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THE PROSECUTOR’S REASONS FOR STRIKING THREE BLACK PROSPECTIVE JURORS WERE EITHER NOT RELEVANT TO THE CASE OR INACCURATE AND WERE DEEMED PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor’s reasons for striking three Black prospective jurors were pretextual. The proffered reasons were deemed irrelevant and/or inaccurate. The court also noted that the prosecutor improperly told the jury the defendant was guilty:

Supreme Court improperly determined that the facially race-neutral reasons proffered by the prosecutor during step two were not pretextual. With respect to prospective juror no. 6, the prosecutor stated that since this prospective juror “lives on church property,” there were concerns “as to religious reasons, sympathy reasons.” However, during voir dire, this prospective juror was never questioned concerning her religious affiliation, or whether her living situation would make her more sympathetic to the defendant … . …

… “[T]he prosecutor did not offer any explanation for how [two of the] juror[s’] employment [situations] [working with mentally ill people] related to the factual circumstances of the case or the qualifications of the juror[s] to serve” … . People v Vera, 2023 NY Slip Op 06758, Second Dept 12-27-23

Practice Point: Here the prosecutor’s reasons for striking three Black prospective jurors were not relevant to the facts of the case and/or were inaccurate. The Second Department deemed the reasons pretextual and ordered a new trial.

 

THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT A FELONY IN NEW YORK; DEFENDANT’S SECOND FELONY ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, noted that federal conviction did not constitute a felony in New York for the purpose of enhanced sentencing:

… [T]he defendant was improperly adjudicated as a second felony offender based on his federal conviction of assault with a dangerous weapon in aid of racketeering, because that predicate crime does not require actual injury as one of its elements (see 18 USC § 1959[a][3]) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Odom, 2023 NY Slip Op 06756, Second Dept 12-27-23

Practice Point: If a federal crime does not meet the definition of a felony in New York it cannot be used to enhance defendant’s sentence. Here the federal crime did not include actual injury as one of its elements and therefore did not constitute a felony in New York. Defendant’s second felony offender adjudication was vacated.

 

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IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s possession-of-a-weapon conviction, determined the People did not meet their burden of going forward at the suppression hearing because the police officer’s (Desposito’s) testimony was not credible. The court went on to say that, even if Desposito’s testimony were true, the evidence did not provide reasonable suspicion for the street stop. Defendant was walking on the sidewalk. Desposito was in a moving car. Desposito claimed he saw the outline of a gun under defendant’s sweat pants and told defendant to stop. Defendant ran, was captured, and a gun was found. Because Desposito was in a moving car and his view of defendant was obscured by parked cars and another pedestrian, the court found his testimony insufficient to meet the “going forward” burden of proof:

… [T]he People failed to establish the legality of the police conduct in the first instance, as Desposito’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Desposito’s testimony that he was able to observe an “L-shaped object” beneath the defendant’s sweatpants as the police vehicle drove past the defendant strains credulity and defies common sense … . …

… [E]ven if Desposito’s testimony is credited as true, his observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Leon, 2023 NY Slip Op 06754, Second Dept 12-27-23

Practice Point: If a police officer’s suppression-hearing testimony attempting to demonstrate reasonable suspicion for a street stop is incredible as a matter of law, the People fail to meet their “burden of going forward” and the motion to suppress must be granted.

 

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DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, remitting the matter, determined the judge should not have denied defendant’s motion to vacate his plea without holding a hearing. Defendant alleged he would not have pled guilty if he had been informed of the deportation consequences:

According to the defendant’s motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the defendant’s allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard … . Therefore, the County Court erred in deciding the defendant’s motion to vacate his plea without a hearing. People v Hernandez, 2023 NY Slip Op 06752, Second Dept 12-27-23

Practice Point: If a defendant, in a motion to vacate his plea, raises a question of fact about whether he would have pled guilty if he had know he could be deported, the judge should not deny the motion without holding a hearing.

 

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THE JUDGE HAD A COURT OFFICER COMMUNICATE WITH THE JURY ABOUT A SUBSTANTIVE MATTER OUTSIDE OF THE DEFENDANT’S PRESENCE; DEFENSE COUNSEL DID NOT OBJECT; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should not have communicated with the jury outside of the defendant’s presence and should not have delegated the court’s duty to a court officer. When the jury sent out the verdict sheet, the judge noticed a mistake. The jury had indicated “guilty on all counts,” including count 2, but the jury should have been instructed to skip count 2 if it found defendant guilty of count 1. The judge sent a court officer to the jury to explain the mistake. The jury came back with a verdict of guilty on count 2. Defense counsel did not object to the procedure:

“[A] defendant has the right to be present during all critical stages of a trial and . . . this includes the right to be present when the jury is given instructions or information by the court” … . “Equally true is that the court may not delegate to a nonjudicial staff member its authority to instruct the jury on matters affecting their deliberations” … . While “[a] Trial Judge may properly authorize a court officer to speak to a deliberating jury when the subject of the communication is administerial[,] . . . a Trial Judge who authorizes a court officer to communicate with a jury on matters which are not administerial not only errs, but commits an error so grave as to warrant reversal even though the defendant’s attorney might have consented to the occurrence of the error” … .

