PREJUDICE, DEFENDANTS WERE EFFECTIVELY PREVENTING PLAINTIFFS FROM RENEWING THE CLASS CERTIFICATION MOTION BY REFUSING TO TURN OVER PAYROLL DATA TO WHICH THE PLAINTIFFS WERE ENTITLED (SECOND DEPT). 9

DISCOVERY, RESPONDEAT SUPERIOR, NEGLIGENCE, MUNICIPAL LAW.

CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT). 10

DISCOVERY, SOCIAL MEDIA, PHYSICAL ACTVITIES.

MOTION TO COMPEL ACCESS TO PLAINTIFF’S DEVICES, EMAIL ACCOUNTS AND SOCIAL MEDIA ACCOUNTS TO OBTAIN EVIDENCE OF PLAINTIFF’S PHYSICAL ACTIVITIES SINCE THE TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 11

FORECLOSURE, AFFIRMATION.

AFFIRMATION CONTESTING SERVICE DID NOT CONFORM TO NEW YORK LAW AND THEREFORE DID NOT REBUT THE PROCESS SERVER’S AFFIDAVIT (SECOND DEPT). 11

FORECLOSURE, JUDGES, SUA SPONTE.

JUDGE WAS NOT PRESENTED WITH ANY EXTRAORDINARY CIRCUMSTANCES JUSTIFYING, SUA SPONTE, DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT) 12

FORECLOSURE, STANDING, APPEALS.

PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT). 13

FORECLOSURE, STANDING.

DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THAT PLAINTIFF BANK DID NOT HAVE STANDING IN THIS FORECLOSURE ACTION BY MERELY POINTING OUT ALLEGED GAPS IN PLAINTIFF’S CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, THEREFORE, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 14

FORECLOSURE, STANDING.

MERE DENIAL OF THE ALLEGATIONS IN A FORECLOSURE COMPLAINT THAT THE PLAINTIFF IS THE OWNER AND HOLDER OF THE NOTE AND MORTGAGE IS NOT SUFFICIENT TO ASSERT THE DEFENSE THAT THE PLAINTIFF LACKS STANDING, PRECEDENT TO THE CONTRARY OVERRULED (SECOND DEPT). 14

FORECLOSURE, STANDING.

PLAINTIFF BANK WAS PROPERLY ALLOWED TO RECOMMENCE THE FORECLOSURE ACTION AFTER IT WAS DISMISSED AS ABANDONED PURSUANT TO CPLR 3215, HOWEVER PLAINTIFF DID NOT DEMONSTRATE IT HAD STANDING AND ITS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT). 16

INSURANCE LAW, CONTRACT LAW, CONSEQUENTIAL DAMAGES.

THERE IS NO HEIGHTENED PLEADING REQUIREMENT FOR CONSEQUENTIAL DAMAGES STEMMING FROM A BREACH OF AN INSURANCE CONTRACT, PLAINTIFF ALLEGED THE INSURER’S DELAY IN PAYING THE CLAIM FOR DAMAGE TO PLAINTIFF’S BUILDING, WHICH SHIFTED WHEN WORK WAS DONE ON AN ADJOINING BUILDING, RESULTED IN AN ARRAY OF CONSEQUENTIAL DAMAGES, THE CONSEQUENTIAL DAMAGES ASPECT OF THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). 17

JUDGES, JURORS.

TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY AFTER RECEIVING A NOTE INDICATING THAT A JUROR COULD NOT CONTINUE, INSTEAD THE JUDGE REPLACED THE JUROR WITH AN ALTERNATE WITHOUT AN INQUIRY, NEW TRIAL ORDERED (SECOND DEPT). 18

JUDGES, SUA SPONTE, DECLARATORY JUDGMENTS.

IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT). 19

JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THIS DIVORCE ACTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT). 19

JURISDICTION, FOREIGN CORPORATIONS.

A CORPORATION’S REGISTRATION WITH THE DEPARTMENT OF STATE IS NO LONGER DEEMED CONSENT TO BE SUED IN NEW YORK, FORD’S AND GOODYEAR’S MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED, THE SUIT STEMMED FROM A ROLLOVER ACCIDENT IN VIRGINIA (SECOND DEPT). 20

JURISDICTION, LONG-ARM.

PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT). 21

ORDER TO SHOW CAUSE, SERVICE DIRECTIONS.

