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FAILURE TO TIMELY MAIL THE SUMMONS AND COMPLAINT AFTER SERVICE AT DEFENDANT’S BUSINESS AS REQUIRED BY CPLR 308 (2) IS A JURISDICTIONAL DEFECT WHICH IS NOT CURED BY LATE MAILING (SECOND DEPT).

The Second Department determined plaintiff’s failure to timely mail a copy of the summons and complaint after serving the documents at defendant’s place of business was a jurisdictional defect which was not cured by late mailing:

A mailing sent within the wrong time frame, like a mailing sent by the wrong method , increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required …  that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff’s claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially disclosed the plaintiff’s claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured … . Estate of Norman Perlman v Kelley, 2019 NY Slip Op 06475, Second Dept 9-11-19

 

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THE PEOPLE DID NOT SUBMIT SUFFICIENT PROOF THAT A PERIOD OF TIME SHOULD BE EXCLUDED FROM THE STATUTORY SPEEDY TRIAL CALCULATION, APPEAL HELD IN ABEYANCE AND MATTER SENT BACK FOR A HEARING AND REPORT (SECOND DEPT). ​

The Second Department, sending the matter back for a hearing on defendant’s statutory speedy-trial motion to dismiss, determined defendant had met his burden to show a delay greater that six months but the People did not present sufficient evidence that a period of time should be excluded from the speedy trial calculation:

… [T]he defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint (see CPL 30.30[1][a]). In opposition, the People failed to conclusively demonstrate with “unquestionable documentary proof” that any periods within that time should be excluded (CPL 210.45[5][c] …). Moreover, the “court action sheet” provided to this Court on appeal, of which we may take judicial notice … , contained only an ambiguous notation purportedly regarding the defendant’s alleged waiver of his CPL 30.30 rights from May 5, 2014, to July 8, 2014 … . Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing and thereafter a report on the defendant’s motion … . People v Perkins, 2019 NY Slip Op 06516, Second Dept 9-11-19

 

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COURT DID NOT HAVE AUTHORITY TO DISMISS THE ACTION PURSUANT TO CPLR 3216 BECAUSE NO 90-DAY NOTICE HAD BEEN SERVED; DISMISSAL FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS WAS NOT WARRANTED, BUT PRECLUSION OF FURTHER DISCOVERY WAS APPROPRIATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the court did not have authority to dismiss the medical malpractice action pursuant to CPLR 3216 for failure to prosecute in the absence of a 90-notice. The court further noted that, although dismissal for failure to comply with discovery demands was not warranted, the preclusion of further discovery was appropriate:

With regard to CPLR 3216, “the courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue, unless there has first been served a [90 day notice]” … . Here, it is undisputed that neither the Supreme Court nor the defendant served the requisite 90-day notice upon the plaintiff. …

… . [D]smissal of the complaint pursuant to CPLR 3126(3) was unwarranted as a sanction for the plaintiff’s failure to limit his disclosure demands. The remedy of dismissal is “only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” … . The sanction of dismissal is available for the willful and contumacious failure to disclose … , which did not occur here. The plaintiff submitted to a deposition by the defendants. However, the lengthy pendency of this action, the dispute over the plaintiff’s overbroad demands for disclosure, and his refusal to tailor those demands in accordance with prior orders of the court, compels the conclusion that further disclosure has been forfeited. Rezk v New York Presbyt. Hospital/N.Y. Weill Cornell Ctr., 2019 NY Slip Op 06426, Second Dept 8-28-19

 

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ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the interest of justice. The court noted Criminal Procedure Law 710.30 does not apply to statements made voluntarily in a noncoercive, noncustodial setting. Therefore the failure to timely notify the defense of the defendant’s admission to the murder made to a confidential informant was not an error. Based upon the trial judge’s characterization of the defendant at sentencing, the new trial will be before a different judge:

Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness …, which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath. …

… .[T]he prejudice to the defendant arose from (1) the prosecutor’s posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell’s refusal to testify, and (3) the court’s jury instructions that the jury may draw an inference of the defendant’s guilt from Mitchell’s refusal to testify. …

“Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” … . “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . People v Ward, 2019 NY Slip Op 06419, Second Dept 8-28-19

 

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APPELLATE COUNSEL’S BRIEF IN SUPPORT OF LEAVE TO WITHDRAW WAS DEFICIENT, NEW APPELLATE COUNSEL ASSIGNED (SECOND DEPT).

The Second Department determined appellate counsel’s brief in support of a motion to withdraw was deficient:

An appellate court’s role in reviewing an attorney’s motion to be relieved pursuant to Anders v California (386 US 738) consists of two separate and distinct steps … . Step one requires the appellate court to perform “[an] evaluation of assigned counsel’s brief, which must, to be adequate, discuss relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority'” … . Step two requires the appellate court to perform “an independent review of the record’ to determine whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct'” … .

Here, the brief submitted by the defendant’s counsel pursuant to Anders v California (386 US 738) was deficient because it failed to adequately analyze potential appellate issues, including, but not necessarily limited to, whether the defendant’s plea of guilty was entered knowingly, intelligently, and voluntarily … . Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant’s plea of guilty was knowing, intelligent, and voluntary … . Accordingly, under the circumstances, we must assign new counsel to represent the defendant. People v Robinson, 2019 NY Slip Op 06417, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE INTOXICATION DEFENSE IN THIS MURDER CASE; THE MANSLAUGHTER CHARGE MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF MURDER (SECOND DEPT).

