You are here: / First Department

Tag Archive for: First Department

,

CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS.

The First Department, in a full-fledged opinion by Justice Acosta, reversing Supreme Court, in a case of first impression, determined a mixed contract for interior decoration services and the purchase of furniture and other goods is governed by the six-year statute of limitations for service contracts, not the four-year statute of limitations for contracts for the purchase of goods:

In this case, the contract was primarily for interior design services, and the provision of furniture and accessories was merely incidental. Thus, the six-year statute of limitations applies. This conclusion is supported by the fact that plaintiff is an expert in the field of interior design, and it is clear from the contract that Ms. Swenson hired her for that reason. The contract, which is on plaintiff’s interior design company’s letterhead, states that plaintiff will provide advice and design suggestions regarding construction, cabinetry, painting, and using the clients’ existing items. Plaintiff stated that she designed most of the rooms throughout defendants’ Tuxedo Park house, and the contract provides that she will select products and materials, show them to Ms. Swenson, and then purchase them on her behalf. In addition, the contract provides that defendants will be charged “List price,” which plaintiff states is understood in the industry to include both the cost of the materials as well as a percentage service fee. Moreover, the contract acknowledges that certain “custom work” will be done by “interior designers work people,” and a number of the invoices referenced such “custom made” items. Finally, plaintiff and Ms. Swenson also agreed that plaintiff could use and publish photographs of the items to show off plaintiff’s work, which demonstrates that plaintiff’s value is attributed to the selection of the various items and putting them together for a particular scheme, not merely to her acting as a retailer. Hagman v Swenson, 2017 NY Slip Op 01483, 1st Dept 2-23-17

CONTRACT LAW (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/CIVIL PROCEDURE (CONTRACT LAW, CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/INTERIOR DECORATORS (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)

POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION.

The First Department, over an extensive dissent, determined a question of fact precluded summary judgment in this “mutual mistake” action. Plaintiff purchased two artifacts which were supposed to be ancient. Both were subsequently deemed by experts to be modern in origin. Plaintiff sought to rescind the purchase as having been based upon mutual mistake. There was evidence, however, that plaintiff was aware the defendant had sold “fake” artifacts in the past, raising an issue of fact about the applicability of the “conscious ignorance” exception the mutual mistake doctrine:

The doctrine of mutual mistake “may not be invoked by a party to avoid the consequences of its own negligence” … . Where a party “in the exercise of ordinary care, should have known or could easily have ascertained” the relevant fact … – here, whether the items were ancient – that party is deemed to have been “[c]onscious[ly] ignoran[t]” and barred from seeking rescission … or other damages. This is true “[e]ven where a party must go beyond its own efforts in order to ascertain relevant facts (such as obtaining experts’ reports)” … .

The conscious ignorance exception applies only where a party is aware that his knowledge is limited but decides to contract anyway “in the hope that the facts accord with his wishes,” thus assuming “[t]he risk of the existence of the doubtful fact . . . as one of the elements of the bargain” … .

We agree with the dissent that both plaintiff and defendants shared the mistaken belief that the Faustina Bust and the Etruscan Warrior were “ancient.” Where we diverge is that we find that the record at this time does not support a finding that [plaintiff] did not consciously ignore his uncertainty as to a crucial fact … . Jerome M. Eisenberg, Inc. v Hall, 2017 NY Slip Op 01437, 1st Dept 2-23-17

 

CONTRACT LAW (POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/MUTUAL MISTAKE (CONTRACT LAW, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/CONSCIOUS IGNORANCE DOCTRINE (CONTRACT LAW, MUTUAL MISTAKE, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)/RESCISSION (CONTRACT LAW, MUTUAL MISTAKE, POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION)

,

DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS.

The First Department, over an extensive two-justice dissent, determined defendant was entitled to a hearing on his motion to set aside the judgment of conviction based upon ineffective assistance of counsel. Defendant alleged that he wanted to testify but didn’t because the Sandoval hearing was never completed and defense counsel never asked that it be completed. Defendant further alleged defense counsel told defendant not to testify and threatened to leave the case if defendant insisted. Defendant also alleged defense counsel was paid to hire an expert on DNA evidence but never did. Defendant submitted expert opinion evidence that cross-examination of the People’s DNA expert could have been more effective had the defense been advised by a defense expert.  The First Department explained that an inquiry into whether a defendant received effective assistance is not an inquiry into whether the outcome of the trial would have been different absent the mistakes by counsel. The only issue is whether defendant received a fair trial:

It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf … . The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone … . Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision. * * *

The dissent argues that no hearing is necessary because “the alleged deficiencies in trial counsel’s performance . . . could not have affected the result of the trial.” That, however, is not the standard for reviewing claims of ineffective assistance of counsel under the State Constitution. New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” … . Although whether a defendant would have been acquitted but for counsel’s errors is relevant, a state claim of ineffective assistance “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” … . People v Mercado, 2017 NY Slip Op 01439, 1st Dept 2-23-17

 

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/ATTORNEYS (CRIMINAL LAW, (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)

, ,

NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING.

