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IMPROPER IMPEACHMENT REQUIRED NEW TRIAL.

The Fourth Department ordered a new trial in a personal injury action because defense counsel violated rules of evidence re: impeachment with collateral matters. Defense counsel improperly introduced evidence of plaintiff's drug test results and improperly informed the jury of prior lawsuits brought by plaintiff:

It is well settled that a cross-examiner at trial is “bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility” … , and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied … . Here, defense counsel asked plaintiff during cross-examination whether she had failed an employment-related drug test, a collateral issue relevant only to plaintiff's credibility. In response, plaintiff testified that the test result was a “false positive” that was proved false upon retesting. Defense counsel then violated the collateral evidence rule when she not only referred to a lack of evidence supporting plaintiff's assertion, but introduced the drug test result in evidence in an attempt to impeach plaintiff's credibility … .

The impact of that improper conduct was compounded when defense counsel thereafter questioned defendant's medical expert, over plaintiff's objection, about “drug use history” notations in plaintiff's medical records that, according to the expert, raised questions as to plaintiff's “credibility.” * * *

Finally, despite the court's pretrial ruling precluding defendants from questioning plaintiff about a personal injury claim she had filed in connection with a prior accident, defense counsel, over objection, asked plaintiff if she had been involved in any “legal action” related to her “neck and/or back condition.” Because evidence of prior accidents and lawsuits related thereto “may not [be used to] . . . demonstrate that plaintiff is litigious and therefore unworthy of belief” … , it was error for the court to allow that questioning. In our view, the improper attacks on plaintiff's credibility, viewed as a whole, denied plaintiff a fair trial. Dunn v Garrett, 2016 NY Slip Op 03283, 4th Dept 4-29-16


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STATE WATER RESOURCES LAW DID NOT PREEMPT ZONING BOARD’S REQUIRING TOWN APPROVAL BEFORE WATER CAN BE EXTRACTED FOR COMMERCIAL PURPOSES.

The Fourth Department determined the state Water Resources Law, which governs the extraction of groundwater, did not preempt the town zoning board's special-permit condition requiring town approval before water can be extracted for commercial purposes. Petitioner sought to build a pipeline to carry water from under petitioner's land to another town where the water would be sold. Petitioner argued the Water Resources Law preempted the town from requiring approval for commercial use of the extracted water. The Fourth Department held that the town's power to regulate the use of land, here requiring permission before water can be extracted for commercial purposes, was not limited by the Water Resources Law:

… [T]he Water Resources Law (ECL article 15, et seq.) does not preempt local zoning laws concerning land use. Instead, the Water Resources Law preempts only those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state's territorial limits” … . The Water Resources Law does not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws” … . * * * … [T]he statute regulates how a natural resource may be extracted but does not regulate where in the Town such extraction may occur. Matter of Smoke v Planning Bd. of Town of Greig, 2016 NY Slip Op 03322, 4th Dept 4-29-16


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HOLDING SORA HEARING IN DEFENDANT’S ABSENCE VIOLATED DUE PROCESS.

The Fourth Department determined defendant's presence is required at a Sex Offender Registration Act (SORA) hearing to determined defendant's risk level:

A sex offender has a due process right to be present at a SORA hearing … , and the court “violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present” … . We are thus constrained to reverse the order and remit the matter to Supreme Court for a new hearing and sexually violent offender determination in compliance with Correction Law § 168-n (3). People v Encarnacion, 2016 NY Slip Op 03369, 4th Dept 4-29-16


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CODEFENDANT, WHO TESTIFIED AGAINST DEFENDANT, AND DEFENDANT REPRESENTED BY MEMBERS OF THE SAME FIRM; IN THIS SITUATION AN INQUIRY TO ENSURE DEFENDANT IS AWARE OF ALL THE FACTS AND CONSENTS IS REQUIRED; MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Fourth Department determined defendant's motion to vacate his conviction should not have been denied without a hearing. Defendant's codefendant, pursuant to a plea bargain, testified against the defendant. The attorney who represented the codefendant and defendant's counsel were members of the same law firm. This situation has the potential of depriving defendant of his right to effective counsel requiring an inquiry by the court to ensure defendant is aware of all the facts and consents:

“Absent inquiry by the court and consent by the defendant, an attorney may not represent a criminal defendant in a trial at which a star prosecution witness is a codefendant whose plea bargain—including the promise to testify against defendant—was negotiated by a partner in the same firm. In these circumstances defendant is denied his right to effective assistance of counsel” … . Thus, a defendant is denied effective assistance of counsel where a member of defense counsel's law firm represents a witness who testifies against defendant at trial unless the court conducts a “Gomberg inquiry to ascertain that the facts had been disclosed to defendant and that he [or she] had made a reasoned decision whether to proceed to trial with his [or her] attorney” … . People v Jackson, 2016 NY Slip Op 03317, 4th Dept 4-29-16


FAILURE TO PLACE ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUNBELT DURING TRIAL, AND FAILURE TO APPRISE DEFENSE COUNSEL OF THE CONTENTS OF A JURY NOTE, REQUIRED REVERSAL.

The Fourth Department, reversing defendant's conviction, determined County Court erred by failing to place on the record the reasons for requiring defendant to wear a stun belt during the trial, and by failing to apprise defense counsel of the contents of a note from the jury prior to accepting a verdict (an error that does not require preservation by objection):

We agree with defendant that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial … . * * *

We further agree with defendant that a new trial is required based on the court's failure to comply with CPL 310.30 in regard to Court Exhibit 11, a note from the jury during its deliberations. “[T]he [c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict' ” … . Furthermore, “[w]here, as here, the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required' ” … . Contrary to the People's contention, the presumption of regularity does not apply to errors of this kind … . People v Gomez, 2016 NY Slip Op 03358, 4th Dept 4-29-16


REVERSIBLE ERROR TO READ BACK TO THE JURY THE PROSECUTOR’S SUMMATION BUT NOT THE DEFENSE SUMMATION.

The Fourth Department determined the trial judge's reading back (to the jury) of only the prosecutor's summation was reversible error:

County Court abused its discretion in reading back the prosecutor's summation without also reading back the defense summation.  * * *

Pursuant to CPL 310.30, “the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must give such requested information or instruction as [it] deems proper' ” … . We agree with defendant that the court abused its discretion in reading back only the prosecutor's summation under the circumstances presented here. The evidence of defendant's guilt is not overwhelming, and the jurors were clearly divided at times during their deliberations, as demonstrated by their frequent requests for guidance from the court through numerous notes. People v Rivers, 2016 NY Slip Op 03327, 4th Dept 4-29-16


EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED.

The Fourth Department determined plaintiffs raised a question of fact whether a nail gun was defectively designed based upon an affidavit from an expert engineer. The nail gun could be operated in a “bump” mode where the nail is released when the tip of the gun comes into contact with a surface. And the nail gun could be operated by squeezing a trigger. Here the nail gun was in “bump” mode when it came into contact with plaintiff's head and a three-inch nail went into plaintiff's brain:

Plaintiffs' expert opined to a reasonable degree of engineering certainty that the nail gun is defective “because it did not have[,] as a sole means of actuation, a full sequential trip trigger” and instead also provided for the option for a “contact trip” or a bump trigger. The expert explained that the center of gravity of the nail gun causes the operator to maintain a finger on the trigger when lowering the nine-pound gun, as was the case here; that the sequence of the use of the trigger to determine the mode of operation causes operator confusion as to which mode of operation is in use, which he opined happened here based upon the testimony of the employee that he thought the nail gun was in sequential fire mode; that government safety studies he reviewed found a much higher rate of injury when the nail gun was in the bump mode; and that tests he performed and studies he reviewed established that the utility of the bump mode does not outweigh the danger of its use because it is “only 10% faster” than the sequential fire mode … . ” Where, as here, a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis' ” … . Terwilliger v Max Co., Ltd., 2016 NY Slip Op 02226, 4th Dept 3-25-16

PRODUCTS LIABILITY (EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)/DEFECTIVE DESIGN (PRODUCTS LIABILITY, EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)

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STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE.

