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ALTHOUGH THERE WAS PROOF DEFENDANT WAS AWARE THE CO-DEFENDANT POSSESSED A WEAPON, THERE WAS NO PROOF DEFENDANT ACTED AS AN ACCOMPLICE IN THE CO-DEFENDANT’S POSSESSION OF A WEAPON; DEFENDANT’S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCOMPLICE THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined that, although the proof demonstrated defendant’s awareness that the co-defendant possessed a firearm, that awareness alone did not give rise to accomplice liability for the co-defendant’s criminal possession of a weapon: Defendant was convicted after a four-day trial. The Third Department held the conviction was not supported by the weight of the evidence:

We agree with defendant that his conviction is against the weight of the evidence. … [T]he jury could rely on testimony by the People’s witnesses describing defendant’s conduct during the incident as evidence that defendant was aware the codefendant possessed the subject handgun before the codefendant displayed it to those witnesses … . Still, accessorial liability requires evidence directed at the equally important actus reus element, i.e., that ” ‘the accomplice must have intentionally aided the principal in bringing forth a result’ ” … . Here, even though “defendant’s conduct suggested that he may have known that [the codefendant] had a gun, there was no proof that . . . defendant solicited, requested, commanded, importuned, or intentionally aided him to possess the gun” … . What defendant did or said in furtherance of the codefendant’s possession of the subject handgun was left to the jurors’ imaginations … . Such speculation cannot be the basis for defendant’s guilt beyond a reasonable doubt … . People v Goodman, 2024 NY Slip Op 05249, Third Dept 10-24-24

Practice Point: To be convicted of a co-defendant’s criminal possession of a weapon under an accomplice theory, the proof must demonstrate the defendant solicited, requested, commanded, importuned or intentionally aided the co-defendant to possess the gun (in addition to the mens rea, the actus reus must be proven).

 

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WHEN THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ASSUMED CUSTODY OF CLAIMANT, IT OWED CLAIMANT A DUTY TO PROTECT HIM AGAINST FORESEEABLE HARM, INCLUDING SEXUAL ASSAULT; THIS CHILD VICTIMS ACT ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE STATE DID NOT OWE CLAIMANT A SPECIAL DUTY (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined this Child Victims Act action against the Office of Children and Family Services (OCFS) should not have been dismissed on the ground the state did not owe plaintiff a special duty:

For the reasons set forth in our recent decision in A.J. v State of New York (___ AD3d ___, 2024 NY Slip Op 04231 [3d Dept 2024]), we reverse. As in that case, claimant was in OCFS’s custody at the time he was allegedly assaulted. “When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances”(A.J. v State of New York,2024 NY Slip Op 04231 at *2). Because defendant owed claimant a duty of care, the claim stated a cause of action and the motion to dismiss should have been denied. McTighe v State of New York, 2024 NY Slip Op 05251, Third Dept 10-24-24

Practice Point: In the Third Department, the claimant in a Child Victims Act case against the Office of Children and Family Services (OCFS) alleging sexual abuse while in its custody does need to demonstrate the state owed claimant a special duty. The state is deemed to have assumed a duty to protect children in its custody from foreseeable harm.

 

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DEFENDANTS RAISED QUESTIONS OF FACT SUPPORTING A “FRAUD IN THE INDUCEMENT” DEFENSE TO THE ACTION BASED UPON AN EXECUTED PROMISSORY NOTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants raised a valid “fraud in the inducement” defense to the action seeking payment on an executed promissory note. Defendants executed the note to purchase protein powder from plaintiffs. Plaintiffs described the powder as having 23 to 25 grams of protein per 33/5 grams of powder. After the purchase defendants had the powder tested which revealed the powder contained a significantly lower percentage of protein:

“When an action is based upon an instrument for the payment of money only . . . , the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint” (CPLR 3213). Therefore, “[t]o prevail on [their] motion for summary judgment in lieu of complaint based on a promissory note, plaintiff[s] w[ere] required to present evidence that defendant[s] executed the note and defaulted thereon” … . Plaintiffs demonstrated their prima facie burden by supplying the note at issue, signed by [defendant], and evidence of defendant’s failure to pay; therefore, the burden shifted to defendants to establish the existence of a triable issue of fact as to a bona fide defense to liability … . …

Fraud in the inducement is a defense to the enforcement of a promissory note … , and, as such, defendants were required to “allege that (1) the plaintiff made a representation or a material omission of fact which was false and the plaintiff knew to be false, (2) the misrepresentation was made for the purpose of inducing the defendant to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury” … . * * *

Generally, “what constitutes reasonable reliance is always [a] nettlesome” inquiry best left to the trier of fact … . Furthermore, “[s]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact” … . Panessa v Lederfeind, 2024 NY Slip Op 05252, Third Dept 10-24-24

Practice Point: Fraud in the inducement is a valid defense to an action for summary judgment based upon an instrument for the payment of money only (CPLR 3213), here a promissory note.

