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ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, vacating the portions of the order entered on default, determined father’s failure to appear was not a default because his counsel appeared. Because father was not in default, appeal is not precluded:

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Akol v Afet, 2022 NY Slip Op 03641, Fourth Dept 6-3-22

Practice Point: When counsel appears in Family Court, the party represented by counsel is not in default. An appeal is available to a party not in default.

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INTERVIEW A POTENTIALLY EXCULPATORY WITNESS; MOTION TO VACATE THE MURDER CONVICTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel did not interview a witness who, based on the witness’s testimony at the hearing on the motion to vacate, would have testified defendant was not at the scene of the shooting:

… [W]e conclude that defendant met his burden of establishing that defense counsel’s failure to interview the potentially exculpatory witness constituted ineffective assistance of counsel, inasmuch as the record before us reflects “the absence of strategic or other legitimate explanations for defense counsel’s allegedly deficient conduct” … . The failure by defendant’s trial counsel to interview the witness cannot be characterized as a legitimate strategic decision because, “without collecting that information, [defense] counsel could not make an informed decision as to whether the witness[‘s] evidence might be helpful at trial” … . To the extent that the defense team deemed the witness not credible due to his criminal record or history, that alone “does not excuse trial counsel’s failure to investigate since a witness’s unsavory background[ ] does not render his or her testimony incredible as a matter of law” … . Further, we conclude that, “even if the witness[‘s] criminal record[] provided a strategic basis for choosing not to present [his] testimony, it does not provide an excuse for [defense] counsel’s failure to investigate [him] as [a] possible witness[ ]” … . Moreover, the witness’s testimony at the CPL article 440 hearing was wholly consistent with the theory pursued by trial counsel, namely that defendant was not present at the shooting and that the crime was instead committed by an individual seeking to rob the victims’ residence, and the proposed witness would have provided the only eyewitness testimony at trial as to the shooting. People v Williams, 2022 NY Slip Op 03625, Fourth Dept 6-3-22

Practice Point: Here defense counsel was made aware of a potentially exculpatory witness and did not interview him. The fact that defense counsel felt the witness was not credible did not excuse the failure to investigate. Defendant’s motion to vacate his conviction on ineffective assistance grounds was granted by the appellate court.

 

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DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined there should be a hearing on whether defendant’s plea to attempted gang assault was involuntary. Defendant contended the plea was based on inaccurate advice from counsel. “Attempted gang assault” is a legal impossibility for trial purposes:

… [W]e agree with defendant that “attempted gang assault in the second degree is a legal impossibility for trial purposes. . . , as ‘there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended’ ” … . Based on that law and our review of the record, we further agree with defendant that the advice of defense counsel regarding the possibility of a conviction at trial of attempted gang assault in the second degree was erroneous.

Nevertheless, “[i]t is well settled that permission to withdraw a guilty plea rests largely within the court’s discretion” … . “Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ . . . That the defendant allegedly received inaccurate information regarding [the possibility of a conviction at trial and the resulting impact upon] his possible sentence exposure is another factor which must be considered by the court, but it is not, in and of itself, dispositive” … . “Where . . . the record raises a legitimate question as to the voluntariness of the plea, an evidentiary hearing is required” … . People v Davis, 2022 NY Slip Op 03610, Fourth Dept 6-3-22

Practice Point: “Attempted gang assault” is a legal impossibility at trial. Here defendant was entitled to a hearing on whether his plea to attempted gang assault was involuntary because of counsel’s inaccurate advice about the possibility of conviction at trial.

 

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THE PROOF DEFENDANT CONSTRUCTIVELY POSSESSED A FIREARM FOUND IN THE CEILING OF A HOUSE WHERE DEFENDANT WAS A GUEST WAS LEGALLY INSUFFICIENT; DNA EVIDENCE MAY HAVE DEMONSTRATED DEFENDANT POSSESSED THE FIREARM AT SOME POINT IN TIME, BUT IT DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION AT THE TIME THE FIREARM WAS SEIZED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a dissent, determined the proof defendant constructively possessed a firearm was legally insufficient. The firearm was in the drop ceiling of a living room in which defendant was present as a guest. DNA evidence may have demonstrated defendant possessed the firearm at a point in time, but did not demonstrate constructive possession at the time the firearm was seized:

A defendant’s mere presence in the house where the weapon is found is insufficient to establish constructive possession, and it is undisputed here that defendant had no connection to the apartment other than being there for a brief period of time for the purpose of gambling … . Further, the People failed to establish that defendant “exercised dominion or control over the [handgun] by a sufficient level of control over the area in which [it was] found” … .

