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UPON CONVICTION OF ROBBERY SECOND, ROBBERY THIRD, AS A LESSER INCLUDED OFFENSE, MUST BE DISMISSED (SECOND DEPT). ​

The Second Department noted that robbery third is a lesser included offense of robbery second and must be dismissed upon conviction of robbery second:

… [R]obbery in the third degree is a lesser included offense of robbery in the second degree (see CPL 300.30[4] …). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of robbery in the third degree and the sentence imposed thereon, and dismiss that count of the indictment … . People v Hardy, 2022 NY Slip Op 04820, Second Dept 8-3-22

Practice Point: Upon conviction of the greater offense, a lesser included offense must be dismissed.

 

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A JURY NOTE WHICH REQUIRES NO ACTION BY THE COURT NEED NOT BE SHARED WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department determined there was no need for the judge to notify defense counsel of a jury note which did not require any action by the court, Also, jury notes requesting exhibits did not need to be shared with counsel because counsel agreed at the outset of deliberations that the jury could request exhibits:

In the defendant’s view, the Supreme Court’s failure to read note 6 into the record constituted a mode of proceedings error. We disagree.

Note 6 did not request “further instruction or information with respect to the law, [or] with respect to the content or substance of any trial evidence” (CPL 310.30). Nor did it indicate that the jury was deadlocked or struggling to reach a verdict on any or all of the counts submitted to it, or otherwise apprise the court of a significant development in the deliberations … . All the note conveyed was that the jury was continuing to deliberate on all of the charges, and that they were nearing a verdict on the first count in the defendant’s case, as well as the two counts in the codefendant’s case. Plainly, then, there was no action for the Supreme Court to take, and, concomitantly, no input or participation from defense counsel was necessary to ensure that the defendant’s rights were “adequately protect[ed]” … . Note 6 was, in short, not a substantive communication from the jury. People v Edwards, 2022 NY Slip Op 04818, Second Dept 8-3-22

Practice Point: A jury note which does not require action by the judge need not be shared with defense counsel. Here the note informed the judge that they were near a verdict on certain counts.

 

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PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not establish defendants’ default or plaintiff’s standing in this foreclosure action:

… [T]he plaintiff submitted … the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to [defendant’s]  default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff’s record-keeping practices and procedures (see CPLR 4518[a]), she did not identify the records she relied upon, and did not attach them to her affidavit … . Thus, her assertions as to the contents of these records were inadmissible … .

The plaintiff also failed to establish, prima facie, its standing to commence the action. … “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” … . A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” … . Here, the plaintiff contends that it established standing by annexing a copy of the original note, endorsed to it, to the complaint. However, there is no copy of an endorsed note attached to the complaint. Rather, the copy of the note attached to the complaint states that it is an electronic document with an electronic transfer history, a fact wholly unaddressed by the plaintiff … . Nationstar Mtge., LLC v Koznitz I, LLC, 2022 NY Slip Op 04813, Second Dept 8-3-22

Practice Point: Many foreclosure summary judgment awards are reversed because the bank did not attached the documents referenced in its papers. Here the documents supporting defendants’ alleged default and the bank’s standing were missing and summary judgment was reversed.

 

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THE PEOPLE WERE CHARGED WITH THE DELAY IN RESPONDING TO DEFENDANT’S OMNIBUS MOTION ENTITLING DEFENDANT TO RELEASE ON BAIL PURSUANT TO THE SPEEDY TRIAL STATUTE (SECOND DEPT).

The Second Department determined defendant’s habeas corpus petition seeking release on bail based upon the speedy-trial statute should have been sustained:

When making a motion pursuant to CPL 30.30(2)(a) to be released on bail or his or her own recognizance, a defendant who has been committed to the custody of the sheriff has the initial burden of demonstrating, by sworn allegations of fact, that there has been an inexcusable delay beyond the time set forth in the statute … . Once a defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the People, the People bear the burden of establishing sufficient excludable delay … . The burden is on the People “to ensure, in the first instance, that the record of the proceedings . . . is sufficiently clear to enable the court considering the . . . CPL 30.30 motion to make an informed decision as to whether the People should be charged” with any delay … .

