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IN THIS CROSSWALK SLIP AND FALL CASE, THE FACT THAT THE MUNICIPALITY REPAIRED THE AREA FIVE MONTHS BEFORE DID NOT CONSTITUTE AN EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fact that the municipality repaired the crosswalk where plaintiff slipped and fell five months before did not constitute an exception to the prior written notice requirement:

Prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City, in the absence of a recognized exception … . The only recognized exceptions to the prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence or where a special use confers a benefit upon the municipality … . The affirmative negligence exception is limited to work which immediately results in the existence of a dangerous condition … . In support of her motion, plaintiff submitted evidence that the most recent repair work was performed five months prior to the accident in the general area of the subject defect. This does not raise an issue of fact as to whether defendants created the defect that caused plaintiff’s fall through an affirmative act of negligence at the location where the injury occurred, which immediately resulted in the existence of a dangerous condition … . Smith v City of New York, 2024 NY Slip Op 03150, First Dept 6-11-24

Practice Point: Unless the plaintiff can allege the dangerous condition which caused the slip and fall was created by the municipality at the time the repair was made, prior written notice of the defect is a condition precedent for the lawsuit. Here the allegation the area was repaired five months before the slip and fall was not sufficient.

 

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DEFENDANT WAS CONVICTED OF CRIMINAL POSSESSION OF A WEAPON FIRST DEGREE, THE WEAPON BEING AN IMPROVISED EXPLOSIVE DEVICE (IED); THE ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE COUNT IS AN INCLUSORY CONCURRENT COUNT WHICH MUST BE DISMISSED; COUNTY COURT IMPROPERLY RESENTENCED DEFENDANT IN HIS ABSENCE, REQUIRING VACATION OF THE SENTENCE (THIRD DEPT).

The Third Department determined (1) the attempted criminal possession of a weapon third degree must be dismissed as an inclusory concurrent count of criminal possession of a weapon first degree and (2) the judge’s resentencing the defendant on the attempted criminal possession of a weapon third conviction in defendant’s absence was improper and warranted vacation of the sentence. The defendant was convicted of possessing an improvised explosive device (IED), essentially a bomb:

A person is guilty of attempted criminal possession of a weapon in the third degree “when, with intent to commit a crime, he [or she] engages in conduct” wherein “[s]uch person possesses any explosive or incendiary bomb [or] bombshell” (Penal Law §§ 110.00, 265.02 [2]). The terms explosive substance, explosive and incendiary bomb are not defined in the Penal Law. Explosives are, however, defined in the Labor Law as “gunpowder, powders used for blasting, high explosives, blasting materials, detonating fuses, detonators, pyrotechnics and other detonating agents, fireworks and dangerous fireworks as defined in section 270.00 of the [P]enal [L]aw, smokeless powder and any chemical compound or any mechanical mixture containing any oxidizing and combustible units, or other ingredients in such proportions, quantities, or packing that ignition by fire, friction, concussion, percussion or detonation of any part thereof may cause and is intended to cause an explosion” (Labor Law § 451). The terms explosive or incendiary bomb were added to Penal Law § 265.02 (2) in 1970 to cover Molotov cocktails within the meaning of the statute … . We agree with defendant that it would be impossible to commit the greater crime — criminal possession of a weapon in the first degree — without concomitantly, by the same conduct, committing the lesser crime involving possession of an explosive, incendiary bomb or bombshell. Thus, the conviction for attempted criminal possession of a weapon in the third degree must be vacated and dismissed as an inclusory concurrent count … . People v Graham, 2024 NY Slip Op 03104, Third Dept 6-6-24

Practice Point: Here the attempted criminal possession of a weapon third degree was dismissed as an inclusory concurrent count of criminal possession of a weapon first degree.

Practice Point: Resentencing the defendant in defendant’s absence is a violation of defendant’s constitutional and statutory rights to be present and requires vacation of the sentence.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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A SANDOVAL RULING ADDRESSED THE ADMISSIBILITY OF LIMITED REFERENCE TO DEFENDANT’S PRIOR CONVICTION ON CROSS-EXAMINATION; AT THE TIME OF THE ALLEGED RAPE, THE DEFENDANT TOLD THE VICTIM HE HAD SPENT SEVERAL YEARS IN PRISON; WITHOUT SEEKING A PRIOR VENTIMIGLIA RULING, THE PEOPLE INFORMED THE JURY ABOUT DEFENDANT’S “YEARS IN PRISON” STATEMENT TO THE VICTIM IN THE OPENING; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined the prosecutor’s introduction of a statement defendant made to the victim about his prior incarceration warranted reversal of defendant’s rape conviction. The prosecutor had not sought a prior “Ventimiglia” ruling on the admissibility of the statement. The statement was the subject of a prior Sandoval ruling which allowed limited reference to the prior conviction in cross-examination of the defendant. The trial judge, after hearing argument on the “Ventimiglia” issue after the statement had been introduced, determined the statement would have been ruled admissible had a prior request for a ruling been made:

In ruling on the People’s proffer, County Court fashioned a Sandoval compromise that limited the scope of questioning to the existence of the conviction and when it occurred, with no information about “the title, the classification, the violent nature under the Penal Law [or] the sentence . .. as well as underlying facts, unless the defense were to open the door with regard to those issues.” In spite of that ruling, in their opening statement, the People stated that, during the encounter but prior to any sexual assault, defendant “disclosed something unexpected, something that jarred [the victim]”; specifically, that “he had spent several years in prison.” * * *

We find that the People’s introduction of the statement referencing defendant’s prior incarceration without first seeking an advanced Ventimiglia ruling was improper … . While County Court’s Sandoval compromise was limited to the introduction of such evidence on cross-examination, it directly addressed the proof at issue; specifically, the allowable reference to defendant’s prior conviction. To this point, the People’s contention that the evidence was not subject to a prior ruling as it was part of the criminal conduct itself runs contrary to the fact that the Sandoval proffer on this exact evidence before trial reflected that it was subject to a discretionary determination as to whether the probative value outweighed the risk for real prejudice. Thus, the People effectively deprived defendant of the benefit of such analysis prior to introduction of the evidence by circumventing the Sandoval ruling … . People v Osman, 2024 NY Slip Op 03106, Third Dept 6-6-24

Practice Point: Here, at the time of the alleged rape, defendant told the victim he had spent several years in prison. Although the People sought a Sandoval ruling on the admissibility of evidence of defendant’s prior conviction during defendant’s cross-examination, the People did not seek a “Ventimiglia” ruling on the admissibility of such evidence in its direct case. The People’s reference to defendant’s statement in their opening was deemed reversible error.

 

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THE TRIAL JUDGE DID NOT PROCEED TO STEP THREE OF THE BATSON ANALYSIS OF THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR; MATTER REMITTED FOR THAT PURPOSE (THIRD DEPT).

The Third Department, remitting the matter for findings on the Batson analysis of the People’s peremptory challenge to a juror, determined the judge did not follow the three-step procedure mandated by Batson. Defense counsel met the criteria for the initial step by noting that the juror appeared to be the only person of Hispanic descent on the jury (both defendant and the victim were of Hispanic descent) and the prosecutor had not asked the juror a single question. The prosecutor met the criteria for the second step by arguing the juror was laughing and would not take the case seriously. It was up to the judge at that point to evaluate defense counsel’s argument that the prosecutor’s reason was pretextual. The matter was sent back for the judge’s ruling on step three:

This record confirms that the court made only a step one decision, and did not make any determination on the issue of pretext, implicit or otherwise … .

This is a critical error because “[a] trial court that resolves a Batson challenge without proceeding to [the] third step ‘falls short of [providing] a meaningful inquiry into the question of discrimination’ ” … .* * *

The trial court’s role in the analysis is particularly important where, as here, the race-neutral reasons proffered by the People were based upon the challenged juror’s demeanor — an issue that Supreme Court was in a unique position to verify and which is not clearly established in the appellate record … . Given the failure to abide by the Batson protocol, we withhold decision and remit this case to Supreme Court to enable the trial judge who presided over this matter to determine “whether the race-neutral reason proffered by [the People] was pretextual”  … . People v Cruz, 2024 NY Slip Op 03108, Third Dept 6-6-24

Practice Point: Here, the judge’s failure to make a finding whether the prosecutor’s reason for a peremptory juror-challenge was pretextual (the third step in the Batson protocol) resulted in remittal for that purpose.

 

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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims Act [CVA] (CPLR 214-g). The photoshoots took place when plaintiff was 16 and 17. One of the issues was whether the complaint adequately alleged the photoshoots constituted a “sexual performance” with triggered the applicability of the CVA. After a comprehensive discussion too detailed to summarize here, the First Department held the complaint stated causes of action based on the “sexual performance” criteria in Penal Law 263.05:

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful … , and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.  * * *

We … find that a plaintiff’s age at the time of the alleged acts, so long as under 18 years of age, does not prevent application of the CVA to revive claims otherwise meeting CPLR 214-g’s requirements. Thus, plaintiff adequately pleaded that, with respect to her age at the time of the alleged acts, the CVA applies to her. Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 03081, First Dept 6-6-24

Practice Point: Here photoshoots for a suntanning-product marketing campaign were sufficiently alleged to constitute “sexual performances’ triggering the extended statute of limitations in the Child Victims Act.