… [D]efendant’s contemporaneous text messages did not evince defendant’s consciousness of guilt and, in any event, “mere knowledge of the presence of the handgun would not establish constructive possession” … . Further, although evidence that defendant’s DNA profile matched that of the major contributor to DNA found on the handgun and that other individuals in the apartment were excluded as contributors thereto would support an inference that defendant physically possessed the gun at some point in time … , we conclude that it was not sufficient to support an inference that defendant had constructive possession of the weapon at the time that it was discovered … . People v King, 2022 NY Slip Op 03606, Fourth Dept 6-3-22

Practice Point: Here DNA evidence suggested the defendant possessed the firearm at some point. But defendant’s presence as a guest  in the room where the firearm was found was not sufficient evidence of constructive possession of the firearm. Conviction reversed.

 

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THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED OR WAS COMMITTING A CRIME WHEN THEY BLOCKED DEFENDANT’S VEHICLE WITH THE POLICE VEHICLE, WHICH CONSTITUTES A SEIZURE; PLEA VACATED AND SUPPRESSION MOTION GRANTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s plea and granting defendant’s suppression motion, determined the police did not have probable cause to seize defendant’s vehicle by blocking its exit with the police vehicle:

Police officer testimony at the suppression hearing established that, at the time the officers stopped their vehicle in front of defendant’s vehicle, they had observed defendant’s presence in a vehicle at 1:00 p.m. in the parking lot of an apartment complex known for drug activity and where officers believed defendant did not reside, and they were aware that defendant had a history of drug-related convictions. Such evidence does not provide a reasonable suspicion that defendant had committed, was committing, or was about to commit a crime … . People v King, 2022 NY Slip Op 03595, Fourth Dept 6-3-22

Practice Point: Blocking defendant’s vehicle with a police vehicle is a seizure which requires probable cause to believe defendant has committed or is committing a crime.

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PLAINTIFF WAS SEEKING THE PROCEEDS OF A JOINT VENTURE, WHICH, UNDER PARTNERSHIP LAW, INVOLVES PERSONAL PROPERTY, NOT REAL PROPERTY; PLAINTIFF HAD NO INTEREST IN THE REAL PROPERTY WHICH WAS TO BE USED AS AN INN OPERATED AS A JOINT VENTURE; THERFORE THE LIS PENDENS FILED BY PLAINTIFF SHOULD HAVE BEEN CANCELLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was no relationship between plaintiff’s action seeking the assets of a joint venture and the ownership of the real property associated with the joint venture (to be used as an inn). Therefore defendants’ motion to cancel the lis pendens should have been granted:

“A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” (CPLR 6501). Because the provisional remedy of a notice of pendency is an ” ‘extraordinary privilege’ ” … , the Court of Appeals has held that to be entitled to that remedy, there must be a “direct relationship” between the relief sought in the complaint and the title to or possession of the disputed property … . In making that determination, a court must use “a narrow interpretation,” and its “analysis is to be limited to the pleading’s face” … . …

Supreme Court erred in denying their motion insofar as it sought to cancel the notice of pendency because there was no direct relationship between title to or possession of the property and the relief sought by plaintiff. We therefore modify the order accordingly. Reviewing the complaint on its face, we conclude that plaintiff seeks merely to enforce her purported 50% share in the joint venture and does not assert an interest in the property itself. Indeed, the complaint alleges that title to the property was, at all relevant times, held by Properties LLC, of which plaintiff was not a member. It is well settled that ” ‘the legal consequences of a joint venture are equivalent to those of a partnership’ ” … , and thus a joint venturer’s interest in a joint venture constitutes an interest in only personal property, not real property, thereby precluding recourse to a notice of pendency … . Renfro v Herrald, 2022 NY Slip Op 03593, Fourth Dept 6-3-22

Practice Point: Partnership law applies to joint ventures. Here the joint venture was the operation of an inn. Plaintiff sought the assets of the joint venture, which involves only personal property, not real property. Plaintiff had no interest in the real property (the inn). Therefore the lis pendens filed by the plaintiff should have been cancelled.

 

THE PLEA COLLOQUY IN WHICH DEFENDANT STATED HE CARED FOR THE THREE-YEAR-OLD VICTIM NEGATED AN ESSENTIAL ELEMENT OF DEPRAVED INDIFFERENCE MURDER; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s plea to depraved indifference murder, determined the plea colloquy negated an essential element of the offense:

… [W]e agree with defendant that, although his admissions during the plea allocution established the mens rea element of recklessness … , his recitation of the facts underlying the charge of murder in the second degree pursuant to Penal Law § 125.25 (2) “cast significant doubt upon his guilt insofar as it negated the [second mens rea] element of depraved indifference” … . In response to the court’s question whether defendant did not care if harm happened to the victim or how the risk to the victim turned out, defendant stated through defense counsel that “[h]e did care for [the victim].” We conclude that defendant’s statement negated the element of depraved indifference because the second mens rea element of the crime required that defendant “did not care whether [the] victim lived or died” … or, in other words, that he did “not care how the risk turn[ed] out” … . Defendant, however, conveyed during the factual recitation the exact opposite of the requisite mental state, i.e., that he did, in fact, care for the victim. People v Bovio, 2022 NY Slip Op 03591, Fourth Dept 6-3-22

Practice Point: The defendant, during the plea colloquy for depraved indifference murder, stated that he cared for the three-year-old victim. That statement negated the element of depraved indifference murder which requires that the defendant “not care if the victim lived or died.” The plea was vacated.

