CIVIL PROCEDURE/NEGLIGENCE

 

Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained

 

The Second Department determined Supreme Court should not have directed a verdict in favor of the plaintiff after a jury verdict in favor of the defendant.  The facts were such that the jury could have found fault on the part of the plaintiff and the defendant, but the jury could not have found the defendant was free from fault.  Therefore, the trial court should not have directed a verdict for the plaintiff, but rather should have found the verdict against the weight of the evidence and ordered a new trial.  The Second Department explained the different criteria for setting aside a verdict as a matter of law and setting aside a verdict as against the weight of the evidence:

 

CPLR 4404(a) provides, in relevant part, that: "[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence" (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards ... . For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is "simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial" ... . However, "[w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" ... . " When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view'" ... . "A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence" ... . Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence ... . Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it "leads to a directed verdict terminating the action without resubmission of the case to a jury" ... . Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial ... . Ramirez v Mezzacappa, 2014 NY Slip Op 06808, 2nd Dept 10-8-14

 

 

CIVIL PROCEDURE

 

New York's Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided

 

In an action concerning whether plaintiff owned an undivided half interest in property which had been encumbered by a mortgage without plaintiff's participation, the Second Department determined the complaint was properly dismissed under the doctrine of res judicata because the issues had not been raised in a prior proceeding (even though the issues may have been wrongly decided in that proceeding).  The court explained the relevant legal principles, including New York's transactional approach to res judicata:

 

Contrary to the plaintiff's contention, the Supreme Court properly determined that the doctrine of res judicata precluded the plaintiff from asserting her current claims ... . " Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation'" ... . Under New York's transactional approach to res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... . "The rationale for the doctrine is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again; allowing relitigation would undermine the interest of the community and the litigants in finality" ... . Indeed, "[t]he policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts" ... .

 

Here, the Supreme Court properly granted the ... defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that it was barred by the doctrine of res judicata. The ... defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the plaintiff's claims against them arose from the same operative facts and concerned the same property as the claim she raised against the ... defendants in the 2007 action, which was decided on the merits. Moreover, the ... defendants demonstrated that all of the claims asserted against them in this action were raised or could have been raised in the 2007 action. In opposition, the plaintiff failed to raise a triable issue of fact ... . Myers v Myers, 2014 NY Slip Op 06805, 2nd Dept 10-8-14

 

 

CRIMINAL LAW/EVIDENCE

 

Prosecution Failed to Prove the Requisite Intent and Materiality in a Perjury Case

 

In reversing defendant's (Hadid's) conviction for perjury, the Second Department determined there was insufficient evidence defendant testified with the requisite intent and there was insufficient evidence the allegedly perjurious statement was "material." The alleged perjury was testimony by the defendant at the trial of one Kargu. The decision illustrates the stringent proof requirement in a perjury case:

 

Viewing the evidence in the light most favorable to the prosecution ... , we find that it was legally insufficient to establish Hadid's guilt of perjury in the first degree beyond a reasonable doubt ... . As a matter of law, the evidence failed to establish that Hadid had made a false statement under oath. To prove falsity, the prosecution must show that the witness was intentionally, rather than mistakenly, testifying falsely ... . To determine intent, the court will look at whether the statement at issue related to a memorable fact, the significance of the event at the time it occurred, the line of inquiry of the examiner, and whether a fact was deliberately concealed if concealment is alleged ... . * * *

 

The People's also failed to establish beyond a reasonable doubt that Hadid's statements were material to the Kargu trial ... . " [T]he test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before it'" ... .

 

Contrary to the prosecution's contention, neither Hadid's statements at trial nor his credibility were material to Kargu's guilt or nonguilt ... . People v Hadid, 2014 NY Slip Op 06842, 2nd Dept 10-8-14

 

 

CRIMINAL LAW/EVIDENCE/ATTORNEYS

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Defendant Did Not Forfeit His Right to Counsel by Making Four Applications for Reassignment of Assigned Counsel/Evidence of Burglary and Criminal Mischief Insufficient--Possession of Stolen Items Not Enough

 

The Second Department reversed defendant's conviction, finding that defendant had not forfeited his right to counsel because he had made four applications for reassignment of assigned counsel.  The court also determined the possession of stolen items removed in time from the burglary, without more, was not enough to support the burglary and criminal mischief convictions.  With respect to the "forfeiture of the right to counsel," the court explained:

 

The record does not support a finding that the defendant forfeited the right to counsel. Where a criminal defendant moves for reassignment of counsel as a mere dilatory tactic, that application may properly be denied ... . However, a finding of a forfeiture of the right to counsel is an "extreme, last [ ] resort" ... . Here, the record does not show that the defendant engaged in any conduct warranting a forfeiture finding. Rather, the record shows that, at most, he engaged in dilatory conduct, refused to cooperate with his attorneys and was argumentative, and at one point "yelled" at one of his attorneys in an incident characterized by the Supreme Court as a "heated exchange." Further, it is undisputed that the defendant did not validly waive the right to counsel. Indeed, the record shows that he consistently sought the assistance of assigned counsel.

 

The defendant's conduct, as reflected by the record, did not support or justify the Supreme Court's ruling, which forced the defendant to proceed to trial without the benefit of counsel ... . People v Isaac, 2014 NY Slip Op 06844, 2nd Dept 10-8-14

 

 

CRIMINAL LAW/EVIDENCE

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Legal Underpinning of the "Fellow Officer" Rule Explained

 

The Second Department determined defendant's motion to suppress was properly denied.  The defendant's arrest was based upon a transmission to the arresting officers but the prosecution did not introduce any evidence of the identity of the transmitting officer. The court offered an in-depth explanation of the "fellow officer" rule:

 

"Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with' a fellow officer . . . in possession of information sufficient to constitute probable cause for the arrest" ... . Probable cause exists when "an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" ... . At a suppression hearing, the prosecution has the burden of establishing that the officer who transmitted the information had probable cause ... .

 

The fellow officer rule is a "straightforward application" of the two-pronged Aguilar-Spinelli test ... , which New York courts use to assess whether hearsay information is sufficient to establish probable cause for a warrantless arrest or the issuance of a warrant ... . The Aguilar-Spinelli test first requires the suppression court to assess whether the information on which the police have acted is reliable ... . The second part of the Aguilar-Spinelli test evaluates whether the informant had an adequate "basis of knowledge" for the information supplied... . Under the fellow officer rule, "[i]nformation received from another police officer is presumptively reliable" ... . The People still, however, must satisfy the second prong of the Aguilar-Spinelli test: how the transmitting officer acquired that information.

 

Here, under the fellow officer rule, the arresting officers were entitled to presume that the information they received from an undercover officer was reliable. Moreover, under the circumstances of this buy and bust operation, it is clear that the transmitting officer, whether it was the ghost undercover officer or the primary undercover officer, had an adequate basis of knowledge for the information transmitted, either from direct participation in the transaction or observation of it. Contrary to the defendant's contention, the undercover officer who made the transmission was not required to delineate the defendant's exact role in the transaction in order to establish probable cause for his arrest ... . People v Oglesby, 2014 NY Slip Op 06845, 2nd Dept 10-8-14

 

 

CRIMINAL LAW

 

Conviction for Which an Illegal Sentence Was Imposed Can Not Serve as the Basis for a Second-Felony-Offender Adjudication

 

The Second Department determined that a prior conviction could not serve as the basis of defendant's second-felony-offender adjudication.  The 1993 conviction was subject to an illegal sentence which was not remedied until after the commission of the instant offenses:

 

The defendant's adjudication as a second felony offender was improper. The predicate for this adjudication was a 1993 conviction for which, the parties agree, an illegal sentence was imposed. A lawful sentence on that conviction was not imposed until after the instant crimes were committed. The relevant statute provides, however, that for purposes of determining whether a prior conviction is a predicate felony conviction, the sentence upon such prior conviction "must have been imposed before commission of the present felony" (Penal Law § 70.06[1][b][ii]). Thus, the 1993 matter may not serve as a predicate felony conviction in the instant case (see Penal Law § 70.06[1][b][ii]...). We reach this determination notwithstanding the fact that the defendant did not move to set aside his sentence in the 1993 matter until after the sentence in the instant case was imposed, as "multiple offender status is defined by the plain statutory language, which courts are not free to disregard" at will ... . People v Esquiled, 2014 NY Slip Op 06839, 2nd Dept 10-8-14