CRIMINAL LAW

No Element of Intent in Constructive Possession of Contraband

The First Department determined there was no “intent” element to the constructive possession of contraband.  The marijuana and stun gun at issue were in an apartment defendant shared with his aunt and nephew. The defendant argued that, even if he was fully aware the items were in the apartment, the People were required to prove that he intended to exercise dominion and control over them.  The court wrote:

In defendant's view, even if he was fully aware that there was contraband in the apartment he shared with his aunt and nephew, and even if he had unfettered control over the areas where the contraband was located, he was not guilty of possessing it since he merely tolerated his drug-dealing nephew's use of the apartment as a repository for the contraband and had nothing else to do with it. We disagree. 

There is no element of intent in constructive possession. A long line of authority makes clear that knowing constructive possession of tangible property is established where the People prove knowledge that the property is present and "a sufficient level of control over the area in which the contraband [was] found" … People v Rodriguez, 2013 NY Slip Op 06495, 1st Dept 10-8-13

Denial of For Cause Juror Challenge Required Reversal

The First Department reversed defendant’s conviction because the trial court erroneously denied a “for cause” juror challenge:
 

The court erred in denying defendant's challenge for cause to a prospective juror who stated his belief and concern that he recognized defendant from his neighborhood, along with his fear that he would "run into" defendant or his friends. After being apprised of defendant's address, the panelist expressed an increased concern, resulting from the fact that he lived near that address. The panelist also expressed a "feeling of defendant's guilt," because he believed the neighborhood was "infected with drugs and drug dealers," After further inquiry regarding whether the panelist could follow the law and remain impartial, he ultimately stated, "I'll try. . . . I can't promise you anything. . . ." Viewing his statements in context and as a whole, they did not amount to an unequivocal assurance of impartiality… .  People v Tavarez, 2013 NY Slip Op 06515, 1st Dept 10-8-13

Elements of Several Computer Crimes Described

In a full-fledged opinion by Justice Saxe, the First Department affirmed defendant’s convictions for computer trespass, computer tampering, unlawful duplication of computer related material, and criminal possession of computer related material.  Defendant was on disability leave from his employer Time Warner when he used/installed software to gain access to passwords and log-in information.  The First Department took the opportunity to discuss the proof requirements for the elements of these offenses, some of which have little or no appellate authority.  With respect to the “without authorization” and “computer material” elements of computer trespass, the court wrote:

The term "without authorization" is defined as "access of a computer service by a person without permission . . . or after actual notice to such person, that such access was without permission" (Penal Law § 156.00[8]). While there is apparently no appellate authority on this point, the question of how to prove that use of a computer was not authorized was addressed in People v Klapper (28 Misc 3d 225 [Crim Ct, NY County 2010]), which considered a charge of unauthorized use of a computer (Penal Law § 156.05). The Klapper court held that no allegations supported the claim that the defendant's access was unauthorized, because for access to be without authorization, the defendant must have had knowledge or notice that access was prohibited or "circumvented some security device or measure installed by the user" (28 Misc 3d at 230). Of course, here, evidence fully supports the finding that defendant gained access to Time Warner's computers when he was unauthorized to do so. There is proof that Time Warner announced in its employee handbook that employees on disability leave were prohibited from entering the building, and the company deactivated those employees' access cards; this establishes that defendant had actual notice that he lacked authorization to enter the building and to use the company's computers. * * *

As to whether the information defendant gained access to constituted "computer material" for purposes of Penal Law § 156.10, the statutory definition of the term includes "any computer data or computer program" that "is not and is not intended to be available to anyone other than the person . . . rightfully in possession thereof . . . and which accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof" (Penal Law § 156.00[5]). With the use of user log-in information and passwords obtained through his installation of the keystroke-logging program Winvestigator, defendant was able to access information not intended to be available to anyone but the rightful user, namely, Time Warner and its authorized employees. Specifically, he gained access to … confidential information about customers' accounts, including address, phone number, subscription, service call records, and billing and payment information, as well as a list of any problems customers reported or services they requested. Customer information … is the sort of information that businesses have an interest in protecting and keeping away from competitors …. Accordingly, it qualifies as computer data that is not intended to be available to anyone other than the rightful possessor and that gives (or may give) the rightful possessor an advantage over competitors. People v Puesan, 2013 NY Slip Op 06530, 1st Dept 10-8-13

Imposition of Enhanced Sentence for

Defendant’s Tardiness Disallowed

The Second Department determined Supreme Court should not have imposed an enhanced sentence on the ground defendant was late appearing for his sentencing:

The transcript of the plea proceeding does not indicate that the defendant was given any instructions as to what time he was to appear for sentencing; rather, he was told that he must "com[e] to court on the sentence date." Under these circumstances, the imposition of an enhanced sentence, without affording the defendant an opportunity to withdraw his plea of guilty, was error… . People v Blades, 2013 NY Slip Op 06584, 2nd Dept 10-9-13

Defendant’s 440.46 Motion for Resentencing

Should Not Have Been Denied

In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria:

Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion--the defendant's criminal history and parole violations--are insufficient to overcome the statutory presumption. The instant offense and many of the defendant's prior offenses consisted of low-level drug crimes, and none of the defendant's recent convictions involved violence or weapons …. The defendant had no disciplinary infractions in prison, and had several positive accomplishments … . While the defendant's parole violations were a relevant consideration …, they were only one factor to consider, and did not mandate denial of the defendant's motion …. Under all of the circumstances presented here, "the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted" … . People v Green, 2013 NY Slip Op 06588, 2nd Dept 10-9-13

CRIMINAL LAW/EVIDENCE

Cross-Examination About Omission from Witness’

Statement to Police Should Have Been Allowed

The Second Department concluded the trial court should have allowed the cross-examination of a witness about a physical characteristic of the defendant the witness had not mentioned to the police:

"[A] witness may not be impeached simply by showing that he [or she] omitted to state a fact, or to state it more fully at a prior time" … . However, impeachment by omission is permissible when the witness omits a critical fact … . "An omission of fact at a prior time is insufficient for impeachment purposes unless it is shown that at th[at] prior time the witness' attention was called to the matter and that he [or she] was specifically asked about the facts embraced in the question propounded at trial'" … . " [C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony'" … . Here, given the eyewitness's testimony which demonstrated that the defendant's "squinting," "partly closed" left eye was a significant factor in his identifying the defendant as the assailant, the trial court erred in precluding the defendant from cross-examining the eyewitness about his omission of this observation of the assailant's appearance when he described the assailant to the police… . People v Greene, 2013 NY Slip Op 06589, 2nd Dept 10-9-13

CIVIL PROCEDURE

Affidavit Supporting Motion to Strike Did Not Demonstrate

Good Faith Effort to Resolve Issue with Opposing Counsel

In finding the defendant’s cross-claim should not have been struck as a sanction for failure to appear for depositions, the First Department noted that the affidavit in support of the motion to strike did not demonstrate a good faith effort to resolve the matter with opposing counsel:

A party moving to strike a pleading pursuant to CPLR 3126 is required to submit an affirmation that counsel for the moving party has made "a good faith effort to resolve the issues raised by the motion" with opposing party's counsel (Uniform Rules for Trial Cts [22 NYCRR] 202.7). To be deemed sufficient, the affirmation must state the nature of the efforts made by the moving party to reconcile with opposing counsel (22 NYCRR 202.7[c]…). 

Here, [defendant] GSY's affirmation of its good faith effort to resolve the dispute with [cross-claim defendant] Shavolian did not substantively comply with the requirements of 22 NYCRR 202.7 … . In its affirmation in support of the motion to strike, GSY stated that it made "good faith efforts to proceed with disclosure," pointing to a letter it faxed to Shavolian's counsel. There is nothing in the letter, which was written before the continued deposition date, indicating that GSY's counsel actually conferred with Shavolian's lawyer in a good faith attempt to resolve the dispute… .  241 Fifth Ave Hotel LLC v GSY Corp, 2013 NY Slip Op 06514, 1st Dept 10-8-13

Ineffective Electronic Filing Can Be Corrected Pursuant

to CPLR 2001 After Statute of Limitations Expired

In a full-fledged opinion by Justice Dillon, the Second Department reversed Supreme Court’s denial of plaintiff’s motion, pursuant to CPLR 2001, to allow the filing and serving of a summons and complaint after the statute of limitations had expired. Plaintiff had timely attempted to file the summons and complaint using a new electronic filing system in Westchester County. It turned out that plaintiff’s counsel had mistakenly used a “practice” filing system designed to familiarize users with electronic filing and the summons and complaint was never actually filed in time.  The Second Department determined plaintiff’s motion to be allowed to cure the mistake under CPLR 2001 should have been granted after explaining that, in this case, CPLR 2001 should be to correct an error without concern for whether the defendant would be prejudiced by the correction:

The defendant argues that the plaintiff's e-filing error cannot be corrected, as doing so would prejudice the defendant by depriving her of a viable statute of limitations defense. However, we conclude that under a proper reading of CPLR 2001, the issue of prejudice to the defendant need not be reached. 

