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Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not on a Second Indictment

The Second Department determined the sentencing court properly sentenced defendant as a youthful offender under one indictment and properly declined to sentence defendant as a youthful offender under a second indictment:

The defendant contends that, because the sentencing court granted him youthful offender status with respect to Indictment No. 12-00529, it was required to do so with respect to Indictment No. 12-01380. The defendant was not convicted of two crimes set forth in separate counts of a single indictment, nor was he convicted of two crimes set forth in two separate indictments consolidated for trial purposes (see CPL 720.20[2]). Therefore, the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions … . Accordingly, the sentencing court properly determined that it may find the defendant a youthful offender with respect to his conviction under Indictment No. 12-00529, but not with respect to his conviction under Indictment No. 12-01380.  People v Shaquille Mc, 2014 NY Slip Op 01633, 2nd Dept 3-12-14

 

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Prosecutor’s Creating the Impression Non-Testifying Witness Identified Defendant as Shooter Violated Defendant’s Right to Confront the Witnesses Against Him

The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter.  Although the error was not preserved by objection, the court addressed the issue in the interest of justice.  The court noted as well that the defense counsel’s objections to the prosecutor’s comments during summation (which reinforced the impression) were erroneously overruled:

Generally, during cross-examination, a party cannot introduce extrinsic evidence or call another witness to contradict a witness’s answers concerning collateral matters solely for the purpose of impeaching such witness’s credibility … . As the defendant correctly contends, during the cross-examination of Lloyd, the prosecutor improperly gave the impression that Drake, who did not testify, implicated the defendant while the police questioned her … . Notably, the prosecutor acknowledged at the second trial that Drake had testified at the initial trial, and that Drake had not identified the defendant as having been present at the party.

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination” (Crawford v Washington, 541 US 36, 53-54; see People v Pealer, 20 NY3d 447, 453, cert denied _____US_____, 134 S Ct 105). Here, the defendant’s constitutional right to be confronted with the witnesses against him was violated.  People v Lloyd, 2014 NY Slip Op 01631, 2nd Dept 3-12-14

 

Defendant Company’s Failure to Keep Current Address On File With Secretary of State Was Not an Adequate Excuse for Default

The Second Department determined that the failure of defendant limited liability company to maintain its current address with the Secretary of State precluded defendant from successfully opposing the motion to enter a default judgment (based upon defendant’s failure to answer:)

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015[a][1]…). The defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the defendant’s unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse … .

Furthermore, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff’s evidence that, for a period of more than five years, the defendant failed to file, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address (see Limited Liability Company Law § 301[e]). Under these circumstances, the defendants’ failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it… . Cruz v Keter Residence LLC, 2014 NY Slip Op 01575, 2nd Dept 3-12-14

 

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Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

The Second Department determined the defendant’s son did not waive the privilege associated with his youthful offender status. Although defendant’s son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings.  That denial did not waive the privilege and the plaintiff could not gain access to the records of the criminal proceedings:

The youthful offender statute (CPL article 720) provides special measures for persons found to be youthful offenders, which ” emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals'” … . Thus, “[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense” (CPL 720.35[1]). Further, pursuant to CPL 720.35(2), all official records and papers concerning the adjudication are sealed. * * *

The privilege created by this statute attaches not only to the physical documents constituting the official record, but also to the information contained within those documents … . Thus, a person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made. However, the person must still answer questions regarding the facts underlying the adjudication … . * * *

Here, the defendant’s son did not waive the privilege afforded by the statute since he did not commence an action which places the conduct at issue … . The defendant did not assert counterclaims or cross claims in this action placing the conduct at issue …, and the defendant’s son did not testify as to the confidential contents of the records … . Contrary to the plaintiff’s contention, the testimony of the defendant’s son at his deposition denying that he threw the egg which allegedly struck the plaintiff’s daughter did not waive the protections of the statute … . Castiglione v James FQ, 2014 NY Slip Op 01571, 2nd Dept 3-12-14

 

Village Ordinance Prohibiting Crematory Not Preempted by State Law Under Either Express or Conflict Preemption Criteria

The Second Department determined that the Not-for-Profit Corporation Law, which includes “crematory” in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner’s cemetery.  Both express preemption and conflict preemption were addressed by the court:

The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did not preempt any attempt at local regulation of cemeteries under the doctrine of “field preemption.” That doctrine “applies under any of three different scenarios. First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter. Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter. And third, the Legislature’s enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws” … . * * *

Thus, although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent (see N-PCL 1501…). Finally, the regulatory scheme under Not-for-Profit Corporation Law article 15 does not evince the Legislature’s desire to preempt the local zoning law … . Accordingly, the Not-for-Profit Corporation Law did not preempt the field of cemetery regulation.

