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HACKED WEB CAM VIDEO EVIDENCE ALLEGED TO DEPICT ABUSE OF A CHILD IN MOTHER’S HOME WAS DEEMED BY THE MAJORITY TO HAVE BEEN SUFFICIENTLY AUTHENTICATED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, over a strong and comprehensive dissent, determined the video evidence allegedly showing abuse of her daughter was properly authenticated. The video was obtained in an unrelated investigation of a suspect who hacked into a security web camera which was linked to mother’s house:

The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the “actions, dialogue, and behavior shown in the videos show no indication of any tampering.” In other words, there were “distinctive identifying characteristics” in the videos themselves … . There was also the “significant fact” that the mother did not dispute that … . Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs of alteration or tampering with the videos. Matter of Mekayla S., 2024 NY Slip Op 03584, Third Dept 7-3-24

Practice Point; Here hacked web cam video footage was alleged to have been properly authenticated by the identification of persons depicted in screen shots from the video and the lay out and contents of the room depicted in the video. There was a strong dissent.

Same issue and result in the abuse proceeding against mother’s boyfriend, this time with two different dissenting justices, agreeing with and adopting the rationale of the dissenting justice in the proceeding against mother. Matter of Gabriel H., 2024 NY Slip Op 03588, Fourth Dept 7-3-24

 

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THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s burglary conviction on ineffective assistance grounds, determined defense counsel should have insisted on a jury instruction which reflected the crime charged in the indictment. The indictment alleged defendant entered the victim’s apartment with the intent to hold a knife to the victim’s throat. The jury was instructed that it need only find defendant unlawfully entered and remained in the victim’s apartment with the intent “to commit a crime” with no mention of holding a knife to the victim’s throat. At trial whether defendant possessed a knife was contested and defendant was acquitted of criminal possession of a weapon and menacing:

In its charge to the jury, County Court made no mention of the People’s theory of the crime as limited by the indictment. The court charged, with respect to the intent element, that the People must prove beyond a reasonable doubt that defendant entered or remained in the building “with the intent to commit a crime inside the building,” without specifying the intended crime. Defense counsel did not seek a tailored instruction limited to the theory in the indictment.

“There is no requirement that the People allege or establish what particular crime was intended,” to secure a conviction for burglary … . However, “[i]f the People . . . expressly limit[ ] their theory of the ‘intent to commit a crime therein’ element to a particular crime, then they . . . have . . . to prove that the defendant intended to commit that crime” … .

Here, defense counsel failed to seek an appropriately tailored instruction to the jury on burglary in the second degree or object to the burglary charge given. Defense counsel thereby permitted the jury to convict defendant upon a theory of the intent element that was not set forth in the indictment … . People v Mcclendon, 2024 NY Slip Op 03260, Fourth Dept 6-14-24

Practice Point: If the burglary count in the indictment charges that defendant unlawfully entered the victim’s apartment to “hold a knife to the victim’s throat,” the jury instruction should match the language in the indictment. Here the jury was instructed it need only find that defendant entered the apartment “to commit a crime” with no mention of a knife. Whether there was a knife was contested at trial and defendant was acquitted of criminal possession of a weapon and menacing. Under those facts, defense counsel was ineffective for failing to request a jury instruction which matched the knife-related crime charged in the indictment.

 

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OVER A TWO-JUSTICE DISSENT, THE MATTER WAS SENT BACK FOR A RULING ON WHETHER THE PEOPLE COMPLIED WITH THEIR DISCOVERY OBLIGATIONS RE: LAW ENFORCEMENT DISCIPLINARY RECORDS (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling on whether the People complied with their discovery obligations, over a two-justice dissent, noted that the People cannot use a “screening panel” to review law enforcement disciplinary records:

Defendant … contends that the court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30). In particular, he contends that the People’s failure to disclose existing disciplinary records of potential law enforcement witnesses for use as impeachment materials … rendered any certificate of compliance (COC) filed pursuant to CPL 245.50 improper and thereby rendered any declaration of trial readiness made pursuant to CPL 30.30 illusory and insufficient to stop the running of the speedy trial clock. As the Court of Appeals recently stated in People v Bay, “the key question in determining if a proper COC has been filed is whether the prosecution has ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” … . Due diligence “is a familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives” (id. [internal quotation marks omitted]). “[W]hether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” … . “[C]ourts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery” … . Although the statute does not require a ” ‘perfect prosecutor,’ ” the Court emphasized that the prosecutor’s good faith, while required, “is not sufficient standing alone and cannot cure a lack of diligence” … . People v Sumler, 2024 NY Slip Op 03307, Fourth Dept 6-14-24

Practice Point: A “screening panel” cannot be used to determined what law enforcement disciplinary records must be supplied to the defense in discovery.

