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CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT).

The First Department noted that the closure of the courtroom during a prosecution witness’s testimony was proper in this gang-related murder case:

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The record established an overriding interest in partially, and later completely, closing the courtroom during the testimony of an identifying eyewitness (see Waller v Georgia, 467 US 39, 48 [1984]), and the other requirements of Waller were likewise satisfied as to both closures. The witness’s “extreme fear of testifying in open court was sufficient to establish an overriding interest” … , because the witness’s inability to testify without the closures at issue “could have severely undermined the truth seeking function of the court” … in this gang-related murder case. …

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… [T]he court conducted a hearing at which the witness testified that he previously had been threatened for cooperating with the prosecution in another trial, that he had heard threats made against potential prosecution witnesses in the present case, and that he and his family lived in the same neighborhood where the shooting occurred. The court was entitled to credit the witness’s testimony that he felt threatened by defendant’s cousin and could not testify in his presence … . Although the cousin did not make any direct threats to the witness, he appeared to be closely associated with a person who did so. People v Sharp, 2018 NY Slip Op 00623, First Dept 2-1-18

CRIMINAL LAW (CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/CLOSURE OF COURTROOM (CRIMINAL LAW, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/PUBLIC TRIAL (CRIMINAL LAW, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, PUBLIC TRIAL, CLOSURE OF COURTROOM BASED UPON WITNESS’S FEAR WAS PROPER (FIRST DEPT))

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ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined that, although the employer had cause to fire the claimant for tardiness and absences, substantial evidence supported the Board’s finding her tardiness and absences did disqualify her from receiving unemployment benefits. Although claimant had been informed that her tardiness and absences were not acceptable, she was never informed that she could be fired as a result. Claimant was not fired until after she put in a claim for workers’ compensation benefits after an injury at work:

… “[W]hether a claimant’s actions rise to the level of disqualifying misconduct is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct”… . The Board’s determination in this regard will not be disturbed if it is supported by substantial evidence … .

The record reveals that, although claimant’s tardiness and attendance problems began in December 2014, she was not served with any notices of discipline until May 4, 2015, just after her work-related injury. Claimant’s immediate supervisor testified that she instructed claimant on the proper procedure for entering her work hours into the computer system and told her that she had to be at work between the hours of 9:00 a.m. and 5:00 p.m. In fact, claimant received emails in December 2014 and March 2015 reminding her of these requirements. She was not, however, advised that adverse employment consequences would result if she did not follow the proper protocol. Likewise, the notices of discipline did not set forth the disciplinary measures that would be taken if claimant continued to engaged in the objectionable behavior. Furthermore, claimant’s termination occurred shortly after she was placed on suspension without affording her an opportunity to correct her behavior … . Under the circumstances presented, although the employer had cause to discharge claimant, she did not exhibit a willful and wanton disregard of the employer’s interest rising to the level of disqualifying misconduct … . Matter of Jelic (Ama Research Labs. Inc.–Commissioner of Labor), 2018 NY Slip Op 00588, Third Dept 2-1-18

UNEMPLOYMENT INSURANCE (ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DISQUALIFYING MISCONDUCT (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/TARDINESS (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/ABSENCES (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT).

The Third Department determined claimant was not entitled to additional unemployment benefits in connection with his enrolling in a barber training program. Claimant did not enroll in the program until after his regular unemployment benefits had been exhausted:

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Labor Law § 599 provides an avenue whereby a claimant who participates in an approved training program may be eligible for additional unemployment insurance benefits after his or her regular benefits are exhausted” … . However, in order to receive benefits under this statute, the claimant “must have been accepted into an approved program, or demonstrated an application for such a program, while still receiving regular unemployment benefits” … . Here, it is undisputed that claimant’s regular unemployment benefits were exhausted more than a month before he filed his application for additional benefits under Labor Law § 599. In view of this, and in the absence of any legal authority excusing the delay, we find that substantial evidence supports the Board’s decision. Matter of Simpson (Commissioner of Labor), 2018 NY Slip Op 00594, Third Dept 2-1-18

UNEMPLOYMENT INSURANCE (CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))/TRAINING PROGRAMS (UNEMPLOYMENT INSURANCE, CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))/LABOR LAW 599 (UNEMPLOYMENT INSURANCE, CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))

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SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT).

