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INSTRUCTING THE JURY ON THE BURDEN OF PROOF IN THIS DAMAGES-ONLY PERSONAL INJURY TRIAL SHIFTED THE BURDEN OF PROOF; $5,500,000 VERDICT SET ASIDE AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this personal injury action which had resulted in a $5,500,000 verdict, determined the “burden of proof” jury instruction should not have been given in this damages-only trial:

… [T]he defendants contend … that the verdict and judgment must be set aside on the ground that they were deprived of a fair trial by the Supreme Court’s improper jury instruction on the law. Specifically, the defendants contend that the court erroneously charged the jury with respect to the burden of proof.

“A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial”… .

Here, we agree with the defendants that under the facts of this case, the Supreme Court’s determination to charge Pattern Jury Instructions 1:60 was improper in the context of a trial limited to the issue of damages only and was prejudicial to the defendants in that it shifted the burden of proof. In light of the court’s error in the charge, substantial justice was not done since the jury was not instructed with the germane legal principles to be applied … . Gorokhova v Consolidated Edison of N.Y., Inc., 2020 NY Slip Op 04828, Second Dept 9-2-20

 

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PLAINTIFF’S TREATING PHYSICIAN SHOULD HAVE BEEN MADE AVAILABLE FOR CROSS-EXAMINATION BY THE DEFENDANT IN THIS INQUEST ON DAMAGES; ALTHOUGH DEFENDANT DEFAULTED ON LIABILITY IN THIS PERSONAL INJURY ACTION, DEFENDANT APPEARED FOR THE INQUEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the injured plaintiff’s (Castaldini’s) treating physician should have been made available for cross-examination by defendant at the inquest on damages. Defendant had defaulted on liability but appeared at the inquest. Supreme Court accepted an affidavit from the doctor to prove damages. The court noted that causation of the damages is not considered in an inquest:

… [W]e disagree with the Supreme Court’s determination to admit into evidence the written sworn statement of Castaldini’s treating physician without making the physician available for cross-examination. At an inquest to ascertain damages upon a defendant’s default, the plaintiff may submit proof by written sworn statements of the witnesses (see CPLR 3215[b]; 22 NYCRR 202.46[b]). However, where, as here, the defaulting defendant gives notice that he or she will appear at the inquest, the plaintiff must make the witnesses available for cross-examination (see CPLR 3215[b] …). Since Walsh did not make the physician available for cross-examination, the court should not have admitted into evidence the physician’s written sworn statement over Walsh’s objection. Further, since the court relied on the physician’s statement in making its findings of fact on damages, we remit the matter to the Supreme Court, Suffolk County, for a new inquest on the issue of damages … . Castaldini v Walsh, 2020 NY Slip Op 04822, First Dept 9-2-20

 

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SUPREME COURT PROPERLY LIMITED THE DEPOSITION QUESTIONING OF A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION AND PROPERLY ORDERED THAT THE DEPOSITION BE SUPERVISED BECAUSE OF MISCONDUCT ON BOTH SIDES DURING A PRIOR DEPOSITION (SECOND DEPT).

The Second Department, over an extensive dissent, determined Supreme Court properly issued a protective order limiting the deposition questioning of a doctor (Brem) in this medical malpractice action and properly ordered that the deposition be supervised. Both sides had engaged in misconduct at the prior deposition:

… [T]he Supreme Court providently exercised its discretion in granting those branches of Winthrop’s [the hospital’s] motion which were for a protective order to the extent of limiting further questioning of Brem solely to his observations and treatment of decubitis ulcers sustained by Slapo [plaintiff’s decedent] and to direct that Brem’s continued deposition be supervised by a special referee. While we agree with the court’s characterization of the improper conduct of Slapo’s attorney at Brem’s deposition, we observe that the defense attorneys violated 22 NYCRR 221.1 by making numerous objections and making speaking objections. We further note that Brem violated 22 NYCRR 221.2 by refusing to answer questions. Given the obstructive conduct by the defense attorneys and Brem in violation of 22 NYCRR part 221, and the improper conduct of Slapo’s attorney during the deposition, we agree with the court that appropriate supervision of the balance of Brem’s deposition is necessary. Because both sides have engaged in arguably sanctionable conduct during the course of Brem’s deposition … , it was inappropriate to compel the plaintiff to solely bear the cost of supervision thereof. Further, without the consent of all the parties, the court may not compel a party to pay for or contribute to the cost of an outside referee (see CPLR 3104[b] …). Accordingly, we modify the order so as to direct that Brem’s continued deposition be supervised by a court-employed special referee … , a judicial hearing officer, or a court attorney referee. Slapo v Winthrop Univ. Hosp., 2020 NY Slip Op 04887, Second Dept 9-2-20

