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DEFENDANT DID NOT USE ANY PHYSICAL FORCE IN REFUSING TO COOPERATE AFTER A TRAFFIC STOP; OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction of obstructing governmental administration second degree, determined there was no evidence the defendant used physical force. Passive refusal to cooperate after a traffic stop is not enough:

… [T]he defendant was argumentative throughout the traffic stop and arrest-booking process, repeatedly refused to answer the officers’ questions, and refused to participate physically in any way in the arrest-booking process, including refusing to stand for a photograph, to provide his fingerprints, or to sign a Miranda form … . The People concede that the defendant did not physically resist the officers, but argue that his conduct constituted physical interference because he refused to cooperate physically in the arrest-booking process. However, neither the defendant’s conduct during the traffic stop nor his conduct during the arrest-booking process constituted a knowing, physical interference with, and disruption of, the official function being performed by the officers. The defendant did not struggle, physically resist, or do anything to interfere with the officers, and he did not intrude into, or get in the way of, any ongoing police activity … . The defendant’s passive unwillingness to cooperate with the officers during the traffic stop and arrest-booking process lacked the requisite intentional physical component … . People v Johnson, 2021 NY Slip Op 03851, Second Dept 6-16-21

 

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THE COURT SHOULD HAVE HELD A FRYE HEARING ON THE ADMISSIBILITY OF DNA-RELATED EVIDENCE GENERATED BY THE FORENSIC STATISTICAL TOOL (FST); CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court should have held a Frye hearing on the admissibility of DNA-related evidence generated by the Forensic Statistical Tool (FST):

Prior to trial, the Supreme Court denied the defendant’s motion to preclude the People from introducing at trial DNA testing results and testimony concerning the Forensic Statistical Tool (hereinafter FST) or, in the alternative, for a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of the evidence generated by the FST.

The Supreme Court improvidently exercised its discretion in admitting FST evidence without first holding a Frye hearing … . As proof of the defendant’s guilt was not overwhelming without the FST evidence … , the error was not harmless … . Accordingly, the judgment of conviction must be reversed and a new trial ordered. People v Applewhite, 2021 NY Slip Op 03847, Second Dept 6-16-21

 

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BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the underlying criminal matter brought against the plaintiffs (the Melchers) by the town had been terminated in favor of the plaintiffs. Therefore the plaintiffs’ malicious prosecution action against the town should not have been dismissed. The town brought criminal charges based upon plaintiffs’ construction of docks in a marina. Pursuant to the Navigation Law, the state owns the land beneath the lake and the town, therefore, did not have jurisdiction to bring the criminal charges. The criminal charges had been dismissed on that ground:

In order to maintain a civil action to recover damages for malicious prosecution, a plaintiff must show “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice” … . A criminal proceeding terminates favorably to the accused where the disposition is final, “such that the proceeding cannot be brought again” … , and the disposition is not “inconsistent with a plaintiff’s innocence” … . Whether a disposition was inconsistent with innocence is a case-specific determination that considers the circumstances of the particular case … .

Here, the 2008 criminal proceeding was dismissed for lack of jurisdiction pursuant to CPL 170.30(1)(f) because the Town lacked legal authority to regulate the activity upon which the criminal charges were based. In the dismissal order, the Supreme Court found that “jurisdiction over the [Melchners] ha[d] never been properly obtained and accordingly the [Melchners] [could] not be prosecuted for the offenses alleged.” Under the circumstances, the disposition was not inconsistent with the Melchners’ innocence … . Melchner v Town of Carmel, 2021 NY Slip Op 03830, Second Dept 6-16-21

 

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CONVEYANCES OF REAL PROPERTY SHOULD HAVE BEEN SET ASIDE AS FRAUDULENT PURSUANT TO THE DEBTOR-CREDITOR LAW; RELATED AFFIRMATIVE DEFENSES BASED UPON UNSUPPORTED CONCLUSIONS OF LAW SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conveyances of property should have been set aside as fraudulent and the related affirmative defenses based upon unsupported conclusions of law should have been dismissed:

… [T]he plaintiff submitted … a copy of the deed and transfer documents regarding the properties at issue, which demonstrated that conveyances of the properties were made after the underlying action was commenced and without fair consideration. The plaintiff also submitted evidence that a judgment was docketed against [defendants] and that they failed to satisfy the judgment. With respect to the element of fair consideration, the deed and transfer documents reflect that no money or a nominal fee of ten dollars was paid for the defendants’ properties. Therefore, the plaintiff established her prima facie entitlement to summary judgment on the first cause of action to the extent that it seeks to set aside the conveyances of the properties pursuant to former section 273-a of the Debtor and Creditor Law … . …

