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ALTHOUGH THE JURY WAS PROPERLY INSTRUCTED TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIED, THE VERDICT SHEET DID NOT MENTION THE JUSTIFICATION DEFENSE WHICH MAY HAVE GIVEN THE JURY THE IMPRESSION THE JUSTIFICATION DEFENSE SHOULD BE CONSIDERED SEPARATELY FOR EACH COUNT, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the failure to include the justification defense on the verdict sheet may have led the jurors to believe they had to reconsider the justification defense for each count. The judge had correctly instructed the jurors to acquit on all counts if the justification defense applied, but the omission from the verdict sheet was enough to call the verdict into question:

Supreme Court properly instructed the jurors to consider justification as an element of each count submitted for their consideration. The court also properly instructed the jurors that they must find the defendant not guilty of all counts if they found that the People failed to disprove the defendant’s justification defense.

However, the verdict sheet did not mention justification, and instructed the jurors to “continue to” the following count if they found the defendant not guilty of count one, two, three, or four. Therefore, the Supreme Court’s instructions, taken together as a whole, may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the previous count based on justification … . There is now no way of knowing whether the jurors acquitted the defendant of the greater counts on the ground of justification so as to mandate acquittal on the lesser counts … . People v Smith, 2019 NY Slip Op 06004, Second Dept 7-31-19

 

CONFLICTING EVIDENCE WHETHER THE PLYWOOD WHICH FLEXED CAUSING PLAINTIFF TO FALL WAS OVER A THREE-FOOT DEEP HOLE OR TRENCH; LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240 (1) and 241 (6) causes of action should not have been dismissed. There was conflicting evidence whether the plywood which flexed causing plaintiff to fall was over a three-foot deep hole or trench:

… [T]here was conflicting deposition testimony regarding whether the plywood was, under the circumstances, the functional equivalent of a scaffold meant to prevent the plaintiff from falling into a three-foot-deep hole or trench … . …

… [T]he regulation which plaintiff alleges was violated concerns structural runways, ramps, and platforms (see 12 NYCRR 23-1.22[b]), which is a regulation that sets forth specific standards of conduct sufficient to support a Labor Law § 241(6) cause of action … . Similar to the plaintiff’s Labor Law § 240(1) cause of action, the conflicting deposition testimony … raised a triable issue of fact as to whether there was insufficient bracing under the plywood … . Davies v Simon Prop. Group, Inc., 2019 NY Slip Op 05955, Fourth Dept 7-31-19

 

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THE PEOPLE DID NOT PROVE DEFENDANT POSSESSED A RAZOR BLADE PARTIALLY WRAPPED IN TAPE WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove that defendant possessed a razor blade partially wrapped in tape with the intent to use it unlawfully against another:

Penal Law § 265.15(4) provides, in relevant part, that “[t]he possession by any person of any . . . weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

“The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption, meaning that [it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof'” … . “Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts the statute requires be proved'” … . “If the People succeed in this endeavor, they are entitled to rely on the presumption, which form[s] part of the support for [their] prima facie case’ against the defendant” … . “The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People” … “Evidence rebutting the presumption will not negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions'” … . …

… [T]he People failed to establish beyond a reasonable doubt that the razor blade recovered from the defendant was “designed, made or adapted for use primarily as a weapon” … . There was no testimony by the detectives indicating that they knew based on their experience that the primary use of this type of instrument, by virtue of being wrapped in black tape, was as a weapon, or that they attempted to ascertain from the defendant the manner in which he utilized the blade … . Furthermore, there was no evidence from which it could be inferred that the defendant considered the instrument to be a weapon … . People v Rodgers, 2019 NY Slip Op 06002, Second Dept 7-31-19

 

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POLICE OFFICERS’ TESTIMONY BASED UPON DEBRIEFING GANG MEMBERS WAS INADMISSIBLE TESTIMONIAL HEARSAY AND THE POLICE OFFICERS, WHO WERE QUALIFIED AS GANG EXPERTS, ACTED AS IMPERMISSIBLE SUMMATION WITNESSES, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the testimony of two police officers (qualified by the court as gang experts( about information gleaned from interviewing gang members was testimonial hearsay, in violation of Crawford, and the police experts acted as summation witnesses, in violation of Iona:

During the trial, the Supreme Court declared Detective Adam Georg an expert “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.” Similarly, the court declared Lieutenant Robert Bracero an expert “in the history, hierarchy, practices and language of the S.N.O.W. Gang and rival gangs.” Georg testified that his knowledge of the S.N.O.W. Gang was derived from, among other things, approximately 70 to 80 debriefings of S.N.O.W. Gang members, many of whom had been arrested and were in custody at the police station or in jail. Similarly, Bracero testified that he debriefed approximately 50 S.N.O.W. Gang members after their arrests. * * *

… [T]he defendant contends that Georg’s and Bracero’s testimony violated Crawford v Washington (541 US 36) by permitting the introduction into evidence of out-of-court testimonial statements made by absent witnesses who were never subjected to cross examination … , and that Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, in violation of People v Inoa (25 NY3d 466, 474-475). …

… .[F]or the reasons set forth in our decision and order on appeal by one of the codefendants (People v Jones, 166 AD3d 803), the testimony of Georg and Bracero violated Crawford and Inoa. Since the evidence of the defendant’s guilt, without reference to the errors, was far from overwhelming, these errors were not harmless … . People v Campbell, 2019 NY Slip Op 05992, Second Dept 7-31-19

 

SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANT’S MOTION TO DISMISS THE INDICTMENT IN THE FURTHERANCE OF JUSTICE WITHOUT HOLDING A HEARING BECAUSE ESSENTIAL FACTS WERE IN DISPUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in an appeal by the People, determined defendant’s motion to dismiss an indictment in the furtherance of justice should not have been granted without a hearing because the facts were in dispute. The Second Department also noted that the defendant had demonstrated good cause for bringing the motion after the 45-day deadline:

… [T]he Supreme Court should not have decided the motion without conducting a hearing. CPL 210.40 authorizes the court to dismiss an indictment or any count thereof in furtherance of justice, as a matter of judicial discretion, when, after considering certain enumerated factors, the court finds “the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice”… . In deciding such a motion, “a court must strike a sensitive balance between the individual and the State’ interests to determine whether the ends of justice are served by dismissal of the indictment” … . “Such a value judgment hinge[s] on the production of facts in the possession of the prosecution and the defendant'”… . CPL 210.45 requires a hearing when the facts essential to the determination of a motion made pursuant to CPL 210.40 are in dispute … . Here, since the essential facts were in dispute, the court should have conducted a hearing before making its findings of fact … . People v Burke, 2019 NY Slip Op 05991, Second Dept 7-31-19

 

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THE REMAINDER BENEFICIARIES’ ACTION ALLEGING THE EXECUTOR’S VIOLATION OF A STANDSTILL AGREEMENT, WHICH REQUIRED THE EXECUTOR TO KEEP THE FUNDS FROM THE SALE OF THE DECEASED’S BUSINESS IN A SEGREGATED ACCOUNT UNTIL THE DAUGHTERS’ REMAINDER INTERESTS WERE DETERMINED, DID NOT VIOLATE THE IN TERROREM CLAUSE OF THE WILL WHICH PROHIBITED THE DAUGHTERS FROM CONTESTING THE WILL, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the daughters of the deceased, remainder beneficiaries, did not violate the in terrorem clause of the will by bringing an action against the executor alleging the executor’s violation of a standstill agreement.  In the standstill agreement with the executor (Anna Marie, the deceased’s wife), Anna Marie agreed to hold the proceeds from the sale of the deceased’s interest in a business in a segregated bank account while Anna Marie and the daughters determined the daughters’ interests in the liquidated assets as remainder beneficiaries of Anna Marie’s life estate:

The will included an in terrorem clause which provided for the revocation of the interest of any beneficiary who “institute[s] . . . any proceedings to set aside, interfere with, or make null any provision of this Will, . . . or shall in any manner, directly or indirectly, contest the probate thereof.” The will left the “rest, residue, and remainder” of the decedent’s estate to Anna Marie, absolutely, “to the exclusion of any children of mine.” * * *

… [T]the daughters alleged in the Supreme Court action that Anna Marie breached her fiduciary duty as executor and holder of the life estate in the decedent’s interest in Brady Avenue by taking possession of the entire proceeds of the sale to the exclusion and detriment of the daughters as remainder beneficiaries. The daughters have not lodged any contest to the validity of the will, or otherwise interfered with its provisions granting Anna Marie discretion to dispose of estate assets in her capacity as executor. Moreover, the claim that Anna Marie violated the standstill agreement did not implicate any challenge to the will. Thus, we disagree with the determination of the Surrogate’s Court that the daughters violated the in terrorem clause of the will and forfeited their legacies under the will … . Matter of Sochurek, 2019 NY Slip Op 05987, Second Dept 7-31-19

 

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MOTHER DID NOT HAVE STANDING TO BRING AN ACTION TO VACATE THE ADOPTION OF HER CHILD BY HER FORMER HUSBAND PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) BECAUSE THE ACT ONLY APPLIES TO CHILDREN REMOVED FROM A PARENT’S CUSTODY (SECOND DEPT).