 

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AN AUTOMATIC OVERRIDE ALLOWING A LEVEL THREE RISK ASSESSMENT WAS PROPERLY APPLIED TO A PSYCHOLOGICAL ABNORMALITY NOT SPECIFICALLY MENTIONED IN THE SORA RISK LEVEL GUIDELINES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the automatic override justifying a level three risk level was properly based upon a psychological abnormality not specifically mentioned in the risk assessment guidelines, but included in the Diagnostic and Statistical Manual of Mental Disorders:

In the Guidelines, the Board explained that it “chose to require a clinical assessment of an abnormality so that loose language in a pre-sentence report would not become the basis for an override. Examples of a clinical assessment that would support an override are pedophilia and sexual sadism” (Guidelines at 19 …). The Guidelines do not contain any language limiting the application of the fourth override to these two examples, and there is no requirement that a psychological abnormality must be inherently sex-related in order for the fourth override to apply … . * * *

The People submitted, among other things, a psychologist’s report in which the psychologist concluded, based on a clinical assessment, that the defendant suffered from schizoaffective disorder, that he experienced “periods of agitation and disorganized behavior,” and “presents as hypersexual with low impulse control when decompensated.” The psychologist further concluded that the nature of the defendant’s illness placed him at an elevated risk of violence, which would likely take the form of inappropriate sexual conduct. This evidence established that there has been a clinical assessment that the defendant has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. People v Odiari, 2020 NY Slip Op 04882, Second Dept 9-2-20

 

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ALTHOUGH HARMLESS, IT WAS ERROR TO ADMIT THE CONTENT OF SOCIAL MEDIA ACCOUNTS WITHOUT AUTHENTICATING THE ACCOUNTS, PHOTOGRAPHS AND STATEMENTS (SECOND DEPT).

The Second Department determined it was (harmless) error to admit in evidence the content of social media accounts which was not authenticated:

We disagree … with the Supreme Court’s determination admitting into evidence certain content from various social media accounts … . The People failed to present sufficient evidence that the subject social media accounts belonged to the defendant, that the photographs on the accounts were accurate and authentic, or that the statements found on one of the accounts were made by the defendant … . People v Upson, 2020 NY Slip Op 04876, Second Dept 9-2-2020

 

THE WAIVER OF APPEAL WAS NOT KNOWINGLY AND VOLUNTARILY EXECUTED; NO MENTION OF THE WAIVER WAS MADE UNTIL AFTER THE GUILTY PLEA AND THE EXPLANATION OF THE RIGHTS AT STAKE WAS INSUFFICIENT (SECOND DEPT).

The Second Department determined the waiver of appeal was invalid because it was first mentioned after the guilty plea and the explanation of the purportedly waived appellate rights was insufficient:

… [T]he appeal waiver was not mentioned by the Supreme Court prior to the defendant’s plea of guilty, but only afterward. Accordingly, “the defendant received no material benefit from his appeal waiver, as the court had already accepted the defendant’s plea and made its sentence promise” … . Under such circumstances and in the absence of a request by the People, “the court’s insistence upon the execution of an appeal waiver was a gratuitous, after-the-fact additional demand asserted after the bargain had already been struck” … . In addition, the court’s colloquy on this issue, conducted after the plea had already been accepted, “mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal” … . Contrary to the People’s contention, “these defects were not cured by the terms of the standard written appeal waiver form, which not only lacked detail and repeated many of the mischaracterizations contained in the court’s colloquy, but further misstated that the defendant was giving up the right to all postconviction relief separate from the direct appeal” … . People v Eduardo S., 2020 NY Slip Op 04873, Second Dept 9-2-20

 

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THE APPELLATE COURT, OVER A TWO-JUSTICE DISSENT, REFUSED TO LOWER DEFENDANT’S SENTENCE BY ONE DAY TO AVOID DEPORTATION (SECOND DEPT).

