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ALTHOUGH THE INDICTMENT CHARGED THE DEFENDANT WITH THE INTENTIONAL KILLING OF SCOTT WRIGHT, THE JURY WAS TOLD IN ANSWER TO ITS QUESTION THAT IT COULD CONVICT THE DEFENDANT IF THEY FOUND DEFENDANT INTENDED TO KILL THE NEXT PERSON WHO CAME THROUGH THE DOOR, IRRESPECTIVE OF THE IDENTITY OF THAT PERSON; THE JURY INSTRUCTION WAS DEEMED PROPER (THIRD DEPT).

The Third Department, affirming defendant’s murder conviction, determined the People were not required to prove defendant intended to kill the victim named in the indictment (Wright ). Although the indictment charged defendant with the intentional murder of Wright, the jury wanted to know if they could convict if they concluded defendant simply intended to kill the next person who came through the door (who happened to be Wright). The judge answered the jury’s question in the affirmative and the Third Department held the jury was properly instructed:

As defendant argues, “a jury charge may not constructively amend an indictment by varying the theory of the prosecution” … . “However, not every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction” … . Significantly, the identity of the victim is not one of the elements of the crime of murder in the second degree … . Here, the People chose to go beyond the elements that they were required to prove to obtain a conviction both by asserting in the indictment that defendant specifically intended to shoot Wright and by making that argument at trial. Nonetheless, the jury was not required to accept this part of the People’s theory to convict defendant of murder in the second degree, so long as it found that the People had proven the elements of that crime beyond a reasonable doubt. Accordingly, we find that the instruction did not alter the prosecution’s theory … . …

… [W]e reject defendant’s contention that County Court’s supplemental instruction prejudiced defendant by introducing the new legal principle of mistake of fact. As defendant argues, the People made no arguments based on that principle during the trial. However, defendant’s theory of defense throughout the trial was that the gun went off accidentally and that defendant did not intend to shoot Wright or anyone else. This defense of accident would not have been altered or affected if the question whether defendant mistook Wright for someone else had been raised earlier; as previously noted, the identity of the victim is not an element of the crime of murder in the second degree. People v Lee, 2020 NY Slip Op 03049, Third Dept 5-28-20

 

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BEST EVIDENCE RULE APPLIES TO VIDEO EVIDENCE AS WELL AS WRITINGS; ERROR IN FAILING TO EXCLUDE THE VIDEO EVIDENCE WAS HARMLESS HOWEVER (THIRD DEPT).

The Third Department, disagreeing with County Court, determined the best evidence rule applies to video evidence. The error was deemed harmless however:

Defendant asserts that, under the best evidence rule, the cell phone video recording of surveillance video that depicted the exterior of the bar … , as well as the observations of the detective who viewed and recorded this cell phone video, should have been precluded. Defendant further asserts that the detective should not have been allowed to testify about what he saw on a surveillance video showing the inside of the bar. In overruling defendant’s objection, County Court noted that the best evidence rule applied only to writings. Contrary to the court’s reasoning, however, the best evidence rule can apply to videos (see e.g. People v Cyrus, 48 AD3d 150, 159 [2007] …). Furthermore, the People did not call the bar manager or a person who installed the video equipment to authenticate the surveillance video … . Accordingly, the court erred in overruling defendant’s objection to this evidence. People v Watson, 2020 NY Slip Op 03050, Third Dept 5-28-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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LEASE WAS AMBIGUOUS ABOUT TENANT’S RESPONSIBILITY FOR INSTALLATION OF A STORMWATER DETENTION SYSTEM AND THE LANDLORD’S EXTRINSIC EVIDENCE DID NOT ELIMINATE QUESTIONS OF FACT; SUPREME COURT SHOULD NOT HAVE GRANTED THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the terms of the lease were ambiguous and the extrinsic evidence submitted by the plaintiff landlord did not entitle the landlord to summary judgment. The landlord argued the defendant tenant was responsible under the lease for the installation of a stormwater detention system:

… [W]e cannot agree with Supreme Court’s conclusion that the lease unambiguously imposed a contractual responsibility on defendant, as tenant, to contract and pay for a new stormwater detention system, or that defendant was in default of the lease for failing to submit plans to that end … .