 

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CLAIMANT-INMATE WAS SEXUALLY ASSAULTED IN HER CUBICLE IN A DORMITORY WITHOUT DOORS WHILE THE CORRECTION OFFICER (CO) GUARDING THE DORMITORY WAS ASLEEP; CLAIMANT PRESENTED ADEQUATE PROOF THE ASSAULT WAS FORESEEABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined claimant-inmate in this negligent supervision action presented sufficient proof the sexual assault by another inmate was foreseeable. Claimant was in a dormitory with cubicles and no doors. A male inmate crawled into claimant’s cubicle when the correction officer (CO) guarding dormitory was asleep:

… [T]he question is not what the State actually knows, but what it should have known, i.e., whether defendant has constructive notice … . There was a preponderance of evidence that defendant was aware that this claimant was at risk of sexual assault because defendant’s own sexual victimization risk screening procedures, and placement in the 10-1 dorm’s PREA cube as a result of her complaints about harassment immediately before the sexual assault, identified her as being in a class of individuals vulnerable to the risk of sexual assault … . Moreover, placement in the PREA cube generally, and in this case specifically, is a tacit acknowledgement that individuals who are identified as vulnerable and live in a general population dormitory consisting of a communal sleeping area, must have more protection at night. A sleeping CO negates this added protection at this critical time. Thus, it was not necessary for defendant to have notice that COs generally, or this CO specifically, slept during shifts. It is not unreasonable to expect that COs are conscious, alert and attentive while on duty monitoring an open-floor-plan dormitory of incarcerated individuals in a maximum-security prison. R.S. v State of New York, 2024 NY Slip Op 05253, Third Dept 10-24-24

Practice Point: Here there was sufficient proof that the sexual assault by another inmate was foreseeable. Claimant was recognized as vulnerable to sexual assault, was placed in a dormitory cubicle with no door, and the correction officer assigned to guard the dormitory was asleep. The fact that the CO’s falling asleep may not have been foreseeable was not the determinative issue.​

 

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THE CRITERIA FOR A COURT-OF-APPEALS REVIEW OF AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE ANALYSIS IS EXPLAINED; HERE DEFENDANT’S MANSLAUGHTER CONVICTION, BASED ENTIRELY ON CIRCUMSTANTIAL EVIDENCE, WAS PROPERLY REVIEWED BY THE APPELLATE DIVISION, WHICH AFFIRMED THE CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurring opinions and an extensive dissenting opinion by Judge Wilson, determined the Appellate Division properly conducted a weight-of-the-evidence review of an entirely circumstantial manslaughter prosecution (affirming the conviction):

Jorge Baque’s five-month-old daughter was found unresponsive in her crib at 6:30 a.m. on July 30, 2016. Despite efforts to resuscitate her, she was declared dead. An autopsy revealed that the victim had sustained injuries consistent with abusive head trauma and violent shaking. Baque was arrested and charged with manslaughter in the second degree and endangering the welfare of a child. * * *

The question before us is whether the Appellate Division erred as a matter of law in conducting its review of the weight of the evidence, in this purely circumstantial case. Weight of the evidence review is a “unique” power afforded to intermediate appellate courts, and one that they exercise regularly … . It requires the Appellate Division to “independently assess all the proof” and “to serve, in effect, as a second jury” … . * * *

This Court reviews a weight of the evidence determination to assess whether the “order and writings of the intermediate appellate court manifest a lack of application of [its] review power” … . “[W]e cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . We have never required the Appellate Division to “manifest its weight of evidence review power by writing in all criminal cases” … . Indeed, the Appellate Division “could have summarily affirmed without explicitly addressing the merits of defendant’s challenge to the weight of the evidence” … . People v Baque, 2024 NY Slip Op 05244, CtApp 10-24-22

Practice Point: This decision is a rare Court-of-Appeals review of an appellate division’s weight-of-the-evidence affirmance of a conviction based entirely on circumstantial evidence. The unique criteria for review by the Court of Appeals is explained.

