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LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined the defendant landlord’s motion for summary judgment was properly granted in this personal injury action. The property was leased to plaintiff’s employer. Plaintiff’s employer was doing construction work in the yard outside the building. Plaintiff fell into a hole dug by his employer in the yard. The lease imposed repair responsibilities on the landlord for the building only, not the yard:

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The subject lease provided that defendant “shall maintain and repair the public portions of the building, both interior and exterior [and that]. . .[t]enant shall, throughout the term of this lease, take good care of the demised premises. . .and at its sole cost and expense, make all non-structural repairs. . .when needed to preserve them in good working order and condition.” Here, testimony established that the accident did not occur in a public portion of the building, but rather in the backyard that was exclusively controlled by plaintiff’s employer, thereby not implicating an area that defendant had retained the responsibility to maintain … . Similarly, the evidence demonstrated that, in actual practice, defendant did nothing to show that it had the authority to maintain or repair the accident premises … .

Furthermore, although the lease states that defendant had the right to reenter the premises to make repairs, plaintiff has failed to show that defendant violated a specific statutory safety provision, or that the hole in which he stepped was a structural defect … .

Plaintiff’s reference to an OSHA provision that was allegedly violated by defendant is unavailing, because defendant was not plaintiff’s employer … . Martinez v 3801 Equity Co., LLC, 2017 NY Slip Op 07938, First Dept 11-14-17

 

NEGLIGENCE (LANDLORD-TENANT, LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

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ALTHOUGH DEFENDANT’S TRUCK WAS IN THE WRONG LANE, THE POSITION OF THE TRUCK FURNISHED A CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, PLAINTIFF’S DECEDENT WAS WEAVING IN AND OUT OF TRAFFIC ON HIS MOTORCYCLE AT HIGH SPEED WHEN HE STRUCK A CAR, AND WAS THROWN UNDER THE TRUCK (FIRST DEPT).

The First Department determined defendant trucking company’s motion for summary judgment in this traffic accident case was properly granted. Plaintiff’s decedent was weaving in and out of traffic at high speed on his motorcycle when he struck the rear of a car, was thrown under and tractor trailer, and run over by the rear wheels. The truck was in a lane where truck traffic was prohibited. The court held the position of the truck furnished the condition for the accident but was not the proximate cause of the accident:

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Defendants made a prima facie showing that decedent’s negligent operation of the motorcycle caused the accident… . Further, although defendants acknowledge that the tractor-trailer was unlawfully in the left lane at the time of the accident … , there is no evidence in the record that would support a finding that the statutory violation was a proximate cause of the accident. The presence of the tractor-trailer in the left lane merely furnished the condition that led to decedent’s death, and was not a proximate cause of the accident … . Nor is there any nonspeculative basis for finding that defendant driver could have avoided the accident.

Plaintiffs failed to present evidence raising a triable issue of fact as to whether any negligence on the part of defendants was a substantial factor in causing the accident. Although plaintiffs did not have an opportunity to depose defendant driver, they failed to demonstrate the existence of any testimony by defendant driver relevant to defendant’s summary judgment motion. Caro v Chesnick, 2017 NY Slip Op 07940, First Dept 11-14-17

 

NEGLIGENCE (ALTHOUGH DEFENDANT’S TRUCK WAS IN THE WRONG LANE, THE POSITION OF THE TRUCK FURNISHED A CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, PLAINTIFF’S DECEDENT WAS WEAVING IN AND OUT OF TRAFFIC ON HIS MOTORCYCLE AT HIGH SPEED WHEN HE STRUCK A CAR, AND WAS THROWN UNDER THE TRUCK (FIRST DEPT))/TRAFFIC ACCIDENTS (PROXIMATE CAUSE, ALTHOUGH DEFENDANT’S TRUCK WAS IN THE WRONG LANE, THE POSITION OF THE TRUCK FURNISHED A CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, PLAINTIFF’S DECEDENT WAS WEAVING IN AND OUT OF TRAFFIC ON HIS MOTORCYCLE AT HIGH SPEED WHEN HE STRUCK A CAR, AND WAS THROWN UNDER THE TRUCK (FIRST DEPT))/CONDITION FOR THE ACCIDENT (TRAFFIC ACCIDENTS, PROXIMATE CAUSE, ALTHOUGH DEFENDANT’S TRUCK WAS IN THE WRONG LANE, THE POSITION OF THE TRUCK FURNISHED A CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, PLAINTIFF’S DECEDENT WAS WEAVING IN AND OUT OF TRAFFIC ON HIS MOTORCYCLE AT HIGH SPEED WHEN HE STRUCK A CAR, AND WAS THROWN UNDER THE TRUCK (FIRST DEPT))/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, PROXIMATE CAUSE, ALTHOUGH DEFENDANT’S TRUCK WAS IN THE WRONG LANE, THE POSITION OF THE TRUCK FURNISHED A CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, PLAINTIFF’S DECEDENT WAS WEAVING IN AND OUT OF TRAFFIC ON HIS MOTORCYCLE AT HIGH SPEED WHEN HE STRUCK A CAR, AND WAS THROWN UNDER THE TRUCK (FIRST DEPT))