Given the ambiguity in the lease, resort to parol or extrinsic evidence is proper to discern the parties’ intent … . …

… [P]laintiff’s extrinsic evidence failed to resolve the lease ambiguity regarding responsibility for the new underground stormwater detention system, and did not “demonstrate the absence of any material issues of fact” in that regard … . Greene v Fast Eats Clifton Park, LLC, 2020 NY Slip Op 03055, Third Dept 5-27-20

 

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POSSESSION OF SYNTHETIC CANNABINOIDS IS PUNISHABLE BY A FINE AND JAIL TIME UNDER THE SANITARY CODE; THEREFORE A SEARCH WARRANT AUTHORIZING A SEARCH FOR SYNTHETIC CANNABINOIDS IS VALID; THE WAIVER OF APPEAL HERE WAS INVALID (THIRD DEPT).

The Third Department determined defendant’s waiver of appeal was invalid, but went on to find that the search warrant and search were valid and proper. The defendant argued that the search for synthetic cannabinoids not authorized because that substance is not encompassed by the Penal Law. However, the Sanitary Code makes possession of the substance a violation which can result in a fine and a jail sentence:

… [T]he appeal waiver was invalid because County Court failed to advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … , and also because the court increased the sentence, but failed to inquire into whether defendant wished to withdraw his consent to the appeal waiver … . …

A search warrant application must include “[a] statement that there is reasonable cause to believe that property of a kind or character described in [CPL] 690.10 may be found in or upon a designated or described place” (CPL 690.35 [3] [b]). Personal property that “[c]onstitutes evidence or tends to demonstrate that an offense was committed in this state” is subject to seizure (CPL 690.10 [4]). “Offense” is defined as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state” (Penal Law § 10.00 [1]). Further, a “[v]iolation” is defined as “an offense . . . for which a sentence to a term of imprisonment in excess of [15] days cannot be imposed” (Penal Law § 10.00 [3]).

Defendant is correct in asserting that the Penal Law prohibitions against the possession of controlled substances and marihuana do not specifically include synthetic cannabinoid. However, the Sanitary Code makes it “unlawful for any individual . . . to possess, manufacture, distribute, sell or offer to sell any synthetic phenethylamine or synthetic cannabinoid,” with exceptions not applicable here (10 NYCRR 9-1.2). Significantly, “[t]he provisions of the [S]anitary [C]ode shall have the force and effect of law and the non-compliance or non-conformance with any provision thereof shall constitute a violation punishable on conviction for a first offense by a fine not exceeding [$250] or by imprisonment . . . not exceeding [15] days, or both” (Public Health Law § 229 …). It follows that, by definition, a search warrant may be issued for the alleged possession of synthetic cannabinoids … . People v Morehouse, 2020 NY Slip Op 03048, Thrid Dept 5-28-20

 

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COUNTY COURT’S POST-JUDGMENT DENIAL OF DEFENDANT’S SUPPRESSION MOTION, AFTER A HEARING HELD PURSUANT TO THE SECOND CIRCUIT’S ORDER RE: DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS, WAS AN INTERMEDIATE ORDER WHICH IS NOT APPEALABLE; MATTER REMITTED TO ALLOW COUNTY COURT TO AMEND THE JUDGMENT OF CONVICTION TO REFLECT THE RECENT DENIAL OF THE SUPPRESSION MOTION; THE AMENDED JUDGMENT OF CONVICTION WOULD THEN BE APPEALABLE (THIRD DEPT).

