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FAILURE TO INFORM THE DEFENDANT OF THE SPECIFIC OR MAXIMUM PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVOLUNTARY (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not voluntary because defendant was not informed of the specific or maximum period of postrelease supervision to which defendant would be sentenced:

“To meet due process requirements, a defendant must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action [and,] [w]ithout such procedures, vacatur of the plea is required” … . “It is not enough for a court to generally inform a defendant that a term of postrelease supervision will be imposed as a part of the sentence” … .. “Rather, for a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed” … . People v Wolfe, 2022 NY Slip Op 04745, Second Dept 7-27-22

Practice Point: Failure to inform the defendant of the specific or maximum period of postrelease supervision aspect of the sentence rendered the guilty plea involuntary.

 

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THE EVIDENCE THE COMPLAINANT SUFFERED “SERIOUS PHYSICAL INJURY” FROM MULTIPLE STAB WOUNDS WAS LEGALLY INSUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department reduced defendant’s convictions to attempted gang assault first, attempted assault first, attempted robbery first and attempted assault second because the proof the complainant suffered “serious physical injury” was lacking:

… [W]e find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . People v Mayancela, 2022 NY Slip Op 04741, Second Dept 7-27-22

Practice Point: Here, although the complainant was stabbed multiple times, the wounds did not damage any organs and were treated with sutures. Therefore the proof the complainant suffered “serious physical injury” was legally insufficient. The convictions were reduced to attempted gang assault, assault and robbery.

 

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THE BUILDING DEFENDANTS DEMONSTRATED THE AREA WHERE PLAINTIFF ALLEGED SHE SLIPPED AND FELL ON WATER ON THE FLOOR WAS INSPECTED AND FOUND TO BE DRY CLOSE IN TIME TO THE ALLEGED FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of a building porter stating that the area where plaintiff slipped and fell was dry when he inspected shortly before the alleged fall warranted granting defendants’ summary judgment motion. Plaintiff alleged she slipped and fell on water ono the floor:

…[T]the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the hazardous condition or have actual or constructive notice of it. In support of the motion, the defendants submitted a transcript of the deposition testimony and affidavit of the building’s porter, which established that, shortly before the accident, the porter traversed the hallway where the accident occurred, inspected the floor for wetness, and observed that the floor was dry … . Serebrenik v Chelsea Apts., LLC, 2022 NY Slip Op 04658, Second Dept 7-20-22

Practice Point: When a defendant brings a summary judgment motion in a slip and fall case, the motion papers must demonstrate the defendant did not create the alleged dangerous condition and did not have notice of the alleged dangerous condition. If defendant can show the area was inspected close in time to the fall and the area was clean (or dry in this case), the defendant will have demonstrated a lack of constructive notice of the condition. Absent evidence to the contrary presented in opposition, summary judgment in favor of the defendant is warranted.

 

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THE ALLEGED MISPRESENTATION IN PLAINTIFF’S APPLICATION FOR CAR INSURANCE, I.E., THAT SHE LIVED IN NEW ROCHELLE AND THE CAR WOULD BE GARAGED THERE WHEN IN FACT SHE LIVED IN BROOKLYN AND THE CAR WOULD BE GARAGED THERE, WAS NOT DEMONSTRATED TO HAVE BEEN “MATERIAL” AS A MATTER OF LAW; THE INSURER HAD DENIED COVERAGE BASED UPON THE ALLEGED MISREPRESENTATION; THE INSURER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged misrepresentation in plaintiff’s application for car insurance was not demonstrated to have been “material” as a matter of law. Therefore defendant-insurer’s motion for summary judgment in this hit-and-run accident case should not have been granted. Plaintiff was alleged to have stated in her application that she lived in New Rochelle and the car would be garaged there, when in fact she lived in Brooklyn and the care would be garaged there:

The plaintiff allegedly was injured in a hit-and-run motor vehicle accident … . At the time of the accident, the plaintiff’s vehicle was insured by the defendant, Mercury Casualty Company (hereinafter Mercury). The plaintiff commenced this action to recover damages for breach of the insurance policy, alleging that Mercury breached the policy by failing to make payment on her claim under an uninsured motorists endorsement to the policy in connection with the subject accident. …Mercury moved … for summary judgment dismissing the complaint on the ground that it had no obligation to provide the plaintiff with benefits under the “fraud or misrepresentation” provision of the insurance policy. …

Mercury failed to demonstrate the materiality of the misrepresentation complained of, as a matter of law. Although Mercury submitted an affidavit of an underwriting supervisor who stated that it would have issued the plaintiff a different policy with a higher premium had the plaintiff disclosed her Brooklyn address, the underwriting guidelines submitted by Mercury do not state that it does not insure vehicles kept in Brooklyn or that policies insuring vehicles kept in Brooklyn are assessed a higher premium than those garaged in New Rochelle … . Rodriguez v Mercury Cas. Co., 2022 NY Slip Op 04656, Second Dept 7-20-22

Practice Point: To warrant a denial of coverage based on a misrepresentation in an application for insurance, the misrepresentation must be “material.” Here there was a question of fact on that question and the insurer’s motion for summary judgment should have been denied. It was alleged plaintiff stated in her application she lived in New Rochelle and the car would be garaged there, when in fact she lived in Brooklyn and the car was garaged there. The underlying incident was a hit-and-run accident.

