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Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

The Second Department determined defendant’s motion to suppress jewelry taken from his pocket after pat-down search on the street should have been granted.  At the suppression hearing, the People did not argue that the officer who stopped the defendant had probable cause to arrest the defendant at the time of the pat-down search.  Therefore, the Second Department noted, that argument could not be raised by the People on appeal. At the suppression hearing, the People argued that the jewelry was admissible under the “inevitable discovery” exception to the warrant requirement. However, the “inevitable discovery” exception does not apply to “the very evidence obtained in the illegal search:”

At the suppression hearing, the People expressly disclaimed reliance on the theory that the search of the defendant and the seizure of the jewelry from his pants pocket was justified because the police had probable cause to arrest the defendant at the moment he was stopped, and the hearing court did not address that theory. Thus, the People may not assert this theory on appeal … . Instead, the People argued that the jewelry inevitably would have been discovered, and the Supreme Court relied on that theory in denying that branch of the defendant’s motion which was to suppress the jewelry. The court properly determined that the record does not support a finding that the police officer legitimately believed that the jewelry might be some kind of weapon … . However, as the People now correctly concede, the court erred in its determination that the jewelry inevitably would have been discovered through normal police procedures, as the inevitable discovery doctrine does not apply to primary evidence, that is, “the very evidence obtained in the illegal search,” such as the jewelry at issue here … . Accordingly, that branch of the defendant’s motion which was to suppress the jewelry should have been granted. People v Henagin, 2015 NY Slip Op 04864, 2nd Dept 6-10-15

 

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Because Prior Mortgage Foreclosure Action Had Been Abandoned Plaintiff Was Not Entitled to Dismissal of the Instant Action Pursuant to Real Property Actions and Proceedings Law (RPAPL) 1301(3) (Which Prohibits More than One Such Action at a Time)

The Second Department determined Real Property Actions and Proceedings Law (RPAPL) 1301(3) did not require dismissal of plaintiff’s foreclosure action.  Although the statute prohibits more than one action to recover a mortgage debt at a time, the pending action had been abandoned (although not formally discontinued). Therefore plaintiff’s action was viable:

RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.” The purpose of this statute is to protect the mortgagor “from the expense and annoyance” of simultaneously defending against two independent actions to recover the same mortgage debt … . Courts have recognized that this statute “should be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time” … .

Under the circumstances of this case, the Supreme Court properly determined that the defendant John Conlin was not entitled to dismissal of the complaint pursuant to RPAPL 1301(3). The record supports the conclusion that the plaintiff’s assignor, the former mortgagee, effectively abandoned its prior action to foreclose the mortgage because its status as a junior mortgagee made it improbable that foreclosure would satisfy the underlying debt. Although the foreclosure action was not formally discontinued, the effective abandonment of that action is a “de facto discontinuance” which militates against dismissal of the present action pursuant to RPAPL 1301(3) … . Old Republic Natl. Tit. Ins. Co. v Conlin, 2015 NY Slip Op 04826, 2nd Dept 6-10-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

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Conflicting Interests Prevented Attorney from Representing Both the Driver and Passenger in a Stopped Car Which Was Rear-Ended

The Second Department determined, once a counterclaim was made against the driver of the car which was stopped and rear-ended, a conflict of interest arose prohibiting an attorney from representing both the driver and the passenger (Earl):

The general rule is that an attorney is not entitled to a fee in a personal injury action if the attorney violated the Rules of Professional Conduct (12 NYCRR 1200.0) by representing both the driver of an automobile involved in a collision and a passenger in that vehicle … provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that “the representation will involve the lawyer in representing differing interests” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1]) . Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing. In the instant case, there was no written confirmation of informed consent to the potential conflict.

[The attorney] contends that since Earl was a passenger in a stopped vehicle which was struck in the rear, the driver of the stopped vehicle was clearly not at fault, and there was no conflict of interest … . However, once the defendant asserted a counterclaim, the pecuniary interests of the driver conflicted with those of the passenger… . Shelby v Blakes, 2015 NY Slip Op 04839, 2nd Dept 6-10-15

 

Denial of an Area Variance for a Parking Lot, Based Solely on the Subjective/Aesthetic Objections of Residents, Was Arbitrary and Capricious—Statutory Factors Not Applied to the Decision-Making Process

The Second Department reversed Supreme Court, finding the Zoning Board of Appeals’ (ZBA’s) denial of an area variance (re: a parking lot for residents of a cooperative),based solely upon the subjective objections of town residents, was arbitrary and capricious. The ZBA’s decision did not address the statutory factors applied to area variances:

Pursuant to General City Law § 81-b, in determining whether to grant an application for an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . This inquiry also includes a consideration of whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than an area variance; (3) the requested area variance is substantial; (4) granting the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created (see General City Law § 81-b[4][b]…).