Practice Point: The People’s failure to comply with discovery obligations may render the certificate of compliance improper and the ready-for-trial announcement illusory, warranting dismissal on speedy trial grounds.

 

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THE FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; AN APPELLATE COURT MUST REMIT FOR A RULING BY THE TRIAL COURT (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, noted that a judge’s failure to rule on a trial order of dismissal motion does not constitute a denial of the motion. Therefore an appellate court cannot rule on the evidentiary issue raised in the motion and must send the matter back for a ruling:

The failure of a trial court to rule on a motion for a trial order of dismissal cannot be deemed a denial of that motion, and thus we must hold the case, reserve decision, and remit the matter to County Court for a ruling on defendant’s motion … . People v Kohmescher, 2024 NY Slip Op 03287, Fourth Dept 6-14-24

Practice Point: Because the failure to rule on a motion for a trial order of dismissal is not a denial of the motion an appellate court cannot address the issue and must remit for a ruling by the trial court.

 

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THE JURY REQUESTED A READBACK OF BOTH THE DIRECT AND THE CROSS; THE JUDGE ONLY PROVIDED A READBACK OF THE DIRECT AND ERRONEOUSLY INDICATED THE TOPIC WAS NOT ADDRESSED ON CROSS; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge did not meaningfully respond to a jury note requesting both the direct testimony and the cross-examination on a specific topic. The judge only provided the direct testimony and erroneously told the jury the cross-examination did not address the topic:

… [T]he jury submitted a note requesting, inter alia, a readback of testimony from the victim “about the time she was in the car on Glenwood until she was out of the car from both defense and the DA’s questions.” The court responded to the jury’s request by reading back only testimony from the victim on direct examination about the time that she was inside the car. The court did not order the readback of any cross-examination, which included questioning about inconsistencies in the victim’s account of the incident, including questions about the victim’s earlier statement to the police describing a conversation that she had with defendant outside the car and questions regarding her statement to the police on the day of the incident that the driver of a car attempted to pull her into the car through the window. The court also instructed the jury that only direct examination included questions with respect to the victim being inside the car and, despite the jury’s request to hear questioning from both the prosecution and the defense, the court did not request clarification from the jury whether they wanted to hear the defense’s cross-examination regarding the incident. A meaningful response to a request for a readback of testimony “is presumed to include cross-examination which impeaches the testimony to be read back … . People v Dortch, 2024 NY Slip Op 03283, Fourth Dept 6-14-24

Practice Point: Here the jury requested a readback of the direct and cross on a specific topic. The judge provided only the direct which did not constitute a meaningful response to the jury note. New trial ordered.

 

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ALL OF THE PROPERTY OWNERS POTENTIALLY AFFECTED BY THE DECLARATION OF RIGHTS TO A RECREATIONAL EASEMENT ARE NECESSARY PARTIES BUT NOT ALL WERE INCLUDED AS PLAINTIFFS; ALTHOUGH THE JUDGMENT WAS REVERSED, THE ACTION MAY BE RECOMMENCED WITH ALL THE PROPER PARTIES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined all the necessary parties were not included in this suit seeking a declaration of the rights of property owners with respect to a recreational easement:

CPLR 1001 (a) provides, in relevant part, that all “[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” It is well established that “[t]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion” … . In an action seeking to determine the extent of a recreational easement, the owners of all parcels of land burdened or benefitted by the easement are necessary parties because there is a potential that their real property rights will be affected by the outcome of the litigation … . Inasmuch as owners of real property who are not currently named as parties may be affected by the outcome of litigation concerning the subject parcel, we reverse the judgment and dismiss the complaint without prejudice (see CPLR 1003). Plaintiffs are thus “not precluded from recommencing the action in the proper manner naming all necessary parties” … . Follett v Dumond, 2024 NY Slip Op 03272, Fourth Dept 6-4-24

Practice Point: All property owners who may be affected by a declaration of rights to a recreational easement are necessary parties.