 

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DEFENDANT, PRETENDING TO BE SOMEONE ELSE, TOOK DELIVERY OF TIRES AND FALSELY SIGNED THE INVOICE; THE DEFENDANT WAS PROPERLY SENTENCED TO CONSECUTIVE TERMS OF INCARCERATION FOR LARCENY AND FORGERY; THE CRITERIA FOR CONSECUTIVE AND CONCURRENT SENTENCES EXPLAINED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined consecutive sentences were properly imposed for defendant’s larceny and forgery convictions:

… [T]he Exxpress Tire Delivery Company received a telephone order from Basil Ford Truck Center by someone identifying themselves as Joe Basil Jr., for next-day delivery. The following day, … the driver called a number … for “Joe Junior” for additional delivery instructions. The man who answered the call told the driver to take the tires to a business adjacent to the Basil Ford Truck Center. When the driver arrived at the location he saw “a truck with a trailer” parked “on the side of the building” with a man standing next to it. He asked the man—who he identified in-court as defendant—”if he was taking the tires for delivery,” to which the man responded “yes.” Defendant … told the driver that he was an employee of the Basil family. The two loaded the tires onto the trailer and the driver then presented defendant with the tire invoice, which defendant falsely signed: “Joe Basil.” * * *

… [I]n accordance with section 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … .

Under the first prong, “where the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . * * * Here … defendant accomplished the taking once the driver loaded the tires onto defendant’s trailer, which preceded defendant falsely signing the invoice … .

As to the second prong, courts “first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . * * *

… [B]ecause forgery is not the exclusive means to accomplish a larceny by false pretenses, forgery is not “a necessary component” of the larceny count “in the legislative classification and definitional sense” … . … [U]nder this prong, we do not consider “the act-specific circumstances and proof of a crime” … . People v McGovern, 2024 NY Slip Op 05242, CtApp 10-24-24

Practice Point: Consult this decision for an explanation of the criteria for consecutive versus concurrent sentences where two crimes stem from closely related actions—here taking possession of property by false pretenses (larceny) and then falsely signing an invoice for the property(forgery).

 

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BECAUSE CLAIMANT SUFFERED PHYSICAL TRAUMA, TO RECOVER FOR PSYCHOLOGICAL INJURIES SHE NEED ONLY DEMONSTRATE A CONNECTION BTWEEN THE PSYCHOLOGICAL INJURIES AND THE PHYSICAL TRAUMA; CLAIMANT WAS NOT REQUIRED TO PROVE A SEPARATE AND DISTINCT WORKPLACE INJURY CAUSED THE PSYCHOLOGICAL INJURIES (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant need only demonstrate a connection between the physical trauma she suffered when a dog jumped on her and the psychological injuries which followed. Claimant did not have to prove the psychological injuries were caused by a separate workplace accident. Claimant, a social worker, was making a home visit when a family dog charged at her:

… [I]t has long been recognized that where a workplace accident is found to have occurred as a result of a physical impact/trauma, resulting physical and psychological injuries are both compensable, so long as the claimant establishes the causal connection between the accident and the alleged injuries … .

Here, the Board established a claim for a physical injury to claimant’s chest based upon the dog jumping on her chest and knocking her into the side of the house. As claimant alleges that her psychological injuries resulted from that same physical impact that the Board found amounted to a workplace accident, the Board erred in requiring that she establish a separate workplace accident comprised of work-related stress to recover for her alleged direct psychological injuries … . Rather, upon finding that a workplace accident had been established, the Board’s inquiry was limited to whether claimant showed, through competent medical evidence, that there was a causal relation between the accident and the injury … . Accordingly, the Board’s decision is reversed, and the matter is remitted to the Board to examine whether a causal connection was established between the workplace accident and the alleged psychological injuries consisting of PTSD, anxiety and acute stress disorder. Matter of Lewis v NYC Admin. for Children Servs., 2024 NY Slip Op 05254, Third Dept 10-24-24

Practice Point: The Workers’ Compensation Law allows recovery for psychological injuries caused by physical trauma.

 

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THE FAILURE TO MOVE TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT ON THE GROUND THE POLICE VIOLATED THE “KNOCK AND ANNOUNCE” RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE IS “NOVEL” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge concurrence which argued the case should have been disposed of based on the inadequacy of the record and not on the merits, determined the “single error” attributed to defense counsel did not amount to ineffective assistance. Defendant argued a motion to suppress should have been made on the ground the police violated the knock-and-announce rule when executing the warrant:

We have recognized that a single error in an otherwise competent performance may be sufficiently “egregious and prejudicial as to deprive a defendant of [the] constitutional right to effective legal representation” … . To “rise to that level,” however, defense counsel’s omission “must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy” … .

That standard is not satisfied if the “omitted argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel” … . We have stated that counsel is not ineffective when the success of the argument the defendant claims should have been made by counsel “depended on the resolution of novel questions” … , or when, at the time of the defendant’s trial, “there was no clear appellate authority” supporting the argument the defendant claims that counsel should have made … .

