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Criminal Impersonation—Falsely Attributed E-Mails.

Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls.  The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13

Substantially modified by the Ct. of Appeals in People v Golb, 2014 NY Slip Op 03426 [23 NY3d 455], CtApp 5-13-14

 

Flight Elevated Level of Suspicion and Justified Pursuit.

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13

DeBour, street stops

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Spoliation, Discovery Abuse Sanctions, Equitable Estoppel.

In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR.  It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests.  The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction.  The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.

 

Neglect Finding Based On Single Incident Reversed.

The First Department reversed a finding of neglect of a child which was based on a single incident.  There is a brief but substantive discussion of neglect or abuse findings based upon a single incident.  In re Pria J. L., et al, 8841 First Dept. 1-29-13

 

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Third-Party Claims Against Other Law Firms Which Advised Plaintiff.

The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter.  There is a substantive discussion of similar third party actions in legal malpractice cases.  Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13

 

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Throwing Objects Off Balcony Evinces Depraved Indifference.

The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour.  He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department, in a full-fledged opinion by Justice Friedman, included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.”  In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 First Dept. 1-22-13.

 

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Preservation of Error, DNA Expert, Confrontation Clause.

Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved.  There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial for Confrontation Clause purposes.  People v Rios, 7651, Ind. 1037/08 First Dept. 1-15-13.

 

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Acceptance of Settlement Offer Not Communicated to Opposing Party or Insurer—No Settlement—Attorney Lost Contingency Fee Based on Settlement Amount.

The fact that the plaintiff signed a general release and hold-harmless agreement was not enough to settle the case.  There was no proof the plaintiff’s attorney communicated plaintiff’s acceptance of the settlement offer to the defendant or defendant’s insurance carrier.  Therefore, plaintiff, with a new attorney, was allowed to go forward with the lawsuit and plaintiff’s original attorney could not collect his contingency fee, which was based on the settlement-amount. Gyabaah v Rivlab Transportation Corp., et al, 7654, Index 309081/10 First Dept. 1-10-13

 

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Post-Conviction Review of Redacted Portions of Officer’s Notes Ordered.

After conviction, the inference that redacted portions of the arresting officer’s memo book constituted Rosario material warranted an in camera review of the memo book to determine whether the deleted portions constituted Rosario material and whether the nondisclosure prejudiced the defendant.  People v Perry 8933 Ind. 1054/09 First Dept. 1-3-13

 

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Waiver of Appeal Invalid, Sentence Excessive.

Defendant’s right to appeal was not knowingly, voluntarily, and intelligently waived—it was not established that defendant was aware the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty.  Defendant’s sentence was deemed excessive.  The sentence was reduced in the interest of justice in light of defendant’s age, the mitigating facts of the case and defendant’s lack of a juvenile record (youthful offender). People v Maria M. 8726 Ind. 1563/10 First Dept. 1-3-13

 

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