CRIMINAL LAW (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)/SPEEDY TRIAL (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)

 

CRIMINAL LAW.

 

SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE'S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED.

 

The First Department, over an extensive two-justice dissent, determined the trial court properly denied defendant's motion to dismiss on speedy-trial grounds stemming from the six-year delay between the shooting and trial. The defendant and another man, Armstead, were charged in the shooting death of a bystander while intending to shoot another. The People wanted to convict Armstead before trying defendant in the hope Armstead would testify against defendant. Three trials of Armstead ended in at least a partial mistrial. Before the fourth trial, Armstead pled guilty to manslaughter. Over the course of the six years, delays were incurred, inter alia, because counsel were unavailable and because of damage caused by Hurricane Sandy:

 

The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.

 

The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution's attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.

 

The ... chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant's counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant's consent are not chargeable to the People ... , and they should not be chargeable here. Despite the dissent's conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over defendant ... . People v Wiggins, 2016 NY Slip Op 06538, 1st Dept 10-6-16

 

 

 

 

CRIMINAL LAW (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)/SENTENCING (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)

 

CRIMINAL LAW.

 

SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION.

 

The Second Department determined the sentences imposed for conspiracy and criminal possession of a controlled substance should run concurrently, not consecutively. The possession offenses, charged in a superior court information (SCI) to which defendant pled guilty, were the overt acts charged in the conspiracy count of a subsequent indictment:

 

As charged here, the underlying crimes were criminal possession of a controlled substance in the second degree and criminal sale of a controlled substance in the second degree. The offenses of criminal possession of a controlled substance in the third and fourth degrees, to which the defendant pleaded guilty as charged under the SCI, were based on the same acts charged, in the indictment, as overt acts committed in furtherance of the conspiracy in the second degree count. As such, the actus reus of each of the offenses charged in the SCI was, by definition, "a material element" of the offense charged in the indictment ... . Since the People failed to establish the legality of consecutive sentences by showing that the acts committed by the defendant were separate and distinct acts ... , the County Court should have directed that the sentence imposed under the indictment run concurrently with the sentences imposed under the SCI. People v Rifino, 2016 NY Slip Op 06513, 2nd Dept 10-5-16

 

 

 

 

 

CRIMINAL LAW (DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS)/SPEEDY TRIAL (DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS)

 

CRIMINAL LAW.

 

DEFENSE COUNSEL'S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT'S SPEEDY TRIAL RIGHTS.

 

The Fourth Department, reversing County Court, determined defendant's motion to dismiss the marijuana-related indictments should have been granted on speedy trial grounds. The Fourth Department found that defense counsel's letter asking for a discussion of a plea bargain could not be construed as a waiver of defendant's speedy trial rights:

 

Defense counsel did not explicitly state or even suggest in his letter that he was waiving his client's rights to a speedy trial under CPL 30.30; instead, counsel merely requested an opportunity to discuss a plea bargain before the District Attorney presented the case to the grand jury. In our view, that request does not constitute an explicit and "unambiguous" waiver of defendant's speedy trial rights ... , and we thus conclude that "the People failed to meet their burden of proving that the disputed . . . period was not chargeable to them" ... . People v Leubner, 2016 NY Slip Op 06569, 4th Dept 10-7-16

 

 

 

 

 

CRIMINAL LAW (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)/GRAND JURY (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)

 

CRIMINAL LAW.

 

STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.

