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SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the Syracuse Noise Ordinance was not unconstitutionally vague and therefore defendant was properly stopped in his vehicle based upon a violation of the ordinance:

Syracuse Noise Ordinance section 40-16 (b) is sufficiently definite to put a person on notice that playing music which can be heard over 50 feet from such person’s car on a public road, in a manner that would annoy or disturb “a reasonable person of normal sensibilities” is forbidden conduct and the objective standard affords police sufficiently “clear standards [for] enforcement” … . People v Stephens, 2016 NY Slip Op 07819, CtApp 11-21-16

CRIMINAL LAW (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/NOISE ORDINANCE (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/MUNICIPAL LAW (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)/STREET STOPS (SYRACUSE NOISE ORDINANCE PROHIBITING MUSIC LOUD ENOUGH TO BE HEARD 50 FEET FROM A PERSON’S CAR IS NOT UNCONSTITUTIONALLY VAGUE)

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HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION.

The Court of Appeals determined a (hearsay) spontaneous statement made by a bystander to a police officer about defendant’s attempt to get into the back of a FedEx truck was properly admitted as a present sense impression:

We hold that the statement was properly admitted as a present sense impression. That exception to the hearsay rule allows the admission of “spontaneous descriptions of events made substantially contemporaneously with the observations . . . if the descriptions are sufficiently corroborated by other evidence” … . Here, the woman’s statement was made to the officer immediately after the event she described and before she had an opportunity for studied reflection. The officer’s own observations sufficiently corroborated her description to allow its admission at trial … . People v Jones, 2016 NY Slip Op 07820, CtApp 11-21-16

CRIMINAL LAW (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/EVIDENCE (CRIMINAL LAW, HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/HEARSAY (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/PRESENT SENSE IMPRESSION (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)

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ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissent, reversing the Appellate Division, determined the evidence was sufficient to support the defendant’s felony murder conviction. The victim was found dead two days after an assault which fractured facial bones. The medical examiner testified the facial injuries were not the cause of death. But the medical examiner, noting the victim’s obesity and enlarged heart, offered an opinion that the victim would not have died from cardiovascular disease he not been assaulted:

Here, the medical examiner’s testimony, in conjunction with the crime scene evidence, established a sufficient causal connection between defendant’s infliction of blunt force trauma injuries during the violent home invasion and the victim’s death. Specifically, the medical examiner testified that “[s]tress of any kind can hasten a person’s demise by cardiovascular disease” and that, here, the stress caused by the injuries inflicted by defendant, “given [the victim’s] underlying heart disease[,] led to his death.” That testimony, along with the crime scene evidence that defendant’s beating of the victim was severe and immediate in its consequences, “was sufficient to prove that defendant’s conduct ‘set in motion and legally caused the death’ of” the victim … . Thus, the jury could have reasonably concluded that defendant’s conduct was an actual contributory cause of the victim’s death.

With respect to foreseeability of the death, the People must prove “that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” … . In this case, defendant violently attacked the victim, in his home, breaking his jaw and leaving him on the floor in a blood-spattered room where he was found dead. From all of the evidence and the circumstances surrounding this violent encounter, the proof was sufficient to permit the jury to conclude that the victim’s heart failure, induced by the extreme stress and trauma of such a violent assault, was a directly foreseeable consequence of defendant’s conduct … . People v Davis, 2016 NY Slip Op 07818, CtApp 11-21-16

 

CRIMINAL LAW (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/FELONY MURDER (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION

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TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY.