 

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THERE WAS NO EVIDENCE LINKING DEFENDANT TO A BURGLARY EXCEPT A PARTIAL FINGERPRINT FOUND AT THE SCENE WHICH ONLY MATCHED 15 TO 22.5% OF THE CHARACTERISTICS OF DEFENDANT’S INKED PRINT; THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s burglary conviction, determined the evidence that a partial fingerprint from the burglary scene matched the defendant was too weak to support the conviction. The conviction was therefore against the weight of the evidence:

On cross-examination, the fingerprint examiner agreed that her opinion is subjective, that two examiners may reach different opinions when examining the same set of prints, and that verification by a second examiner, particularly blind verification, significantly increases the accuracy of fingerprint analysis. She further testified that every individual fingerprint has approximately 80 to 120 classifiable characteristics, and that every characteristic between two prints must be identical for them to be considered a match. Here, because of the limited nature of the partial print, she was only able to match 18 characteristics, meaning that it matched 15% to 22.5% of the characteristics of defendant’s inked print. Further, there was no evidence presented at trial that a second examiner had made a positive verification that the partial print was made by defendant. No other evidence was introduced at trial linking defendant to the crime. People v Jones, 2022 NY Slip Op 03590, Fourth Dept 6-3-22

Practice Point: Here a partial fingerprint matched only 15 to 22.5% of the characteristics of defendant’s inked print and the “match” was not verified by a second examiner conducting a blind verification. There was no other evidence linking defendant to the burglary. The conviction was deemed against the weight of the evidence.

 

THE TRANSFER OF DECEDENT’S HOME TO THE TWO CHILDREN WHO WERE CARING FOR HIM WAS COMPENSATION FOR THE CAREGIVERS PURSUANT TO AN AGREEMENT, NOT A GIFT (WHICH WOULD NOT HAVE BEEN AUTHORIZED BY THE POWER OF ATTORNEY) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the transfer of decedent’s home to the two children who were caring for decedent was demonstrated to be compensation for the caregivers pursuant to an agreement, not a gift (the power of attorney did not authorize agents to make major gifts):

The court concluded that the transfer was an improper gift, relying on the presumption that “where parties are related, . . . services were rendered in consideration of love and affection, without expectation of payment” … . Even assuming, arguendo, that the presumption applies to the inter vivos transfer at issue here … , we conclude that respondents supported their motion with “clear, convincing and satisfactory evidence[] that there was an agreement  . . that the services would be compensated” … . Matter of Maik, 2022 NY Slip Op 03589, Fourth Dept 6-3-22

Practice Point: Here there was an agreement that the children who cared for the disabled decedent would be compensated. The transfer of decedent’s home to the caregivers was compensation for their services, not a gift (which would not have been authorized by the power of attorney).

 

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MOLINEUX EVIDENCE OF A PRIOR BURGLARY OF THE ROBBERY-VICTIM’S HOME TO SHOW THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY SHOULD NOT HAVE BEEN ADMITTED; THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY WAS DEMONSTRATED BY THE VICTIM’S TESTIMONY RENDERING EVIDENCE OF THE PRIOR BURGLARY TOO PREJUDICIAL (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s robbery and grand larceny convictions, determined Molineux evidence of a burglary of the robbery-victim’s home three days before the robbery should not have been admitted to show intent. The intent to rob was demonstrated by the victim’s testimony, rendering proof of the prior burglary more prejudicial than probative:

… [E]vidence that defendant may have been involved in an earlier burglary of the victim’s home was not necessary for the jury to infer that, three days later, defendant had the intent to rob the victim. Rather, defendant’s intent to forcibly steal property can be inferred from the victim’s testimony that defendant, while wielding a baseball bat, directed him to comply with the demands of an unidentified masked gunman to turn over money and property. Under those circumstances, any probative value of the evidence of the prior burglary “is outweighed by its potential for prejudice” … . For the same reason, defendant’s “intent to deprive another of property” … as required for a conviction of grand larceny in the fourth degree (§ 155.30 [1], [5]), or intent “to place another person in reasonable fear of physical injury, serious physical injury or death” as required for a conviction of menacing in the second degree (§ 120.14 [1]) could likewise be easily inferred from the victim’s testimony describing defendant’s conduct during the alleged crimes. People v Dejesus, 2022 NY Slip Op 03584, Fourth Dept 6-3-22

Practice Point: Evidence of defendant’s commission of an uncharged crime (Molineux evidence) to show defendant’s intent to commit the charged offenses will be deemed too prejudicial if the intent element of the charged offenses is demonstrated by the victim’s testimony.

 

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