FAILURE TO COMPLY WITH THE SERVICE DIRECTIONS IN THE ORDER TO SHOW CAUSE DEPRIVED SUPREME COURT OF JURISDICTION TO ENTERTAIN THE ORDER TO SHOW CAUSE (SECOND DEPT). 22

PARTIES, NECESSARY PARTIES, JOINDER.

FAILURE TO JOIN A NECESSARY PARTY JUSTIFIED DISMISSAL AFTER THE STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT). 23

PARTIES, RELATION-BACK DOCTRINE, RESPONDEAT SUPERIOR.

THE RELATION BACK DOCTRINE ALLOWED PLAINTIFF TO SERVE A SUPPLEMENTAL SUMMONS AND COMPLAINT ON THE DRIVER’S EMPLOYER IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE RESPONDEAT SUPERIOR THEORY OF LIABILITY, AFTER THE ACTION WAS STARTED PLAINTIFF LEARNED THAT THE DRIVER OF THE CAR IN WHICH PLAINTIFF’S DECEDENT WAS A PASSENGER WAS PAID BY THE EMPLOYER TO TRANSPORT THE OTHER EMPLOYEES IN THE CAR TO WORK (FIRST DEPT). 23

PARTIES, VICARIOUS LIABILITY.

BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 24

RES JUDICATA, COLLATERAL ESTOPPEL.

THE STATE ACTION ON A MULTI-MILLION DOLLAR DEBT SHOULD NOT HAVE BEEN DISMISSED ON CLAIM PRECLUSION OR RES JUDICATA GROUNDS BASED UPON THE DISMISSAL OF A FEDERAL ACTION AGAINST A DEFENDANT WHO WAS NOT A PARTY IN THE STATE ACTION, THE FACT THAT THE PLAINTIFFS IN THE STATE ACTION MAY HAVE BEEN ABLE TO INTERVENE OR ASSIGN THEIR RIGHTS TO THE DEFENDANT IN THE FEDERAL ACTION WAS NOT A PROPER GROUND FOR CLAIM PRECLUSION (FIRST DEPT). 26

VERDICT, MOTION TO SET ASIDE, DAMAGES.

MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE JURY FOUND THE INJURY TO BE PERMANENT BUT DID NOT AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, DAMAGES FOR PAST PAIN AND SUFFERING TOO LOW, MAY HAVE BEEN AN IMPERMISSIBLE COMPROMISE VERDICT (SECOND DEPT) 27

VERDICT, MOTION TO SET ASIDE, DOG-BITE.

VERDICT IN THIS DOG BITE CASE WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE, EVIDENCE THAT THE DOG BIT PLAINTIFF’S FACE WHILE ATTEMPTING TO BITE THE FOOD IN PLAINTIFF’S HAND AND EVIDENCE THAT THE DOG ONLY BECAME RAMBUNCTIOUS AROUND FOOD SUPPORTED THE JURY’S CONCLUSION THAT THE DOG HAD NOT EXHIBITED VICIOUS PROPENSITIES (SECOND DEPT). 28

VERDICT, MOTION TO SET ASIDE, EXPERT OPINION.

PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT). 29

VERDICT, MOTION TO SET ASIDE, PROXIMATE CAUSE.

DEFENSE VERDICT IN THIS SLIP AND FALL CASES SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT BUT FURTHER FOUND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE FALL, HOWEVER, THE NEGLIGENCE AND PROXIMATE CAUSE WERE INEXTRICABLY INTERTWINED (SECOND DEPT). 30

VEXATIOUS LITIGATION, LEGAL MALPRACTICE.

PLAINTIFF’S PRO SE LEGAL MALPRACTICE COMPLAINT WAS PROPERLY DISMISSED AND LIMITS ON PLAINTIFF’S ABILITY TO ENGAGE IN FUTURE VEXATIOUS LITIGATION PROPERLY IMPOSED (SECOND DEPT). 31

 

NOTE THAT THE ACCREDITATION OF THIS COURSE ENDS ON JULY 15, 2020

THE COURSE WILL NO LONGER BE AVAILABLE AFTER JULY 15, 2020

 

2019 CRIMINAL EVIDENCE UPDATE—PART 3 of 3

Course #CRM0328 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for the Period July 2, 2019, through July 15, 2020

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 4.0 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

