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SERIOUS-CRIME DEFAMATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined the “serious crime” defamation per se cause of action should have been dismissed. The defamation action stemmed from a letter written to a federal judge by the defendant, in connection with plaintiff-corporation’s pleading guilty to a violation of the Clean Water Act:

Supreme Court erred in denying that part of her pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) insofar as the complaint alleged that defendant committed defamation per se by “charging plaintiff[s] with a serious crime” … . We conclude that certain statements in the letter alleging criminal conduct on the part of plaintiffs do not constitute defamation per se because “reference to extrinsic facts is necessary to give them a defamatory import” … , and that other statements, e.g., accusing plaintiffs of terrorism, do not constitute defamation per se because they are “likely to be perceived as rhetorical hyperbole [or] a vigorous epithet’ ” … . Crane-Hogan Structural Sys., Inc. v Belding, 2016 NY Slip Op 06376, 4th Dept 9-30-16

DEFAMATION (SERIOUS-CRIME DEFAMATION PER SE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL.

The Fourth Department, reversing defendant’s conviction, determined that allowing the alleged victim’s testimony from the first trial to be read into evidence in the second trial violated the defendant’s right to confrontation. After the first trial, the victim recanted and told defense counsel and the prosecutor someone else committed the offense. At defendant’s second trial, the victim refused to testify, exercising her 5th amendment right to remain silent. Because the victim could not be asked about her recantation, and therefore no foundation for the recantation evidence could be laid, the victim’s testimony from the first trial was deemed admissible. However, under the facts, the victim’s assertion of her 5th amendment rights required the trial judge to explore whether her testimony in the first trial should be struck because her testimony was central to the prosecution’s case. In addition, the Fourth Department determined the trial judge acted vindictively when a greater sentence was imposed after the second trial:

… [The defendant’s] Sixth Amendment right to confrontation was violated when the victim exercised her Fifth Amendment right to remain silent and refused to answer defense counsel’s questions regarding the recantation of her testimony because the court failed in its duty “[to] explore whether [she] ha[d] essentially refused to testify on questions of matters so closely related to the commission of the crime[s] that [some or all of her] testimony . . . [from the first trial] should be stricken” … . We note, too, that the victim’s testimony is central to the People’s case … and, given that we have previously determined that the evidence against defendant is “less than overwhelming” … , we cannot conclude that the court’s error is harmless … .

We therefore reverse the judgment and grant a new trial on counts one, two and four of the indictment. In the interest of judicial economy, we exercise our power to review as a matter of discretion in the interest of justice defendant’s contention that the court failed to rebut the presumption of vindictiveness when it imposed a greater sentence than was imposed following the first trial … . The People correctly concede that the court failed to identify ” conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” to justify an increased sentence … , and thus we conclude that the court erred in increasing the sentence after the retrial … . People v Hicks, 2016 NY Slip Op 06334, 4th Dept 9-30-16

 

CRIMINAL LAW (NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/EVIDENCE (CRIMINAL LAW, NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/RECANTATION (CRIMINAL LAW, NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/SENTENCING (TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)

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EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE.

The Fourth Department determined items seized from defendant’s person at the time he was detained should have been suppressed. However, a subsequent show-up identification, statements, and items found where defendant was initially seized were not fruit of the poisonous tree:

Defendant contends that he was unlawfully arrested prior to the showup identification procedure and that all of the physical evidence, as well as the identification testimony and his statements, must be suppressed as fruit of the poisonous tree. We agree with defendant that the items seized from his person should have been suppressed because the police did not have probable cause at that time to arrest him and conduct a search incident to an arrest. We conclude that the police had reasonable suspicion to pursue defendant and detain him for the purpose of the showup identification … . But although the police were permitted at that time to conduct a pat frisk of defendant … , they were not permitted to search him.

We reject defendant’s contention, however, insofar as he asserts that the remaining evidence must be suppressed as fruit of the poisonous tree. It is well settled that “only evidence which is the fruit of the poisonous tree’ should be excluded” … . In other words, “only evidence which has been come at by exploitation of that illegality should be suppressed” … . Here, defendant did not meet his burden of establishing that the showup identification of him, his statements to the police, and the items seized in the courtyard, were causally related to his unlawful arrest prior to the showup identification procedure … , i.e., that such evidence was ” obtained by exploitation’ ” of the illegal arrest … . People v Ashford, 2016 NY Slip Op 06365, 4th Dept 9-30-16

 

CRIMINAL LAW (EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)/EVIDENCE (CRIMINAL LAW, EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)/SUPPRESSION (CRIMINAL LAW, EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)

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REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED.