The Supreme Court properly determined that Not-for-Profit Corporation Law § 1502(d) does not invalidate the Village’s more restrictive definition of “cemetery” under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code’s definition of “cemetery,” which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of “cemetery” are addressed to differing purposes, they are not in direct conflict … . Matter of Oakwood Cemetery v Village/Town of Mount Kisco, 2014 NY Slip Op 01616, 2nd Dept 3-12-14

 

Family Court Improperly Conditioned Future Visitation Upon Enrollment in a Drug Testing Program and Improperly Delegated Its Authority to Control Father’s Visitation to Mother

The Second Department noted that Family Court could not condition father’s future visitation upon enrollment in a drug testing program.  Family Court could only make participating in the drug testing program a component of a current visitation order.  In addition Family Court improperly delegated its control of father’s visitation to mother:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … . Thus, the Family Court erred in conditioning the father’s visitation upon his enrollment in a random drug testing program at a medical facility, and should have instead directed the father to enroll in such a program as a component of visitation. Moreover, by authorizing the mother to suspend visitation upon the father’s failure to provide proof of his prescription, the Family Court improperly delegated its responsibility to determine whether and when visitation rights should be suspended … . Matter of Welch v Taylor, 2014 NY Slip Op 01619, 2nd Dept 3-12-14

 

Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite “Somewhat Limited” Parent-Child Relationship

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was “somewhat limited:”

Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was granted, visitation with the subject child, which he exercised, although sporadically. The father attended some of the child’s school functions and parent-teacher conferences, had telephone contact with the child, and saw the child on some of her birthdays. The child, who was 15 years old at the time the father’s petition was filed, was acquainted with some of the father’s family members, considered the father to be her father, and had never known any other father. Under these circumstances, the Family Court properly invoked the doctrine of equitable estoppel to preclude the father’s challenge to the order of filiation …, and “the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of [that] doctrine” … . Matter of Shawn H v Kimberly F, 2014 NY Slip Op 01610, 2nd Dept 3-12-14

 

Question of Fact Whether Owner of Servient State Had Duty to Maintain Easement in Safe Condition/Easement Used for Servient-Estate-Owner’s Own Purposes

The Second Department explained when the owner of a servient estate has a duty to maintain an easement in a safe condition:

While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures …, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate … . Under those circumstances, the owner of the servient estate may retain its duty as a landowner to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise … .

Here, the Supreme Court correctly determined that the appellants failed to establish their prima facie entitlement to judgment as a matter of law, since their submissions revealed the existence of a triable issue of fact as to whether they have used the portion of the property that is subject to the easements for their own purposes by creating and maintaining a private, for-profit parking lot upon that portion of the property. Kleyner v City of New York, 2014 NY Slip Op 01584, 2nd Dept 3-12-14

 

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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

CPLR 3101(d)(1)(i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

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Question of Fact Whether Deed Procured by Fraud and Whether Mortgagee Had Notice of the Potential Fraud

The Second Department determined a question of fact had been raised about whether a property transfer was procured by fraud.  If so, the deed and the related mortgage would be void with respect to the mortgagee/incumbrancer (Wells Fargo).  There was evidence the mortgagee was on notice about the possible fraud and there was evidence of fraud in the factum:

Real Property Law § 266 protects the “title of a purchaser or incumbrancer for a valuable consideration, unless it appears that he [or she] had previous notice of the fraudulent intent of his [or her] immediate grantor, or of the fraud rendering void the title of such grantor.” Thus, a mortgagee is not protected in its title if it had previous notice of potential fraud by the immediate seller, or knowledge of facts which put it on inquiry notice as to the existence of a right in potential conflict with its own … . A mortgagee has a duty to inquire when it is aware of facts that would lead a reasonable, prudent lender to inquire into the circumstances of the transaction at issue … . A mortgagee who fails to make such an inquiry is not a bona fide incumbrancer for value … . Here, Wells Fargo’s submissions contain information regarding the plaintiff’s possession of the property that put it on inquiry notice as to the plaintiff’s potential right to the property … . Thus, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether it lacked notice of a potential fraud … . Real Property Law § 266 also does not protect a bona fide incumbrancer for value where there has been fraud in the factum, as the deed is void and conveys no title … . Such a conveyance conveys nothing, and a subsequent bona fide incumbrancer for value receives nothing … . Here, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether the subject deeds are void ab initio on the ground of fraud in the factum … . Williams v Mentore, 2014 NY Slip Op 01449, 2nd Dept 3-5-14

 

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