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Court Has Discretion to Order an Informal Psychological Assessment in Response to Defense Counsel’s Request for an Article 730 Assessment to Determine Whether Defendant Is Competent to Stand Trial

The Fourth Department noted that Supreme Court had the discretion to order an informal psychological assessment in response to defense counsel’s request for an examination pursuant to Criminal Procedure Law Article 730 to determine whether defendant was competent to stand trial:

…[D]efendant contends that Supreme Court erred in failing to follow the requirements of CPL article 730 to determine whether he was competent to stand trial at the time his case was presented to the grand jury (see CPL 730.30 [1]). We reject that contention. The record establishes that the court granted defense counsel’s request for a “forensic examination” of defendant by ordering only an informal psychological examination and not by issuing an order of examination pursuant to CPL article 730. We conclude that “[t]he decision of the court to order an informal psychological examination was within its discretion . . . and did not automatically require the court to issue an order of examination or otherwise comply with CPL article 730′ “… . People v Castro, 2014 NY Slip Op 05102, 4th Dept 7-3-14

 

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Police Officer Involved In Accident Acted Appropriately In an Emergency Operation—Defendants Not Liable As a Matter of Law

The Fourth Department determined the city’s motion for summary judgment should have granted in an action resulting from a collision with a police vehicle responding to an emergency.  The court determined the defendants demonstrated as a matter of law that the officer did not act with conscious indifference to the consequences of his actions:

At the time of the collision, defendant officer was responding to a police call and was therefore operating an authorized emergency vehicle while involved in an emergency operation … . We further conclude that, by failing to yield the right of way while attempting to execute a left turn at a green light, defendant officer was “engage[d] in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” … , i.e., he was “exercis[ing one of] the privileges set forth in” the statute at the time of the accident (§ 1104 [a]…).

We further conclude that defendants established as a matter of law that defendant officer’s conduct did not rise to the level of reckless disregard for the safety of others …, and that plaintiff failed to raise a triable issue of fact in opposition to the cross motion … . Defendant officer testified that, as he was approaching the intersection in a southbound direction, the only traffic he observed was a line of northbound vehicles waiting to turn left. When he reached the intersection, he stopped for a “few seconds” to ensure that the intersection was clear. Defendant officer testified that he could see a distance of approximately three car lengths in the right northbound lane and that he did not see any traffic in that lane when he started his turn. He then “cre[pt] into the intersection, making sure . . . nobody was passing on the right of the vehicles stopped to make a left.” Plaintiff similarly testified that there was a line of cars in the northbound lane preparing to turn left, that she “veered to the right” around the line of cars in order to proceed straight through the intersection, and that the accident occurred in the intersection. We thus conclude that, “[g]iven the evidence of precautions taken by [defendant officer] before he attempted his [left] turn, . . . he did not act with conscious indifference’ to the consequences of his actions” … . Williams v Fassinger, 2014 NY Slip Op 05085, 4th Dept 7-3-14

 

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Assault Counts Should Have Been Dismissed As Inclusory Concurrent Counts of the Counts Charging Assault in the First Degree as a Sexually Motivated Felony

The Fourth Department determined that counts of an indictment should have been dismissed as inclusory concurrent counts:

We agree with defendant … that the fourth and sixth counts of the indictment, each charging him with assault in the first degree, must be reversed and dismissed pursuant to CPL 300.30 (4) as inclusory concurrent counts of counts five and seven, each charging him with assault in the first degree as a sexually motivated felony. We therefore modify the judgment accordingly. CPL 300.30 (4) provides in pertinent part that “[c]oncurrent counts are inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” A crime is a lesser included offense of another where “it is theoretically impossible to commit the greater crime without at the same time committing the lesser . . . [, as] determined by a comparative examination of the statutes defining the two crimes, in the abstract” … . Here, “defendant could only commit the sexually motivated felon[ies] if it was proven that he had committed the underlying [assaults] and that the [assaults were] committed for his own sexual gratification” … . Thus, the underlying assault counts charging assault in the first degree should have been dismissed as inclusory concurrent counts of the counts charging assault in the first degree as a sexually motivated felony upon defendant’s conviction of the latter crime… .  People v Dallas, 2014 NY Slip Op 05083, 4th Dept 7-3-14