 

The Fourth Department, reversing defendant's conviction, determined the People's notice to defendant about the time and place the grand jury presentation would take place was deficient. The prosecutor told defense counsel the presentation would take place the next day:

 

Here, we conclude that, after receiving defendant's March 1, 2013 request to appear before the grand jury, the People did not provide defendant with notice "of the time and place of the grand jury presentation" ... , as is required by CPL 190.50 (5) (b), and we therefore reverse. We note that, on March 25, 2013, the People sent a letter to defense counsel stating that, "during the week of April 8, 2013, the Erie County Grand Jury will hear testimony concerning this matter. In accordance with CPL 190.50, should your client wish to testify, please clearly state so, in writing, no later than April 5, 2013, so that I can make the necessary arrangements to receive his testimony." Although that letter would have been sufficient to satisfy the initial and separate requirement set forth in CPL 190.50 (5) (a) that the People notify defendant of his right to appear before the grand jury ... , the letter did not satisfy the requirements of CPL 190.50 (5) (b) to inform defendant of the time and place of the grand jury presentation, which were triggered by defendant's March 1, 2013 request to appear before the grand jury. It is of no moment that defendant did not respond to the People's letter because nothing in CPL 190.50 requires a defendant to resubmit a valid notice pursuant to CPL 190.50 (5) (a) when he has already done so. We further note that the prosecutor's oral statement to defense counsel on April 10, 2013 that "he will be presenting the matter to the Erie County Grand Jury the next day" was insufficient to satisfy the notice requirement inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation ... . People v Moss, 2016 NY Slip Op 06587, 4th Dept 10-7-16

 

 

 

 

 

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)

 

 

CRIMINAL LAW, ATTORNEYS.

 

DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS.

 

The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband's neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant's wounds were self-inflicted. There was evidence of a wound behind defendant's left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel's failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant's clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:

 

Defendant ... submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the ... prosecution witness, the holes in the shirts matched precisely the location of defendant's alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant's motion without a hearing.

 

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant's trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so " egregious and prejudicial' " as to deprive defendant of a fair trial ... . Because defendant's "submissions [thus] tend[ ] to substantiate all the essential facts' necessary to support [her] claim of ineffective assistance of counsel" ... , we conclude that the court should have held a hearing on the motion ... . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16

 

 

 

 

 

 

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

 

HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT'S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

 

The First Department determined defendant's motion to vacate his conviction (by guilty plea), based upon defense counsel's failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant's claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

 

The issue before us thus turns on whether counsel's lack of advice on the deportation consequences of defendant's guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a "reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial" ... . ... [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of "the very beneficial deal" his counsel had negotiated, the motion court erred in finding that defendant's claim was not "credible," given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing ... . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

 

 

 

 

 

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

 

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

 

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR'S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

 

The Fourth Department reversed defendant's conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel's failure to object constituted ineffective assistance:

 

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as "overwhelming" proof establishing defendant's "guilt beyond all doubt" and posited: "If the defendant had not possessed the gun, wouldn't science have excluded him?" In our view, the prosecutor's flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People's case ... . In light of the foregoing, we agree with defendant's related contention that he was denied effective assistance of counsel owing to defense counsel's failure to object to the prosecutor's misconduct during summation ... . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

 

 

 

 

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

 

CRIMINAL LAW, EVIDENCE.

 

STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

 

The First Department, reversing defendants' convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

 

... [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim's statements implicating defendants, since they were his "mere expression of belief and suspici[ons]" that defendants were involved in his shooting rather than "statements of facts to which a living witness would have been permitted to testify, if placed upon the stand" ... . Although the dying declarant may accuse his or her killer in conclusory language, "[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts" ... .

 

... Contrary to the People's argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

 

The admission of the statements, which was over defendants' timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

 

 

 

 

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

 

CRIMINAL LAW, EVIDENCE.

 

SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant's person upon arrest:

 

Because "[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness" ... . Under the New York State Constitution, an individual's right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain "spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest" and (2) it is justified by the presence of exigent circumstances ... . "Exigency must be affirmatively demonstrated" ... . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence ... .

 

Contrary to the Supreme Court's determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon ... . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People's contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error ... . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

 

 

 

 

 

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

 

CRIMINAL LAW, EVIDENCE.

