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FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF DNA EVIDENCE DERIVED USING THE FORENSIC STATISTICAL TOOL (FST); NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined either the DNA evidence should have been precluded, or a Frye hearing should have been held for DNA evidence derived using the Forensic Statistical Tool (FST):

Prior to trial, the defendant moved to preclude evidence sought to be introduced by the People regarding DNA testing derived from the use of the Forensic Statistical Tool (hereinafter FST), or alternatively, to conduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of such evidence. The Supreme Court denied the defendant’s motion, finding that FST was generally accepted in the scientific community.

Based upon the recent determinations by the Court of Appeals in People v Foster-Bey (_____ NY3d _____, 2020 NY Slip Op 02124) and People v Williams (_____ NY3d _____, 2020 NY Slip Op 02123), we find that it was an abuse of discretion as a matter of law for the Supreme Court to admit the FST evidence without first holding a Frye hearing “given [the] defendant’s showing that there was uncertainty regarding whether such proof was generally accepted in the relevant scientific community at the time of [the defendant’s] motion” … . Additionally, we find that the error was not harmless … . Without this forensic evidence, proof of the defendant’s guilt was not overwhelming as the only additional evidence linking the defendant to the weapon was the testimony of a lay witness which was circumstantial in nature. People v Pelt, 2020 NY Slip Op 03250, Second Dept 6-10-20

 

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the warrantless search of defendant’s backpack was not justified. The appeal was heard because the waiver of appeal was deemed invalid:

Officer Musa approached the defendant, who, in response to Officer Musa’s inquiry, provided his name. The defendant was carrying a backpack, and Officer Musa observed what appeared to be credit cards or identification cards in an outside mesh pocket. Officer Musa arrested the defendant for criminal trespass, handcuffed him, and removed the backpack from the defendant. Officer Musa then searched the backpack at the scene of the arrest … . * * *

” All warrantless searches presumptively are unreasonable per se,’ and, thus, [w]here a warrant has not been obtained, it is the People who have the burden of overcoming’ this presumption of unreasonableness” …. ” [E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag'” … . People v Chy, 2020 NY Slip Op 03244, Second Dept 6-10-20

 

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HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that a hearsay statement allegedly made by the only witness (Lindsay) to identify the defendant as one of the masked intruders in this home-invasion murder-assault-burglary case should have been allowed in evidence. Lindsay, who was shot by one of the intruders, initially claimed he could not identify anyone because they were wearing face-coverings. He later identified the defendant and the others, claiming that he initially did not identify them because he was afraid. The witness who was not allowed to testify, Boyd, is Lindsay’s brother. Boyd would have testified that Lindsay repeatedly told him he could not identify any of the intruders. Boyd had contacted defense counsel only after Lindsay testified so no foundation for Boyd’s testimony had been laid. The prosecutor was willing to allow Lindsay to be recalled for that purpose:

“Once a proper foundation is laid, a party may show that an adversary’s witness has, on another occasion, made oral or written statements which are inconsistent with some material part of the trial testimony, for the purpose of impeaching the credibility and thereby discrediting the testimony of the witness” … . “Since evidence of inconsistent statements is often collateral to the ultimate issue before the [trier of fact] and bears only upon the credibility of the witness, its admissibility is entrusted to the sound discretion of the Trial Judge'” … . Indeed, “[i]t is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” … . However, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … . “Thus, while a trial court may preclude impeachment evidence that is speculative, remote, or collateral, [that] rule . . . has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the [trier of fact] must decide'” … .

“Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement” … . Under such circumstances, the right to present a defense may “encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay” … . “Indeed where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice'” … . People v Butts, 2020 NY Slip Op 03243, Second Dept 6-10-20

 

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THE ARBITRATION AGREEMENT CALLED FOR NOTIFICATION OF AN ARBITRATION BY CERTIFIED MAIL; ALTHOUGH THE APPELLANT APPARENTLY NEVER PICKED UP THE MAILED NOTICE AND DID NOT APPEAR AT THE ARBITRATION, HER DUE PROCESS RIGHTS WERE NOT VIOLATED; THE PARTIES’ AGREEMENT ON THE METHOD OF SERVICE CONTROLS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined the appellant, a registered broker with the Financial Industry Regulatory Authority (FINRA), was bound by the notice requirements in the arbitration agreement. The agreement called for notification of an arbitration by certified mail. The appellant did not appear and her former client was awarded over $3 million. The appellant sought to vacate the award arguing that notification by mail deprived her of due process because she was often away from her residence and the client was aware she could be contacted by email. The certified mail notification was never picked up by the appellant:

… [I]n the context of binding arbitration, it is the parties’ consent which vests the authority in the arbitrator to decide a particular dispute. Accordingly, although the CPLR provides that a demand for arbitration, or a notice of intention to arbitrate, must be served “in the same manner as a summons or by registered or certified mail, return receipt requested” (CPLR 7503[c]), New York courts have long recognized that “parties to an arbitration agreement may prescribe a method of service different from that set forth in the CPLR” … . Indeed, “the parties may agree to other methods for service, either by stipulating the manner in the arbitration clause or, more generally, by adopting the arbitration rules of an arbitration agency” … . “Where . . . parties agree to the manner in which a demand for arbitration can be served, they do not have to comply with the service requirements established by CPLR 7503(c)” … . * * *

Where parties to an arbitration agreement have consented to an alternative method of service, “[t]he method of service by which parties have agreed to be bound must be complied with according to the exact terms thereof in order that the requirements of due process be satisfied” … . Matter of New Brunswick Theol. Seminary v Van Dyke, 2020 NY Slip Op 03114, Second Dept 6-3-20

 

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THE TOWN’S SEQRA NEGATIVE DECLARATION REGARDING THE EXPANSION OF A CAMPGROUND WAS ARBITRARY AND CAPRICIOUS; THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND THE CAMPGROUND CONSTITUTED ILLEGAL CONTRACT ZONING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town planning board’s adoption of negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) with respect to the expansion of a campground (BBFC) was arbitrary and capricious. The Second Department further found that the development contract between the town and BBFC constituted illegal contract zoning:

The Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites, and adopted the negative declaration based largely upon its finding that the campground had been operating 154 campsites—albeit illegally—for many years. Under the circumstances, the Planning Board’s adoption of the negative declaration was arbitrary and capricious.

… [T]he development agreement entered into between the Town Board and BBFC constituted illegal contract zoning. “[N]o municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties” … . The test is whether the development agreement committed the Town to a specific course of action with respect to a zoning amendment … . The Town Board agreed to amend the zoning code to permit 210-day occupancy limit, a change from the current 120-day occupancy limit, in exchange for BBFC’s agreement that the 210-day occupancy limit would apply to all of the campsites, including the original 74 approved campsites. This was an agreement binding on BBFC to give a form of consideration in exchange for legislative action and to limit the Town Board’s authority to change the bulk requirements in the zoning code until such time as BBFC would not be negatively affected by such change … . Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03112, Second Dept 6-3-20

In the same matter, the Second Department determined the granting of an area variance for the campground, based upon the nonconforming campsites which had already been constructed, was arbitrary and capricious. Matter of Neeman v Town of Warwick, 2020 NY Slip Op 03113, Second Dept 6-3-20

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THE MERE DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE MORTGAGE DEBT; EXPLICIT NOTICE OF DE-ACCELERATION IS REQUIRED EITHER IN THE MOTION TO DISCONTINUE ITSELF OR IN A SEPARATE NOTICE; THEREFORE THE INSTANT FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, over an extensive partial dissent, determined the discontinuance of a prior foreclosure action did not, standing alone, de-accelerate the debt. Therefore the instant foreclosure action was time-barred. The Second Department noted that the plaintiff did not submit the motion papers for the discontinuance and therefore did not submit any evidence that the debt was explicitly de-accelerated in those papers, or in any other notice to the defendant. Such explicit notice is required:

A de-acceleration of the full debt revives the borrower’s right to make the monthly payments that became due between the time the loan was accelerated and the time the acceleration was revoked, together with the right to make future monthly installment payments. Since the borrower may continue to assume that its lender or servicer will not accept post-acceleration monthly payments, the lender, in order to effectively rescind the acceleration, should be required to notify the borrower that the right to make monthly payments is restored and that the lender will accept the tender of such payments … . * * *

A bare discontinuance of litigation does not nullify the fact that a contractual right to accelerate has been unilaterally exercised pursuant to the terms of a note. An acceleration of loan debt by the transmittal of a letter or by the commencement of an action in a court of law has legal implications, such as the financial penalties authorized under the note, the potential negative effect upon the borrower’s credit rating, and reliance by the borrower that monthly payments will no longer be expected or accepted and thereby prevent any pay-down of the balance owed. To occur, none of these or other consequences of an acceleration require any permission, ruling, stipulation, decision, or order of a court, as they are independent of the litigation … . Trust v Barua, 2020 NY Slip Op 03095, Second Dept 6-3-20

 

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THE OPTION TO RENEW THE LEASE WAS NOT ENFORCEABLE; IT WAS MERELY AN AGREEMENT TO AGREE (SECOND DEPT).