The Second Department, over a two-justice dissent, determined defendant’s one-year sentence for assault, which had already been served at the time of the appeal, should not be reduced by one-day to avoid the immigration consequences of the one-year sentence (deportation):

On this record, even taking into specific consideration the potential immigration consequences of the jury’s verdict and the court’s sentence thereon, and recognizing that the trial judge has the best first-hand knowledge of the case and of the defendant, it cannot be said that the definite term of imprisonment of one year was unduly was harsh or excessive, or that any reduction of one day is warranted to further the interest of justice. …

We have rejected requests for one-day sentence reductions in cases with immigration consequences where the defendants used physical force or violence in the commission of their crimes against others … . …

Here, the defendant’s conduct involved violence against two assault victims, so that a one-day sentence reduction would be an outlier measured against our existing precedents. In any event, to reduce the defendant’s sentence by one day for the purpose of circumventing the normal application of U.S. immigration laws and procedures, in an appeal involving a) physical violence, b) against duly authorized peace officers, c) working in the line of duty, d) causing permanent physical injury to one of the officers, e) and inconsistent with this Court’s prior precedents, builds a bridge that is too far for us to traverse. People v Janvier, 2020 NY Slip Op 04861, Second Dept 9-2-20

 

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THE SENTENCES FOR ASSAULT AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the evidence did not support consecutive sentences for assault second and criminal possession of a weapon second:

… [T]he sentence imposed on the conviction of assault in the second degree should not run consecutively to the sentence imposed on the conviction of attempted criminal possession of a weapon in the second degree. There were no facts adduced at the defendant’s plea allocution to establish that the defendant attempted to possess ” a loaded firearm before forming the intent to cause a crime with that weapon'” … . People v Goodman, 2020 NY Slip Op 04857, Second Dept 9-2-20

 

THE FEDERAL FELONY DID NOT QUALIFY AS A NEW YORK PREDICATE FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender because the federal conviction did not qualify as the equivalent of the New York felony:

… [T]he defendant was improperly adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm with an obliterated serial number (see 18 USC § 922[k]). “An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[k] … ) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Dyce, 2020 NY Slip Op 04853, Second Dept 9-2-20

 

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ONCE SUPREME COURT FOUND DEFENDANT’S COUNSEL INEFFECTIVE IT WAS REQUIRED TO VACATE THE CONVICTION; DEFENDANT MOVED TO VACATE HIS CONVICTION BECAUSE HE REJECTED A PLEA OFFER WITHOUT BEING INFORMED HE COULD BE SUBJECT TO LIFE IN PRISON AS A PERSISTENT FELONY OFFENDER AFTER TRIAL; SUPREME COURT SHOULD NOT HAVE REINSTATED THE ORIGINAL SENTENCE AFTER FINDING DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined, once the motion court found defendant’s counsel ineffective for failing to inform defendant he risked being sentenced to life in prison as a persistent felony offender after trial, the motion court could not leave the convictions in place and reinstate the original sentence. Defendant had been offered a plea offer with a sentence of 4 1/2 to 9 years which he rejected and moved to vacate the guilty plea pursuant to CPL 440.10:

CPL 440.10(4) provides that “[i]f the court grants [a defendant’s motion pursuant to CPL 440], it must, except as provided in subdivision five or six of this section, vacate the judgment, and must dismiss the accusatory instrument, or order a new trial, or take such other action as is appropriate in the circumstances” (emphasis added). Contrary to the Supreme Court’s determination, the plain language of CPL 440.10(4) requires that, upon a finding that a defendant’s CPL 440 motion is meritorious, a court must, in the first instance (absent the exceptions in subdivisions five or six of CPL 440.10 which are not relevant here), vacate the judgment … , and upon so doing, must then select one of three options: (1) “dismiss the accusatory instrument,” (2) “order a new trial,” or (3) “take such other action as is appropriate in the circumstances” (CPL 440.10[4]). Since the court found that the defendant received ineffective assistance of counsel, it should have granted the defendant’s CPL 440.10 motion by vacating the judgment of conviction … . People v Brown, 2020 NY Slip Op 04849, Second Dept 9-2-20

 

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