 

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PLAINTIFF MOVED TO AMEND THE COMPLAINT AFTER THE NOTE OF ISSUE AND CERTIFICATE OF READINESS HAD BEEN FILED; EVEN THOUGH THE AMENDMENT ADDED A CAUSE OF ACTION REQUIRING FURTHER DISCOVERY, THE MOTION WAS GRANTED BECAUSE DEFENDANT DID NOT DEMONSTRATE PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff should be allowed to amend the complaint, even though the note of issue and certificate of readiness had been filed. Defendant was unable to show any prejudice from the proposed amendment. The case was brought as a slip and fall which had been dismissed because plaintiff’s decedent did not identify the cause of the fall. Plaintiff sought to add a cause of action for negligent discharge from the hospital where the slip and fall occurred, which sounds in medical malpractice:

While “[i]t is well settled that [l]eave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay” … , that policy does not apply “on the eve of trial,” and once a case has been certified ready for trial “there is a heavy burden on [a] plaintiff to show extraordinary circumstances to justify amendment by submitting affidavits which set forth the recent change of circumstances justifying the amendment and otherwise giving an adequate explanation for the delay” … . Inasmuch as plaintiff failed to offer any explanation for the delay, we reject plaintiff’s contention that the court abused its discretion in denying the cross-motion for leave to amend the amended complaint to add a medical malpractice cause of action. Nevertheless, because defendant failed to establish any prejudice that would result from plaintiff’s delay in seeking leave to amend, if further discovery is conducted, we modify the order in the exercise of our discretion by granting plaintiff leave to amend his amended complaint to assert a cause of action for the allegedly negligent discharge of decedent from defendant’s facility, and, further, striking the note of issue and certificate of readiness to allow for additional discovery … . Chapman v Olean Gen. Hosp., 2024 NY Slip Op 03271, Fourth Dept 6-14-24

Practice Point: Here the post-note-of-issue motion to amend the complaint to add a cause of action requiring further discovery was granted because the defendant was unable to demonstrate any prejudice.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE BEFORE STATING IN THE CERTIFICATE OF COMPLIANCE (COC) THAT COMPLAINANT DID NOT HAVE A CRIMINAL RECORD AND ANNOUNCING READINESS FOR TRIAL; IF DEFENSE COUNSEL KNEW OF COMPLAINANT’S CRIMINAL RECORD, THE DEFENSE WAS STATUTORILY REQUIRED TO ALERT THE PEOPLE TO THE DEFECT IN THE COC; MATTER REMITTED FOR DETERMINATION OF THE SPEEDY-TRIAL MOTION; EXTENSIVE TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People, who initially erroneously asserted the complainant did not have a criminal record, did not comply with their discovery obligations and therefore the initial certificate of compliance (COC) and ready-for-trial announcement were illusory. The matter was sent back for the court to determine the motion to dismiss on speedy-trial grounds. On remittal County Court is to consider whether defense counsel met the statutory requirement that the defense alert the People to any defects in the COC of which defense counsel is aware. The two-justice dissent argued the People had exercised due diligence to determine whether the complainant had a criminal record and that, therefore, the initial COC indicating she had no convictions was not improper:

[The People’s] [r]eliance on the report provided by the OCSO [Ontario County Sheriff’s Office] may have been in good faith, but “while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence” … . The DA’s office, as a qualified agency entitled to access such information maintained pursuant to statute by DCJS [New York State Division of Criminal Justice Services], did not mention any pre-COC attempts to obtain the complainant’s criminal history record from DCJS (see Executive Law §§ 835 [9]; 837 [6]; 845-b), nor did the DA suggest that the People, prior to filing the initial COC, ever checked their own files to determine whether the complainant—their prime witness on whose testimony the success of the prosecution would depend—had a criminal history. Instead, the People relied entirely on a non-DCJS report provided by the OCSO that appeared to have been prepared by an unidentified third-party responsible for running background checks, and the People did not independently check the complainant’s repository to determine whether the complainant had a criminal history until prompted by defense counsel’s request for a judicial subpoena, at which point the People easily obtained and disclosed the complainant’s certificates of conviction … . Under these circumstances, we conclude that the People’s explanation for the discovery lapse was insufficient … .

