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Oral Partnership Agreement Dissolvable at Will Because of Lack of Specificity

In finding that an oral partnership agreement was dissolvable at will because no “definite term” or “particular undertaking” was included, the Court of Appeals, in a full-fledged opinion by Judge Graffeo, wrote:

…[W]e believe that [the] complaint lacks a fixed, express period of time during which the enterprise was expected to operate. Instead, the complaint alleges a flexible temporal framework: the parties were to solicit investments for an indefinite length of time; conduct an open-ended (possibly two-year) search for an unidentified business in an unknown business sector or industry; secure additional capital investments over the course of an unspecified period of time; and then purchase and operate the enterprise for an indeterminate duration (perhaps four to seven years) until a liquidity event would hopefully occur. Since the complaint does not set forth a specific or even a reasonably certain termination date, it does not satisfy the “definite term” element of [Partnership Law] section 62 (1) (b). * * *

Furthermore, when the entire scheme is considered, the alleged sequence of anticipated partnership events detailed in the complaint are too amorphous to meet the statutory “particular undertaking” standard for precluding unilateral dissolution of a partnership. The stages of the plan … were to: (1) raise money; (2) identify a business to buy; (3) raise more money to purchase the business; (4) “operate the business to increase its value”; (5) “achieve the liquidity event”; (6) “sell the business”; and (7) secure profit from the sale. But these objectives are fraught with uncertainty and are less definitive than the declarations referring to specific industries that have been found to be inadequate by other courts *  *  *.  In the absence of a definite term of duration or a particular undertaking to be achieved, the partnership agreement at issue, however well-intended, was dissolvable at will by either partner under Partnership Law § 62 (1) (b). Gelman v Buehler, 37, Ct.App. 3-26-13

 

 

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Experts’ Failure to Address Proximate Cause Precluded Summary Judgment

The defendants in a medical malpractice action were granted summary judgment finding that any departures from the standard of care were not the proximate cause of plaintiff’s injuries.  The Court of Appeals reversed because the defendants’ experts did not address proximate cause in their affidavits in support of the summary judgment motion.  The defendants therefore did not meet their burden on the issue of proximate cause. Orsi, et al, v Haralabatos, et al, 50, CtApp 3-26-13

 

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There Is No Transfer of Property Until the Deed Is Accepted by the Buyer

In a full-fledged opinion by Judge Read, the Court of Appeals determined that a grant of property takes place only when the deed is (1) delivered and (2) accepted.  There was a foreclosure sale.  In order to obtain a judgment for the deficiency between the amount of the foreclosed loan and the actual foreclosure sale price, a motion must be made within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser…”.  In this case the buyer at the foreclosure sale (M & T) did not at first accept the deed because M & T planned to assign its bid prior to the closing.  The deed was returned to the referee who agreed to hold it.  About three months later, M & T asked the referee to execute and resend the deed. About two weeks after that M & T filed a motion for a deficiency judgment. Defendants opposed the motion arguing it was made more than 90 days after the consummation of the sale. The appellate division agreed with the defendants.  The Court of Appeals reversed and wrote:

As a general rule, a deed is presumed to have been “delivered and accepted at its date”; however, this presumption “must yield to opposing evidence” … . Here, M&T’s attorney twice declined to accept or retain physical possession of the referee’s deed dated May 11, 2010. As a result, the referee took back the deed and other closing documents and ultimately executed a deed on August 9, 2010, when M&T’s attorney accepted it … . This constitutes “opposing evidence” sufficient to rebut any presumption of delivery in May 2010 … . M&T’s motion was therefore timely because brought within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser” (RPAPL 1371 [2]) — i.e., August 9, 2010.  M & T Real Estate Trust v Doyle, 55, CtApp 3-26-13

 

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Search of Camera in Possession of the Police for Illegal Images Was Valid Even though Underlying Warrant Was Issued In a Case Closed Before the Search

In a search, the defendant’s computer and camera were seized.  Based on a picture found on the computer, the defendant pled guilty to possessing a sexual performance of a child.  After his sentence was served and after the time to appeal had elapsed defendant’s attorney contacted the prosecutor and asked for defendant’s seized camera to be returned. At that time the camera was analyzed for the first time and images found on the camera were the basis for the predatory sexual assault conviction that was before the Court of Appeals. The defendant moved to suppress the images found on the camera arguing that at the time the images were found the authority provided by the warrant under which the camera was seized had lapsed, making the search of the camera illegal.  In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the defendant had no expectation of privacy in the contents of the seized camera, and, therefore, the search of the camera did not violate the Fourth Amendment.  Judge Lippman noted that “it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding…”.  Here, the Court determined, a legitimate law enforcement purpose existed at the time the analysis of the camera was done.  The camera could not be returned until it was determined no illegal images were contained in it. People v DeProspero, 44, CtApp 3-26-13

SEARCH AND SEIZURE, SUPPRESS, SUPPRESSION

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In a Sexual Abuse Case, Prosecutor’s Hypothetical Questions to Expert Which Mirrored Complainant’s Testimony Constituted Improper Bolstering

In another “sexual abuse” opinion by Judge Pigott, the Court of Appeals, as it did in People v Diaz (decided the same day), determined the expert’s testimony about Child Sexual Abuse Accommodation Syndrome, which included explanations about how an abuser gains the trust of the victim and encourages secrecy, etc., was admissible.  But here the prosecutor followed up the expert’s general testimony with hypothetical questions which mirrored the victims’ testimony.  The Court of Appeals determined the hypothetical questions constituted improper bolstering (but held the testimony to be harmless error under the facts):

We agree with defendant …that the expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible – even though the witness began his testimony claiming no knowledge of the case before the court.  People v Williams, 53, CtApp 3-26-13

 

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Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘not guilty,'” he added, as to the assault charges: “Make your decision . . . . I’m sure, whatever it is, it will be the right decision.” *  *

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … .  We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, CtApp 3-26-13

 

 

 

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Criteria for Punitive Damages Award

In an opinion by Chief Judge Lippman, the Court of Appeals explained the criteria for the award of punitive damages in the context of the intentional diversion of storm water onto plaintiff’s property.  In finding the award of punitive damages was not warranted the Court noted:  “…[T]he conduct justifying such an award must manifest ‘spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton’ …, ‘…conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations’ “. Marinaccio v Town of Clarence, et al, No. 31, CtApp 3-21-13

 

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“Alford” Plea in Related Criminal Proceeding Did Not Have Preclusive Effect

The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts.  The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted).  In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13

 

Re-Sentencing Under Drug Law Reform Act—Court Does Not Have Authority to Make Sentences Concurrent if Original Sentences Consecutive

The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently.  When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing sentence as authorized by law’ …, rather than imposition of a new sentence or of an additional term of imprisonment” [see Criminal Procedure Law 70.25].  Therefore the re-sentencing court does not have the power to issue concurrent sentences when the original sentences were consecutive.  People v Norris, No. 39, CtApp 3-21-13

 

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Corroborative Evidence for Confession—Strategy Behind Not Requesting Lesser Included Offenses and Severance

In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed.  In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed  People v McGee, No. 30, CtApp 3-21-13

 

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