… [T]he petitioner adequately raised before the Supreme Court the issue of whether the People should be charged with their delay in responding to the defendant’s omnibus motion. … [B]ecause the People did not seek and receive an extension of time to respond to the omnibus motion, or provide any explanation for the delayed response, they are “chargeable with the time between the court-imposed deadline to respond to the omnibus motion and the date on which the People actually filed a response” … . Here, the 13 days chargeable to the People due to their unexplained delay in responding to the omnibus motion, when coupled with the 86 days between the date of arraignment and the date upon which the People filed their certificate of compliance pursuant to CPL 245.50, totals more than 90 days … . People v Molina, 2022 NY Slip Op 04778, Second Dept 7-29-22

Practice Point: Plaintiff had been incarcerated for more than the 90 days allowed by CPL 30.30 and the 13-day delay occasioned by the People’s failure to timely respond to defendant’s omnibus motion was not adequately explained. Therefore defendant’s habeas corpus petition was sustained and he was entitled to release on bail which he is capable of meeting or on his own recognizance.

 

BURGLARY SECOND IS AN INCLUSORY CONCURRENT COUNT OF BURGLARY SECOND AS A SEXUALLY MOTIVATED FELONY (SECOND DEPT).

The Second Department vacated the burglary second conviction as an inclusory concurrent count of burglary second as a sexually motivated felony:

The People correctly concede that the defendant’s conviction of burglary in the second degree and the sentence imposed thereon, must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of burglary in the second degree as a sexually motivated felony … . People v Hay, 2022 NY Slip Op 04737, Second Dept 7-27-22

Practice Point: Burglary second is an inclusory concurrent count of burglary second as a sexually motivated felony.

 

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ALTHOUGH DEFENDANT WAS SPEEDING AT THE TIME HE LOST CONTROL OF THE CAR, WENT DOWN AN EMBANKMENT AND STRUCK A TREE, KILLING A PASSENGER, THE EVIDENCE DID NOT DEMONSTRATE “DANGEROUS SPEEDING;” THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CRIMINALLY NEGLIGENT HOMICIDE AND RECKLESS DRIVING CHARGES; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was not legally sufficient. Although the issue was not preserved, it was considered in the interest of justice. Defendant attempted to exit a highway at 74 miles per hour where the ramp speed limit was 45 miles per hour and the highway speed limit was 65 miles per hour. Defendant lost control, went down an embankment, and hit a tree. A passenger was killed:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” … in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . The People’s evidence established only that the defendant attempted to navigate the curved profile of the exit ramp at an excessive speed, and was late in attempting corrective measures by manually steering the wheel. While this conduct reflected poor judgment in the defendant’s operation of his vehicle given the roadway environment … , it failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of criminal negligence or recklessness … . Accordingly, we vacate the convictions of criminally negligent homicide and reckless driving … . People v Cardona, 2022 NY Slip Op 04733, Second Dept 7-27-22

Practice Point: Defendant was speeding (74 miles per hour on an exit ramp) when he lost control of the car and struck a tree, killing a passenger. The evidence did not demonstrate “dangerous speeding.” Therefore the criminally negligent homicide and reckless driving convictions were not supported by legally sufficient evidence.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304:

… [P]laintiff failed to submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that it properly served the defendants. Instead, the plaintiff relied on the affidavit of Carlos Bernal, an authorized representative of the plaintiff’s loan servicing company. Although Bernal averred to have personal knowledge of the company’s record keeping systems, he did not purport to be familiar with the office procedure for mailing notices once they have been generated, and, therefore, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Further, the unsigned certified mail receipts, bearing no postmark from the United States Postal Service, do not prove that the notices were actually mailed … , and, in any event, the plaintiff produced no evidence that the notices were mailed by regular first-class mail … . Since the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304… . Pennymac Corp. v Levy, 2022 NY Slip Op 04732, Second Dept 7-27-22

Practice Point: The bank in a foreclosure action must demonstrate strict compliance with the requirements for mailing the RPAPL 1304 notice. Failure to demonstrate strict compliance with the mailing requirements with admissible evidence precludes summary judgment.

 

GRANDMOTHER’S PETITION TO MODIFY THE VISITATION ARRANGEMENT SHOULD HAVE BEEN GRANTED; MOTHER’S VIOLATION OF THE ORDER ALLOWING VISITATION BY GRANDMOTHER CONSTITUTED A CHANGE IN CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the mother’s refusal to allow visitation with the child by the paternal grandmother, in violation of a court order, constituted and change in circumstances warranting the granting of grandmother’s petition to modify the visitation arrangement:

… [T]he paternal grandmother filed a petition to modify the order … , so as to establish a visitation schedule … , as well as a petition alleging that the mother was in violation of the order … . Following a hearing … the Family Court denied the modification petition and the violation petition … .