The United States Supreme Court has held that a violation of the knock-and-announce rule by police when executing a search warrant does not require the application of the exclusionary rule under the Federal Constitution (see generally Hudson v Michigan, 547 US 586 [2006]). Defendant acknowledges that no New York appellate decision has decided to the contrary, either by distinguishing Hudson, on the basis of the New York Constitution, or otherwise. Indeed, defendant concedes that the issue is novel. We need not and do not resolve the merits of that question on this appeal. We merely hold that the issue was not so clear-cut and dispositive that no reasonable defense attorney would have failed to assert it, and therefore “defendant’s claim of ineffective assistance must fail” … . People v Hayward, 2024 NY Slip Op 05243, CtApp 10-22-24

Practice Point: A single error by defense counsel may rise to the level of ineffective assistance, but not, as here, where the issue defense counsel failed to raise is deemed “novel.”

 

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THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DETERMINATION DID NOT TAKE INTO ACCOUNT THE ARCHAEOLOGICAL/HISTORICAL SIGNIFICANCE OF THE AREA WHERE THE APARTMENT COMPLEX WAS TO BE BUILT; DETERMINATION ANNULLED AND REZONING ORDINANCE VACATED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the “negative declaration” did not adequately take into account the historic/archaeological significance of the site where the apartment complex was to be built, and failed to include a necessary “consulting party.” The State Environmental Quality Review Act (SEQRA) determination was annulled and the rezoning ordinance was vacated:

In our view, respondent’s characterization of the archaeological impact as “moderate” unduly minimizes the historic/archaeological significance of the project site. We also find it significant that respondent’s coordination plan … excludes the Stockbridge-Munsee Community as a consulting party, notwithstanding EDP’s [Environmental Design Partnership] report including the Stockbridge-Munsee Community as a key participant. By letter dated May 3, 2022, just three days before respondent adopted the negative declaration, a representative from the Stockbridge-Munsee Community Tribal Historic Preservation Office wrote to respondent “to state the Tribe’s strong[ ] disagreement” with the proposed negative declaration resolution. … [T]he representative explained that “our office concluded there would be serious and irrevocable impacts to [i]ndigenous cultural resources including a significant site known to be eligible for the National Register of Historic Places and has yielded or may be likely to yield, information important in history or prehistory.” He further commented that “[f]or thousands of years the site was used for the extraction of resources for lithic tool making and camping along the [r]iver.” In 2021, a Stockbridge-Munsee Community Tribal Historic Preservation Officer submitted a statement to respondent explaining that the parcel “has high archaeological sensitivity and cultural significance for the Stockbridge-Munsee Band of Mohican Nation. . . . The recorded Chert Quarries Precontact Site represents immense cultural and educational significance. For thousands of years this area was used for the extraction of resources for Mohican people.” Matter of Bennett v Troy City Council, 2024 NY Slip Op 05257, Third Dept 10-24-24

Practice Point: Here the failure to take into account the historical/archaeological (“indigenous cultural”) significance of the land and the failure to include a Native American group as a consulting party warranted the annulment of the SEQRA determination (“negative declaration”) and vacation of the rezoning ordinance.

 

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THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE OFFSET THE SLU AWARD FOR CLAIMANT’S ARM INJURY BASED ON A PRIOR SLU AWARD FOR INJURY TO THE SAME ARM; THE TWO INJURIES WERE NOT RELATED (THIRD DEPT)

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award for injury to his arm, despite a prior SLU award for injury to the same arm. The injuries involved different pathologies:

​”Pursuant to Matter of Genduso [v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018])] and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member” … . However, the Court of Appeals has held that an offset of an SLU award by previous SLU awards for the same body member “is not required when the claimant demonstrates that a subsequent injury increased the loss of use of [the] body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444 …). Such demonstration may include medical evidence that a prior injury and the current injury to the same member are “separate pathologies that each individually caused a particular amount of loss of use of [the subject member]” … and that the current injury resulted in a greater degree of loss of use of the body member in question “beyond that . . . [of] the prior injury” … . * * *

… [C]laimant’s physician clearly stated that claimant had “received a scheduled loss of use of 27% for the right shoulder,” and, in his July 2021 report, claimant’s physician opined that the surgery he had performed for claimant’s 2015 shoulder injury was “unrelated” to the 2019 biceps injury. Claimant’s physician made it clear that the 33.33% SLU that he found claimant had sustained for the biceps injury was separate from, and in addition to, the prior shoulder injury. Thus, in accordance with the holding in Matter of Johnson, the SLU attributable to the prior shoulder injury should not have been deducted from the SLU attributable solely to the biceps injury, and we find that the Board’s determination is not supported by substantial evidence. Matter of Germano v Dynamic Appliances, Inc., 2024 NY Slip Op 05259, Third Dept 10-24-24

Practice Point: A claimant is eligible for more than one SLU award for injuries to the same body part if the injuries are not related and involve different pathologies.

 

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