… We … remit the matter to County Court to determine whether the People were ready within the requisite time period … , including the applicability and effect, if any, of defendant’s obligation under CPL 245.50 (4) (b)—which became effective during the pendency of the prosecution—to notify or alert the People to the extent he was aware of a potential defect or deficiency related to the COC, which awareness was a disputed issue before the court … . People v Mitchell, 2024 NY Slip Op 03256, Fourth Dept 6-14-24

Practice Point: The People must exercise due diligence in providing discovery. Here the failure to contact the NYS Division of Criminal Justice Services to determine whether the complainant had a criminal record rendered the ready-for-trial announcement illusory (the accompanying certificate of compliance erroneously stated the complainant had no prior convictions).

Practice Point: Defense counsel has a statutory duty to report to the People any defects in the certificate of compliance of which the defense is aware. Here it was alleged defense counsel knew of the complainant’s criminal record and did not alert the People. The court may consider the failure to notify the People of a defect in the certificate of compliance in determining a speedy-trial motion.

 

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PLAINTIFF SUFFICIENTLY IDENTIFIED THE CAUSE OF HER SLIP AND FALL AND DEFENDANTS FAILED TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of her slip and fall and defendants failed to demonstrate a lack of constructive notice of the condition:

… [D]efendants’ own submissions raise a triable issue of fact whether a dangerous condition existed on the premises. Defendants submitted the deposition testimony of plaintiff, who testified that she fell “on something slippery.” Although plaintiff did not see anything on the floor before she fell, she testified that “the back of [her] sweatshirt, the back of [her] legs,” and her “entire back” were damp after she fell and that the floor was “really shiny[ and] glossy” and had a “medicinal stench.” Plaintiff also testified that she told the store manager that “there was something on the floor that [she] slipped on” and denied having described the slippery condition as “droplets of water” on the floor. We therefore conclude that defendants’ submissions raised triable issues of fact whether something other than water, incidental to the use of the bathroom, was on the floor “constitut[ing] an ‘unreasonably dangerous condition’ ” … . We further conclude that, “[a]lthough plaintiff was unable to identify the precise cause of her fall,” her testimony regarding the shiny, glossy floor that smelled medicinal rendered “any other potential cause of her fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … .

… Although defendants submitted the deposition testimony of the store manager, in which she testified that the store was cleaned by a crew every morning and that employees were charged with remedying any dangerous condition that they observed throughout their shifts, defendants’ evidence “failed to establish that the employees actually performed any [inspection] on the day of the incident, or that anyone actually inspected the area in question before plaintiff’s fall” … . Byrd v Target, 2024 NY Slip Op 03252, Fourth Dept 6-14-24

Practice Point: Plaintiff sufficiently identified the substance that caused her slip and fall in the bathroom as something other than water (a medicinal stench).

Practice Point: Defendants failed to prove the area was inspected close in time to the fall. Evidence of routine cleanings is not enough to show the lack of constructive notice.

 

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ALTHOUGH FATHER FAILED TO COOPERATE WITH THE PLACEMENT OF HIS CHILDREN WHILE INCARCERATED; HE MADE SERIOUS EFFORTS TO RECONNECT WITH THE CHILDREN AFTER HIS RELEASE; FAMILY COURT SHOULD HAVE GRANTED A SUSPENDED JUDGMENT RATHER THAN PERMANENTLY TERMINATING HIS PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father, after his release from prison, made efforts to reconnect with his children which warranted a suspended judgment rather than permanent termination of his parental rights. While incarcerated father had not cooperated with efforts to place the children:

A suspended judgment “provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child” … . Notably, we may substitute our discretion for that of the trial court even in the absence of an abuse of discretion … , and here we conclude that a suspended judgment, rather than termination of parental rights, was in the children’s best interests … . At the time of the dispositional hearing—just two months after his release from prison—the father had found full-time employment, participated in weekly visitation with the children, had started communicating regularly with the children’s foster family regarding the children, and was in the process of finding housing and completing a mental health evaluation and parenting classes, while the children were reportedly happy to be visiting with the father regularly. “Given the child[ren]’s . . . young age, [the father’s] recommencement of regular visitation, . . . the sustained efforts on the part of [the father following his release from prison], and the Legislature’s express desire to return children to their natural parents whenever possible” … , we conclude that the father “should have been granted a ‘second chance’ in the form of a suspended judgment” … . Matter of Rodcliffe M., Jr. (Rodcliffe M., Sr.), 2024 NY Slip Op 03267, Fourth Dept 6-14-24

Practice Point: Family Court has the option of issuing a suspended judgment to give a parent a second chance to avoid termination of parental rights.

 

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