 

CONVICTION BASED SOLELY ON DEFENDANT'S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

The Fourth Department determined defendant's sexual abuse conviction, which was based solely on defendant's confession, was against the weight of the evidence:

 

CPL 60.50 requires corroboration of such a confession: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." Here, there is no such corroboration. The People assert that defendant's confession "was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense." The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant's penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant's confession to support defendant's conviction of sexual abuse. Although it is well settled that "additional proof need not corroborate every detail of the confession,' " we conclude that defendant's conviction of sexual abuse in the first degree was "based solely on [defendant's] uncorroborated [confession]" ... . Since there was "no corroborating proof of whatever weight,' [count two of the indictment] must be dismissed" ... . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

 

 

 

 

 

NEGLIGENCE (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOP (WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

 

NEGLIGENCE.

 

WHEEL STOP WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

 

The Second Department determined the wheel stop was an open and obvious condition which can not be the basis for liability in a slip and fall case:

 

While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons ... , there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous ... . "A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm" ... .

 

Here, the defendant ... established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop, which was open and obvious and not inherently dangerous, as she attempted to step over it on the way to her car ... . Lacerra v CVS Pharmacy, 2016 NY Slip Op 06474, 2nd Dept 10-5-16

 

 

 

 

 

NEGLIGENCE (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/EDUCATION-SCHOOL LAW (TRIP AND FALL, CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED)

 

NEGLIGENCE, EDUCATION-SCHOOL LAW.

 

CHAIN BETWEEN TWO POLES NOT AN OPEN AND OBVIOUS CONDITION, SCHOOL'S MOTION FOR SUMMARY JUDGMENT IN THIS TRIP AND FALL CASE PROPERLY DENIED.

 

The Second Department determined the defendant school district did not demonstrate a chain stretched between two poles, over which plaintiff tripped and fell at a pep rally, was an open and obvious condition. Therefore the school's motion for summary judgment was properly denied:

 

There is no duty to warn of a condition which is open and obvious and not inherently dangerous ... . "The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury" ... . "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted' ... .

 

Here, the defendant failed to establish, prima facie, that the chain was open and obvious given the crowd and lighting conditions at the time of the accident ... . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the plaintiff's opposition papers ... . Simon v Comsewogue Sch. Dist., 2016 NY Slip Op 06486, 2nd Dept 10-5-16

 

 

 

 

 

NEGLIGENCE (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (REAR-END COLLISION, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (SUMMARY JUDGMENT, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (REAR-END COLLISION PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/REAR-END COLLISIONS (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)

 

NEGLIGENCE, EVIDENCE.

 

PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED.

 

The Second Department, reversing Supreme Court, determined plaintiffs' failure to demonstrate the absence of comparative fault in this rear-end collision case required the denial of plaintiffs' motion for summary judgment without reference to defendant's papers:

 

"To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" ... . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence ... . Here, the plaintiffs' submissions in support of their motion, which included the defendant's deposition transcript, failed to eliminate a triable issue of fact as to whether the defendant had a nonnegligent explanation for the collision. According to the defendant, the plaintiffs' vehicle came to a stop, started again, and came to a second stop for no apparent reason. The defendant claimed that when he braked to avoid a collision, his vehicle skidded on a roadway which was wet from melting snow ... . Moluh v Vord, 2016 NY Slip Op 06477, 2nd Dept 10-5-16

 

 

 

 

 

 

NEGLIGENCE (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/EVIDENCE (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/SUMMARY JUDGMENT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/COMPARATIVE FAULT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/REAR-END COLLISION (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)

 

 

NEGLIGENCE, EVIDENCE.

 

DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT.

 

The Second Department, reversing Supreme Court, determined the defendant (Dick) in this rear-end collision case demonstrated freedom from fault and was entitled to summary judgment. The evidence, including plaintiff's testimony, demonstrated defendant's vehicle was struck from behind while stopped behind plaintiff, and thereby pushed into contact with the rear of plaintiff's vehicle. It was alleged that defendant's vehicle was struck from behind by a Verizon truck which left the scene. That there was a question of fact whether any Verizon truck was involved in the accident had no effect on defendant's entitlement to summary judgment:

 

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" ... . Hence, "[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ... . "Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation" ... .

