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POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department reversed defendant’s conviction as against the weight of the evidence, essentially finding the police officer’s testimony incredible:

Here, an acquittal would not have been unreasonable, particularly in light of objective facts—including the arresting officer’s failure to record the arrest in his memo book, his failure to call in the arrest, his failure to voucher the bandanas or masks, and the loss of the case folder containing the original of the defendant’s written statement and signed Miranda waiver—all of which cast doubt on the arresting officer’s credibility … . Moreover, the defendant testified at trial to a completely different version of events, including that he and his companion were not wearing masks or bandanas and he did not possess a gun or any marihuana. The defendant’s credibility was supported by the testimony of three character witnesses regarding his propensity for truthfulness, and no evidence was elicited to undermine the defendant’s credibility. Notably, the defendant had no prior history of arrests and had been gainfully employed by the same employer for seven years. Further, the defendant’s companion, who also had no history of prior arrests and had been gainfully employed for six years, testified to the same version of events as the defendant. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt … . People v Oneill, 2016 NY Slip Op 05510, 2nd Dept 7-13-16

CRIMINAL LAW (POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE

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SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department determined the show up identification 30 minutes after the crime was not unduly suggestive and should not have been suppressed:

Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness … . The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive … . People v Huerta, 2016 NY Slip Op 05508, 2nd Dept 7-13-16

CRIMINAL LAW (SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/IDENTIFICATION (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/SHOWUP (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction because he was not informed his guilty plea would result in deportation should have been granted on “ineffective assistance” grounds. Defendant did not perfect an appeal. However the motion to vacate was a valid vehicle because it depended in part on non-record matters:

Since the defendant’s claim that he was deprived of the effective assistance of counsel involves a mixed claim that depends, in part, upon matter that would not appear on the record had there been a direct appeal from the judgment, his claims were properly presented in a motion pursuant to CPL 440.10 … .

Under the circumstances of this case, we find that the defendant established that he was deprived of the effective assistance of counsel, in that there was no “strategic reason” … for his attorney’s failure to advocate for a sentence that would result in the same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences … . People v Moore, 2016 NY Slip Op 05509, 2nd Dept 7-13-16

 

CRIMINAL LAW (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/INEFFECTIVE ASSISTANCE (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED

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NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.

The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:

Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .

* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16

 

NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)

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CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS.

The Fourth Department, reversing Family Court, determined the children in the neglect proceeding did not receive effective assistance of counsel from the attorney for the child (AFC). The AFC took positions contrary to the wishes of two of the children (Brian and Alyssa):

The Rules of the Chief Judge provide that an AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]), even if the AFC “believes that what the child wants is not in the child’s best interests” … . There are two exceptions to this rule: (1) where the AFC is convinced that the “child lacks the capacity for knowing, voluntary and considered judgment”; or (2) where the AFC is convinced that “following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . Here, there is no dispute that the trial AFC took a position contrary to the position of two of the subject children … . * * *

Inasmuch as the trial AFC failed to advocate Brian and Alyssa’s position at the fact-finding hearing, he was required to determine that one of the two exceptions to the Rules of the Chief Judge applied, as well as “[to] inform the court of the child[ren]’s articulated wishes” … . Here, the trial AFC did not fulfill either obligation … . Indeed, the record establishes that neither of the two exceptions applied. Matter of Brian S. (Scott S.), 2016 NY Slip Op 05464, 4th Dept 7-8-16

 

FAMILY LAW (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/ATTORNEYS (FAMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/NEGLECT (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/EFFECTIVE ASSISTANCE OF COUNSEL (FAMMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)

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RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE.

The Fourth Department reduced defendant sex offender’s risk level from three to two, finding that the assessment of 25 points for sexual contact with the victim overassessed the defendant’s risk to public safety. Defendant and the victim were close in age and the victim’s lack of consent was solely due to her age:

In light of the totality of the circumstances, particularly the relatively slight age difference between defendant and the victim, as well as the undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age, we conclude in the exercise of our own discretion that the assessment of 25 points under the second risk factor, for sexual contact with the victim, results in an overassessment of defendant’s risk to public safety … . People v George, 2016 NY Slip Op 05482, 4th Dept 7-8-16

CRIMINAL LAW (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SEX OFFENDER REGISTRATION ACT (SORA) (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SORA (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)

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DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET.

The Fourth Department, over an extensive, two-justice dissent, determined defendant, when he was in custody, consented to the search of the premises and a duffel bag in a closet:

Testimony at the suppression hearing established that, although defendant was in custody at the time he gave consent, he cooperated with the police and assisted them in gaining entry by indicating which of his keys opened the front door … . Once inside the home, the police observed marihuana in plain view and immediately read defendant his Miranda rights. After defendant waived those rights, he voluntarily consented, both verbally and in writing, to a search of the premises.