The Fourth Department concluded sanctions for spoliation of evidence were appropriate, but striking defendant's pleadings was too severe a sanction. Plaintiff alleged injury from glass which fell out of defendant's (IGT's) video slot machine. Although the complaint was filed in 2008, the request to maintain the condition of the machine was not made until 2010 and the request to examine the machine was not made until 2011. The machine had been scrapped in the regular course of business in 2008:

… [W]e conclude that plaintiffs established that some sanction is warranted because IGT negligently failed to preserve the machine, but plaintiffs failed to show that the destruction of the machine was intentional or contumacious, to warrant the sanctions imposed by the court. To the contrary, the only evidence in the record concerning this issue is that IGT scrapped the machine in the normal course of business, as part of the removal and destruction of a large number of machines to create additional space in the casino. In addition, IGT established that the machine was removed from the casino at the request of the casino's owners, who were no longer parties to this action, which belies plaintiffs' contention that IGT removed and destroyed the machine for litigation purposes.

Contrary to plaintiffs' further contention, they failed to establish that the machine was destroyed before they had an opportunity to inspect it, and thus plaintiffs failed to establish that the extreme sanctions of striking IGT's answer and granting plaintiffs partial summary judgment on liability against IGT were warranted … . Mahiques v County of Niagara, 2016 NY Slip Op 02190, 4th Dept 3-25-16

NEGLIGENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/EVIDENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)

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PLAINTIFF’S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT.

The Fourth Department determined Supreme Court should not have considered allegations of a serious injury in a car-accident case which were raised for the first time in a “supplemental verified bill of particulars” submitted in opposition to defendant's summary judgment motion:

… [D]efendant filed the instant motion for summary judgment seeking dismissal of plaintiffs' complaint for failure to meet the serious injury threshold and for failure to incur economic loss exceeding basic economic loss. In opposition to the motion, plaintiffs submitted, inter alia, a “supplemental verified bill of particulars” in which they added an allegation that plaintiff had sustained a serious injury under the significant disfigurement category of serious injury (Insurance Law § 5102 [d]). Defendant objected to plaintiffs' attempt to ” supplement' ” their bill of particulars in opposition to the motion.

Supreme Court granted defendant's motion insofar as it concerned plaintiffs' claims for economic loss, but denied the motion “in all other respects.” In its decision supporting the order, the court wrote that the evidence submitted by plaintiffs raised triable issues of fact on all three categories of serious injury. Only defendant appeals.

We agree with defendant that plaintiffs improperly asserted a “new injury” in their “supplemental verified bill of particulars” (CPLR 3043 [b] …), and that the court erred in considering that new category of serious injury inasmuch as it was raised for the first time in opposition to defendant's motion for summary judgment … . We thus conclude that the claim of significant disfigurement was not cognizable by the court … , that it was error for the court to consider the new injury claim … , and that the court should have disregarded evidence related to that category of serious injury … . Stamps v Pudetti, 2016 NY Slip Op 02272, 4th Dept 3-25-16

NEGLIGENCE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)/CIVIL PROCEDURE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)

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INADEQUATE INQUIRY PRECEDING FATHER’S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL.

The Fourth Department reversed Family Court's order finding father willfully violated a support order because of the court's inadequate inquiry into father's waiver of his right to counsel:

At the parties' initial appearance, the Support Magistrate informed the father only that he had “the right to hire a lawyer [or] talk for [himself],” asked the father to choose between those options, and conducted no further inquiry when the father chose to proceed pro se. The Support Magistrate thus failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney … , and also failed to engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel … . Matter of Soldato v Caringi, 2016 NY Slip Op 02265, 4th Dept 3-25-16

FAMILY LAW (INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)

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