The Court of Appeals, over a dissent, determined the police properly towed defendant’s car (which resulted in an inventory search) after defendant’s arrest for shoplifting. The towing of the car was consistent with the provisions of the police department’s written policy:

… [T]he police officers’ decision to tow defendant’s vehicle, which was parked in the same parking lot in which defendant was arrested, was properly made in accordance with “standard criteria” set forth in the police department’s written policy … . Those criteria, among other things, limit an officer’s discretion to tow a vehicle upon a driver’s arrest to situations in which such action is necessary to ensure the safety of the vehicle and its contents and where releasing the vehicle to an owner or designee is not otherwise appropriate. Upon defendant’s arrest, the vehicle would have been left unattended indefinitely in the complainant’s private parking lot, which had a history of vandalism, and the complainant requested that the police remove the vehicle. In our view, the officers’ decision to tow the vehicle was, therefore, consistent with a community caretaking function … . Moreover, there is no indication that the officers suspected that they would discover evidence of further criminal activity in defendant’s vehicle, or that they towed the vehicle for that purpose … . People v Tardi, 2016 NY Slip Op 07822, CtApp 11-21-16

CRIMINAL LAW (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY)/INVENTORY SEARCH (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY)/TOWING (TOWING OF DEFENDANT’S CAR (AND INVENTORY SEARCH) AFTER DEFENDANT’S ARREST FOR SHOPLIFTING WAS CONSISTENT WITH POLICE DEPARTMENT’S WRITTEN POLICY

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PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING.

The Fourth Department determined the doctrine of primary assumption of the risk precluded recovery by a professional wrestler for injuries resulting from a planned jump from the ropes into the ring:

It is well settled that the primary “assumption of [the] risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . The participant assumes the risks that are inherent in the “sporting or amusement activit[y]” (id.), which “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . Consequently, a participant in such activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation’ ” … . “[F]or purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” … . Finally, “[t]he primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions . . . It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” … .

Here, the court properly concluded that the risk of severe neck and back injuries is inherent in the planned and staged activity engaged in by plaintiff, i.e., jumping from a four-foot high rope onto a wrestling ring, landing on one’s back, and then being pushed out of the ring by another performer. Thus, “it is indisputable that . . . plaintiff assumed the risk of landing incorrectly when tumbling in the manner he had been trained to do during his [five-year career as a professional wrestling performer]. The fact that the [rope was slightly looser], a circumstance of which . . . plaintiff was plainly aware, does not raise an issue of fact” … . Therefore, “by participating in the [exhibition], plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct . . . [and] consent[ed] to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in” that exhibition … , including the risk of the injuries he sustained. Kingston v Cardinal O’Hara High School, 2016 NY Slip Op 07798, 4th Dept 11-18-16

 

NEGLIGENCE (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)/ASSUMPTION OF THE RISK (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)

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ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. There was evidence a step leading to defendants’ premises was dangerous because there were no markings or differences in color between the step and the sidewalk:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . In view of the pertinent “factors that may render a physically small defect actionable” … , we conclude that … (defendants) failed to sustain their burden of establishing as a matter of law the absence of any defect with the step … . In any event, we conclude that, in opposition to the motion and cross motion, plaintiff raised a triable issue of fact concerning the existence of a defect by submitting evidence that there were no markings on the step or differences in color between the step and the sidewalk … . Furthermore, the step was located in or very near a doorway, “where a person’s attention would be drawn to the door, not to the [step]” … .

We further conclude that the court erred in determining that plaintiff’s inattention to the step upon exiting the premises was the sole proximate cause of her injuries as a matter of law inasmuch as defendants “failed to establish that plaintiff’s fall was unrelated to the alleged defect” … . Thus, “while plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, any such comparative negligence would not serve to negate the liability of the . . . landowner[,] who has a duty to keep the premises safe’ ” … . Grefrath v DeFelice, 2016 NY Slip Op 07786, 4th Dept 11-18-16

 

NEGLIGENCE (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/SLIP AND FALL (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/STEPS (SLIP AND FALL, ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)

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RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT.