 

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THE PRINCIPAL WITNESS AGAINST DEFENDANT IN THIS FIRST DEGREE MURDER (MURDER-FOR-HIRE) TRIAL WAS AN ACCOMPLICE AS A MATTER OF LAW; IT WAS REVERSIBLE ERROR TO FAIL TO SO INSTRUCT THE JURY; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED IN THE INTEREST OF JUSTICE; THE DEFENDANT’S ALLEGED SILENCE IN RESPONSE TO AN ACCUSATION (ADOPTIVE ADMISSION) WAS INADMISSIBLE BECAUSE THE PEOPLE DID NOT PROVE DEFENDANT HEARD THE ACCUSATION (SECOND DEPT). ​

The Second Department, reversing defendant’s murder-first-degree conviction and ordering a new trial, determined the jury should have been instructed that the defendant’s paramour, Lovell, who was involved the plot to have the victim killed by a third-party, and who testified against the defendant at trial, was an accomplice as a matter of law. Despite defense counsel’s failure to preserve the error, the issue was considered on appeal in the interest of justice. The Second Department also held that the “adoptive admission” by the defendant should not have been admitted in evidence. It was alleged the defendant remained silent when her mother-in-law accused her of killing the victim. The People did not prove defendant actually heard the accusation:

Supreme Court failed to instruct the jury that Lovell was an accomplice and subject to the statutory corroboration requirement. Although the court was “under a duty to charge . . . even without a request from the defendant … , the rule of preservation requires that defense counsel object to the court’s failure in order to preserve a question of law for appellate review … . Notwithstanding defense counsel’s failure to object at trial, under the circumstances of this case, we reach the unpreserved error in the interest of justice and find that the failure to properly instruct the jury constituted reversible error … …. [T]he evidence of the defendant’s guilt, which consisted principally of Lovell’s testimony, was not overwhelming … . * * *

“To use a defendant’s silence or evasive response as evidence against the defendant, the People must demonstrate that the defendant heard and understood the assertion, and reasonably would have been expected to deny it” … . Here, the People failed to establish that the defendant actually heard the mother-in-law’s accusations or that the defendant had an opportunity to respond to the accusations prior to the mother-in-law disconnecting the phone call. Therefore, the court should not have admitted the evidence. People v Noel, 2022 NY Slip Op 04647, Second Dept 7-20-22

Practice Point: The testimony of defendant’s paramour, who was involved in the murder-for-hire, was the principal evidence against the defendant. The failure to instruct the jury that the paramour was an accomplice as a matter of law whose testimony must be corroborated was reversible error. Although the error was not preserved the Second Department considered it ion appeal in the interest of justice. The defendant’s silence in the face of an accusation (an adoptive admission) should not have been admitted in evidence because the People did not prove the defendant heard the accusation.

 

DEFENDANT WAS ENTITLED TO THE VACATION OF THE SENTENCE FOR THE MURDER OF HIS FATHER’S GIRLFRIEND UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to the vacation of his sentence for the murder of his father’s girlfriend pursuant to the Domestic Violence Survivors Justice Act (DVSJA). Defendant was 19 at the time of the killing of his father and his father’s girlfriend, with whom he resided. supreme Court had granted defendant’s motion with regard to the manslaughter conviction for the killing of his father, but denied the motion with regard to the murder conviction for the killing of his father’s girlfriend. The facts are not discussed, but the Second Department found that the facts supported the vacation of the sentence for the murder of father’s girlfriend:

The DVSJA permits courts to impose reduced alternative, less severe, sentences in certain cases involving defendants who are victims of domestic violence … .. The DVSJA sets forth three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household at the time of the offense; (2) whether the abuse was a significant contributing factor to the defendant’s criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh (see Penal Law § 60.12). The preponderance of the evidence standard applies … . The DVSJA permits the court to impose a less punitive and less harsh sentence without diminishing the seriousness of the offense or finding the crime to have been justified … . People v Burns, 2022 NY Slip Op 04638, Second Dept 7-20-22

Practice Point: Here defendant was 19 when he killed his father and his father’s girlfriend. Based on the facts, which were not discussed, the Second Department determined the sentences should be vacated and defendant should be resentenced pursuant to the Domestic Violence Survivors Justice Act.