The Second Department determined defendant received effective assistance of counsel but the manslaughter first charge, as a lesser inclusory concurrent count of murder second, must be dismissed. Defendant argued defense counsel was ineffective for failing to raise the intoxication defense in this stabbing case:

Assuming, without deciding, that the evidence at trial was sufficient to warrant an intoxication charge … , defense counsel was not ineffective for failing to request that charge in this case. Defense counsel prudently pursued arguments which sought to present this incident as a perfect storm of unnecessary escalation by the victim, followed by actions taken by the defendant to protect himself and his friends, all resulting in the wholly accidental death of the victim. Defense counsel could have strategically determined that requesting an intoxication charge would have undermined, or distracted from, the narrative the defense had pursued that the defendant was forced to make a decision when faced with the angry victim to protect himself and his friends. Accordingly, the defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel’s failure to request the intoxication charge … . People v Moreira, 2019 NY Slip Op 06414, Second Dept 8-28-19

 

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS NOT A VALID SEARCH INCIDENT TO ARREST, SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant criminal possession of a weapon conviction and dismissing that count, determined the arresting officers should have conducted the warrantless search of a backpack in which the seized weapon was found. The criteria for a search incident to arrest were not met:

On April 30, 2015, at approximately 2:30 p.m., police officers went to the defendant’s home in response, in part, to information they had received from an informant that the defendant was selling drugs out of his home and kept a firearm concealed inside of a distinctive backpack. When the officers arrived, they observed the defendant smoking a marijuana cigarette on the porch of the home. Upon approaching the defendant and identifying themselves, the officers observed the defendant grab a distinctive backpack matching the description given by the informant, curse out loud, and run inside of the house. The officers pursued the defendant, who dropped the backpack inside the front doorway and proceeded up the stairs toward the second floor of the house. The defendant was apprehended and handcuffed on the stairs. After the defendant was secured, one of the officers at the scene opened the defendant’s backpack, inside of which he found a firearm and a quantity of marijuana. …

The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests, including their personal effects'” … . “[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” … . The proof adduced at the suppression hearing failed to establish the presence of such circumstances … . People v Grimes, 2019 NY Slip Op 06411, Second Dept 8-28-19

 

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UNDER THE CIRCUMSTANCES OF THIS CASE, PRE-MIRANDA QUESTIONING OF THE DEFENDANT ABOUT HIS EMPLOYMENT CONSTITUTED CUSTODIAL INTERROGATION; ALL OF DEFENDANT’S STATEMENTS, PRE- AND POST-MIRANDA, MUST BE SUPPRESSED; JURY SHOULD HAVE BEEN TOLD OUT-OF-COURT STATEMENTS ADMITTED FOR A NONHEARSAY PURPOSE SHOULD NOT BE CONSIDERED FOR THEIR TRUTH (SECOND DEPT).

The Second Department, reversing defendant’s conviction, suppressing defendant’s statements and ordering a new trial, determined the initial questioning of the defendant, which was not preceded by the Miranda warnings, constituted interrogation. Therefore, those statements and the entire post-Miranda videotaped interrogation, should have been suppressed. The court further noted that statements made by an accomplice in a controlled phone call were admitted for a nonhearsay purpose. Therefore the jury should have been instructed not to rely on those statements for their truth:

… [T]he pre-Miranda questioning was not mere “small talk,” but, rather, interrogation … . In particular, the detective was aware, when he questioned the defendant about his employment, that Espinal [an accomplice] claimed to know the defendant from previously working with him at a bar. Indeed, when the questioning resumed after administration of Miranda warnings, it concerned the defendant’s work history at bars at or around the time of the incident. Notably, the People assert that they are not claiming that the pedigree exception to the Miranda rule is applicable, and, in any event, the detective admitted at the suppression hearing that, at the time of the interview, he had already recorded the defendant’s pedigree information and that such information does not include an individual’s employment … . Under these circumstances, the defendant was improperly subjected to custodial interrogation without being advised of his Miranda rights, requiring suppression of those statements … . People v Dorvil, 2019 NY Slip Op 06409, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT WHICH WAS ISSUED BASED UPON UNWARNED STATEMENTS MADE BY DEFENDANT, STATEMENTS WHICH HAD BEEN SUPPRESSED BY THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering new suppression motions and a new trial, determined defense counsel was ineffective for failing to move to suppress tangible evidence seized pursuant to a search warrant which was issued based upon unwarned statements made by the defendant, statements which had been suppressed by the trial court:

Here, defense counsel’s assertion of an inappropriate argument in support of the belated suppression motion, and counsel’s complete failure to challenge the admissibility of physical evidence seized from the defendant’s home based on the Miranda violation … , prejudiced the defendant and rendered counsel’s representation ineffective … . People v Corchado, 2019 NY Slip Op 06408, Second Dept 8-28-19

 

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NO EVIDENCE THE FATAL ACCIDENT WAS CAUSED BY DRIVING TOO FAST FOR THE CONDITIONS; PETITIONER WAS TRAVELLING BELOW THE SPEED LIMIT WHEN HIS CAR STRUCK A POTHOLE, CAUSING A MECHANICAL FAILURE (SECOND DEPT).

The Second Department, reversing the NYS Department of Motor Vehicles Administrative Appeals Board, annulled the finding that petitioner was speeding and the suspension of his driver’s license. Petitioner was traveling below the speed limit when his car struck a pothole causing a mechanical failure which resulted in a fatal accident. The Administrative Law Judge had determined petition was driving too fast for the conditions, meaning too fast for a road with potholes:

“To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination” … . Here, the determination that the petitioner violated Vehicle and Traffic Law § 1180(a) is not supported by substantial evidence. There is no evidence to support the determination that the petitioner operated his vehicle at a speed greater than reasonable and prudent under the circumstances. There was no evidence to show that the petitioner’s speed contributed to the accident or that the vehicle would not have been damaged by the pothole had the petitioner been traveling at a lesser rate of speed … . Matter of Pepe v New York State Dept. of Motor Vehicles, 2019 NY Slip Op 06397, Second Dept 8-28-19

 

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