Second Department – Page 214 – New York Appellate Digest

THE JURY NOTE INDICATED THE REQUEST WAS FOR THE TRANSCRIPT OF THE PHONE CALL, BUT THE JUDGE DESCRIBED THE NOTE AS A REQUEST FOR THE PHONE CALL AND PROVIDED THE JURY WITH THE RECORDING OF THE CALL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that the judge did not inform counsel of the full nature of a note from the jury. The jury note indicated the request was for the transcript of a phone call, but the judge said the note was asking for the phone call:

At trial, a recording of one of the defendant’s jail phone calls was introduced into evidence and played for the jury. In addition, the jury was provided with a purported transcript of the call, which was described merely as an aid and was not itself in evidence, and which the Supreme Court instructed should not control in the event of any discrepancy between the recording and the transcript. During deliberations, the jury sent the court a note, marked as court exhibit number 4, which the court stated on the record as “asking for [the defendant’s] phone call from jail.” This description, however, omitted the word “transcript,” which was included at the end of the note in parentheses. The court then stated to the jury that it would play the call again, but would not provide a copy of the transcript.

Contrary to the People’s contention, the jury’s request did not only implicate the court’s ministerial function, as the request can be interpreted as seeking the transcript of the phone call, rather than the call itself. Notably, there was a discrepancy between the transcript and the phone call, and to the extent that the jury’s request implied that the transcript left an impression on the jury, despite the court’s instructions … ,counsel for the defendant should have been made aware of the verbatim contents of the request … . Failure to disclose the precise contents of the note deprived the defense of the opportunity to “analyze the jury’s deliberations” given the note’s ambiguous meaning, “and frame intelligent suggestions for the court’s response” … . People v Dennis, 2021 NY Slip Op 01994, Second Dept 3-31-21

March 31, 2021

Criminal Law, Evidence

THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS; THEREFORE THE WITNESS’S STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ALLOWING THE PEOPLE TO MAKE PEREMPTORY CHALLENGES AFTER THE DEFENSE WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined a witness’s out-of-count statement should not have been admitted because the People did not demonstrate defendant procured the witness’s absence and the failure to follow proper procedure in jury selection was reversible error:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

Here, the People failed to establish by clear and convincing evidence that the defendant was responsible for procuring a certain witness’s refusal to testify at trial … . Specifically, the People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … .

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors (see CPL 270.15[2] … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 01993, Second Dept 3-31-21

The same peremptory challenge issue required reversal in People v Taylor, 2021 NY Slip Op 01998, Second Dept 3-31-21

March 31, 2021

Trusts and Estates

THE PETITIONER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE OBJECTIONS TO PROBATE ALLEGING LACK OF DUE EXECUTION AND UNDUE INFLUENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the petitioner’s motion for summary judgment dismissing the objections to probate alleging lack of due execution and undue influence should have been granted. The objectants were the children of decedent’s son, who were excluded from any distribution from the estate. With respect to lack of due execution, the court wrote:

“The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements” … . “Where the will is drafted by an attorney and the drafting attorney supervises the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” … . Although the evidence here did not establish that the execution of the will was supervised by an attorney, “a presumption of compliance with the statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit” … . Further, “even where the memory of both attesting witnesses is failed or imperfect, a will nevertheless may be admitted to probate” … .

Here, the petitioner established, prima facie, that the 2010 will was duly executed pursuant to EPTL 3-2.1 by submitting a copy of the 2010 will with its executed attestation clause and self-proving affidavit … . At their depositions, both attesting witnesses, who were employees of the drafting attorney’s law office, identified their signatures as witnesses to the 2010 will … . Both attesting witnesses testified as to the office’s general practice for will executions, which met the statutory requirements. In opposition, the objectants failed to raise a triable issue of fact. Matter of Michels, 2021 NY Slip Op 01978, Second Dept 3-31-21

March 31, 2021

Administrative Law, Education-School Law, Evidence

THE FINDING THAT THE COMPLAINANT CONSENTED TO LYING DOWN IN BED WITH PETITIONER FOR THE NIGHT BUT DID NOT CONSENT TO HAVING SEX WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE COLLEGE’S DETERMINATION THAT PETITIONER VIOLATED THE STUDENT CODE OF CONDUCT ANNULLED (SECOND DEPT).