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STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank did not demonstrate it had met the statutory notice requirements of the Real Property Actions and Proceeding Law (RPAPL). Therefore the bank’s motion for summary judgment should have been denied:

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RPAPL 1304 notice “shall be sent by [the] lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage” (RPAPL 1304[2]). Proper service of a RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of a foreclosure action, and plaintiff has the burden of establishing its strict compliance with this condition … .

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Plaintiff failed to establish that it strictly complied with RPAPL 1304. Plaintiff submitted an affidavit of its loan servicer, supported by copies of the 90-day notice it alleges was served and a copy of the unsigned, undated return receipt. These documents were insufficient to establish plaintiff’s prima facie entitlement to summary judgment. In the affidavit, the loan servicer’s vice president of loan documentation fails to demonstrate a familiarity with the servicer’s mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure … . Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not sufficient to establish proof of the actual mailing … . HSBC Bank USA v Rice, 2017 NY Slip Op 07936, First Dept 11-14-17

 

FORECLOSURE (STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/NOTICE (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

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The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

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The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

 

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

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PETITIONER’S REQUEST FOR A WITNESS SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department determined the petitioner was entitled to a new hearing because the witness he requested could have provided relevant information. The request should not have been denied by the hearing officer:

 

… [P]etitioner was improperly denied a witness. The Hearing Officer denied petitioner’s request to question a correction officer who searched the empty cell on the day prior to that upon which petitioner was alleged to have thrown the bottle, and petitioner claimed that the officer could confirm that the bottle was already in the empty cell. Contrary to the Hearing Officer’s conclusion, the testimony of this correction officer regarding whether the bottle was already in the empty cell would not have been irrelevant. Matter of Castillo v Annucci, 2017 NY Slip Op 07922, Third Dept 11-9-17

 

DISCIPLINARY HEARINGS (INMATES) (PETITIONER’S REQUEST FOR A WITNESS SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT))

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SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a dissent, determined a sign on plaintiff’s property saying “R. KESSLER [the defendant] SCREWED US BEWARE” was actionable defamation. Therefore the defendant’s defamation counterclaim survived a motion to dismiss:

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… Supreme Court properly denied that part of plaintiffs’ motion pursuant to CPLR 3211 (a) (7) seeking to dismiss the defamation counterclaim. Contrary to plaintiffs’ contention, the statement is “reasonably susceptible of a defamatory connotation” … . Furthermore, it is a mixed statement of opinion and fact and thus is actionable inasmuch as it is “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it’ “… . The answer thus sufficiently states a counterclaim for defamation … . Sallustio v R. Kessler & Assoc., Inc., 2017 NY Slip Op 07792, Fourth Dept 11-9-17

DEFAMATION (SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT))

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GRAND JURY EVIDENCE SUFFICIENT TO SUPPORT OFFERING A FALSE INSTRUMENT FOR FILING CHARGES, INSTRUMENTS WERE PREPARED FOR A PRIVATE COMPANY UNDER CONTRACT WITH THE COUNTY, COUNTY COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the “offering a false instrument for filing” charges should not have been dismissed based upon the evidence presented to the grand jury. Defendant was a county employee who worked with a private company (Casella)  which managed a land fill under a contract with the county. The documents in question were submitted by the defendant to Casella. County Court found that the documents were submitted to a private party, not the government. The Fourth Department disagreed, finding a sufficient relationship between Casella and the county to support the charges:

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“The essential elements of the crime of offering a false instrument for filing in the first degree . . . are (1) knowledge that a written instrument contains a false statement or false information, (2) intent to defraud the State or any political subdivision thereof, and (3) offering or presenting such instrument to a public office or public servant with the knowledge or belief that it will be filed” … . The term “public servant” is defined as “(a) any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state, or (b) any person exercising the functions of any such public officer or employee” … .