The First Department determined the denial of a civil motion seeking discovery (letters rogatory) oversees which was made in the context of a criminal proceeding could not be the subject of an interlocutory appeal:

In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 … .

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”  … . The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper … . A “defendant may only appeal after conviction” … , and may not obtain an interlocutory appeal by claiming to invoke the court’s civil jurisdiction. People v DePalo, 2017 NY Slip Op 01441, 1st Dept 2-23-17

 

CRIMINAL LAW (NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/APPEALS (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/CIVIL PROCEDURE (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/LETTERS ROGATORY (CRIMINAL LAW, APPEALS, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)

, ,

PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION.

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined Supreme Court properly denied the defendants’ motion for summary judgment in this medical malpractice action. The dissent found the plaintiffs’ experts’ opinions too speculative to raise a question of fact. The opinion is fact-specific and cannot be fairly summarized here:

In sum, defendants submitted expert affirmations that established prima facie that they did not depart from good and accepted medical practice or that any such departure was not a proximate cause of [plaintiff’s]  injuries … . In opposition, plaintiffs submitted expert opinions that raised issues of fact as to the following alleged departures: the premature release of [plaintiff] from postanesthesia care unit, the failure to identify and treat his overdose or adverse reaction to morphine, and the failure to timely respond to his cardiorespiratory arrest … . Severino v Weller, 2017 NY Slip Op 01325, 1st Dept 2-21-17

NEGLIGENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EVIDENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)

REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE.

The First Department determined plaintiff’s motion for summary judgment in this rear-end collision case was properly granted. The driver of the rear vehicle must take weather conditions into account when following another car. The emergency doctrine is not available because the driver was aware of the weather conditions. An allegation that the plaintiff’s car stopped suddenly is not enough to rebut the presumption of negligence:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident … . Plaintiff made a prima facie showing of his entitlement to partial summary judgment on the issue of liability by establishing that defendant Angel Sanchez, the driver of defendant Basics Development Group’s vehicle, was negligent.

Although plaintiff came to a sudden stop and defendants contend that icy road conditions that day provide a valid, non-negligent explanation for why the accident occurred (i.e., that Sanchez’s car skidded), a driver is expected to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account weather and road conditions … . Furthermore, defendants’ reliance on the emergency doctrine is misplaced, since that defense is unavailable where, as here, defendant driver was aware of inclement weather conditions and should have properly accounted for them … .

Defendants’ alternative argument, that plaintiff stopped suddenly, is insufficient to rebut the presumption of Sanchez’s negligence … . Matos v Sanchez, 2017 NY Slip Op 01306, 1st Dept 2-21-17

 

NEGLIGENCE (REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)/REAR-END COLLISIONS (REAR DRIVER MUST TAKE WEATHER CONDITIONS INTO ACCOUNT WHEN FOLLOWING ANOTHER CAR, PLANTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS REAR-END COLLISION CASE)

, , ,

WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE.

The First Department, in a full-fledged opinion by Justice Gische, determined the trial court should not have applied the collateral estoppel doctrine to preclude the People from introducing evidence the defendant used a firearm to threaten the robbery victim. The grand jury dismissed the robbery first count and indicted on robbery third. The trial court reasoned that the grand jury necessarily found the defendant did not have a weapon by refusing to indict on robbery first. The First Department held: (1) the article 78 proceeding seeking a writ of prohibition (brought by the People against the trial judge) was the appropriate remedy; and (2) the trial judge is prohibited from enforcing the order precluding evidence of the defendant’s possession of a weapon:

A writ of prohibition is an extraordinary remedy, only available to prevent a court from either acting without jurisdiction or in excess of its authorized powers in a proceeding over which it otherwise has jurisdiction … . Prohibition is not available to review mere errors of law, even when the errors are truly egregious … .