The Second Department, applying the “doctrine of definiteness” determined the option to renew the lease was not enforceable and the lease had therefore expired:

“The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … . Among the terms of a lease that must be known is the amount of rent that is to be paid … . The doctrine of definiteness, however, is not applied rigidly, and “where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain” … . In the absence of an explicit contract term, the requirement of definiteness may be satisfied where: (1) the agreement itself sets forth an agreed methodology for determining the missing term within its four corners or (2) the agreement invites recourse to an objective extrinsic event, condition, or standard to ascertain the term … .

Here, the parties’ failure to set forth either the amount of rent to be paid during the renewal period, or an agreed formula, methodology, or objective extrinsic event by which that rent could be determined, rendered the option to renew an unenforceable agreement to agree … . Vizel v Vitale, 2020 NY Slip Op 03140, Second Dept 6-3-20

 

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NOTICE OF DEFAULT DID NOT ACCELERATE THE MORTGAGE DEBT; THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage debt was never accelerated and therefore the six-year statute of limitations did not begin to run in this foreclosure action:

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). “[E]ven if a mortgage is payable in installments …, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” … .

… [T]he May 3, 2007, notice of default, which advised that the loan would be accelerated if the default was not cured by June 7, 2007, was “nothing more than a letter discussing acceleration as a possible future event, which [did] not constitute an exercise of the mortgage’s optional acceleration clause”  … . U.S. Bank N.A. v Mongru, 2020 NY Slip Op 03137, Second Dept 6-3-20

 

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THE QUARRY OWNER HAD, AS A PRE-EXISTING NONCONFORMING USE, A VESTED RIGHT TO MINE THAT PORTION OF ITS LAND SUBJECT TO A PENDING APPLICATION FOR A PERMIT FROM THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ZONING BOARD AND SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner had a vested right to mine that portion of its land subject to a pending application for a mining permit from the Department of Environmental Protection (DEP). Petitioner operated a quarry, which was an allowed pre-existing use of the land, and had a DEC permit to mine 37.5 acres (the entire parcel is 241 acres) The petitioner was seeking a permit from the DEC to expand the number of acres to be mined from 37.5 acres to 94 acres. While the application for the permit was pending, the town enacted a new zoning law that allowed mining on only those lands subject to an existing DEC permit. Petitioner sought a declaration that it had a vested right to mine its entire parcel as a prior nonconforming use and Supreme Court dismissed the proceeding:

” [N]onconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance'” … . ” By its very nature, quarrying involves a unique use of land. . . . [A]s a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed'” … . “[W]here . . . the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of [the] protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property” … . …

… [T]he petitioner demonstrated that it has a vested right to mine those 94 acres as a prior nonconforming use … . In opposition, the respondents/defendants failed to raise a triable issue of fact. Further, for the same reasons, the petitioner demonstrated that so much of the ZBA’s determination as found that the petitioner does not have a vested right to mine those 94 acres was affected by an error of law, arbitrary, and capricious … . …

Accordingly, the Supreme Court should have granted the petitioner’s motion to the extent of declaring that the petitioner has a vested right to mine 94 acres of its property as a prior nonconforming use … . Matter of Red Wing Props., Inc. v Town of Rhinebeck, 2020 NY Slip Op 03119, Second Dept 6-3-20

 

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RETURN OF THE CHILDREN TO MOTHER AFTER A TEMPORARY REMOVAL WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined the return of children to mother after a temporary removal was not supported by a sound and substantial basis:

“An application pursuant to Family Court Act § 1028 to return a child who has been temporarily removed shall’ be granted unless the Family Court finds that “the return presents an imminent risk to the child’s life or health”‘” … . The court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record … . In making its determination, the court ” must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal'” … .The court ” must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests'” … . “Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care” … . The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody … . …

The evidence at the hearing demonstrated that, after one of the subject children reported to the mother that her older brother had been sexually abusing her since she was 10 years old, the mother did not address the sexual abuse and did not provide increased supervision for the subject children. Further, the petitioner demonstrated that the mother left one of the subject children in the older brother’s care, for at least a period of time, while she gave birth to the third subject child, in violation of an order dated March 23, 2018. Under the circumstances, we cannot agree that the return of two of the subject children to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the children’s life or health … . Matter of Carter R. (Camesha B.), 2020 NY Slip Op 03118, Second Dept 6-3-20

 

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