The Supreme Court … should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(b) to dismiss the affirmative defenses insofar as the affirmative defenses pertain to Debtor and Creditor Law former § 273-a. CPLR 3211(b) authorizes a plaintiff to move to dismiss a defendant’s affirmative defense on the ground that it is without merit … [T]he affirmative defenses … proffered no supporting facts and merely pleaded conclusions of law. Diaz v 297 Schaefer St. Realty Corp., 2021 NY Slip Op 03825, Second Dept 6-16-21

 

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PLAINTIFF RECEIVED THE FULL BENEFIT OF A LOAN AGREEMENT; THE DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDED PLAINTIFF’S CLAIM THE LOAN AGREEMENT IS UNENFORCEABLE BECAUSE THE UNDERLYING RECORDED MORTGAGE DID NOT BEAR HIS SIGNATURE (SECOND DEPT).

The Second Department determined the defendants” motion to dismiss was properly granted. Plaintiff contended the underlying mortgage which was part of a loan agreement was void because it was not signed, rendering the loan agreement unenforceable. Plaintiff had however accepted the proceeds of the loan and therefore was precluded from contesting the agreement by the doctrine of equitable estoppel:

… [T]he plaintiff does not … deny that he executed a copy of the mortgage in accordance with the loan agreement, he merely contends that the copy that was recorded … , did not bear his signature. The plaintiff contends that this defect rendered the recorded mortgage void ab initio and therefore unenforceable … . * * *

… [T]he defendants’ uncontradicted submissions demonstrated that the plaintiff “had the full benefit” of the loan agreement … . … [T]he plaintiff does not seek to rescind the loan agreement, but he nevertheless seeks to recoup “all closing costs paid to Defendants with any payments to [Citibank] since June 22, 2007,” the date the loan agreement was executed … . Under the circumstances, the doctrine of equitable estoppel precludes the plaintiff from asserting that the recorded mortgage was void … . Bernard v Citibank, N.A., 2021 NY Slip Op 03822, Second Dept 6-16-21

 

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IN A TRAFFIC ACCIDENT INVOLVING A FIRE TRUCK DRIVEN BY A VOLUNTEER FIREFIGHTER, THE FIRE DISTRICT CAN BE HELD TO A NEGLIGENCE, AS OPPOSED TO A RECKLESS DISREGARD, STANDARD PURSUANT TO GENERAL MUNICIPAL LAW 205-B (SECOND DEPT). ​

The Second Department, over a dissent, determined the defendant volunteer fire district could be held liable for a traffic accident under a negligence, as opposed to reckless disregard, standard, pursuant General Municipal Law 205-b. The dissent argued the reckless disregard standard applies because General Municipal Law 205-b does not specify a particular standard of care:

Pursuant to General Municipal Law § 205-b, “fire districts created pursuant to law shall be liable for the negligence of volunteer firefighters duly appointed to serve therein in the operation of vehicles owned by the fire district upon the public streets and highways of the fire district, provided such volunteer firefighters, at the time of any accident or injury, were acting in the discharge of their duties.” Thus, contrary to the Fire District’s contention, it was not limited to liability for conduct rising to the level of “reckless disregard” under Vehicle and Traffic Law § 1104(e), and could be held liable for the ordinary negligence of a volunteer firefighter operating the Fire District’s vehicle … . Anderson v Commack Fire Dist., 2021 NY Slip Op 03821, Second Dept 6-16-21

 

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SUPREME COURT HAD JURISDICTION TO ISSUE A DECLARATORY JUDGMENT RE: WHETHER PLAINTIFF PHARMACY COULD SEEK PAYMENT OF PRESCRIPTIONS UNDER THE WORKERS’ COMPENSATION LAW, EVEN THOUGH THE WORKERS’ COMPENSATION BOARD (WCB) HAD JURISDICTION OVER THE ISSUES RAISED IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court had jurisdiction over a declaratory judgment action, even though the case involved whether plaintiff pharmacy was entitled to payment for prescriptions under the Workers’ Compensation Law, a matter within the jurisdiction of the Workers’ Compensation Board (WCB):

No party accepted responsibility for the payment of the outstanding prescription bills and the plaintiff commenced this action seeking … a judgment declaring that the Workers’ Compensation Law does not prohibit a pharmacy from seeking payment of a prescription bill from the responsible party in a plenary proceeding in a court of appropriate jurisdiction … . * * *

Pursuant to CPLR 3001, the Supreme Court “may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds.”