The Fourth Department, over a two-justice dissent, determined the selection of a juror by the defendant, a selection with which defense counsel apparently disagreed, deprived defendant of his right to counsel:

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal” … . “The selection of particular jurors falls within the category of tactical decisions entrusted to counsel, and defendants do not retain a personal veto power over counsel’s exercise of professional judgments” … .

Here, during the part of the jury selection process when the attorneys were exercising peremptory challenges, defense counsel stated “[f]or the record, my client is insisting over my objection to keep juror number 21. So, jurors 20 and 21 will be on the jury.” We agree with defendant that, contrary to the People’s contention, defense counsel “never acceded’ or acquies[ed]’ to defendant’s decision” … . … Consequently, the court denied defendant the “expert judgment of counsel to which the Sixth Amendment entitles him,” and “we cannot say that the error here was harmless beyond a reasonable doubt” … . People v Mckenzie, 2016 NY Slip Op 06288, 4th Dept 9-30-16

CRIMINAL LAW (REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/ATTORNEYS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/JURORS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)

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CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined an outreach worker/field supervisor who, pursuant to a grant, worked for the Niagara Falls Housing Authority was an employee entitled to unemployment insurance benefits:

Prior to being hired, claimant filled out an application and was required to submit a résumé, after which he was interviewed by a panel, which included two officials from the Housing Authority, that determined to hire him … . Upon being hired, claimant was required to attend training … . The rate of pay for claimant, who was required to work 35 hours per week, was not subject to negotiation … , and claimant was required to fill out and submit weekly time sheets that would have to be approved and signed by his supervisor before receiving remuneration from the Housing Authority … . While claimant did not receive benefits, he was reimbursed for expenses related to the costs of a cell phone, gas, tolls, food and office supplies … , and the Housing Authority also provided claimant with office space to use in one of its buildings. While performing his duties as an outreach worker, claimant was required to wear a jacket or shirt, as well as a hat, identifying him as part of the SNUG [violence reduction] program … and was required to maintain a certain number of clients and to meet with those clients. Claimant was also not allowed to subcontract his work or employ a substitute to perform his work … , and his work in the community was reviewed periodically and subject to oversight by his supervisors … . Matter of Cole (Niagara Falls Hous. Auth.–Commissioner of Labor), 2016 NY Slip Op 06281, 3rd Dept 9-29-16

UNEMPLOYMENT INSURANCE (CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

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NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION.

The First Department, in a full-fledged opinion by Justice Kapnick, reversed defendant’s conviction because there was no record that the trial judge read the notes from the jury to the parties verbatim prior to discussing the appropriate responses:

“Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” … . Here, the court’s response to the jury regarding the fourth note does include a limited reference to how the “parties” wished to respond to the jury’s request, suggesting that an off-the-record conference may have occurred with respect to the fourth note. Even assuming, without deciding, that this reference would suffice to remedy the O’Rama violation with respect to the fourth note, there is no such reference to the parties’ agreement in the trial court’s response to the jury regarding the fifth note. Therefore, the court’s handling of the fifth note constitutes a clear departure from the O’Rama procedure and a mode of proceedings error for which preservation is not required … . People v Robinson, 2016 NY Slip Op 06266, 1st Dept 9-29-16

CRIMINAL LAW (JURY NOTES, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)/JURY NOTES (CRIMINAL LAW, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)/MODE OF PROCEEDINGS ERROR (JURY NOTES, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)

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ZONING BOARD’S DENIAL OF APPLICATION TO RENEW A VARIANCE PREVIOUSLY ALLOWED WAS NOT ARBITRARY AND CAPRICIOUS.

The Second Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) did not act arbitrarily and capriciously when it denied petitioner’s application to renew a variance previously granted by the board. The Second Department held the board had adequately explained the reasons for the denial:

Where “a zoning board is [considering] an application that is substantially similar to a prior application that had been previously determined, the zoning board is required to provide a rational explanation for reaching a different result” … . “Where, however, a zoning board provides a rational explanation for reaching a different result on similar facts, the determination will not be viewed as either arbitrary or capricious” … . The zoning board “may refuse to duplicate previous error; it may change its views as to what is for the best interests of the [Town]; [or] it may give weight to slight differences which are not easily discernable” … .