The course, in three parts, organizes selected decisions released between January 1, 2017 and December 31, 2018 which address evidentiary issues in the context of Criminal Law. The NYS CLE Board’s approval process takes time, hence the December 31, 2018 cut-off. Four decisions summarized in the written materials were reversed by the Court of Appeals between January and July 2019. The reversals are indicated in red (in the written materials) with links to the Court of Appeals decisions. There are no references to the reversed decisions in the podcast. The reversals are:  People v Giuca, 2019 NY Slip Op 04642, CtApp 6-11-19 (Brady Material—the First Department decision is summarized at page 22 in the written materials);  People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19 (De Bour—the First Department decision is summarized at page 53 in the written materials);  People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19 (Justification Defense—the First Department decision is summarized at page 95 in the written materials); and  People v Smith, 2019 NY Slip Op 04447, CtApp 6-6-19 (Missing Witness Jury Instruction—the Fourth Department decision is summarized at page 130 of the written materials). To keep up to date, use the “Update Service” (in the menu at the top of the website pages) where the “Criminal Law” decision-summaries posted on the New York Appellate Digest website are organized in monthly “Update Pamphlets.” The Tables of Contents in these monthly “Update Pamphlets” facilitate a quick review of the “Criminal Law” issues, including evidentiary issues, addressed by our appellate courts since this CLE course was created.

As you listen to the course, you will hear four verification codes. After finishing all three parts of the course, print and fill out the attached “Attorney Affirmation,” including the four verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 4-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“2019 Criminal Evidence Update”—319 pages), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

2019 Criminal Evidence Updated—Written Materials

Attorney Affirmation 2019 Criminal Evidence Update

Evaluation Survey 2019 Criminal Evidence Update

Topics Covered in Part 3 (page references are to the written materials; the podcast does not address every case in the written materials) 

[Links to the Other Two Parts of this Course: Part 1, Part 2]

SECTION TWO (Cont’d)

EVIDENTIARY ISSUES RELATED TO SPECIFIC OFFENSES OR GENRES OF OFFENSES (Cont’d)

IDENTITY THEFT 244
IMMIGRATION 246
INNOCENT POSSESSION OF A WEAPON 247
KIDNAPPING 249
MENTAL HYGIENE LAW (CIVIL COMMITMENT AFTER PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT) 250
OPIOIDS, PILL MILLS, DOCTORS 251
POLICE SCANNER (MEANING OF “EQUIPPED”) 252
POSSESSION OF A FORGED INSTRUMENT 253
POSSESSION OF CONTROLLED SUBSTANCE 254
PROMOTING PRISON CONTRABAND 257
RECKLESS ENDANGERMENT 258
ROBBERY 259
SCIENTIFIC MATERIAL, UNLAWFUL USE OF 262
SHAKEN BABY 263
SWITCHBLADES 264
TERRORISM 265

 

SECTION THREE 267

HEARSAY 267

BACKGROUND INFORMATION 267
BUSINESS RECORDS EXCEPTION TO HEARSAY RULE 268
CONSPIRATOR’S STATEMENTS 270
CRAWFORD (TESTIMONIAL HEARSAY, RIGHT TO CONFRONTATION) 272
DECLARATION AGAINST PENAL INTEREST 279
EXCITED UTTERANCE 282
PRESENT SENSE IMPRESSION 284
PRIOR CONSISTENT STATEMENT 285
PRIOR INCONSISTENT STATEMENT 287
PRISON PHONE CALLS 289
PROMPT OUTCRY 290
STATE OF MIND 291
WITNESS UNAVAILABILITY PROCURED BY DEFENDANT 293

 

SECTION FOUR 295

SEARCHES 295

ARREST, SEARCH INCIDENT TO 295
BODY CAVITY SEARCH 299
CELL PHONES 300
CELL SITE LOCATION 301
CONSENT TO SEARCH 304
CUSTOMS AGENT 306
DE BOUR STREET STOP/TRAFFIC STOP CRITERIA (SEE THE CASE SUMMARIES ON THIS TOPIC COLLECTED IN SECTION ONE ABOVE) 307
DMV DATABASE SEARCH (VEHICLE LICENSE PLATES) 308
EMERGENCY DOCTRINE/EXIGENT CIRCUMSTANCES (WARRANTLESS SEARCH) 309
EXPECTATION OF PRIVACY 311
INEVITABLE DISCOVERY DOCTRINE (INDEPENDENT SOURCE) 314
INVENTORY/POLICE PROCEDURE SEARCH 316
PAROLEES (WARRANTLESS SEARCH) 319

NOTE THAT THE ACCREDITATION OF THIS COURSE ENDS ON JULY 15, 2020

THE COURSE WILL NO LONGER BE AVAILABLE AFTER JULY 15, 2020

 