The Third Department determined the post-judgment order denying defendant’s motion to suppress his statements was an intermediate order which was not appealable. The Second Circuit, pursuant to defendant’s petition for a writ of habeas corpus, ordered defendant’s release unless a state court adjudicated the voluntariness of his confession (made in 1986 when defendant was 16). County Court held a new suppression hearing and issued the order denying suppression. The Third Department sent the matter back to allow the amendment of the judgment of conviction to reflect the recent denial of the suppression motion, which would then be appealable:

Although not raised by the parties, we must first address the threshold issue of the appealability of County Court’s order. Indeed, an order denying a defendant’s suppression motion is an unreviewable intermediate order (see CPL 450.10). Ordinarily, in the course of a criminal proceeding, suppression hearings occur prior to a judgment of conviction and are reviewed incident to the direct appeal from that judgment. Nevertheless, there are cases, including the instant appeal, where a suppression hearing occurred after entry of a judgment of conviction … . In each of these cases, the trial court was specifically instructed that, if the defendant did not prevail in the suppression hearing, the judgment of conviction should be amended to reflect that fact … . Here, however, the Second Circuit did not advise County Court to take this step … , and there is no evidence in the record that an amended judgement of conviction was entered after the People prevailed at the suppression hearing.

Accordingly, because an amended judgment of conviction has not been entered, we must dismiss this appeal. This harsh outcome appears at odds with the federal habeas corpus remand, which, in our view, was intended to permit review of the suppression hearing until finally decided by the court of last resort. However, this dismissal provides County Court the opportunity to amend the judgment of conviction to reflect the denial of the suppression motion, and defendant could then appeal as of right from the amended judgment of conviction (see CPL 450.10 [1]). People v Dearstyne, 2020 NY Slip Op 02951, Third Dept 5-21-20

 

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DEFENSE COUNSEL’S REMARKS ABOUT DEFENDANT’S PRO SE MOTION TO WITHDRAW HER GUILTY PLEA CREATED A CONFLICT OF INTEREST REQUIRING THE ASSIGNMENT OF NEW COUNSEL; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the sentencing court should have assigned new counsel to defendant based upon defense counsel’s remarks about defendant’s pro se motion to withdraw her guilty plea, which created a conflict of interest. The dissenters argued that, before defense made the remarks evincing a conflict of interest, the sentencing judge had denied defendant’s pro se motion to withdraw her plea without prejudice to retain counsel and make a new motion:

After Supreme Court agreed to adjourn sentencing, without having decided defendant’s pro se motion, defense counsel requested that he be permitted to put “a couple [of] things on the record.” Upon receiving the court’s permission, defense counsel proceeded to make several detrimental statements that were adverse and prejudicial to defendant. At this point, a conflict of interest arose between defendant and defense counsel, and Supreme Court was obligated to relieve defense counsel of his representation of defendant … . Supreme Court, however, did not acknowledge that a conflict of interest had arisen or inform defendant that she was entitled to the assignment of new counsel, should she opt to avail herself of that option.

When defendant subsequently appeared in Supreme Court for sentencing, she was accompanied by her original assigned counsel.Once again, Supreme Court did not raise or address the conflict of interest that had previously arisen between defendant and defense counsel, assign new counsel or advise defendant that she was entitled to the assignment of new counsel. Defense counsel requested that defendant be granted an additional adjournment, … stating that defendant had retained a certain named attorney, but that “[t]he funds just [had not] reached him yet.” Without having afforded defendant an opportunity to confer with new counsel regarding her motion to withdraw her plea or having ruled on that motion, Supreme Court denied the adjournment request and proceeded to sentencing. By failing to relieve defense counsel of his representation of defendant once the conflict of interest arose and to either assign new counsel or permit defendant a sufficient opportunity to retain alternate counsel to represent her, Supreme Court deprived defendant of her right to the effective assistance of counsel in connection with her motion to withdraw her plea … . People v Maldonado, 2020 NY Slip Op 02953, Third Dept 5-21-20

 

OBJECTIONS TO A DESIGNATING PETITION WERE NOT SERVED BY CERTIFIED OR REGISTERED MAIL AS REQUIRED BY THE ELECTION LAW AND WERE NOT TIMELY SERVED UNDER THE TERMS OF THE ELECTION LAW (THIRD DEPT).