The ZBA’s determination denying the petitioner’s applications to renew the use variance previously issued in 2007, and for a new use variance, was not illegal, arbitrary, or an abuse of discretion. With respect to renewal of the 2007 variance, contrary to the Supreme Court’s determination, the ZBA’s findings of fact dated December 4, 2013, provided a rational basis for denying the petitioner’s application. The ZBA found, among other things, that the petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267-b(2)(b). The fact that the ZBA previously temporarily approved the same application in 2007 did not relieve the petitioner of its evidentiary burdens in demonstrating “unnecessary hardship” for purposes of renewal of the use variance, or for purposes of seeking an additional use variance. As the ZBA determined, the petitioner failed to show, based on competent financial evidence, i.e., by dollars and cents proof, that it cannot yield a reasonable rate of return absent the requested use variances … . Matter of Monte Carlo 1, LLC v Weiss, 2016 NY Slip Op 06217, 2nd Dept 9-28-16

ZONING (ZONING BOARD’S DENIAL OF APPLICATION TO RENEW A VARIANCE PREVIOUSLY ALLOWED WAS NOT ARBITRARY AND CAPRICIOUS)/VARIANCE (ZONING BOARD’S DENIAL OF APPLICATION TO RENEW A VARIANCE PREVIOUSLY ALLOWED WAS NOT ARBITRARY AND CAPRICIOUS)

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PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN DRAWING UP AN ESTIMATE.

The Second Department, reversing Supreme Court, determined defendant property-owner was not entitled to summary judgment. Plaintiff was on the property to provide an estimate of the cost of repair of defendant’s porch when the porch collapsed. Defendant argued she could not be liable because the injury occurred when plaintiff was doing work he was hired to do. However, the plaintiff had not been hired to repair the porch:

Employers have a common-law duty to provide their employees with a safe place to work … . The duty, however, does not extend to hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair … . Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law, as the evidence submitted in support of her motion showed that the plaintiff merely went to the premises to prepare an estimate to repair the back porch. The plaintiff had not been hired to repair the back porch and he was not engaged in any repair work when the incident allegedly occurred… . Arcabascio v Bentivegna, 2016 NY Slip Op 06187, 2nd Dept 9-28-16

NEGLIGENCE (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)/LABOR-CONSTRUCTION LAW (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)/EMPLOYMENT LAW (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)

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FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION.

The Second Department determined defendants’ motion for summary judgment on the Labor Law 240(1) cause of action, alleging injury from a falling piece of sheetrock, was properly granted. The sheetrock in question was stored against a wall and was not being hoisted at the time of the incident. [The extensive decision demonstrates the complexity of Labor Law actions as it addresses Labor Law 241(6) and Labor Law 200 causes of action, indemnification issues and the liability of agents and general contractors.] With respect to the Labor Law 240(1) cause of action, the court wrote:

“In order to prevail on summary judgment in a section 240(1) falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'” … . “Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … . “[F]or section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .

However, Labor Law § 240(1) “does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected” … . Here, the sheetrock, which was being stored against a wall, was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell … , nor was it expected, under the circumstances of this case, that the sheetrock would require securing for the purposes of the undertaking at the time it fell … . Seales v Trident Structural Corp., 2016 NY Slip Op 06204, 2nd Dept 9-28-16

 

LABOR LAW-CONSTRUCTION LAW (FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION)/FALLING OBJECTIONS (LABOR LAW-CONSTRUCTION LAW, FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION)

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APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVE HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED.

The Second Department determined the appellant was deprived of her right to counsel. The orders of protection were reversed:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, voluntarily, and intelligently … . In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is knowing, voluntary, and intelligent … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the record supports the appellant’s contention that she was not advised of her right to counsel in accordance with Family Court Act § 262(a). Further, there is no indication on the record that she waived her right to counsel. Under these circumstances, the appellant was deprived of her statutory right to counsel .. . Matter of Osorio v Osorio, 2016 NY Slip Op 06219, 2nd Dept 9-28-16

FAMILY LAW (APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)

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