… [C]ontrary to the Family Court’s determination, the mother’s refusal to consent to any visitation between the child and the paternal grandmother pursuant to the March 19, 2018 order constituted a sufficient change in circumstances for the court to determine whether modification of the existing visitation arrangement was in the child’s best interests … . Moreover, the court’s determination that visitation with the paternal grandmother was not in the best interests of the child lacked a sound and substantial basis in the record. Although there is some history of animosity between the parties, “[a]nimosity alone is insufficient to deny visitation” … , and there is no indication in the record that the poor relationship between the parties had any adverse effect on the child such that the resumption of visitation would not be in the child’s best interests … .. We therefore remit the matter to the Family Court … to establish an appropriate visitation schedule … . Matter of Dubose v Jackson, 2022 NY Slip Op 04723, Second Dept 7-27-22

Practice Point: Here grandmother had been awarded visitation rights with the child. Mother’s violation of the order allowing visitation by grandmother constituted a change in circumstances warranting the granting of grandmother’s petition and modification of the visitation schedule.

 

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THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated the failure to issue a timely decision as a denial by default. which it then annulled, ordering the town to issue the permit and the variance; and (3) Supreme Court should not have denied the Board’s motion to vacate Supreme Court’s order and judgment (ordering the issuance of the permit and variance):

Pursuant to Town Law § 267-a(8), the Board must render a decision within 62 days after the close of the hearing. The Town Law also contains a default provision which provides that if the Board, in exercising its appellate jurisdiction, fails to render a decision within 62 days of the hearing, the application is deemed denied (see id. § 267-a[13][b]). …

A proceeding to annul a determination by an administrative body “should not be concluded in the petitioner’s favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits” … . Here, there was no evidence demonstrating a deliberate default by the Board … .

Contrary to the petitioner’s contention, its application for a special exception permit was not denied by default. The Board’s failure to comply with the time period prescribed by Town Law § 267-a(8) only results in a denial by default when the Board exercises its appellate jurisdiction (see id. § 267-a[13][b]). The Board exercises its original jurisdiction in special exception cases … , and thus, there was no denial by default of the petitioner’s application for a special exception permit … . With no final determination having been rendered on the application for a special exception permit, that issue was not ripe for judicial review, and the Supreme Court lacked subject matter jurisdiction over that issue … . We note that ripeness “is a matter pertaining to subject matter jurisdiction which may be raised at any time, including sua sponte” … . Matter of 999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 2022 NY Slip Op 04721, Second Dept 7-29-22

Practice Point: A town Board of Appeals’ failure to issue a decision on an application for a permit and an area variance within the 62 days prescribed by the Town Law is not a denial of the petition by default. Supreme Court, therefore, did not have subject matter jurisdiction over he purported “denial by default” and the matter was not ripe for review.

 

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DEFENDANT HOMEOWNER DID NOT HAVE THE OPPORTUNITY TO CONTROL THE CONDUCT OF HER ESTRANGED HUSBAND WHO ALLEGEDLY ASSAULTED PLAINTIFF IN DEFENDANT’S HOME; THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES WAS THE ESTRANGED HUSBAND’S ACT; DEFENDANT HOMEOWNER’S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant homeowner’s (Portelli’s) motion to dismiss the negligence action against her based upon an assault upon plaintiff by Portelli’s estranged husband at Portelli’s home should have been dismissed:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as the result of an assault by the defendant Robert DiGesu that took place at a house owned by his estranged wife, the defendant Susan M. Portelli. * * *

Homeowners have a duty to act in a reasonable manner to prevent harm to those on their property … . This includes “the duty to control the conduct of third persons on their premises when the homeowners have the opportunity to control such persons and are reasonably aware of the need for such control” … .

Portelli did not have the opportunity to control DiGesu’s conduct … , nor would it have been reasonable for her to have known of the need to control DiGesu’s conduct so as to protect the plaintiff from DiGesu’s unexpected assault … . Portelli’s alleged acts or omissions were not a proximate cause of the plaintiff’s injuries but “merely furnished the conditions for the event’s occurrence” … . The sole proximate cause of the plaintiff’s injuries was DiGesu’s assault … . Maruca v DiGesu, 2022 NY Slip Op 04719, Second Dept 7-29-22

Practice Point; Homeowners have a duty to act reasonably to prevent harm to those oh their property. Here, however, defendant homeowner did not have the opportunity to control her estranged husband’s conduct at the time he allegedly assaulted the plaintiff in defendant’s home. Therefore the sole proximate of plaintiff’s injuries was the estranged husband’s act and defendant’s motion to dismiss the complaint should have been granted.

 

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