More specifically, we believe that many reported cases in New York reflect a misreading of the language of CPLR 2001. Judicial discretion and the absence of prejudice are not requirements that must be applied in a combined fashion. Rather, a close reading of the statute reveals that CPLR 2001 recognizes two separate forms of potential relief to address mistakes, omissions, defects, or irregularities in the filing of papers. The statute distinguishes between the "correction" of mistakes and the "disregarding" of mistakes, and each invokes a different test. Courts may "correct[ ]" mistakes "upon such terms as may be just" (CPLR 2001). The statute then says, set off by an "or," that mistakes may be "disregarded" if a substantial right of a party is not prejudiced … . Thus, a "correction" of a mistake appears to be subject to a broader degree of judicial discretion without necessary regard to prejudice, whereas a complete "disregarding" of a mistake must not prejudice an opposing party. … The distinction between simply correcting a mistake and overlooking a mistake makes sense, as a party seeking to wholly disregard a filing mistake may understandably be expected to bear a higher burden than a party seeking a mere correction. 

A secondary inquiry, therefore, is whether the plaintiff's request for a nunc pro tunc recognition of his filing in the NYSCEF "practice" system amounts to a mere correction that may be permitted upon terms that may be just, or whether it constitutes a full-scale disregard of the filing error that, in order to be permitted, requires a showing that the defendant will not be prejudiced by the disregard. 

… [Here] [t]he "filing" was performed in a mistaken manner and method, which courts are permitted to correct on terms that may be just … . Therefore, the plaintiff was under no burden to demonstrate an absence of prejudice to the defendant. In contrast, excusing a clearly untimely filing would constitute the disregarding of an error, which could not be permitted because it would be prejudicial to a defendant to deprive it of a legitimate statute of limitations defense. Grskovic v Holmes, 2013 NY Slip Op 06545, 2nd Dept 10-9-13

CIVIL PROCEDURE/NEGLIGENCE/MUNICIPAL LAW

Plaintiff Should Have Been Allowed to Amend Complaint

to Allege City Had Notice of Sidewalk Defect

In a slip and fall case, the plaintiff did not allege the city had notice of the defect and sought to amend the complaint to add the allegation.  The Second Department determined plaintiff should have been allowed to amend:

… [T]he Supreme Court erroneously granted that branch of the City's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff had failed to plead prior written notice of the alleged sidewalk defect. Instead, under the facts of this case, the Supreme Court should have granted the plaintiff's cross motion and permitted him to amend the pleadings and the notice of claim to add an allegation that the City received prior written notice of the alleged sidewalk defect where, as here, the amendment would not prejudice or surprise the City (see CPLR 3025; General Municipal Law § 50-e[6]…).  Perez v City of New York, 2013 NY Slip Op 06553, 2nd Dept 10-9-13

CIVIL PROCEDURE/INSURANCE LAW

Similar Pending Lawsuit Properly Dismissed—Two Lawsuits Sought Declaratory Judgment Re: Duty to Defend and Indemnify

The Second Department determined Supreme Court properly dismissed an action for a declaratory judgment re: an insurance company’s duty to defend and indemnify because of its similarity to another pending action:

Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending … . "The critical element is that both suits arise out of the same subject matter or series of alleged wrongs" … . Under the circumstances of this case, upon the record that existed at the time the Supreme Court issued the order appealed from, the court providently exercised its discretion in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(4) … . Scottsdale Ins Co v Indemnity Ins Corp RRG, 2013 NY Slip Op 06557, 2nd Dept 10-9-13

CIVIL PROCEDURE/COUNTY LAW

Registered Voter Could Not Intervene In Suit to Determine Constitutionality of Local Term-Limit Law

The Second Department affirmed Supreme Court’s denial of a “registered voter’s” [Nichol’s] motion to intervene in an action to determine the constitutionality of a local law concerning term limits for public offices.  The court explained:

Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, "the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" (CPLR 1012[a][2]…). Additionally, the court, in its discretion, may permit a person to intervene, inter alia, "when the person's claim or defense and the main action have a common question of law or fact" (CPLR 1013). " However, it has been held under liberal rules of construction that whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013 is of little practical significance [and that] intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings'" … . 

Here, contrary to Nichols's contention, the Supreme Court properly denied his motion for leave to intervene in the action as a defendant. Although Nichols, who describes himself as a "registered voter in the County of Suffolk and an active supporter of [his] constitutional right to pass and enforce term limit legislation," may indeed be interested in defending the local law in question, he failed to demonstrate that he has a "real and substantial interest" in the action … . Moreover, as the Supreme Court appropriately noted, he failed to show that any interest he did have would not be adequately represented by the defendant … . Accordingly, the court properly denied Nichols's motion for leave to intervene. Spota v County of Suffolk, 2013 NY Slip Op 06558, 2nd Dept 10-9-13