2019 CRIMINAL EVIDENCE UPDATE—PART 2 of 3

Course #CRM0328 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for the Period July 2, 2019, through July 15, 2020

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 4.0 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

The course, in three parts, organizes selected decisions released between January 1, 2017 and December 31, 2018 which address evidentiary issues in the context of Criminal Law. The NYS CLE Board’s approval process takes time, hence the December 31, 2018 cut-off. Four decisions summarized in the written materials were reversed by the Court of Appeals between January and July 2019. The reversals are indicated in red (in the written materials) with links to the Court of Appeals decisions. There are no references to the reversed decisions in the podcast. The reversals are:  People v Giuca, 2019 NY Slip Op 04642, CtApp 6-11-19 (Brady Material—the First Department decision is summarized at page 22 in the written materials);  People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19 (De Bour—the First Department decision is summarized at page 53 in the written materials);  People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19 (Justification Defense—the First Department decision is summarized at page 95 in the written materials); and  People v Smith, 2019 NY Slip Op 04447, CtApp 6-6-19 (Missing Witness Jury Instruction—the Fourth Department decision is summarized at page 130 of the written materials). To keep up to date, use the “Update Service” (in the menu at the top of the website pages) where the “Criminal Law” decision-summaries posted on the New York Appellate Digest website are organized in monthly “Update Pamphlets.” The Tables of Contents in these monthly “Update Pamphlets” facilitate a quick review of the “Criminal Law” issues, including evidentiary issues, addressed by our appellate courts since this CLE course was created.

As you listen to the course, you will hear four verification codes. After finishing all three parts of the course, print and fill out the attached “Attorney Affirmation,” including the four verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 4-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“2019 Criminal Evidence Update”—319 pages), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

2019 Criminal Evidence Updated—Written Materials

Attorney Affirmation 2019 Criminal Evidence Update

Evaluation Survey 2019 Criminal Evidence Update

Topics Covered in Part 2 (page references are to the written materials; the podcast does not address every case in the written materials) 

[Links to the Other Two Parts of this Course: Part 1, Part 3]

SECTION ONE (Cont’d)

EVIDENTIARY ISSUES, OTHER THAN “HEARSAY” AND “SEARCHES,” WHICH ARE NOT LINKED TO SPECIFIC OFFENSES (“HEARSAY” AND “SEARCHES” ARE COVERED SEPARATELY IN SECTIONS THREE AND FOUR) (Cont’d)

PRISON PHONE CALLS 147
PROHIBITION 149
PROSECUTION MISCONDUCT OR MISTAKES 150
PROSECUTOR’S IMPEACHMENT OF PEOPLE’S OWN WITNESSES 162
PSYCHIATRIC EVIDENCE 164
RECKLESSNESS VS CRIMINAL NEGLIGENCE 166
REOPEN PROOF BASED UPON UNTRUTHFUL TESTIMONY BY VICTIM 168
RIGHT TO COUNSEL 169
SANDOVAL 174
SENTENCING 178
SEX OFFENDER REGISTRATION ACT (SORA) 192
THIRD PARTY CULPABILITY 197
TRIAL ORDER OF DISMISSAL (PEOPLE CANNOT APPEAL EVEN A CLEARLY ERRONEOUS GRANT OF A MOTION FOR A TRIAL ORDER OF DISMISSAL) 201
UNCHARGED THEORY, JURY SHOULD NOT HAVE CONSIDERED 202
WEIGHT OF THE EVIDENCE 206
WITNESS UNAVAILABILITY PROCURED BY DEFENDANT 216

 

SECTION TWO 217

EVIDENTIARY ISSUES RELATED TO SPECIFIC OFFENSES OR GENRES OF OFFENSES 217

ASSAULT 217
AUTOMOBILE PRESUMPTION (POSSESSION OF A WEAPON) 221
BREATHALYZER/BLOOD-ALCOHOL TEST (ADMINISTRATION OF THE TEST) 223
BURGLARY 226
CHILD PORNOGRAPHY 229
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME 231
CONTEMPT 232
CRIMINAL MISCHIEF 233
CRIMINALLY NEGLIGENT HOMICIDE OR ASSAULT 235
DRUG FACTORY PRESUMPTION 237
ENDANGERING THE WELFARE OF A CHILD 238
ENTERPRISE CORRUPTION 239
FALSIFYING BUSINESS RECORDS 240
GANGS 241