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TRIAL JUDGE ASSUMED THE ROLE OF THE PROSECUTOR AND ELICITED CRUCIAL IDENTIFICATION TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the trial judge assumed the role of the prosecutor in eliciting crucial identification testimony:

“While neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,’ the court’s discretion in this area is not unfettered” … . The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the record demonstrates that after the two complainants, in response to questions by the prosecutor, were unable to positively identify the defendant as the perpetrator of the robbery, the Supreme Court improperly assumed the appearance or the function of an advocate by questioning the complainants until it elicited a positive in-court identification of the defendant from each of them … . Under these circumstances, the court’s decision to elicit such testimony was an improper exercise of discretion and deprived the defendant of a fair trial. People v Mitchell, 2020 NY Slip Op 03541, Second Dept 6-24-20

 

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THE MAJORITY HELD THE WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS JUSTIFIED BECAUSE IT OCCURRED CLOSE IN TIME TO DEFENDANT’S ARREST ON THE STREET AND WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES; THE DISSENT ARGUED THERE WAS NO PROOF THE BACKPACK WAS WITHIN THE GRABBABLE AREA AND NO PROOF OF EXIGENT CIRCUMSTANCES (SECOND DEPT).

The Second Department, over a dissent, determined the warrantless search of defendant’s backpack occurred close in time to the arrest and was justified by exigent circumstances. The dissent argued there was no evidence the backpack was within the grabbable area of the defendant and no evidence there were exigent circumstances. Defendant had fallen off his bicycle after he was stopped by the police, the complainant had identified the defendant at the scene, and there were five or six officers around the defendant at the time of the search of the backpack:

According to the testimony adduced at the suppression hearing, after being chased by the police, the defendant fell off his bicycle onto the street. When the complainant arrived one minute later and identified the defendant, the defendant was standing up and had not yet been handcuffed. Immediately after the complainant’s identification, the defendant was placed under arrest. Approximately two minutes after the defendant’s arrest, the police searched the subject backpack which was “on the street, at the location of the arrest.” These facts show that the arrest and search of the backpack were for all practical purposes conducted at the same time and in the same place … . Additionally, at the time of the arrest, the backpack, which was “on the street, at the location of the arrest,” could have been accessed by the defendant and had not yet been reduced to the exclusive control of the police.

Additionally, the circumstances support a reasonable belief that the search of the backpack was necessary to ensure the safety of the arresting officers and the public. The police responded to and arrested the defendant for a burglary, a violent crime. In addition, the defendant was not cooperative with the police. Indeed, the defendant was arrested at the conclusion of a police chase, following his flight from the police on a bicycle. Moreover, the setting of the defendant’s arrest and search of the backpack was a public street. These circumstances gave rise to objective and legitimate reasons for the search of the backpack … . People v Mabry, 2020 NY Slip Op 03540, Second Dept 6-24-20

 

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THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the judge should have analyzed the motion to vacate the conviction under Criminal Procedure Law (CPL) 440.20, as well as 440.10; (2) the sentence for kidnapping should be concurrent with the sentence for felony murder; and (3) the judge failed to address whether the running of the kidnapping sentence consecutively to the other murder convictions violated defendant’s rights to equal protection. Matter remitted for consideration of the equal-protection argument:

The Supreme Court erred in construing the defendant’s motion as one solely pursuant to CPL 440.10. Rather, the motion also sought resentencing on the basis that the kidnapping sentence “was unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1]) because it should have been made to run concurrently with the felony murder conviction under count three of the indictment, and it should have been made to run concurrently with all of the murder convictions based on his rights to equal protection. That branch of the motion was properly made pursuant to CPL 440.20 (see CPL 440.20[4]). …

… [T]he imposition of consecutive sentences for the kidnapping conviction under count four of the indictment and the felony murder conviction under count three of the indictment was unlawful, since the kidnapping … , of which the defendant was convicted under count four of the indictment, also constituted the underlying felony in his murder conviction under count three of the indictment, thereby constituting a “material element” of that crime (Penal Law § 70.25[2] …). …

The Supreme Court failed to address the only remaining issue raised by the defendant on this appeal—that the running of the sentence on the kidnapping conviction consecutively to the sentences on the other murder convictions violated his rights to equal protection. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of that issue. People v Khan, 2020 NY Slip Op 03537, Second Dept 6-24-20