… Supreme Court improperly delegated a judicial duty to a nonjudicial staff member at a critical stage of the proceedings. … [T]he instruction was not a mere ministerial matter. Under the circumstances, where the jury was deliberating and had expressed confusion about the relationship between counts one and two, the court’s rejection of the verdict sheet and the instruction to correct it was an instruction regarding the jury’s deliberation … . Thus, the defendant was absent during a critical stage of the trial, and the court improperly delegated a judicial duty to a nonjudicial staff member … . People v Fulton, 2023 NY Slip Op 06750, Second Dept 12-27-23

Practice Point: It is reversible error for a judge to communicate with the jury outside the defendant’s presence.

Practice Point: It is reversible error for a judge to allow a court officer to communicate with the jury about a substantive matter.

 

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THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment which was brought before issue was joined should not have been granted. Although the issue was not preserved for appeal, the Second Department heard the appeal because it presented a pure question of law that could not have been avoided if it was brought up below:

“A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . Since H Mart’s motion was made prior to joinder of issue, the Supreme Court should not have granted that branch of the motion which was for summary judgment on the cause of action to recover damages for breach of contract alleging failure to procure insurance … . “Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture” … . Maurizaca v CW Highridge Plaza, LLC, 2023 NY Slip Op 06734, Second Dept 12-27-23

Practice Point: A motion for summary judgment will be denied if made before issue is joined.

Practice Point: An issue that is not preserved for appeal may be decided on appeal if it presents a pure question of law which could not have been avoided if it had been raised below.

 

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A “HIGH COST LOAN” AS DEFINED BY THE BANKING LAW IS A DEFENSE TO A FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the loan in this foreclosure action violated the Banking Law such that there is a defense to foreclosure pursuant to RPAPL 1302(2):

RPAPL 1302(2) provides, in pertinent part, that “[i]t shall be a defense to an action to foreclose a mortgage [for a high-cost home loan] that the terms of the home loan or the actions of the lender violate any provision of,” among other things, Banking Law § 6-l … . “A home loan is a ‘high-cost home loan’ if, among other things, the total points and fees charged exceed five percent of the total loan amount” … . Here, the defendants demonstrated potential merit to their defense that their loan constituted a “high-cost home loan,” because the lender allegedly financed certain closing costs, thereby receiving indirect compensation related thereto … , and that the terms of the loan or actions of the lender violated provisions of Banking Law § 6-l. Wilmington Trust, N.A. v Newman, 2023 NY Slip Op 06557, Second Dept 12-20-23

Practice Point: Pursuant to RPAPL 1302(2), a “high cost loan” within the meaning of the Banking Law is a defense to a foreclosure action.

 

RESTORATION OF AN ACTION TO THE ACTIVE CALENDAR AFTER FAILURE TO FILE A NOTE OF ISSUE IS AUTOMATIC IF NO 90-DAY NOTICE HAS BEEN SERVED AND NO ORDER OF DISMISSAL HAS BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar after plaintiff’s failure to file a note of issue should should have been granted. No 90-day notice had been served and no order of dismissal had been issued:

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 … . In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue … .

Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216. The restoration of the action to the active calendar should have been automatic. Rosario v Cummins, 2023 NY Slip Op 06547, Second Dept 12-20-23

Practice Point: Here plaintiff failed to file a note of issue by a court-ordered deadline. Restoration of the action to the active calendar is automatic if no 90-day notice has been served and no order of dismissal has been issued.

 

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THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should have been dismissed because plaintiff did not demonstrate the process server exercised diligence because resorting to “nail and mail” service:

The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” … . “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant’s home. There was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of employment, which was known to the plaintiff. Niebling v Pioreck, 2023 NY Slip Op 06526, Second Dept 12-20-23

Practice Point: A process server’s failure to exercise due diligence  in trying to locate a defendant before resorting to “nail and mail” service, including making inquiries about defendant’s whereabouts and place of employment, will result in dismissal of the complaint.

 

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QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT OF PLAINTIFF BICYCLIST, SAW WHAT WAS THERE TO BE SEEN (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant driver saw what was there to be seen in this bicycle-vehicle accident. Plaintiff bicyclist alleged he was halfway across the road in a crosswalk when defendant made a sudden turn into his path:

“Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position” … . Pursuant to Vehicle and Traffic Law § 1146(a), motorists must “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary” … . A motorist also has a “common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

… T]he defendant … failed to establish … that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant’s vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant’s own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses … . Khalil v Garcia-Olea, 2023 NY Slip Op 06517, Second Dept 12-20-23

Practice Point: A driver is expected to see what is there to be seen. Here it was alleged defendant driver made a turn into the path of plaintiff bicyclist. Defendant driver’s motion for summary judgment should not have been granted.

 

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