 

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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. The defect in the road was patched within a week of plaintiff’s fall:

The delay here was minimal, with defendant having received notice approximately three weeks after the 90-day deadline lapsed … . It is significant that when [claimant] returned to the accident scene … , he discovered that the pothole had been patched with blacktop, as shown in the photographs taken that day. Claimant further averred that the depression was “almost a foot wide and around ten feet long,” specifying that it was “about three to four inches deep where [his] foot ended up.” Given this postaccident development, claimant’s attorney argued that “[w]hile [defendant] may not have obtained notice of the . . . accident within 90 days of its occurrence, it is highly likely that it had notice of the condition of the pavement that caused the accident as it patched it within a week of when the accident happened,” emphasizing that defendant’s “records should indicate precisely when it was patched as well as when the decision to patch it occurred and why.” * * *

“A claim has the appearance of merit so long as it is not patently groundless, frivolous or legally defective, and the record as a whole gives reasonable cause to believe that a valid cause of action exists” … . To hold defendant liable for his injuries, claimant will need to prove that defendant either created the condition itself by affirmative acts of negligence, or had actual or constructive notice of a dangerous condition and failed to remedy such condition, thereby causing claimant’s injuries … . Constructive notice exists where a depression in the roadway was “visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Grasse v State of New York, 2024 NY Slip Op 03110, Third Dept 6-6-24

Practice Point: The criteria for acceptance or rejection of a late notice of claim in the Court of Claims is explained.

 

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HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).

The First Department, reducing defendant’s SORA risk level from three to two, determined (1) the defendant was not given the requisite 10-day notice of the prosecutor’s intent to seek a higher risk level than that recommended by the Board, and (2) defense counsel’s reply to the late notice by the prosecutor did not waive the 10-day notice requirement:

We agree with defendant that he was denied due process because the People did not provide written notice of its intent to seek a determination different than that recommended by the Board “at least ten days prior to the determination proceeding” (Correction Law § 168-n[3] …). The People sent defense counsel a letter stating their intent to seek a risk level three adjudication, different from the Board’s recommendation of risk level two, less than 10 days in advance of the hearing. … [T]he People indicated in their letter only that they were seeking additional point assessments and did not apprise counsel that they were also requesting an upward departure … . … [T]he People announced their intention to seek an upward departure for the first time at the court’s invitation during the SORA hearing.

Defendant’s right to timely notice was not waived by his counsel’s letter, in response to the People’s, that counsel was willing to go forward with the hearing if the prosecutor delivered to counsel by the next day the evidence that the People intended to use at the hearing. Nothing in the record indicates that the prosecutor complied with this condition. Moreover, because the People did not announce an intention to seek an upward departure, any waiver would not have embraced that request. People v Tookes, 2024 NY Slip Op 03095, First Dept 6-6-24

Practice Point: The People must provide defendant ten-day’s notice of their intent to seek a higher SORA risk level than that recommended by the Board.

Practice Point: The People should not wait until the SORA hearing to announce they are seeking an upward departure.

 

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WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew its prior motion should not have been denied. The judge had denied the prior motion on procedural grounds “without prejudice to renew:”

… Supreme Court improvidently exercised its discretion in denying, on procedural grounds, the plaintiff’s motion for leave to renew its prior motion pursuant to CPLR 5225 … . Since the court had denied the plaintiff’s prior motion without prejudice to renew, the plaintiff was not required to demonstrate a reasonable justification for its failure to present alleged new facts on the prior motion … . Key Growth Invest LP v 1499 Fulton Realty, LLC, 2024 NY Slip Op 03036, Second Dept 6-5-24

Practice Point: If a judge denies a motion on procedural grounds “without prejudice to renew,” the motion for leave to renew does not have to provide a reasonable justification for the presentation of new facts.

 

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SUA SPONTE DISMISSAL OF THE COMPLAINT WAS NOT SUPPORTED BY EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances justifying a sua sponte dismissal of the complaint in this foreclosure action:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint … . HSBC Bank USA, N.A. v Badalamenti, 2024 NY Slip Op 03034, Second Dept 6-5-24

Practice Point: A sua sponte dismissal of a complaint is rarely upheld on appeal.

 

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