Here, while it was rational for the ZBA to conclude that the requested variance was substantial, its determination to deny the variance was otherwise conclusory and lacked an objective factual basis. In particular, no evidence was adduced which demonstrated that the health, safety, and welfare of the neighborhood or community would be detrimentally affected by the granting of the requested variance … . Rather, the ZBA was merely presented with the subjective objections and general community opposition of neighboring property owners, most of whom expressed their subjective opinions as to the negative aesthetics of a parking lot. Further, the ZBA did not provide an objective basis upon which to conclude that the petitioner had a feasible alternative to the requested variance, and there was no evidence that the situation was self-created. In light of the current condition of the property, the legality of using the lot as a small parking lot, and the fact that the lot is fenced so as to block ground-level water views, the ZBA failed to explain how the expansion of the number of spaces in the lot would change the character of the neighborhood.

Accordingly, the record does not contain sufficient evidence to support the rationality of the ZBA’s determination denying the proposed area variance … . Since the ZBA’s determination was irrational and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the ZBA’s determination, and remitted the matter to the ZBA for the issuance of the requested area variance. Matter of Marina’s Edge Owner’s Corp. v City of New Rochelle Zoning Bd. of Appeals, 2015 NY Slip Op 04851, 2nd Dept 6-10-15

 

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“Lack of Standing” Defense to Foreclosure Action Is Waived If Not Raised in the Answer or a Pre-Answer Motion to Dismiss

The Second Department determined plaintiff was entitled to summary judgment on its foreclosure action, noting that any defense based upon plaintiff’s alleged lack of standing was waived because it was not raised in the answer or in a pre-answer motion to dismiss the complaint:

“A party’s alleged lack of standing to commence [an] action is a defense that is waived if not raised in an answer or in a pre-answer motion to dismiss the complaint” … . “Where, as here, the defendants in a mortgage foreclosure action waive the issue of standing by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint (see CPLR 3211[e]), the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law” … . In this case, the plaintiff established, prima facie, its entitlement to judgment as a matter of law for the unpaid principal balance of the note … . In this regard, the plaintiff presented the subject mortgage, the unpaid note, evidence of [defendant’s] default, and evidence demonstrating that the unpaid principal balance remaining on the note totaled $434,382.89 … . In opposition, [defendant] failed to raise a triable issue of fact … . JP Morgan Chase Bank, N.A. v Butler, 2015 NY Slip Op 04812, 2nd Dept 6-10-15

 

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Administrator’s Delay In Seeking to Be Substituted for the Decedent In a Lawsuit Justified Dismissal of the Complaint with Prejudice

The Second Department determined the estate’s administrator’s more than five-year delay in seeking to be substituted for the decedent as plaintiff in a lawsuit (CPLR 1021), together with the administrator’s failure to provide an excuse for the delay and demonstrate the action had merit, warranted the dismissal of the complaint with prejudice:

CPLR 1021 provides, in pertinent part, that if the event requiring the substitution of a party “occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate.” CPLR 1021 requires a motion for substitution to be made within a reasonable time … . The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit … .

Here, the administrator’s failure to effect the required substitution until more than 6 ½ years after the decedent’s death and nearly 5 ½ years after he was appointed administrator of the decedent’s estate evinced a lack of diligence on the part of the administrator in prosecuting this action, which had been pending for nearly 8 years at the time the administrator sought substitution … . The administrator failed to demonstrate a reasonable excuse for the delay in seeking substitution, which he did only after the defendants moved to dismiss the complaint … . Furthermore, the administrator failed to demonstrate a potentially meritorious cause of action through the submission of admissible evidence, and did not rebut the defendants’ allegations of prejudice. Accordingly, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 1021 to dismiss the complaint, with prejudice…  Alejandro v North Tarrytown Realty Assoc., 2015 NY Slip Op 04792, 2nd Dept 6-10-15

 

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