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ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT’S SPEEDY TRIAL ARGUMENTS; PROSECUTOR’S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department, reversing defendant's conviction, determined: (1) the robbery conviction was not supported by legally sufficient evidence of an intent to permanently, as opposed to temporarily, deprive the owner of property; (2) the trial court needed to hold a hearing to revisit defendant's motion to dismiss on speedy trial grounds; and (3) the prosecutor's summation, in which the prosecutor repeatedly gave the jury the impression the defendant had the burden of proof and vouched for the People's witnesses, deprived defendant of a fair trial. The decision has substantive discussions of all three issues. With respect to prosecutorial misconduct, an issue reached in the interest of justice, the court wrote:

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . “Rather, [t]here are certain well-defined limits'” … . “Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused'” … .

Here, the prosecutor repeatedly shifted the burden of proof to the defendant, first, by telling the jurors that they could only form a reasonable doubt if they believed the defense offered by the defendant … , and then, by repeatedly telling the jurors or implying that they would have to find that the People's witnesses lied in order to believe that defense … . In essence, one of the prosecutor's themes in his summation was that the jurors had to determine whether they believed the People's witnesses or whether they believed the defendant (who testified), and only if they believed the defendant could they form a reasonable doubt about the defendant's guilt. Such an impression was clearly improper and prejudicial. The prosecutor additionally denigrated the defense … , and vouched for the credibility of the police witnesses based upon their position as law enforcement officers … . People v Cantoni, 2016 NY Slip Op 04232, 2nd Dept 6-1-16

CRIMINAL LAW  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY; HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS; PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ROBBERY  (ROBBERY CONVICTION UNSUPPORTED BY PROOF OF INTENT TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE OWNER OF PROPERTY)/SPEEDY TRIAL (HEARING NECESSARY TO ASSESS DEFENDANT'S SPEEDY TRIAL ARGUMENTS)/PROSECUTORIAL MISCONDUCT (PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL)

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DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. On direct, the complainant did not indicate defendant participated in the robbery, but rather was simply present. Defense counsel elicited testimony from the complainant on cross which alleged defendant’s direct participation by pulling her to the ground from behind. Defense counsel erroneously believed complainant had testified in the grand jury that she did not know who pulled her to the ground. However a review of the grand jury minutes found no such testimony, indicating defense counsel was not adequately prepared. In addition, the Second Department held that defense counsel’s failure to object to prosecutorial misconduct during summation amounted to ineffective assistance. With regard to the prosecutorial misconduct, the court wrote:

Defense counsel failed to object to multiple improper summation statements made by the prosecutor. For example, among other improper comments, the prosecutor told the jury that the defendant was “cocky” and “brazen,” and that he “did not deserve” the benefit of the doubt given to him by the complainant on the night at issue; that the deliberations “should not take [the jury] very long”; that defense counsel “harped” on certain facts; that the jury could believe the complainant and not the defendant “who sits [during trial] with his buttoned up shirt hunched over”; and that the jury could rely on the complainant’s testimony “[b]ecause no amount of lawyering or manipulating of her words and the details of that event were going to change the way she told it to [the jury].” The prosecutor also reiterated, without objection, certain improper testimony of the complainant that the trial court had erroneously, over defense counsel’s objection, permitted the jury to hear regarding “how what [the defendant] did changed [the complainant’s] life.” The prosecutor reminded the jury that the complainant “can’t even put her trash out alone anymore,” and because of what the defendant did, the complainant “had to move.” These patently improper comments by the prosecutor vouched for the credibility of the complainant and the strength of the People’s case, appealed to the jury’s sympathy, disparaged the defendant, and denigrated the defense … . As no objection was made to such statements, the jury was able to consider these improper comments of the prosecutor … . People v McCray, 2016 NY Slip Op 04240, 2nd Dept 6-1-16

CRIMINAL LAW (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)

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EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE.

The Second Department determined the evidence of physical injury was not sufficient to support robbery in the second degree and reduced defendant's conviction to robbery third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). “Although the question of whether physical injury has been established is generally for the jury to decide, there is an objective level . . . below which the question is one of law'” … .