Here, we agree with the People that the evidence before the grand jury was legally sufficient to establish that Casella, in accepting the reports from defendant for purposes of complying with the County’s permit issued by the State, was “not acting as a private concern” but rather was exercising a governmental function as an agent of the County … , and thus was acting as a public servant within the meaning of the statute. In addition, we conclude that the evidence before the grand jury, viewed in the light most favorable to the People… , was sufficient to allow the grand jury to infer that defendant intended to defraud the County by submitting reports with fabricated information while still receiving a salary as a County employee … . People v Rafferty, 2017 NY Slip Op 07797, Fourth Dept 11-9-17

 

CRIMINAL LAW (GRAND JURY EVIDENCE SUFFICIENT TO SUPPORT OFFERING A FALSE INSTRUMENT FOR FILING CHARGES, INSTRUMENTS WERE PREPARED FOR A PRIVATE COMPANY UNDER CONTRACT WITH THE COUNTY, COUNTY COURT REVERSED (FOURTH DEPT))/MUNICIPAL LAW (CRIMINAL LAW, GRAND JURY EVIDENCE SUFFICIENT TO SUPPORT OFFERING A FALSE INSTRUMENT FOR FILING CHARGES, INSTRUMENTS WERE PREPARED FOR A PRIVATE COMPANY UNDER CONTRACT WITH THE COUNTY, COUNTY COURT REVERSED (FOURTH DEPT))/OFFERING A FALSE INSTRUMENT FOR FILING (CRIMINAL LAW, GRAND JURY EVIDENCE SUFFICIENT TO SUPPORT OFFERING A FALSE INSTRUMENT FOR FILING CHARGES, INSTRUMENTS WERE PREPARED FOR A PRIVATE COMPANY UNDER CONTRACT WITH THE COUNTY, COUNTY COURT REVERSED (FOURTH DEPT))

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JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT).

The Fourth Department ordered a new trial on the assault and unlawful imprisonment charges and reached a prosecutorial misconduct issue in the interest of justice (error not preserved). The prosecutorial misconduct, referring to evidence (a bloody t-shirt) which had been destroyed, was not deemed reversible. The Fourth Department found that a jury instruction on assault allowed the jury to consider a theory about how the victim was injured which was not charged in the indictment. Such an error affects the fundamental right to be tried only on what has been charged and need not be preserved. The Fourth Department also found that the evidence supported both the charged and a lesser included unlawful imprisonment offenses. The judge’s refusal to charge the jury on the lesser included was reversible error:

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… [The] conviction of assault in the second degree must be reversed because Supreme Court’s instruction created the possibility that the jury convicted him upon a theory different from the one charged in the indictment. … As a preliminary matter, we reject the People’s contention that defendant was required to preserve his contention for our review. It is well settled that ” defendant has a “fundamental and nonwaivable” right to be tried only on the crimes charged’ ” … . With respect to the merits of defendant’s contention, “[w]here the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory” … . We may not apply harmless error analysis to such an error because it would be impossible to determine whether the jury based its guilty verdict on the uncharged theory … . People v Barber, 2017 NY Slip Op 07807, Fourth Dept 11-9-17

 

CRIMINAL LAW (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/JURY INSTRUCTIONS CRIMINAL LAW, JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/LESSER INCLUDED OFFENSES  (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT))

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PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined that defendant, during the plea colloquy, raised a mental health issue that was not adequately addressed by the judge. Because the issue was raised in the colloquy, it was appealable despite the lack of preservation:

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… [D]efendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered … , and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea… . Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. People v Rogers, 2017 NY Slip Op 07889, Third Dept 11-9-17

 

CRIMINAL LAW (GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/GUILTY PLEA (PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/COLLOQUY (CRIMINAL LAW,  PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))/MENTAL HEALTH (CRIMINAL LAW, GUILTY PLEA, PLEA COLLOQUY RAISED QUESTIONS ABOUT DEFENDANT’S MENTAL HEALTH, NARROW EXCEPTION TO PRESERVATION REQUIREMENT ALLOWED ISSUE TO BE HEARD ON APPEAL, PLEA VACATED (THIRD DEPT))

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STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT).

The Fourth Department, in finding the street stop of defendant was justified, provided a useful, detailed discussion of the facts and the law (too detailed to summarize here):

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… [W]e agree with the People that the officer had at least the requisite founded suspicion that criminal activity was afoot, and thus that his initial approach of defendant was proper under level two.

When defendant then immediately fled, the officer pursued him, which was a level three intrusion requiring reasonable suspicion that defendant had committed or was committing a crime. “In determining whether a pursuit was justified by reasonable suspicion, the emphasis should not be narrowly focused on . . . any . . . single factor, but [rather should be based] on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer” … . We also note that, although “flight alone is insufficient to justify pursuit, defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit’ ” … . Here, we agree with the People that the specific information known to the officer, coupled with the officer’s observations of defendant’s actions, furtive behavior, and immediate flight, gave the officer reasonable suspicion to believe that defendant was engaged in criminal activity, thereby justifying the officer’s pursuit, detainment, and search of defendant.  People v Jones, 2017 NY Slip Op 07808, Fourth Dept 11-9-17

 

CRIMINAL LAW (STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT))

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