We reject defendant’s further contention that any voluntary consent he may have given did not encompass a search of a duffel bag inside of his closet. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” … . Where an officer informs a suspect of the specific items the officer is searching for, ” [t]he scope of a search is generally defined by its expressed object’ ” … . Here, defendant responded affirmatively when the officer asked him whether he “could have permission to search both the room and the house for drugs or any other weapons or illegal contraband in the house.” Additionally, defendant signed a written consent that included the “premises” and his “personal property.” People v Freeman, 2016 NY Slip Op 05472, 4th Dept 7-8-16

 

CRIMINAL LAW (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/CONSENT SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SUPPRESSION (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)

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GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.

The Fourth Department, over an extensive dissent, reversing County Court, determined defendant’s Georgia burglary conviction could not serve as a predicate felony in New York. The corresponding New York burglary statute required that a defendant knowingly enter or remain in a building with the intent to commit a crime. The knowledge element was not part of the Georgia statute:

Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglary statute provided that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a]). The equivalent New York burglary statute provides that “[a] person is guilty of burglary . . . when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, the Georgia statute is lacking an essential element—knowledge that the entry or decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate … . People v Helms, 2016 NY Slip Op 05463, 4th Dept 7-8-16

CRIMINAL LAW (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SENTENCING (PREDICATE FELONY, GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SECOND FELONY OFFENDER (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)

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SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND.

The Third Department determined the complaint against the school district stemming from infant plaintiff’s fall on the school playground should have been completely dismissed. The students were told to stay on the blacktop area adjacent to the playground because the playground had ice and snow on it:

Where, as here, the underlying accident “occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury and summary judgment in favor of the school defendant is warranted” … . * * *

We reach a similar conclusion with regard to plaintiff’s premises liability claim. To prevail on its motion for summary judgment, defendant was required to “establish as a matter of law that it maintained the [playground] in question in a reasonably safe condition and that it neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof” … . * * * … [D]efendant’s expert opined that there was “no requirement or obligation for [defendant] to clean snow and ice off of the playground surface” — a task that would have been “nearly impossible” due to the rubberized surface material. With respect to the playground equipment itself, defendant’s expert concluded that, inasmuch as plaintiff and her classmates were instructed not to use such equipment, defendant was not required to clear the equipment of snow and ice … . Such proof was, in our view, sufficient to discharge defendant’s initial burden on its motion for summary judgment. Elbadwi v Saugerties Cent. Sch. Dist., 2016 NY Slip Op 05421, 3rd Dept 7-7-16

NEGLIGENCE (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/NEGLIGENT SUPERVISION (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)/PREMISES LIABILITY (SCHOOL NOT LIABLE FOR STUDENT’S FALL ON SNOW-COVERED, ICY PLAYGROUND, STUDENTS TOLD TO STAY OFF PLAYGROUND)

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FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS.

The Third Department, reversing the denial of accidental disability retirement benefits to a firefighter, over a two-justice dissent, determined injury caused by odorless toxic fumes (unrelated to a fire) was an accident within the meaning of the Retirement and Social Security Law. Petitioner-firefighter responded to an emergency at a supermarket where two people were unconscious. It was only after the fact that the presence of carbon monoxide and cyanogen chloride was discovered:

It is well settled that for purposes of the Retirement and Social Security Law, an accident is defined as “‘a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'” … . “Significantly, it must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties” … . Petitioner bears the burden of establishing that the event producing the injury was an accident, and respondent’s determination will be upheld where it is supported by substantial evidence … . * * *

We have “held that exposure to toxic fumes while fighting fires is an inherent risk of a firefighter’s regular duties” … . Here, however, unlike our prior cases involving exposure to toxic gases or smoke, petitioner was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases … . The record evidence further reflects that petitioner was neither aware that the air within the supermarket contained toxic chemical gases … , nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket … . Matter of Sica v DiNapoli. 2016 NY Slip Op 05420, 3rd Dept 7-7-16

 

RETIREMENT AND SOCIAL SECURITY LAW (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/ACCIDENT DISABILITY BENEFITS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/FIREFIGHTERS (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)/TOXIC FUMES (FIREFIGHTER’S INJURY FROM TOXIC FUMES UNRELATED TO A FIRE CONSTITUTED AN ACCIDENT ENTITLING FIREFIGHTER TO DISABILITY BENEFITS)

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