The subject incident occurred as the complainant, a doctor, was on her way to work at Brooklyn Hospital. The complainant testified that during the incident the defendant and another man shoved her and pulled her to the ground, then took her purse. After the incident, the complainant “collected [herself]” and then resumed walking to the hospital. The complainant testified that she sustained a laceration and a welt on the back of her head, scratches and bruises on her elbow, and other bruises. At the hospital, she was given painkillers, ice, and bandages. The complainant was not able to work for the rest of that day, but returned to work the next day. She testified that she was “sore for several days.” Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition … . People v Stokes, 2016 NY Slip Op 04245, 2nd Dept 6-1-16

CRIMINAL LAW (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/ROBBERY (EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)/PHYSICAL INJURY (ROBBERY SECOND DEGREE, EVIDENCE OF PHYSICAL INJURY NOT SUFFICIENT TO SUPPORT ROBBERY IN THE SECOND DEGREE)

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FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a.

The Second Department determined the assertion of a frivolous claim for punitive damages in a property-injury case warranted the award of $10,000 to each defendant pursuant to CPLR 8303-a:

CPLR 8303-a provides, in pertinent part, that where, as here, a plaintiff has commenced a “frivolous” claim in an action to recover damages for injury to property, “the court shall award to the successful party, costs and reasonable attorney's fees not exceeding ten thousand dollars.” Baxter v Javier, 2016 NY Slip Op 04165, 2nd Dept 6-1-16

CIVIL PROCEDURE (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/FRIVOLOUS CLAIMS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/ATTORNEYS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/PUNITIVE DAMAGES (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)

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COURT’S LIMITED POWER TO REVIEW AN ARBITRATION AWARD SUCCINCTLY STATED.

In affirming an arbitration award, the Second Department succinctly stated its review powers in this context:

Unless an arbitration award violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's powers, it may not be vacated … . Where the parties to a contract agree to submit disputes to an arbitrator, “[c]ourts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies” … . Absent a provision to the contrary in an arbitration agreement, arbitrators are not bound by principles of substantive law or rules of evidence … . Thus, an arbitration award will not be vacated even where the court concludes that the arbitrator's interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law … . Matter of T & C Home Design, LLC v Stylecraft Corp., 2016 NY Slip Op 04228, 2nd Dept 6-1-16

ARBITRATION (COURT'S LIMITED POWER TO REVIEW AN ARBITRATION AWARD SUCCINCTLY STATED)

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DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL.

The First Department, reversing defendant's conviction, determined the trial court should have allowed the disabled and ill defendant to appear at trial remotely by video. Contrary to the trial court's reasoning, the prosecutor's consent to the procedure was not required:

… [T]he court erred in believing that CPL article 182 restricted its authority to use video conferencing to effectuate a defendant's right to be present at trial. “Although the Legislature has primary authority to regulate court procedure, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute,” and “[b]y enacting Judiciary Law § 2-b(3), the Legislature has explicitly authorized the courts' use of innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by [the court]” * * *

… [W]e conclude that where the court essentially accepted defendant's claims of extreme pain and physical distress, where the alternative of electronic appearance was actually available based on the court's own efforts, where it was not employed only because the court wrongly believed that it lacked the required discretion … , and where the accommodations actually offered by the court were far less efficacious, the court, despite the best intentions, failed to reasonably accommodate defendant's medical concerns … . In these circumstances, defendant's waiver of the right to be present was not knowing, voluntary, and intelligent … . People v Krieg, 2016 NY Slip Op 04134, 1st Dept 5-31-16

CRIMINAL LAW (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)/VIDEO (CRIMINAL TRIAL, (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)

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QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION.

The First Department determined a question of fact about the applicability of the emergency doctrine precluded summary judgment in favor of the plaintiff in this rear-end collision case. Plaintiff's car was stopped because of a flat tire. Defendant alleged he did not see plaintiff's car because his line of sight was blocked by a car in front which merged left just prior to the collision:

Although there is a presumption of liability based upon the rear-end collision (see Francisco v Schoepfer, 30 AD3d 275 [1st Dept 2006]), questions of fact exist as to whether the emergency doctrine applies so as to provide defendant with a reasonable excuse for the collision. Such issues include whether plaintiff's hazard lights were flashing, whether defendant maintained a safe distance behind the car driving in front of him, and whether under the circumstances defendant acted reasonably to avoid the collision … . Gonzalez v Marescot, 2016 NY Slip Op 04105, 1st Dept 5-26-16

NEGLIGENCE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/REAR-END COLLISION (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/EMERGENCY DOCTRINE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)

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PLAINTIFF’S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL.