The Second Department determined mother did not have standing to bring an action pursuant to the Indian Child Welfare Act (ICWA) to vacate an order of adoption in favor of her former husband. Mother alleged the adoption was not accomplished in compliance with the ICWA. The ICWA only applies to a parent from whose custody the child was removed and the child had not been removed from mother’s custody:

… [A]lthough the adoption proceeding involved the voluntary termination of the birth father’s parental rights to the subject child, the plain language of both 25 USC § 1914 and 25 CFR 23.137(a) is clear that only the child, the parent or Indian custodian from whose custody the child has been removed, and the Indian child’s tribe have standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA . Since the mother does not fall in… to any of those categories, she lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA … . “[T]he language of [section] 1914 …  limits standing to challenge state-law terminations of parental right to parents from whose custody such child was removed'” … . Matter of Connor (Mariann D.–Jacob D.), 2019 NY Slip Op 05979, Second Dept 7-31-19

 

CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

The Second Department determined conflicting testimony concerning whether the ladder plaintiff was using was being held by a co-worker raised a question of fact in this Labor Law 240 (1) action:

… [T]he plaintiff submitted, among other things, a transcript of his deposition testimony and a transcript of a workers’ compensation board hearing, which included the testimony of the plaintiff and his coworker. The plaintiff testified at his deposition and at the hearing that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. His coworker gave a different account. The coworker testified that he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. Whether the ladder was being stabilized at the time of the accident presents a triable issue of fact … . Accordingly, “the plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries” … . Lozada v St. Patrick’s R C Church, 2019 NY Slip Op 05971, Second Dept 7-31-19

 

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PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was entitled to an order requiring the county clerk to accept a copy of a mortgage for recording (the original allegedly had been lost and was never recorded). The Second Department further determined that an attorney affidavit was an appropriate vehicle for the submission of the documents to be recorded, which were in admissible form:

The plaintiff established its prima facie entitlement to judgment as a matter of law on the first cause of action, which sought an order directing the Suffolk County Clerk to accept a copy of the mortgage for recording. The County Clerk has a statutory duty that is ministerial in nature to record a written conveyance if it is duly acknowledged and accompanied by the proper fee (see Real Property Law §§ 290[3]; 291; County Law § 525[1]). “Accordingly, the Clerk does not have the authority to refuse to record a conveyance which satisfies the narrowly-drawn prerequisites set forth in the recording statute” … . Here, the copy of the mortgage submitted on the motion, which is notarized, was subject to recording … . Contrary to the Supreme Court’s determination, the complaint adequately stated a cause of action for this relief … , and the plaintiff’s failure to submit an affidavit of someone with personal knowledge of the facts was not fatal to the motion. The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, e.g., documents and transcripts … . JPMorgan Chase Bank, N.A. v Wright, 2019 NY Slip Op 05966, Second Dept 7-31-19

 

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FAILURE TO DISCLOSE THE SLIP AND FALL ACTION AS AN ASSET IN A BANKRUPTCY PROCEEDING DEPRIVED PLAINTIFF OF THE LEGAL CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the legal capacity to sue in this slip and fall case because the action was not listed as an asset in a prior bankruptcy proceeding:

“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of the legal capacity to sue subsequently on that cause of action'” … .

Here, it is undisputed that the plaintiff did not disclose, in the bankruptcy petition that she filed in October 2015, the existence of the cause of action to recover damages for personal injuries that she had previously asserted against the defendant. The defendant established, prima facie, that when the petition was filed, the plaintiff knew or should have known of the existence of her cause of action, and the plaintiff failed to raise a triable issue of fact in opposition to that prima facie showing … . Jean-Paul v 67-30 Dartmouth St. Owners Corp., 2019 NY Slip Op 05965, Second Dept 7-31-19

 

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