 

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FAMILY COURT SHOULD HAVE GRANTED THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department determined Family Court should have granted the application for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding:

” The Family Court has broad discretion in determining whether to adjourn a proceeding in contemplation of dismissal'” … . Factors that are relevant to a court’s discretionary determination of whether to adjourn a proceeding in contemplation of dismissal include a respondent’s criminal and disciplinary history, history of drug or alcohol use, academic and school attendance record, association with gang activity, acceptance of responsibility for his or her actions, the nature of the underlying incident, recommendations made in a probation or mental health report, the degree to which the respondent’s parent or guardian is involved in the respondent’s home and academic life, and the ability of the parent or guardian to provide adequate supervision … .

Here, the Family Court improvidently exercised its discretion in denying the appellant’s application pursuant to Family Court Act § 315.3 for an adjournment in contemplation of dismissal. Under the circumstances here, including the fact that this proceeding constituted the appellant’s first contact with the court system, he took responsibility for his actions and expressed remorse, he voluntarily participated in counseling during the pendency of the proceeding, and he maintained a strong academic and school attendance record, an adjournment in contemplation of dismissal was warranted … . Matter of Maximo M., 2020 NY Slip Op 03428, Second Dept 6-17-20

 

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WARRANTLESS MANUAL SEARCH OF DEFENDANT’S IPAD AT JFK AIRPORT PROPER; CRITERIA FOR SEARCHES OF ELECTRONIC DEVICES AT BORDERS EXPLAINED (SECOND DEPT).

The Second Department determined defendant’s iPad was properly searched by a Department of Homeland Security (DHS) agent at JFK airport after defendant, an airline pilot, had flown from Montreal to JFK.  Based upon an investigation in Texas, DHS believed defendant may have had child pornography on his iPad. Defendant was asked to provide the password after he was told the iPad would be seized if he did not provide the password. Defendant provided the password and child pornography was found:

Because “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” and “the expectation of privacy is less at the border than it is in the interior”… , border searches are generally deemed reasonable “simply by virtue of the fact that they occur at the border” … . Thus, “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant” … . However, “highly intrusive searches” may require reasonable suspicion in light of the significance of the individual “dignity and privacy interests” infringed … .

While federal circuit courts are split as to whether reasonable suspicion or something less than that is required to justify a manual search of an electronic device for contraband at the border, no court has required a warrant or probable cause for either a manual or forensic search of an electronic device for contraband at the border … . Even assuming reasonable suspicion was required, here, the DHS Agents possessed reasonable suspicion to search the defendant’s iPad for child pornography … . …

Further, contrary to the defendant’s contention, the defendant was not coerced into entering the password to unlock his iPad, in violation of his right against self-incrimination, his right to due process, or CPL 60.45. The defendant, who was told that he was free to leave, was not in custody when he was asked to enter the password … . The fact that the defendant’s iPad would be detained if he did not enter the password did not mean that he was “subjected to the coercive atmosphere of a custodial confinement”… . Further, since the DHS Agents had reasonable suspicion that contraband could be found on the iPad, the Agents could perform a forensic search of the iPad without a warrant … . People v Perkins, 2020 NY Slip Op 03425, Second Dept 6-17-20

 

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THE MEANING OF ‘GROSS EARNED INCOME’ IN THE STIPULATION OF SETTLEMENT AFFECTED THE CALCULATION OF CHILD SUPPORT; THE TERM WAS AMBIGUOUS REQUIRING A HEARING TO DETERMINE THE INTENT OF THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the settlement agreement was ambiguous. The meaning of the term “gross earned income” in the agreement affected the child support calculation. The court should have held a hearing to ascertain the intent of the parties. Instead, the court deferred to the definition of “income” in the Child Support Standards Act (CSSA):

“A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation” … . “Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is whether the agreement on its face is reasonably susceptible of more than one interpretation” … . In making this determination, the court also should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed … . Where a contract is ambiguous, “the court may consider the construction placed on the contract by the parties to help ascertain the meaning” … . “The role of the court is to determine the intent and purpose of the stipulation based on the examination of the record as a whole” … .