The Court of Appeals has ruled that “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” [WCB]… . Thus, while the Supreme Court properly determined that the appropriate forum to resolve the issues raised in the complaint is the WCB, the WCB’s jurisdiction is primary and not exclusive. … [S]ince this is a declaratory judgment action, the Supreme Court should have denied the WCB defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction … . 21st Century Pharmacy v American Intl. Group, 2021 NY Slip Op 03820, Second Dept 6-16-21

 

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BECAUSE THE COURT WAS NOT AUTHORIZED TO PLACE PETITIONER IN CUSTODY, THE COURT COULD NOT ORDER PETITIONER TO BE REMANDED TO RIKER’S ISLAND FOR A CPL ARTICLE 730 EXAMINATION; THE HABEAS CORPUS PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined Supreme Court was not authorized to remand the petitioner, Wei Li, to Riker’s Island for a CPL article 730 examination because defendant was charged with a misdemeanor and was not in custody. Therefore the habeas corpus petition should have been granted:

… [T]he references in CPL 730.20(2) and (3) to the defendant either having been theretofore released on bail or on his or her own recognizance, or being in custody, respectively, at the time a court issues an order of examination presuppose that a securing order has been issued upon arraignment as required by law (see CPL 170.10[7]; 210.15[6]; 510.10[1]). As such, a defendant’s previously determined, or statutorily mandated, liberty status—either release or in custody—cannot be changed because a CPL article 730 examination is ordered: if the defendant has been ordered released (or, as in the case of non-qualifying offenses, is required to be released), then the court is authorized (“may “) only to direct that the examination be conducted on an outpatient basis or, under certain circumstances, that the defendant be confined in a hospital until the examination is completed (see CPL 730.20[2]); if the defendant has been committed to custody, then he or she must remain in custody for the examination, even if he or she must be taken to a hospital for purposes of conducting same (see id. § 730.20[3]). A defendant who has been ordered released, or, as in Wei Li’s case, was statutorily entitled to release (see CPL 510.10[3]; 530.20[1]), cannot be jailed because the court ordered a CPL article 730 examination. People v Warden, 2021 NY Slip Op 03867, Second Dept 6-16-21

 

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ALTHOUGH THE CHILD-SUPPORT CONTEMPT PROCEEDING WAS IN SUPREME COURT, NOT FAMILY COURT, PLAINTIFF HAD A RIGHT TO COUNSEL UNDER THE JUDICIARY LAW; PLAINTIFF’S COUNSEL WAS INEFFECTIVE BECAUSE NO MEDICAL EVIDENCE WAS PRESENTED TO SUPPORT PLAINTIFF’S TESTIMONY HE WAS UNABLE TO WORK (SECOND DEPT).

The Second Department, after noting plaintiff was entitled to counsel under Judiciary Law 35 (8) in this child-support contempt proceeding in Supreme Court, determined plaintiff’s counsel was ineffective. Plaintiff testified he could not meet his child-support obligations because of medical problems, but counsel did not present any medical evidence:

The plaintiff was denied effective assistance of counsel in connection with that branch of the defendant’s cross motion which was to hold him in contempt for wilful violation of the 2013 order. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if such proceeding was pending in the Family Court, such court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 [child-support] order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation … . Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. Winter v Winter, 2021 NY Slip Op 03865, Second Dept 6-16-21

 

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GRANDMOTHER SHOULD HAVE BEEN NOTIFIED OF HER RIGHT TO COUNSEL IN THIS CUSTODY CASE; MATTER SENT BACK TO FAMILY COURT TO DETERMINE WHETHER GRANDMOTHER WAS ELIGIBLE FOR ASSIGNED COUNSEL (THIRD DEPT).

The Third Department determined grandmother should have been notified of her right to counsel in this custody case. But the question remains whether grandmother would have qualified (financially) for assigned counsel. The matter was sent back to Family Court to rule on grandmother’s eligibility for assigned counsel:

We find merit to the grandmother’s argument that she was potentially eligible for the assignment of counsel at the March 2017 appearance and that Family Court erred in failing to advise her of that right. The purpose of providing counsel to certain persons [*3]involved in Family Court proceedings is to provide protection against “infringements of fundamental interests and rights” (Family Ct Act § 261). The grandmother was listed as a respondent in the mother’s modification petition brought under Family Ct Act article 6, part 3 … , which sought sole legal and primary physical custody of the child. As of the initial appearance on that petition in March 2017, the grandmother jointly shared “secondary legal custody” with the mother. Accordingly, the mother’s request for sole legal custody of the child, if granted, had the potential to alter the grandmother’s custodial rights. We are mindful that the mother subsequently withdrew her request for custody and instead advocated for the child’s placement with the grandmother. However, she did not do so until the fact-finding hearing, nearly four months after the March 2017 appearance. Family Ct Act § 262 (a) requires the court to advise an eligible person of the right to counsel “[w]hen such person first appears in court” … . As the grandmother was potentially eligible for assigned counsel under Family Ct Act § 262 (a), upon a showing of the required financial circumstances, the court was obligated to advise her of that right at the March 2017 appearance … . Matter of Renee S. v Heather U., 2021 NY Slip Op 03635, Third Dept 6-10-21

 

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