 

THE FEDERAL POSSESSION-OF-A-FIREARM-BY-A-FELON STATUTE IS NOT THE EQUIVALENT OF A NEW YORK FELONY BECAUSE THE FEDERAL STATUTE DOES NOT REQUIRE A SHOWING THE WEAPON WAS OPERABLE; DEFENDANT’S SECOND FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, determined the federal possession-of-a-firearm-by-a-felon statute is not the equivalent of a New York felony:

… [T]he defendant should not have been adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm by a felon (see 18 USC § 922[g][1]). “An out-of-state felony conviction qualifies as a predicate felony under New York’s sentencing statutes only if it is for a crime ‘whose elements are equivalent to those of a New York felony'” (… see Penal Law § 70.06[1][b][i]). Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable … and thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Bilfulco, 2022 NY Slip Op 04637, Second Dept 7-20-22

Practice Point: The federal possession-of-a-weapon statute (18 USC 922[g][1]) is not the equivalent of a New York felony because it does not require that the weapon be operable. Therefore that federal statute cannot be the basis for a second felony offender adjudication.

 

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FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did everything right in dealing with the modification of a California custody order, including communication with the California court, but did not allow the parties to present facts and legal arguments before ruling New York did not have jurisdiction. Father was in California and mother was in New York. Father sought modification of the custody order in California and mother sought modification of the custody order in New York:

“If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see id. § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” … .

When a court, acting pursuant to these provisions, communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record … . The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” … .

… [A]fter providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal  … . Matter of Touchet v Horstman, 2022 NY Slip Op 04633, Second Dept 7-20-22

Practice Point: When a New York resident seeks modification of an out-of-state custody order, Family Court must communicate with the out-of-state court about whether the New York petition should be dismissed. Where the parties did not participate in the communication, before ruling, Family Court must allow the parties to present facts and legal arguments. Here the court’s failure to allow the parties to present facts and legal arguments required reversal.

 

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IN A HYBRID ACTION SEEKING AN ANNULMENT PURSUANT TO ARTICLE 78 AND A DECLARATORY JUDGMENT (AND DAMAGES), THE BURDENS TO DEMONSTRATE STANDING ARE DIFFERENT; IN AN ARTICLE 78 THE PETITIONER MUST AFFIRMATIVELY DEMONSTRATE STANDING; AND IN A DECLARTORY-JUDGMENT/DAMAGES ACTION, THE RESPONDENT (DEFENDANT) MUST DEMONSTRATE PETITIONER DOES NOT HAVE STANDING AS A MATTER OF LAW TO WARRANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, explained the different burdens of proof in an Article 78 proceeding and an action seeking declaratory relief and damages. In an Article 78 proceeding, the petitioner has to show standing as part of its prima facie case. In a declaratory judgment/damages action, the respondent (defendant) has to demonstrate the petitioner does not have standing as a matter of law to warrant summary judgment:

The Supreme Court erred in granting the respondents’ motion to dismiss the proceeding/action based on lack of standing. “‘In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand'” … . Generally, in an action to recover damages, “[o]n a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” … . Within the context of a special proceeding pursuant to CPLR article 78, “[t]he petitioner ‘has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated'” … . Matter of Crown Castle NG E., LLC v City of Rye, 2022 NY Slip Op 04626, Second Dept 7-20-22

Practice Point: The burdens on the issue of standing are different in an Article 78 proceeding and a declaratory judgment/damages action. Here both were brought in a hybrid proceeding. The petitioner must demonstrate standing in the Article 78 proceeding. The respondent (defendant) must demonstrate petitioner does not have standing as a matter of law to warrant summary judgment in the declaratory judgment/damages action.

 

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ALTHOUGH THE STEP WAS MARKED AND THERE WAS A WARNING SIGN, THERE WAS EVIDENCE THE STEP AND THE SIGN COULD NOT BE SEEN WHEN THE AREA WAS CROWDED; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS STAIR-FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stair-fall case should not have been granted. Although there was evidence the single step in defendant’s nightclub was marked and there was a warning sign, there was also evidence the area was crowded, obscuring the step and the sign:

… [T]he defendants’ submissions demonstrated that the single-step riser was located between the dance floor and another area of the premises, such that persons exiting the dance floor in that direction would traverse the area where the step was located and a crowd could form, obscuring both a warning sign which was below eye level, and the step which was painted white. The plaintiff testified at her deposition that the premises were crowded, and that she did not see the step or the paint on the step. Another witness testified at her deposition that the premises were so crowded that the witness could not see the floor. Kernell v Five Dwarfs, Inc., 2022 NY Slip Op 04624, Second Dept 7-20-22

Practice Point: Here the step where plaintiff allegedly fell was marked and there was a warning sign. But there was evidence that when this area of defendants’ nightclub was crowded neither the step nor the sign could be seen. Defendants’ motion for summary judgment in this stair-fall case should not have been granted.

 

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