“Although the distinction between legal errors and actions made in excess of authority is not always easily made, abuses of power may be identified by their impact on the entire proceeding as distinguished from an error in a proceeding itself” … . The trial court’s ruling in this case was an error that affected the entire proceeding and thus constituted an excess of the court’s authority. The ruling prevents the People from proving the element of force required under third degree robbery because the gun was the only evidence of force that was presented to the grand jury. The People cannot present different facts at trial in support of the indictment … . Although the court did not actually dismiss the third degree robbery charge, the charge cannot withstand a claim of legal insufficiency, because there are no other facts on which the prosecution can rely to prove force, a necessary element of the charge. * * *

A writ of prohibition will lie where a trial court’s erroneous ruling affects the proceeding in a conclusive manner, by terminating the case … . At bar, although the ruling did not actually terminate the case, it effectively terminated the ability of the People to prosecute the highest count in the indictment … . We therefore find that the court’s ruling is reviewable by way of a writ of prohibition. * * *

The Court of Appeals has recognized … that for policy reasons collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions … . The rigid application of collateral estoppel must yield to society’s preeminent and overwhelming interest in ensuring the correctness of determinations of guilt or innocence … . “Thus, if … collateral estoppel ‘cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied'” … . Matter of Clark v Newbauer, 2017 NY Slip Op 01326, 1st Dept 2-21-17

 

CRIMINAL LAW (WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/CIVIL PROCEDURE (WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/EVIDENCE (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/JUDGES (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/PROHIBITION (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/COLLATERAL ESTOPPEL (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)

,

ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED.

The First Department determined the insurer’s (National Specialty’s) motion for summary judgment dismissing the complaint was properly denied. The insurance policy excluded water-related damage. There was no question that the building housing plaintiff’s (Pastabar’s) refrigeration equipment was flooded during Hurricane Sandy. However, plaintiff alleged damage to the refrigeration equipment was caused by an electrical short when the electricity was turned on a month after the storm. The affidavit from the insurer’s expert did not refute plaintiff’s allegation:

In compliance with its obligations under its lease, Pastabar had bought a commercial package policy containing commercial general liability and property damage coverage from defendant National Specialty. * * *

National Specialty failed to establish prima facie that all of Pastabar’s claimed losses were caused by flood waters resulting from Hurricane Sandy … , and were thus within the insurance policy exclusion for water and floods. Based on photographs that Pastabar received from an unidentified neighbor, National Specialty’s expert made a finding concerning the exterior water level at the premises … . However, the expert never inspected the site or the electrical wiring. Therefore, the expert could not refute testimony by Pastabar’s manager that Pastabar suffered additional damage a month after the storm, when electricity was restored and caused “the melting of wires and burning of . . . most of the equipment.” Thus, the expert’s report never rose above the level of speculation … . Pastabar Café Corp. v 343 E. 8th St. Assoc., LLC, 2017 NY Slip Op 01305, 1st Dept 2-21-17

 

INSURANCE LAW (ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/CONTRACT LAW (INSURANCE, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/HURRICANE SANDY (INSURANCE LAW, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)

,

MIRANDA WARNINGS AND 710.30 NOTICE NOT REQUIRED; DEFENDANT’S STATEMENT HE RESIDED AT THE APARTMENT WHERE CONTRABAND WAS FOUND WAS IN RESPONSE TO PEDIGREE QUESTIONS.

The First Department determined the defendant’s statement that he lived in the apartment which was searched and where contraband was found did not require Miranda warnings or a 710.30 notice:

Neither Miranda warnings nor CPL 710.30(1)(a) notice was required with respect to defendant’s statement, in response to a detective’s pedigree question, that his residence was the apartment where the police had executed a search warrant and discovered contraband. The detective’s routine administrative questioning was not designed to elicit an incriminating response … , even if the answer was reasonably likely to be incriminating … . People v Martin, 2017 NY Slip Op 01309, 1st Dep 2-21-17

 

,

FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION.

The First Department determined Supreme Court properly denied suppression of the February 5th statement, as well as the first portion of the July 11th videotaped statement by the defendant, despite the suppression of statements made five or six hours earlier on July 11. The videotaped statement was deemed sufficiently attenuated from the inadmissible statements:

Defendant’s videotaped statement was made approximately five hours after the initial Miranda violation. Much shorter breaks have been found sufficient to dissipate the taint of a Miranda violation … . In addition, “defendant had demonstrated an unqualified desire to speak” … , seemed alert and relaxed in the video, and did not appear nervous or intimidated. Indeed, he was even “laughing on occasion.”

Defendant had been Mirandized after his first encounter with the police concerning the case, on February 5. Further, the ADA — who had not participated in the earlier interrogation — was the sole questioner in the admitted portion of the video. Although two of the detectives who had conducted the earlier interrogation were present, they did not participate in the questioning in the admitted segment. Notably, the court suppressed any references to the suppressed statements made earlier on July 11th, as well as the later portion of the video in which the detectives participated in questioning … . People v Richardson, 2017 NY Slip Op 01304, 1st Dept 2-21-17

 

CRIMINAL LAW (FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/EVIDENCE (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/SUPPRESSION (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/MIRANDA VIOLATION (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/STATEMENTS (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy