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ADMISSION OF A HEARSAY STATEMENT BY A BYSTANDER WHO TOLD A POLICE OFFICER DEFENDANT HAD RUN INTO A HOUSE WAS (HARMLESS) ERROR (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to admit the hearsay statement attributed to a bystander who told a police officer the defendant had run into a house after a car chase:

Defendant contends that County Court erred in allowing inadmissible hearsay testimony when the police officer was allowed to testify at trial that the bystander told him that the fleeing suspect ran into the house. We agree. The statement of the bystander was inadmissible hearsay because it was admitted for the truth of the matters asserted therein … . Indeed, the import of the bystander’s statement was to confirm that the suspect had indeed fled into the house, and thereby confirm that someone inside the house, i.e., defendant, perpetrated the crime. Nevertheless, we conclude that the error was harmless because the evidence of defendant’s guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the admission of the hearsay testimony … . Defendant was identified by the victim and the other eyewitness as a perpetrator of the robbery, which had occurred in broad daylight, close in time to the show-up identification procedure. Those identifications of defendant were corroborated by testimony of the police officer, who observed the suspect flee from the stolen vehicle toward the house where defendant was apprehended. Moreover, the evidence strongly supported an inference that defendant was not in the house for innocent purposes because he did not live at that address and had tried to conceal his identification in an uninhabited part of the house. People v Harrington, 2020 NY Slip Op 02399, Fourth Dept 4-24-20

 

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CPL 330.30 MOTION ALLEGING JUROR MISCONDUCT DURING DELIBERATIONS, I.E. CONDUCTING A REENACTMENT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the Criminal Procedure Law 330.30 motion alleging misconduct during jury deliberations should not have been denied without a hearing. The defendant was charged with menacing a police officer and whether the defendant heard the announcement that the people knocking on his door were deputy sheriffs was a critical issue. Defense counsel learned after the trial that the jurors had conducted a reenactment in the jury room to determine whether defendant heard the sheriffs:

… [I]n support of the motion, defendant submitted the affirmation of his attorney. Defendant’s attorney alleged that, during post-verdict discussions with the jury, he learned that the jurors had attempted during their deliberations to determine whether defendant was aware that the people knocking at his door were sheriff’s deputies by using the bathroom door in the deliberation room to reenact the moment when one of the deputies knocked on defendant’s door and announced the deputies’ presence. The court did not conduct a hearing and instead summarily denied the motion, ruling that, although the alleged jury reenactment constituted a conscious, contrived experiment that placed before the jury evidence not introduced at trial, the experiment was not directly material to any critical point at issue. That was error.

As defendant correctly contends, whether he could hear the announcement by the deputy was directly material to a critical point at issue in the trial—indeed, to an element of menacing a police officer—i.e., whether defendant “knew or reasonably should have known” that the people at his door were sheriff’s deputies (Penal Law § 120.18 …). We conclude under the circumstances of this case that a hearing is required to ascertain whether and in what manner the alleged reenactment occurred, and whether such conduct “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the . . . jur[y]” … . People v Newman, 2020 NY Slip Op 02449, Fourth Dept 4-24-20

 

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PLAINTIFF LANDLORD HAD AN ADEQUATE REMEDY AT LAW FOR AN ALLEGED BREACH OF THE LEASE BY THE TENANT; PLAINTIFF’S ALLEGED LOSS OF GOODWILL WAS NOT APPLICABLE; THE BALANCE OF EQUITIES FAVORED THE TENANT; THE PRELIMINARY INJUNCTION WAS NOT WARRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined a preliminary injunction was not warranted in this dispute over a lease. Defendant store leased space in plaintiff mall. The lease provided the store could terminate the lease before the end of the term if its gross sales were below a threshold. The store sought to terminate the lease on that ground, but the mall alleged the store’s gross sales did not fall below the threshold. The lease included a liquidated damages provision. The majority concluded the liquidated damages provision provided a remedy at law, the loss of goodwill was not applicable and the balance of the equities favored the store, not the mall. So the preliminary injunction should not have been granted:

… [T]he lease contains a liquidated damages provision that entitles plaintiff to certain money damages if defendants prematurely vacate the premises and cease operations. The lease also contains an integration clause stating that the lease is “the entire and only agreement between the parties.” Thus, because the lease specifically provides that plaintiff is entitled to certain money damages in the event that defendants vacate the premises in breach of the agreement—the very injury that serves as the predicate for plaintiff’s action—we conclude that plaintiff has an adequate remedy at law and, moreover, that plaintiff has not suffered irreparable harm because the liquidated damages clause was intended as the sole remedy for such a breach … .

We disagree with our dissenting colleagues that plaintiff established a likelihood of irreparable injury from the loss of goodwill that would occur if defendants were to cease operations by prematurely terminating the lease. The “loss of goodwill and damage to customer relationships, unlike the loss of specific sales, is not easily quantified or remedied by money damages” … and may warrant a finding of irreparable injury in cases such as those involving unfair competition tort claims … , the proposed demolition or alteration of the premises … , or the issuance of a Yellowstone injunction, in which it is a tenant, not the landlord, who seeks to enjoin the termination of a lease … . No such scenario is implicated here and, moreover, as already noted, the specific injury complained of by plaintiff was accounted for by the terms of the lease agreement. …

… [W]we conclude that the harm defendants will suffer if forced to keep their 6,000-square-foot store open against their will is greater than the injury plaintiff will suffer from the loss of one tenant in the mall, especially because plaintiff may still recoup its loss via the liquidated damages provision. Eastview Mall, LLC v Grace Holmes, Inc., 2020 NY Slip Op 02447, Fourth Dept 4-24-20

 

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DEFENDANT WAS CONVICTED OF STABBING THE VICTIM AT A CROWDED PARTY BUT NO ONE SAW DEFENDANT WITH A KNIFE; DEFENSE REQUEST FOR THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined that the defense request fot eh circumstantial evidence jury instruction should have been granted. It was alleged defendant stabbed the victim but no one saw the defendant with a knife:

The victim was stabbed five times at a crowded house party where there were multiple ongoing fights, and the evidence established that the victim was involved in physical altercations with at least two other partygoers. One of the wounds was almost five inches deep, meaning that the blade of the knife must have been at least five inches long. None of the witnesses who observed defendant fighting with the victim observed anything in defendant’s hand during the altercation, and no blood was discovered in the room in which defendant and the victim engaged in their altercation. All of the evidence at trial required the jury to infer that defendant was the perpetrator who had the knife and that he used that knife to stab the victim. We thus conclude that a circumstantial evidence instruction was warranted … . Contrary to the People’s contention, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Swem, 2020 NY Slip Op 02435, Fourth Dept 4-24-20

 

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HEARING REQUIRED TO DETERMINE THE AMOUNT OF RESTITUTION AND TO WHOM RESTITUTION SHOULD BE PAID; UNPRESERVED ERRORS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the record did not include sufficient evidence to support the restitution order and remitted the matter for a hearing:

Defendant’s contention in her main brief that the court erred in ordering her to pay restitution without a hearing is not preserved for our review inasmuch as defendant “did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order during the sentencing proceeding” … . We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice … . Moreover, even assuming, arguendo, that defendant’s further challenge to the court’s purported failure to direct restitution to an appropriate person or entity… required preservation under these circumstances … , we likewise exercise our power to reach that unpreserved contention as a matter of discretion in the interest of justice … . As the People correctly concede, the record does not contain sufficient evidence to establish the amount of restitution imposed, nor does it establish the recipient of the restitution … . We therefore modify the judgment by vacating that part of the sentence ordering restitution, and we remit the matter to County Court for a hearing to determine restitution in compliance with Penal Law § 60.27. People v Meyers, 2020 NY Slip Op 02419, Fourth Dept 4-24-20

 

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AN ENTRY IN THE CASE SUMMARY ALONE IS NOT A SUFFICIENT BASIS FOR AN ASSESSMENT OF POINTS (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level, determined that an entry in the case summary alone is not sufficient to justify an assessment of points:

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had committed a continuing course of sexual misconduct, i.e., risk factor 4 on the risk assessment instrument (RAI) … . The sole evidence presented by the People in support of that risk factor was the case summary prepared by the Board of Examiners of Sex Offenders. At the SORA hearing, however, defendant specifically denied the allegation within the case summary that he engaged in a continuing course of sexual misconduct, and instead testified that he engaged in one instance only. Indeed, it is undisputed that defendant was charged with and pleaded guilty to one count of rape in the third degree … stemming from a specific instance of intercourse that occurred on one specified day. We conclude that “the case summary alone is not sufficient to satisfy the People’s burden of proving the risk level assessment by clear and convincing evidence where, as here, defendant contested the factual allegations related to [the] risk factor” … . People v Maund, 2020 NY Slip Op 02011, Fourth Dept 3-20-20

 

NEW YORK PLAINTIFF, NORTH CAROLINA DEFENDANT, TORTS ALLEGEDLY OCCURRED IN GEORGIA; UNDER A CONFLICT OF LAWS ANALYSIS GEORGIA LAW CONTROLS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly ruled that Georgia law controlled the action which alleged Bank of America’s employees or agents notarized documents with false signatures. The torts were alleged to have occurred in Georgia. Plaintiff was a domiciliary of New York and Bank of America was a domiciliary of North Carolina:

If the conflicting laws regulate conduct, the law of the place of the tort applies because of the “locus jurisdiction’s interests in protecting the reasonable expectations of the parties” and “the admonitory effect that applying its law will have on similar conduct in the future” … . Where [, as here], however, the conflicting laws relate to the allocation of losses, then “considerations of the State’s admonitory interest and party reliance are less important” … . Nevertheless, pursuant to the third rule set forth in Neumeier v Kuehner (31 NY2d 121, 128 [1972]), i.e., where the parties are domiciled in different states with conflicting laws, the law of the place of the tort normally applies, unless displacing it “will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants” … . We conclude that plaintiff “failed to establish that the exception applies to warrant a departure from the locus jurisdiction rule” … , and thus the third Neumeier rule warrants the application of the law of Georgia in this action … . Durham Commercial Capital Corp. v Arunachalam, 2020 NY Slip Op 02024, Fourth Dept 3-20-20

 

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BECAUSE DEFENDANT INVOKED HIS RIGHT TO COUNSEL WHEN HE WAS NOT IN CUSTODY HE COULD VALIDLY WITHDRAW HIS REQUEST WITHOUT THE PRESENCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defendant invoked his right to counsel when he was not in custody and therefore defendant could validly withdraw his request for counsel without the presence of counsel:

The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw that assertion without an attorney present and speak to law enforcement agents … . A hearing court may infer that a defendant has withdrawn a request for counsel when the defendant’s conduct unambiguously establishes such a withdrawal, which requires consideration of all relevant factors, including “whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance earlier has initiated the further communication or conversation with the police . . . , and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney” … . Here, defendant was repeatedly advised of his rights, including twice immediately before he resumed speaking with the police. Moreover, after an overnight break in questioning, defendant initiated the conversation with the police to inquire about taking a polygraph examination, and he provided his own transportation to the investigators’ office. Consequently, we conclude that the court properly determined that defendant withdrew his assertion of his right to counsel … . We reject defendant’s contention that a different result is required because he did not cause the break in the interrogation. The relevant consideration is not which party caused the break in the questioning, rather it is whether there was “a reasonable opportunity during the break for the suspect to contact an attorney” … , and in this case defendant had such an opportunity during the overnight break in questioning. People v Brown, 2020 NY Slip Op 01981, Fourth Dept 3-20-20