The Third Department determined substantial evidence did not support the Board’s conclusion that claimant’s shoulder injury was an occupational disease, as opposed to an accidental injury. Claimant alleged his torn rotator cuff was caused by unloading a wheelbarrow, which he did as part of his job filling potholes:​

The employer contends that substantial evidence does not support the Board’s establishment of the claim as an occupational disease. Rather, it maintains that the shoulder injury should be classified as an accidental injury and, as such, the claim is untimely under Workers’ Compensation Law § 18. An occupational disease is statutorily defined as “a disease resulting from the nature of the employment and contracted therein” … . Significantly, in order to establish an occupational disease, a claimant must demonstrate a “recognizable link” between his or her affliction and a “distinctive feature” of his or her employment … . * * *

Even accepting, as did the Board, that claimant injured his shoulder unloading the wheelbarrow, we agree with the employer that the injury should be classified as accidental and not as an occupational disease. The proof failed to demonstrate that claimant’s shoulder injury was attributable to repetitive movements associated with moving heavy wheelbarrow loads of asphalt or performing other manual duties during his short period of employment as a laborer with the highway department. To the contrary, claimant testified that the onset of shoulder pain occurred during a definitive event at work when he was emptying a wheelbarrow filled with asphalt. Consequently, we find that there is a lack of substantial evidence evincing a recognizable link between claimant’s shoulder injury and a distinctive feature of his job as is necessary to establish his claim for an occupational disease … . Matter of Yonkosky v Town of Hamburg, 2018 NY Slip Op 00586, Third Dept 2-1-18

 

WORKERS’ COMPENSATION (OCCUPATIONAL DISEASE VERSUS ACCIDENTAL INJURY, SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))/OCCUPATIONAL DISEASE (WORKERS’ COMPENSATION,  SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))/ACCIDENTAL INJURY (WORKERS’ COMPENSATION, SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))

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ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, over an extensive dissent, determined Supreme Court properly allowed petitioner (Townsend) to file a late notice of claim against the NYC Health and Hospitals Corporation (HHC). Petitioner had been treated for a lacerated thumb. Petitioner did not learn a tendon had been torn until after the 90-day period for filing a notice of claim had passed. He hired an attorney shortly thereafter. The attorney requested petitioner’s medical records from HHC but had not received them by the time the statute of limitations was about to run out. At that point the attorney petitioned for leave to file a late notice of claim. Although HHC did not have timely actual knowledge of the nature of the malpractice claim, because the torn tendon was not mentioned in the HHC medical records, the petitioner’s excuse for not filing the notice of claim (HHC’s failure to provide the medical records) was deemed sufficient:

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The actual knowledge requirement “contemplates actual knowledge of the essential facts constituting the claim,’ not knowledge of a specific legal theory” … . Facts found in medical records that merely “suggest” the possibility of malpractice are insufficient, as a plaintiff must demonstrate a hospital’s actual knowledge of negligent acts or omissions which result in injury to a plaintiff … . Supreme Court correctly found that HHC did not acquire actual knowledge of Townson’s malpractice claim through the medical records.

The dissent concedes that Townson … did not learn of [his] torn tendon until March 19, 2015, after the 90-day period had expired. The dissent argues that Townson’s excuse may have been reasonable had he requested leave to file shortly after March 19, 2015, when he learned of the torn tendon. In the dissent’s view the delay in serving the notice of claim is not excusable.

We disagree. Townson’s claim of malpractice is premised upon a theory that the emergency room failed to evaluate whether internal, connective soft tissue damage resulted from the deep laceration. Townson’s counsel, at the time he was retained, which was immediately after Townson had learned of the torn tendon, promptly sent a request to HHC for the medical records to discern the viability of Townson’s malpractice claim, but HHC failed to respond on multiple occasions … . Matter of Townson v New York City Health & Hosps. Corp., 2018 NY Slip Op 00607, First Dept 2-1-18

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MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))

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MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s failure to take timely steps to substitute a representative for a defendant who had died required the dismissal of the complaint against that defendant. A motion to dismiss made by decedent’s former attorney, purportedly on behalf of the decedent, was a nullity and should not have been granted. Motions to dismiss made by the other defendants should have been granted:

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“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party… . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, one of the motions pursuant to CPLR 1021 was made by the former attorney for the decedent purportedly on behalf of the decedent. Since the former attorney lacked the authority to act, the Supreme Court lacked jurisdiction to consider that motion to dismiss … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

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Nonetheless, the Supreme Court had jurisdiction to consider the other defendants’ separate motions to dismiss pursuant to CPLR 1021 and to consider the plaintiffs’ cross motion. CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate” … . …

Here, the Supreme Court providently exercised its discretion in determining that substitution of the decedent was not made within a reasonable time. As such, the court providently exercised its discretion in denying those branches of the plaintiffs’ cross motion which were to appoint a representative for the decedent and, upon appointment, substitute the representative for the decedent as a defendant. Given that substitution was not made within a reasonable time, dismissal of the complaint as against the decedent, “the party for whom substitution should have been made” (CPLR 1021), was proper. However, contrary to the court’s determination, CPLR 1021 did not authorize dismissal of the complaint as against any of the other defendants. Vicari v Kleinwaks, 2018 NY Slip Op 00576, Second Dept 1-31-18

CIVIL PROCEDURE (SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of his right to appeal was not valid:

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… [T]he record of the plea proceeding did not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. The Supreme Court, after inquiring of counsel whether the defendant had executed a written waiver, advised the defendant: “[Y]ou have just executed the waiver of appeal. And by doing so, you have given up your right to appeal, which means there will be no appeal with regards to anything in your case.” Instead of ascertaining whether the defendant had made a knowing, voluntary, and intelligent choice to waive his right to appeal as a condition of his plea, the court merely informed the defendant that he had already waived his right to appeal by executing the appeal waiver and then confirmed that the defendant understood this established fact. “[A] defendant does not validly waive his or her right to appeal where the colloquy suggests that waiving the right to appeal [is] mandatory rather than a right which the defendant [is] being asked to voluntarily relinquish'” … . Moreover, the court failed to establish on the record that the defendant read and understood the written waiver, or discussed the waiver with his counsel … . People v Johnson, 2018 NY Slip Op 00567, Second Dept 1-31-18

CRIMINAL LAW (APPEALS, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))/WAIVER (RIGHT TO APPEAL, CRIMINAL LAW WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT))

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DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT).

The Second Department determined defendant was entitled to consideration of his pro se motion to set aside the verdict on ineffective assistance grounds. Defense counsel told the court he did not adopt the motion and didn’t think it was correct. By taking a position adverse to his client’s, defense counsel had deprived defendant of effective assistance:

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Defense counsel, by taking a position adverse to that of his client on the motion to set aside the verdict pursuant to CPL 330.30, deprived the defendant of effective assistance of counsel … . Accordingly, since the appellant has not addressed the merits of the CPL 330.30 motion in his brief, but rather, requests remittitur to the Supreme Court, we remit the matter for further proceedings on the merits of the motion and thereafter a report to this Court limited to the Supreme Court’s findings with respect to the motion and whether the defendant has established his entitlement to the relief sought in his motion. We express no opinion as to the merits of the defendant’s motion and we decide no other issues at this time. People v Freire, 2018 NY Slip Op 00564, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT))

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FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT).

The Second Department determined defense counsel’s failure to ask that the jury be charged with the lesser included offense of trespass in this burglary prosecution constituted ineffective assistance. The court noted that, because defendant was a persistent violent felony offender he faced a minimum sentence of 16 to life on the burglary conviction, but a trespass conviction would entail only one year in jail. The evidence that defendant intended to steal something was weak, the mistaken-identification defense put forth by defense counsel was weak, so trespass would have been a viable alternative for the jury:

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In deciding whether to ask for submission of the lesser included offense, defense counsel was obligated to consider the possible consequences of that decision for his client. The defendant was a persistent violent felony offender who, upon his conviction of burglary in the second degree (see Penal Law § 70.02[1][b]), faced a minimum sentence of 16 years to life imprisonment… . By contrast, upon conviction of criminal trespass in the second degree, which, like the remaining charge, criminal mischief in the fourth degree, was a class A misdemeanor, the defendant faced a maximum of one year in jail. That is not to say that counsel would have been required to argue the lesser included offense in summation, but it was not reasonable for counsel to deprive the jury of the opportunity to consider it … . Given the weakness of the mistaken-identification defense, the plausibility of the lesser included offense, and the enormous sentencing disparity between a burglary conviction and a criminal trespass conviction, counsel’s failure to request submission of the lesser included offense cannot be considered part of a legitimate all-or-nothing strategy. Under the circumstances, counsel’s failure to request submission of the lesser included offense deprived the defendant of his right to meaningful representation … . People v Orama, 2018 NY Slip Op 00571, Second Dept 1-31-18

CRIMINAL LAW (ATTORNEYS, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))/LESSER INCLUDED OFFENSES (INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST THAT THE JURY BE CHARGED ON A LESSER INCLUDED OFFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE EVIDENCE OF THE CHARGED OFFENSE WAS WEAK, THE LESSER INCLUDED OFFENSE WAS PLAUSIBLE, AND THE SENTENCING DISPARITY WAS ENORMOUS (SECOND DEPT))

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DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the attempted assault conviction was against the weight of the evidence:

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The only witness who identified the defendant prior to trial admitted to being intoxicated at the time of the stabbing incident. That witness failed to identify the defendant at trial. Although the People presented the testimony of three other witnesses who identified the defendant at the trial, those witnesses did not identify the defendant at any point prior to the trial, even though they were present at the scene of the crime when the defendant was apprehended and they appeared at a police precinct for questioning later that day. Two of the witnesses’ descriptions of the perpetrator’s clothing varied significantly from the clothing worn by the defendant upon his apprehension, which occurred within minutes of the incident. At the scene, those witnesses provided no further description of the defendant. Despite testimony that the victim began “gush[ing]” blood after he was stabbed during a physical struggle, the arresting officer did not remember having seen any blood on the defendant’s person or clothing when he was apprehended. That police officer testified that, after witnesses pointed to the perpetrator, he briefly “lost sight” of that person before apprehending the defendant. People v Serrano, 2018 NY Slip Op 00573, Second Dept 1-31-18

CRIMINAL LAW (EVIDENCE, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, DEFENDANT’S ATTEMPTED ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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