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IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the court should have conducted in inquiry to evaluate defendant’s complaints about his attorney and his request for new counsel:

… [T]he court committed reversible error by failing to conduct an inquiry following defense counsel’s submission of a letter seeking to be relieved from the case and in light of defendant’s responses to that letter. In particular, the record establishes that defense counsel—prompted by defendant’s prior specific complaints about her failure to file motions, seek relevant evidence through discovery such as surveillance video of the incident, investigate specified witnesses, and engage in meaningful consultation and preparation—expressed a breakdown in trust and communication based on her interactions and appearances with defendant and sought to be relieved from representing defendant on the ground that she was unable to handle his case … . … “[D]efendant’s request on its face suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the [acknowledgment] of counsel that a complete breakdown of communication and lack of trust had developed in their relationship” … . “[W]here[, as here,] potential conflict is acknowledged by counsel’s admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Darwish, 2021 NY Slip Op 03936, Fourth Dept 6-17-21

 

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ALTHOUGH THE ERRORS WERE DEEMED HARMLESS, A POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO AND POLICE OFFICERS SHOULD NOT HAVE BEEN ALLOWED TO PROVIDE HEARSAY EVIDENCE AS MOLINEUX “BACKGROUND INFORMATION” (FOURTH DEPT).

The Fourth Department determined it was error to allow a police officer to identify the defendant in a surveillance video, and it was error to allow police officers to testify about what they learned from others (hearsay) about defendant’s involvement in the shooting. Although the errors were deemed harmless because of the overwhelming evidence, these two rulings are significant. The court noted there is no Molineux exception for hearsay for so-called background information:

​“A lay witness may give an opinion concerning the identity of a person depicted in a surveillance if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the

than is the jury” … . Here, “there was no basis for concluding that the [officer] was more likely than the jury to correctly determine whether . . . defendant was depicted in the video” … .  The officer was not familiar with defendant, and there was no evidence showing that defendant had changed his appearance before trial … .

… [T]he court erred in permitting the People to elicit testimony from police officers regarding what they learned from others about defendant’s involvement in the shooting. The challenged testimony was hearsay that was not admissible under any cognizable exception to the hearsay rule. The People essentially argue that this testimony was admissible under People v Molineux (168 NY 264 [1901]) to complete the narrative with background information. We reject that argument and reiterate that “there is no Molineux exception to the rule against hearsay” … . There is also no general exception to the hearsay rule for testimony relating to background conduct, information, or explanation of a subject matter or event … . People v Harlow, 2021 NY Slip Op 03933, Fourth Dept 6-17-21

 

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WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s motion to vacate his conviction, determined County Court should not have restricted the hearing to only the allegations of ineffective assistance that could not have been raised on direct appeal. Where a motion to vacate a conviction is based on evidence outside the record, as well as evidence on the record, all the evidence is admissible:

A “claim of ineffective assistance of counsel constitutes a single ground or issue upon which relief is requested . . . [Such] a claim . . . ‘is ultimately concerned with the fairness of the process as a whole’ ” … and must be ” ‘viewed in totality’ ” … . Although “[a] single error may qualify as ineffective assistance . . . when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” … , a defendant may also establish that he or she received ineffective assistance of counsel by arguing that the cumulative effect of multiple errors rendered defense counsel’s performance ineffective, even if those errors, “considered separately, may not have constituted ineffective assistance”… . Where, as here, a defendant alleges errors of defense counsel based on both matters appearing in the record and matters dehors the record, i.e., a ” ‘mixed claim,’ ” a “CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety” … . People v Mack, 2021 NY Slip Op 03982, Fourth Dept 6-17-21

 

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THE STAIRWAY TO THE ATTIC, WHERE DRUGS WERE FOUND, WAS NOT PART OF THE APARTMENT DESCRIBED IN THE SEARCH WARRANT AND THE PEOPLE DID NOT DEMONSTRATE THE STAIRWAY WAS A COMMON AREA; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress evidence found in a stairway leading to the attic should have been granted because the warrant did not authorize the search of that area and the People did not demonstrate the stairway was a common area:

… [T]he warrant at issue authorized a search of “865 woodlawn upper apt. buffalo, n.y. 2 ½ story wood frame house white with white trim. attached garage and common areas,” and drugs and drug packaging materials were found by the police behind a doorway on stairs leading to the attic. The doorway to the attic was in a hallway outside of the upper apartment and, as a result, the attic cannot be considered a part of the upper apartment itself … . …

The question thus becomes whether the area where the drugs and packaging materials were found constitutes a common area. Common areas of multi-unit buildings are those areas ” ‘accessible to all tenants and their invitees’ ” … . Here, the contraband was found by the police on the stairs leading to the attic, and a police officer testified at the suppression hearing that there was a closed door leading to the attic from the second floor common area. The officer in question was not present when the door was opened by other officers who executed the warrant, and he did not know whether the door had been locked. When asked whether “the door could have been locked and needed to be breached,” the officer answered, “That is entirely possible.” The People did not call any of the officers who were present when the door to the attic was opened, forcibly or otherwise, nor did they call the landlord or anyone who resided at the property.

Defendant testified that the door to the attic was closed and locked, and that, during the execution of the warrant, the door was broken down by the police. If the door was indeed locked, it cannot be said that the attic was accessible to all tenants and their invitees. People v Moore, 2021 NY Slip Op 03975, Fourth Dept 6-17-21

 

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THE MAJORITY CONCLUDED PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS FATAL VEHICLE-PEDESTRIAN ACCIDENT CASE BECAUSE DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE DOES NOT BAR SUMMARY JUDGMENT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER DECEDENT’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department, over a dissent, determined plaintiff was entitled to summary judgment in this fatal vehicle-pedestrian accident case. The majority held that any negligence on the part of plaintiff’s decedent constituted comparative negligence which is no longer a bar to summary judgment. The dissent argued there was a question of fact whether decedent’s actions constituted the sole proximate cause of the accident, which would preclude summary judgment:

We respectfully disagree with the dissent that the evidence submitted by plaintiff failed to establish proximate causation. The only facts that defendants cite for the proposition that plaintiff failed to meet his burden arise from decedent’s actions, i.e., crossing outside a marked crosswalk and wearing dark clothing as daylight faded. The Court of Appeals has made clear, however, “that a plaintiff’s comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages” … . Thus, “to obtain partial summary judgment on defendant’s liability[, a plaintiff] does not have to demonstrate the absence of his [or her] own comparative fault” … .

… [P]laintiff was therefore not required to establish that decedent was not negligent, rather he was required to demonstrate that defendant was negligent and that such negligence was a proximate cause of decedent’s injuries … .

From the dissent:

Even assuming … the majority is correct that the issue of proximate cause was raised by plaintiff and that plaintiff met his burden with respect to that element, I conclude that defendants raised a triable issue of fact in opposition. Defendants presented evidence that plaintiff’s decedent was crossing … outside of a designated crosswalk, at dusk, with headphones and dark clothing on and without looking for oncoming traffic. … [D]efendants contend that decedent violated Vehicle and Traffic Law § 1152 (a). Consequently, even though defendants were negligent as a matter of law based on an unexcused violation of Vehicle and Traffic Law § 1146 (a), on this record, a jury could find that decedent’s actions were the sole proximate cause of the accident … . Lowes v Anas, 2021 NY Slip Op 03973, Fourth Dept 6-17-21

 

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SUPREME COURT HAD FOUND COVID-19 RESTRICTIONS ON LIVE MUSIC PERFORMANCE UNCONSTITUTIONAL; THE APPEAL WAS DEEMED MOOT AND THE MERITS WERE NOT REACHED (FOURTH DEPT).

The Fourth Department determined the New York State Liquor Authority’s (SLA’s) appeal of Supreme Court’s ruling that the SLA’s COVID-19 guidance imposed upon a tavern (Sportsmen’s) were unconstitutional was moot. Neither party had argued the appeal should be dismissed as moot:

[SLA’s] guidance, which Sportsmen’s was required to abide by pursuant to certain executive orders, prohibited advertised and ticketed main-draw music shows at licensed bars or restaurants and restricted live music at such establishments to only that which was incidental to the dining experience and not the draw itself. …

… [A]lthough the issue of the lawfulness of the prior challenged guidance implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur … . Moreover, “the issue is not of the type that typically evades review” … . Indeed, as the parties have acknowledged, the guidance at issue here prohibiting advertised and ticketed main-draw music shows has been reviewed on the merits by at least two other courts … . Matter of Sportsmen’s Tavern LLC v New York State Liq. Auth., 2021 NY Slip Op 03957, Fourth Dept 6-17-21

 

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THE AMBIGUITY IN THE HOME INSURANCE POLICY WAS NOT CLEARED UP BY EXTRINSIC EVIDENCE AND MUST BE RESOLVED AGAINST THE INSURER; THE INSURER SHOULD NOT HAVE DISCLAIMED COVERAGE FOR WATER DAMAGE CAUSED BY FROZEN PIPES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the insurer should not have disclaimed coverage for water damage caused by frozen pipes in plaintiffs’ seasonal home. The case turned on the whether the plaintiffs took “reasonable care” (within the meaning of the policy) to maintain the heat in the house:

… [P]laintiffs established as follows: the home’s heating system was recently installed, was regularly maintained, and had never required repairs; Robert P. McAleavey (plaintiff) winterized the property by setting the internal temperature to approximately 50 degrees in the late fall of 2017; plaintiff checked on the home approximately 15 times during the winter of 2017-2018; during those visits, plaintiff ensured that the temperature was appropriate, that no windows were broken, that the toilets flushed, and that the water ran; and plaintiff last visited the house on January 11 or 12, 2018, at which point the interior temperature was “comfortable.” Although plaintiff was unable to visit the property between mid-January and late February 2018 due to a broken leg and his resulting hospitalization, plaintiffs’ submissions established that, during such period, they had no notice or reason to suspect that anything was wrong with the premises or the heating system. Moreover, plaintiffs’ neighbors and realtor periodically checked on the property’s exterior.

In our view, the term “reasonable care” as used in the policy is ambiguous inasmuch as it is susceptible of at least two reasonable interpretations, at least one of which supports plaintiffs’ contention that they exercised reasonable care, and this ambiguity was not resolved by extrinsic evidence … .

” ‘[U]nder [these] circumstances, the ambiguity must be resolved against the insurer which drafted the contract’ ” … . We thus conclude that plaintiff’s loss is specifically covered under the policy and that the exclusion relied on by defendant does not unambiguously apply in this case … . McAleavey v Chautauqua Patrons Ins. Co., 2021 NY Slip Op 03954, Fourth Dept 6-17-21

 

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THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the medical malpractice action against Dr. Drummond, a first-year resident, should have been dismissed because he did not exercise any independent medical judgement but merely followed the direction of his supervisors when medication was discontinued:

Defendants met their initial burden on the motion by presenting the affidavit of an expert who opined that, as a first-year resident, Dr. Drummond could not and did not make any medical decisions independently and that he properly wrote the discharge instruction to discontinue the medication only after discussing and confirming that decision with the appropriate supervisors, a practice that complied with the applicable standard of care … . Defendants also submitted the deposition testimony of Drs. Drummond and Bath, which established that Dr. Drummond consulted with Dr. Bath prior to decedent’s discharge and confirmed with him that the decision had been made to discontinue the medication. Plaintiff failed to raise a triable issue of fact in opposition … . Based on that conclusion, we likewise agree with defendants that the court erred in denying that part of the motion seeking summary judgment dismissing the complaint and any cross claims against Kaleida Health insofar as the complaint asserts a claim of vicarious liability based on the alleged conduct of Dr. Drummond … . Bieger v Kaleida Health Sys., Inc., 2021 NY Slip Op 03772, Fourth Dept 6-11-21

 

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IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants were entitled to a neuropsychological examination (NPE) of the plaintiff pursuant to CPLR 3121:

… [W]e agree with defendants that the preclusion order sought by plaintiff is not warranted inasmuch as the NPE is material and necessary to defend against plaintiff’s claims that he sustained head injuries and cognitive impairment ”’ . Here, plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bills of particulars, that he injured, inter alia, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain . . . with related mental anguish, stress, and anxiety” as a result of the accident. Furthermore, defendants’ submissions in opposition to the motion established, inter alia, that plaintiff’s neurologist and psychologist had both ordered neuropsychological evaluations of plaintiff that had not been conducted, and that the requested NPE differs significantly from neurologic and neurosurgical examinations. In particular, defendants submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychological tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff’s alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities. Pokorski v FDA Logistics, 2021 NY Slip Op 03770, Fourth Dept 6-11-21

 

DURING THE BATSON PROCEDURE, THE PROSECUTOR’S RACE-NEUTRAL EXPLANATION FOR A PEREMPTORY JUROR CHALLENGE WAS NOT SUPPORTED BY THE RECORD AND SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT, NEW TRIAL ORDERED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the race-neutral explanation for the prosecutor’s peremptory challenge to a juror was not borne out by the record. A new trial was ordered. The prosecutor argued the prospective juror referred to police conduct as “harsh.” But the prospective juror was apparently commenting on general differences between living in Rochester and Brooklyn, not the police:

We conclude that reversal is required because the race-neutral reason proffered by the prosecutor and accepted by the court is not borne out by the record … . Although the record need not conclusively establish that a prospective juror actually harbors bias in order for a bias-based peremptory challenge to withstand review under Batson … , a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make … . Here, the record does not support the prosecutor’s characterization of the prospective juror’s statements. We therefore reverse the judgment and grant a new trial on count one of the indictment … . People v Coleman, 2021 NY Slip Op 03695, Fourth Dept 6-11-21

 

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