 

JAIL IS NOT A ‘PUBLIC ACCOMMODATION’ WITHIN THE MEANING OF THE NYS HUMAN RIGHTS LAW; THE STATE DIVISION OF HUMAN RIGHTS THEREFORE DID NOT HAVE JURISDICTION TO HEAR PETITIONER’S ADMINISTRATIVE COMPLAINT ALLEGING UNLAWFUL DISCRIMINATION IN JAIL (FOURTH DEPT).

The Fourth Department determined jail is not a “public accommodation” within the meaning of the Human Rights Law. Therefore petitioner’s administrative complaint alleging unlawful discrimination in the jail was properly dismissed by the NYS Division of Human Rights (SDHR) for lack of jurisdiction:

SDHR has jurisdiction to, inter alia, investigate and adjudicate complaints of unlawful discrimination in the provision of any “public accommodation, resort or amusement” (Executive Law § 296 [2] [a]; see § 295 [6] … ). For purposes of the Human Rights Law, a “public accommodation, resort or amusement” offers ” conveniences and services to the public’ ” and is “generally open to all comers” … , and it defies logic to suggest that law enforcement is providing ” conveniences’ ” or ” services’ ” to those arrested and detained … . Nor is arrest and detention “open to all comers” in any sense … . Indeed, it well established that “prison facilities do not cater or offer [their] goods to the general public” … . To the contrary, arrest and detention is imposed upon a person by law enforcement and the criminal courts, not provided to those arrested and detained as a service for their benefit. The process of arresting and incarcerating a person is, “by its very nature,” a governmentally decreed “separat[ion of] the general public from the individuals who are compelled by our penal system to be confined” … .

In short, although we note SDHR’s concession at oral argument that governmental entities such as police agencies could provide public accommodations within the meaning of the Human Rights Law under certain circumstances, we join the consensus of courts nationwide in concluding that arrest and incarceration are “properly viewed as the antithesis of a . . . public accommodation’ ” … . Matter of LeTray v New York State Div. of Human Rights, 2020 NY Slip Op 01978, Fourth Dept 3-20-20

 

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SELF-SERVING AFFIDAVIT FROM DEFENDANT DID NOT REBUT THE PRESUMPTION OF THE VALIDITY OF THE SERVICE OF PROCESS (FOURTH DEPT).

The Fourth Department determined defendant did not rebut the presumption of valid service of process:

… [P]laintiff submitted, in addition to evidence establishing the default of defendant and “proof of the facts constituting the claim” (CPLR 3215 [f] … ), the affidavit of a process server, who averred that he served defendant by delivering a copy of the summons and complaint to the office of the Secretary of State pursuant to Business Corporation Law § 306 (b) (1), and an affidavit of additional mailing establishing that a copy of the summons and complaint was also sent to defendant’s mailing address pursuant to CPLR 3215 (g) (4). In opposition, defendant asserted that it was entitled under CPLR 317 to be relieved from its default in pleading, and defendant submitted an affidavit in which its president averred, insofar as relevant to the issue of service, that defendant had not received the summons and complaint prior to receipt of plaintiff’s initial notice of motion for a default judgment.

… [I]n order to be relieved of a default in pleading under CPLR 317, defendant was required to show, among other things, that it did not receive actual notice of the process in time to defend the action … . It is well settled that a “process server’s affidavit constitute[s] prima facie evidence of proper service on the Secretary of State” … , and thus defendant was required to rebut the presumption of proper service … . Here, the “self-serving affidavit [of defendant’s president], which merely denied receipt, is insufficient to rebut [that] presumption” … . Lechase Constr. Servs., LLC v JM Bus. Assoc. Corp., 2020 NY Slip Op 01977, Fourth Dept 3-20-20

 

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