 

Here, Dick established his prima facie entitlement to judgment as a matter of law by demonstrating that his stopped vehicle was propelled forward into the plaintiff's vehicle after his vehicle was struck in the rear by a third vehicle, and that he was not at fault in the happening of the accident ... . In opposition, the Verizon defendants failed to raise a triable issue of fact as to whether Dick was at fault in the happening of the accident ... . Contrary to the Verizon defendants' contention, the issue of whether they owned the third vehicle which struck Dick's vehicle is not relevant to the determination of this motion. Wooldridge-Solano v Dick, 2016 NY Slip Op 06488, 2nd Dept 10-5-16

 

 

 

 

 

 

NEGLIGENCE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/EVIDENCE (SLIP AND FALL, STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/SLIP AND FALL (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/STORM IN PROGRESS RULE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER)/ROUTINE MAINTENANCE SCHEDULE (EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)

 

NEGLIGENCE, EVIDENCE.

 

STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF'S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR.

 

The First Department determined the storm in progress rule relieved defendants of responsibility for tracked in water during a snow storm. With respect to a second accident alleged in the complaint (slipping on urine on the building floor) the court held that evidence of the daily maintenance routine, coupled with plaintiff's testimony she did not see urine on the floor on the afternoon of the accident (which occurred at 6:30 or 7 pm), demonstrated the defendants did not have constructive notice of the condition:

 

Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended ... .

 

With respect to plaintiff's second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform... . Rosario v Prana Nine Props., LLC, 2016 NY Slip Op 06431, 1st Dept 10-4-16

 

 

 

 

 

 

 

NEGLIGENCE (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/EVIDENCE (SLIP AND FALL, PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/CONTRACT LAW (SLIP AND FALL, FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR)

 

NEGLIGENCE, EVIDENCE, CONTRACT LAW.

 

PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL; FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR.

 

Although the facts were not explained, the Second Department determined proof of "specific," as opposed to "general," cleaning practices, "under the circumstances," was sufficient to meet defendant's burden demonstrating the absence of constructive notice of the condition which caused plaintiff to fall (not specified in the decision). In addition, because plaintiff did not allege any of the "Espinal" exceptions, proof the plaintiff was not a party to the building owner's contract with the cleaning contractor was sufficient to warrant summary judgment in favor of the contractor:

 

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it ... . To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall ... . Although submission of evidence as to the defendant's general cleaning practices is generally insufficient to meet the defendant's burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case ... .

 

Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor's employee regarding the frequency of the employee's inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition ... . Mavis v Rexcorp Realty, LLC, 2016 NY Slip Op 06476, 2nd Dept 10-5-16

 

 

 

 

 

 

PRODUCTS LIABILITY (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/ASBESTOS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/BOILERS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)

 

PRODUCTS LIABILITY.

 

BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION.

 

The First Department determined the jury's finding of fault for failure to warn in this asbestos case was supported by the evidence. Defendant used asbestos in the manufacture of its boilers where plaintiff's decedent worked. However, the First Department reduced the trial court's nearly $10,000,000 award for past pain and suffering to $4, 500,000:

 

The jury's verdict is based on sufficient evidence and is not against the weight of the evidence ... . The evidence adduced at trial demonstrates that, while defendant did not manufacture asbestos, for decades it heavily promoted the use of the type of asbestos insulation to which the decedent was exposed. Further, defendant often sold asbestos products along with its boilers and advertised asbestos as the preferred insulation product to use for its boilers. The evidence also shows that defendant was aware of the dangers of asbestos exposure well before the decedent's first exposure in the late 1970s, and that the decedent was never advised by defendant or his employers about those dangers. Accordingly, there is no reason to disturb the jury's determination that defendant had a legal obligation to warn workers such as the decedent of the hazards of asbestos exposure, and that defendant's failure to warn proximately caused the decedent's mesothelioma ... . Peraica v A.O. Smith Water Prods. Co., 2016 NY Slip Op 06537, 1st Dept 10-6-16