The Second Department, annulling the determination of the Campus Appeals Board of SUNY Purchase College, held the Board’s conclusion petitioner had sexual intercourse with the complainant without the complainant’s consent was not supported by substantial evidence. The Board had found the evidence that complainant was unable to give consent “conflicting and unreliable:”

After the hearing, the Hearing Board found “the complainant’s statements to be conflicting and unreliable as it pertained to her inability to give consent.” The Hearing Board concluded that “[t]here were considerable gaps in the complainant’s memory,” and indicated that it was “concerned that some of her statements after her initial report were tainted by reading the reports that were submitted by other witnesses and parties.” Nevertheless, the Hearing Board found that although there was consent for lying together in bed, kissing, and the removal of the complainant’s pants, the complainant had not consented to the remainder of the sexual activity. …

… [T]he determination that the petitioner violated code C.8 was not supported by substantial evidence. Having rejected the complainant’s testimony that she was incapable of giving consent, the Hearing Board was not left with adequate evidence to support the conclusion that while the complainant consented to spending the night in the petitioner’s bed, kissing, and removing her pants, she did not consent to the remainder of the sexual activity. The Board indicated that its finding of nonconsensual conduct was based on the statements of the petitioner and the complainant “that clear, affirmative consent for these activities was not given.” However, the petitioner, while freely admitting that he did not obtain verbal consent, clearly asserted that the complainant consented with her actions … . Matter of Doe v Purchase Coll. State Univ. of N.Y., 2021 NY Slip Op 01974, Second Dept 3-31-21

March 31, 2021

Family Law

GRANDMOTHER, BASED UPON HER PAST CARE OF THE CHILDREN, WAS THE FUNCTIONAL EQUIVALENT OF A PARENT WHO HAD STANDING TO APPLY FOR A HEARING TO DETERMINE WHETHER THE CHILDREN SHOULD BE RETURNED TO HER, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined grandmother’s application for a hearing to determine whether the children should be returned to her should have been granted. The children were removed from grandmother’s care and placed in a foster home. Grandmother’s application for a hearing was denied on the ground she did not have standing. But the Second Department held that grandmother met the definition of a person legally responsible for the care of the children based upon the level of care she had provided when the children were placed with her:

Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part . . . the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here … . …

… [T]he evidence submitted in support of the paternal grandmother’s application is sufficient to support a determination that she is a person legally responsible for the care of the children. The evidence demonstrated that the children lived with the paternal grandmother for months at a time, during which time she purchased food and clothes for the children, did their laundry, fed them, brought them to and from school, church, and extracurricular activities, acted as the contact person for the school in case the children were ill or injured, and attended medical appointments with them. These actions, parental in nature and over an extended period of time, support a determination that the paternal grandmother was the functional equivalent of a parent to the children … . Thus, the paternal grandmother was entitled to a hearing pursuant to Family Court Act § 1028, and the Family Court’s denial of her application deprived the paternal grandmother of her due process rights … . Matter of Kavon A. (Kavon A.–Monetta A.), 2021 NY Slip Op 01972, Second Dept 3-31-21

March 31, 2021

Evidence, Foreclosure

SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT; THE REPORT WAS BASED UPON BUSINESS RECORDS WHIDH WERE NOT PRODUCED OR IDENTIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed because it was based on business records which were not produced:

… Supreme Court should have denied Wilmington’s motion to confirm the referee’s report and for a judgment of foreclosure and sale. “[T]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records” … . “Moreover, the referee’s report also failed to identify the documents or other sources upon which the referee based his finding that the mortgaged premises should be sold in one parcel, and failed to answer the court’s specific question of whether the mortgaged premises could be sold in parcels” … . Thus, in confirming the report, the court should not have relied on the referee’s inadequately supported findings … . Wilmington Sav. Fund Socy., FSB v Mehraban, 2021 NY Slip Op 01802, Second Dept, 3-24-21

March 24, 2021

Evidence, Medical Malpractice, Negligence

PLAINTIFFS’ MEDICAL MALPRACTICE ACTION SEEKING RECOVERY OF THE COSTS OF CARING FOR A SEVERELY DISABLED CHILD SHOULD NOT HAVE BEEN DISMISSED; PROOF REQUIREMENTS EXPLAINED (SECOND DEPT).

The Second Department determined plaintiffs’ medical malpractice action seeking recovery of the expenses of caring for their severely disable child should not have been dismissed. The plaintiffs alleged defendants failed to properly diagnose the child’s conditions in utero and failed to advise plaintiffs of their options:

Parents may maintain a cause of action on their own behalf for the extraordinary costs incurred in raising a child with a disability … . “To succeed on such a cause of action, which ‘sound[s] essentially in negligence or medical malpractice,’ [a plaintiff] ‘must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by’ [the injured party]” … . “Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice” … . “[T]he claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition” … . “Since the plaintiffs’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable” … . Vasiu v Berg, 2021 NY Slip Op 01798, Second Dept 3-24-21

March 24, 2021

Evidence, Medical Malpractice, Negligence

GALLBLADDER SURGERY WAS PERFORMED ON PLAINTIFF, BUT HER GALLBLADDER HAD BEEN REMOVED YEARS BEFORE; THE DOCTORS APPARENTLY DID NOT REVIEW THE AVAIABLE MEDICAL RECORDS; THE RADIOLOGIST DID NOT DISCOVER THAT THE GALLBLADDER WAS ABSENT; THE DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment which had been awarded to an internist (Patil), a surgeon (Jung), and a radiologist (Opsha). Plaintiff underwent gallbladder surgery, but her gallbladder had already been removed. The medical record reflected the prior removal:

The plaintiff’s expert opined that Patil departed from the accepted standard of care and contributed to the plaintiff’s injuries by failing to review the plaintiff’s medical records maintained by SIPP, which indicated that the plaintiff previously had her gallbladder removed. …

At his deposition, Jung testified that, before the surgery, he was not aware that the plaintiff had a previous cholecystectomy and became aware that “[t]here was no gallbladder” … surgery. He admitted that he “looked at” Patil’s notes and reviewed the ultrasound report. Further, although he had access to [the] medical records, he did not recall if he reviewed the plaintiff’s medical chart prior to the surgery, but “might have looked at something.” Jung admitted that, other than the primary care physician’s report and the radiological report, it was “not routine” for him to “look into other documents and charts for a patient.” …

Opsha’s expert failed to explain the basis for his conclusion as to how Opsha detected a gallbladder in his review of the ultrasound and made findings in his report regarding the plaintiff’s gallbladder when that organ had been removed years earlier … . Ruiz v Opsha, 2021 NY Slip Op 01796, Second Dept 3-24-21

March 24, 2021

Criminal Law

THE FEDERAL CONSPIRACY-TO-DEAL-IN-FIREARMS STATUTE HAS DIFFERENT ELEMENTS THAN ITS NEW YORK EQUIVALENT AND THEREFORE CAN NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION (SECOND DEPT).

The Second Department vacated defendant’s second felony offender adjudication because the predicate federal felony did not have the same elements as the New York equivalent:

… [T]he defendant’s federal conviction of conspiracy to deal in firearms under section 371 of title 18 of the United States Code is not a “predicate felony conviction” .. , because the federal conspiracy statute contains different elements than its equivalent in New York such that it is possible to violate the federal statute without engaging in conduct that is a felony in New York … . People v Mohabir, 2021 NY Slip Op 01789, Second Dept 3-24-21

March 24, 2021

Appeals, Criminal Law, Evidence

THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People “improperly used [defendant’s] pretrial silence against him in their direct case.” The decision does not explain the facts. Although the error was not preserved, the appeal was considered in the interest of justice:

“[I]t is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . Here, as the defendant correctly contends, the People improperly used his pretrial silence against him on their direct case … . Since this evidence was used by the People on their direct case, their reliance upon cases in which “conspicuous omissions from the defendants’ statements to police” had properly been used during cross-examination of the defendants to impeach the credibility of their exculpatory trial testimony is misplaced … . Contrary to the People’s contention, the error in admitting evidence of the defendant’s pretrial silence during their direct case was not harmless … . Although this issue is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction, and on that basis, reverse the judgment and remit the matter … for a new trial. People v DeLaCruz, 2021 NY Slip Op 01785, Second Dept 3-24-21

March 24, 2021

Tag Archive for: Second Department

THE JURY NOTE INDICATED THE REQUEST WAS FOR THE TRANSCRIPT OF THE PHONE CALL, BUT THE JUDGE DESCRIBED THE NOTE AS A REQUEST FOR THE PHONE CALL AND PROVIDED THE JURY WITH THE RECORDING OF THE CALL; NEW TRIAL ORDERED (SECOND DEPT).

THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS; THEREFORE THE WITNESS’S STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ALLOWING THE PEOPLE TO MAKE PEREMPTORY CHALLENGES AFTER THE DEFENSE WAS REVERSIBLE ERROR (SECOND DEPT).

THE PETITIONER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE OBJECTIONS TO PROBATE ALLEGING LACK OF DUE EXECUTION AND UNDUE INFLUENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

THE FINDING THAT THE COMPLAINANT CONSENTED TO LYING DOWN IN BED WITH PETITIONER FOR THE NIGHT BUT DID NOT CONSENT TO HAVING SEX WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE COLLEGE’S DETERMINATION THAT PETITIONER VIOLATED THE STUDENT CODE OF CONDUCT ANNULLED (SECOND DEPT).

GRANDMOTHER, BASED UPON HER PAST CARE OF THE CHILDREN, WAS THE FUNCTIONAL EQUIVALENT OF A PARENT WHO HAD STANDING TO APPLY FOR A HEARING TO DETERMINE WHETHER THE CHILDREN SHOULD BE RETURNED TO HER, FAMILY COURT REVERSED (SECOND DEPT).

SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT; THE REPORT WAS BASED UPON BUSINESS RECORDS WHIDH WERE NOT PRODUCED OR IDENTIFIED (SECOND DEPT).

PLAINTIFFS’ MEDICAL MALPRACTICE ACTION SEEKING RECOVERY OF THE COSTS OF CARING FOR A SEVERELY DISABLED CHILD SHOULD NOT HAVE BEEN DISMISSED; PROOF REQUIREMENTS EXPLAINED (SECOND DEPT).

THE FEDERAL CONSPIRACY-TO-DEAL-IN-FIREARMS STATUTE HAS DIFFERENT ELEMENTS THAN ITS NEW YORK EQUIVALENT AND THEREFORE CAN NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION (SECOND DEPT).

THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).

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