The Third Department, reversing Supreme Court, determined plaintiff's (Costello's) statement in this slip and fall case, coupled with her affidavit in opposition to defendant's motion to dismiss, created a question of fact about the cause of her fall:

We reject defendant's argument that Costello will be unable to demonstrate proximate cause in this matter because she was unable, or perhaps unwilling, to immediately ascertain the cause of her fall. Defendant asserts that Costello was equivocal about the cause, based upon her statement that she “believe[d]” that the flooring was bowed. Even assuming that Costello's use, on one occasion, of what might be characterized as a mere figure of speech may be read as an expression of uncertainty about the cause of her fall, her affidavit clarifies any ambiguity. In her affidavit, Costello asserted that the “wood floor . . . was bowed and did not provide [her] with a proper walking surface.” Read together with the testimony of the two nonparty witnesses regarding the uneven, grooved state of the floor, there is adequate record proof to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” Costello v Pizzeria Uno of Albany, Inc., 2016 NY Slip Op 04087, 3rd Dept 5-26-16

NEGLIGENCE (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)/SLIP AND FALL (PLAINTIFF'S STATEMENT COUPLED WITH HER AFFIDAVIT RAISED A QUESTION OF FACT ABOUT THE CAUSE OF HER FALL)

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MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS.

The Third Department determined the village mayor did not have the authority to ignore the ruling of a hearing officer who found petitioner, a former firefighter, was entitled to General Municipal Law 207-a benefits based upon an on-the-job injury. When the mayor appointed the hearing officer, there was no indication the hearing officer's finding was merely advisory:

Based on the record, we conclude that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. First, and contrary to respondents' argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer … .  Second, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation is apparent from the record before us. Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role.  Matter of McKay v Village of Endicott, 2016 NY Slip Op 04085, 3rd Dept 5-26-16

MUNICIPAL LAW (MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/EMPLOYMENT LAW (GENERAL MUNICIPAL LAW, FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/GENERAL MUNICIPAL LAW (FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/FIREFIGHTERS (GENERAL MUNICIPAL LAW, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)

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ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the state, although the title owner of the property (Pier 40) where plaintiff was injured by a falling beam, was not subject to absolute liability under the Labor Law. Under the Hudson River Park Act, the day to day operation and management of Pier 40 was transferred to a public benefit corporation, the Hudson River Park Trust. The court was careful to note that leasing property does not relieve the owner of Labor Law liability. However, the terms of the Hudson River Park Act indicated the legislature's intent transfer Labor Law liability to the trust:

Section 5 of the Hudson River Park Act (Uncons Laws § 1645[1]), gives the Trust total “authority over the planning, design, construction, operation and maintenance of” the park; the Act also gives the Trust the right to receive rents and other revenues generated from the park (see §§ 1646[g], 1647[10]), although ownership and title would remain with the State (see § 1647[2], [3]). Also, notably, the Act directs that the Trust has the capacity to sue and be sued (§ 1647[1][d][v]), and requires that all tort actions commenced against the Trust comply with the notice of claim requirement of General Municipal Law § 50-e (§ 1651). Most importantly, the Act expressly states that “[u]pon the coming into existence of the trust, the trust shall succeed to all contracts, leases, licenses and other legal obligations respecting the park to which its predecessors are a party at or after the effective date of this act” (§ 1645 [1] [emphasis added]). The legislature's use of the term “succeed to” and its reference to all “other legal obligations” of its predecessors clearly reflects an intent to have the Trust take over all legal liability arising out of ownership of the Park's premises. Costa v State of New York, 2016 NY Slip Op 04119, 1st Dept 5-26-16

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)/HUDSON RIVER PARK TRUST (LABOR LAW, ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)

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