Here, the term “gross earned income,” in the context of the parties’ stipulation, is ambiguous … . However, instead of deferring to the CSSA’s definition of “income,” the Support Magistrate should have held a hearing to determine the parties’ intent in including the word “earned” … . Matter of Abramson v Hasson, 2020 NY Slip Op 03418, Second Dept 6-17-20

 

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PLAINTIFF SOUGHT ONLY CANCELLATION OF A MORTGAGE; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, CANCELLED THE NOTE AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief that was not asked for by the plaintiff. Plaintiff sought cancellation and discharge of a mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501(4). The judge cancelled the mortgage and the note:

“The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the plaintiff only sought cancellation and discharge of the subject mortgage, not cancellation of the note. The Supreme Court should not have granted additional relief sua sponte … . We note that the plaintiff lacked standing to seek cancellation of the note, as it was not a party to it. Trenton Capital, LLC v Bank of N.Y. Mellon, 2020 NY Slip Op 03416, Second Dept 6-17-20

 

CONVICTION OF COURSE OF SEXUAL CONDUCT AGAINST A CHILD FIRST DEGREE MUST BE VACATED AS A LESSER INCLUDED OFFENSE OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (SECOND DEPT).

The Second Department noted that defendant’s conviction of course of sexual conduct against a child in the first degrees must be vacated as a lesser included offense:

… [T]he defendant’s conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) must be vacated and that count of the indictment dismissed, since that count is a lesser included offense of the crime of predatory sexual assault against a child under Penal Law § 130.96 … . People v Jones, 2020 NY Slip Op 03406, Second Dept 6-17-20

 

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ALTHOUGH AN INCOMPLETE CHANGE-OF-ATTORNEY STIPULATION WAS FILED BEFORE THE STIPULATION OF DISCONTINUANCE WAS FILED, THE STIPULATION OF DISCONTINUANCE REMAINED VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stipulation of discontinuance executed by the plaintiff’s then attorney, and filed after plaintiff’s change-of-attorney stipulation was filed, was valid and enforceable. Plaintiff’s change-of-attorney stipulation was not signed by an agent or representative of the plaintiff:

” [A]n attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute'” … . Pursuant to CPLR 321(b), an attorney of record may be changed either by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party, with notice of the change given to the attorneys for all parties in the action, or by order of court upon notice to all parties. ” Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated'” … .

Here, the stipulation of discontinuance was executed by an attorney with the plaintiff’s then attorney of record … (hereinafter outgoing counsel). Though the plaintiff’s stipulation to change its attorney was filed prior to the date on which the stipulation of discontinuance was filed, and was signed by outgoing counsel and incoming counsel, no agent or representative of the plaintiff signed the change-of-attorney stipulation. Nor does the record establish that notification of the plaintiff’s change in attorney was provided to any other party, or to the appellant, prior to the date on which the stipulation of discontinuance was filed. Accordingly, the plaintiff neither filed a properly signed consent to change attorney form nor sought a court order permitting outgoing counsel to withdraw as the plaintiff’s attorney of record in accordance with CPLR 321(b) prior to the filing of the stipulation of discontinuance.  GMAC Mtge., LLC v Galvin, 2020 NY Slip Op 03405, Second Dept 6-17-20

 

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SUPPRESSION COURT’S FAILURE TO EXPLAIN THE BASIS FOR DENYING THE MOTION TO SUPPRESS PRECLUDED DETERMINATION OF THE APPEAL; MATTER REMITTED (SECOND DEPT).

The Second Department, holding the appeal and remitting the matter, noted that the suppression court’s failure to provide the basis for its denial of defendant’s suppression motion precluded determination of the appeal:

The defendant’s appeal from the order must be dismissed, as no appeal lies, as of right or by permission, from an order denying a motion to suppress evidence (see CPL 450.10, 450.15 …). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment.

“Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant” (CPL 470.15[1]). The Court of Appeals “has construed CPL 470.15(1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” … . “CPL 470.15(1) bars [the Appellate Division] from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court'” … .

… [W]e must hold the appeal from the judgment in abeyance and remit the matter to the Supreme Court … to articulate the basis or bases for its denial of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. People v Rice, 2020 NY Slip Op 03402, Second Dept 6-17-20

 

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