The Fourth Department, reversing (modifying) Supreme Court, determined that the “reckless disregard” standard applied to the defendant police officer’s driving and dismissed plaintiff bicyclist’s complaint. Apparently, the officer was moving his car into an intersection, trying to get the attention of another driver to whom he wished to speak. Plaintiff bicyclist, who had the green light, collided with the officer’s car:

… [W]e note that there is no dispute that defendant officer was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 101). We reject plaintiff’s contention that, in determining whether defendant officer’s operation of the police vehicle qualifies as an “emergency operation” within the meaning of Vehicle and Traffic Law § 114-b, we should adopt the definition of “pursuit” contained in the operations manual of defendant City of Syracuse Police Department … . Likewise, it is irrelevant whether defendant officer believed he was involved in an emergency operation … . Contrary to plaintiff’s further contentions, we conclude that defendant officer’s actions constituted an “emergency operation” as contemplated by Vehicle and Traffic Law § 114-b … ; the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence (see § 1104 [e]…); and defendants established as a matter of law that defendant officer’s conduct did not constitute the type of recklessness necessary for liability to attach … . Lacey v City of Syracuse, 2016 NY Slip Op 07794, 4th Dept 11-18-16

MUNICIPAL LAW (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/NEGLIGENCE (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/EMERGENCY VEHICLES (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/POLICE OFFICERS (RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)

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LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED.

The Fourth Department determined the loan secured by a mortgage was not usurious. The $170,000 loan included $43,000 designated as interest. Whether the interest was usurious should have been determined based upon the term of loan, not when the foreclosure action was commenced:

In determining whether the interest charged exceeded the usury limit, courts must apply the traditional method for calculating the effective interest rate as set forth in Band Realty Co. v North Brewster, Inc. (37 NY2d 460, 462 …). According to that method, “[s]o long as all payments on account of interest did not aggregate a sum greater than the aggregate of interest that could lawfully have been earned had the debt continued to the earliest maturity date, there would be no usury” … . In applying the traditional formula, “[t]he discount, divided by the number of years in the term of the mortgage, should be added to the amount of interest due in one year, and this sum is compared to the difference between the principal and the discount in order to determine the true interest rate” … .

Applying that formula to the case at bar, which involves a five-year mortgage of $170,000 with a $43,000 “discount” with no additional interest, we add $8,600, which is one-fifth of the discount, to the interest over the first year (0%), arriving at a sum of $8,600. Comparing the $8,600 figure to the difference between the principal and the discount retained by plaintiff, i.e., $127,000, the interest rate was 6.77% per annum. That interest rate is well below the civil usury rate of 16% per annum … . Canal v Munassar, 2016 NY Slip Op 07793, 4th Dept 11-18-16

FORECLOSURE (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/MORTGAGES (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/USURY (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)

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FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER.

The Fourth Department determined the Family Court judge should have recused herself from a dispositional hearing in a permanent neglect proceeding. Father had made a death threat against the judge following the finding of permanent neglect:

It is well settled that, “[a]bsent a legal disqualification under Judiciary Law § 14, a . . . Judge is the sole arbiter of recusal” … , and the decision whether to recuse is committed to his or her discretion … . Under these circumstances, and particularly in view of the order of protection, we conclude that the court abused its discretion in refusing to recuse itself … . Matter of Trinity E. (Robert E.), 2016 NY Slip Op 07804, 4th Dept 11-18-16

FAMILY LAW (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/JUDGES (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/RECUSAL (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)

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ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED.

The Fourth Department determined asking defendant (who was on a bicycle and properly stopped) why he was so nervous and whether he was carrying drugs was invasive questioning unsupported by an indication of criminal activity. Suppression of defendant’s statements and seized evidence should have been granted:

… [F]ollowing the permissible stop of defendant on his bicycle, the officers improperly escalated the encounter to a level two common-law inquiry by asking defendant why he was so nervous and whether he was carrying drugs. The officers’ inquiries, which involved “invasive questioning” that was “focuse[d] on the possible criminality” of defendant … , were not supported by the requisite founded suspicion of criminality … . The testimony at the suppression hearing establishes that the officers observed nothing indicative of criminality, and we conclude that defendant’s nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot … . Because defendant’s inculpatory oral response to the impermissible accusatory questioning resulted in the seizure of the drugs from defendant’s pocket and a postarrest written statement from defendant, the drugs and the oral and written statements must be suppressed … . People v Freeman, 2016 NY Slip Op 07784, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)

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