The Third Department determined service of objections to the Weinstock designating petition by express mail overnight was not the equivalent of service by registered or certified mail as required by the Election Law. The court also determined that the proceeding was not timely commenced:

Although petitioners argue that express mail overnight is the “functional equivalent” of registered or certified mail, the provisions of 9 NYCRR 6204.1 (b), which are “mandatory and may not be disregarded”… , as well as the service requirements set forth in Election Law § 6-154 (2), have long required strict and literal compliance … . …

“A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to properly complete service, actual delivery must occur no later than the last day upon which the proceeding may be commenced …— here, April 3, 2020.

As evidenced by the proofs of delivery contained in the record on appeal, the order to show cause and the accompanying petition were delivered to Weinstock on April 4, 2020 and to the State Board on April 6, 2020. Inasmuch as service was not completed within the statutory period ending on April 3, 2020, Supreme Court properly found that this proceeding was not timely commenced … . Matter of Sauberman v Weinstock, 2020 NY Slip Op 02906, Third Dept 5-15-20

 

FAILURE TO TIMELY FILE A CERTIFICATE OF ACCEPTANCE OF A DESIGNATION REQUIRED INVALIDATION OF THE DESIGNATING PETITION, NOTWITHSTANDING A REASONABLE EXPLANATION OF THE ONE-DAY-LATE MAILING DUE TO COVID-19 (THIRD DEPT).

The Third Department determined the COVID-19 crisis did not excuse the late filing of a certificate of acceptance of a designation. The designating petition was properly invalidated:

… [P]etitioner was required to file her certificate of acceptance of designation no later than March 24, 2020 (see Election Law § 6-158 [2]). Although petitioner completed the acceptance form on March 24, 2020, the record confirms, and petitioner does not dispute, that it was mailed on March 25, 2020. As the acceptance was not “postmarked prior to midnight of the last day of filing,” her acceptance was untimely (Election Law § 1-106 [1]). Contrary to petitioner’s contention and the dissent’s characterization, the failure to abide by the prescribed timelines set forth in the Election Law for the filing of a certificate of acceptance is not a technical violation, but, by the plain statutory language, “a fatal defect” (Election Law § 1-106 [2] …). …

Citing to the unprecedented circumstances created by the COVID-19 pandemic, petitioner also seeks equitable relief to have her acceptance deemed timely filed. We are sympathetic to the difficult situation that petitioner was placed in due to the pandemic and the shortened political calendar but, even assuming that she has articulated a reasonable explanation for her untimely filing of the certificate of acceptance, the equitable remedy that she seeks is unavailable. Matter of Hawatmeh v New York State Bd. of Elections, 2020 NY Slip Op 02907, Third Dept 5-15-20

 

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ALTHOUGH MOTHER DID NOT APPEAR AT THE SCHEDULED CONFERENCE AND DID NOT HAVE A MERITORIOUS DEFENSE IN THIS NEGLECT PROCEEDING, SHE WAS NOT AWARE FINDINGS OF FACT WOULD BE MADE IN HER ABSENCE; DEFAULT ORDER VACATED ON DUE PROCESS GROUNDS (THIRD DEPT).

The Third Department, reversing Family Court, determined mother was deprived of her right to due process when findings of fact were made in her absence in this neglect proceeding. Although mother did not appear at a scheduled conference, mother was not aware findings of fact would be made:

A parent has a right “to be present at every stage of” a Family Ct Act article 10 proceeding as a matter of due process, but that right “is not absolute” … . Family Ct Act § 1042 provides that “a court may proceed with a hearing . . . in a parent’s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing” … . Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated “a meritorious defense to the petition, unless . . . [he or she] willfully refused to appear at the hearing” … . If the parent demonstrates that the default itself resulted from a deprivation of his or her “fundamental due process rights,” however, the default is a nullity and no showing of a meritorious defense is required … . …

… [A]lthough respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact-finding hearing might be conducted at it so as to satisfy due process … . Indeed, despite the references in the order of fact-finding to an inquest, there is no dispute that Family Court departed from “the proper course” of conducting a hearing in respondent’s absence by accepting the allegations in the petition as proven by virtue of respondent’s default … . It would offend due process to hold that respondent “default[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen” … . Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent’s motion. Matter of Arra L. (Christine L.), 2020 NY Slip Op 02829, Third Dept 5-14-20

 

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