 

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Request to File Late Notice of Claim Against School District Stemming from Alleged Sexual Abuse of the Plaintiff by a Teacher Should Not Have Been Granted—School Did Not Have Actual Notice—No Good Reason for Delay in Filing

The Third Department determined the request to file a late notice of claim against a school district should have been denied.  The underlying action relates to alleged sexual abuse of a student (plaintiff) by a teacher.  The plaintiff and the teacher had initially both denied the existence of relationship.  Therefore, the court determined the school did not have actual knowledge of it.  The lack of actual knowledge coupled with the delay in filing the notice of claim after the plaintiff turned 18 required denial of the application:

…”[I]n determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the [plaintiff] was an infant at the time the claim arose and, if so, whether there was a nexus between the [plaintiff’s] infancy and the failure to serve a timely notice of claim, (3) the [plaintiff] demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits” … . Although no one factor is determinative … , the case law makes clear that actual knowledge “is a factor which should be accorded great weight” … . Notably, actual knowledge of the essential facts underlying the claim requires more than “mere notice of the underlying occurrence” … and the fact that some sort of injury occurred… . Babcock v Walton Cent School Dist, 2014 NY Slip Op 05013, 3rd Dept 7-3-14

 

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Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court’s Sense of Fairness

The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court’s sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher’s inability to control the class had been demonstrated, the punishment was deemed too severe:

While we do not dispute the specific findings of the Hearing Officer concerning petitioner’s deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness … . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14

 

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Hearsay Evidence of Another’s Admission to the Crime Warranted a Hearing Pursuant to Defendant’s Motion to Set Aside the Conviction

The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:

“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14

 

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Possible Error of Law Committed by Judge Did Not Warrant a Prohibition Action

The Fourth Department determined the prosecutor’s prohibition action against a judge should have been dismissed.  The judge had ordered a competency hearing to determine if the complainant in a criminal case was competent to testify in light of her intoxication:

Here, petitioner argued — and Supreme Court agreed — that respondent acted in excess of her authority in ordering a competency hearing because a witness’ level of intoxication at the time of the incident in question and its effect on his or her ability to recall the events has no bearing on whether such witness is competent to testify at trial. It is manifest, however, that a trial court has the authority to make a preliminary inquiry as to a witness’ competency to testify at trial (see CPL 60.20 [1]…). As such, any error in respondent’s decision to hold a competency hearing would, at most, amount to a mere substantive error of law that does not justify the invocation of this extraordinary remedy. “[P]rohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . Matter of Getman, 2014 NY Slip Op 05012, 3rd Dept 7-3-14

 

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Adirondack Park Agency Properly Approved the Construction of a Resort Within the Confines of the Park

In a full-fledged opinion by Justice Rose, the Third Department determined the Adirondack Park Agency (APA) properly approved the construction of a club and resort project which will include a ski area, an inn, single family residences, camps and a marina.  The court went through each of the required findings and found them supported by substantial evidence.  The court explained its review role as follows:

Judicial review of the APA’s determination, made after a hearing at which evidence was taken pursuant to law, is limited to whether the decision is supported by substantial evidence (see CPLR 7803 [4]…). Substantial evidence does not require overwhelming evidence or even a preponderance of the evidence … . Rather, all that is required is “‘relevant proof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact'” … . Additionally, “[t]he fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination” … .

To the extent that petitioners argue that the APA’s determination was affected by errors of law (see CPLR 7803 [3]), this Court’s “review of these arguments, made in a CPLR article 78 proceeding following a hearing, is limited to whether the [APA] exceeded its authority, violated a controlling law or otherwise acted in an arbitrary and capricious manner” … . Matter of Protect the Adirondacks! Inc v Adirondack Park Agency, 2014 NY Slip Op 04992, 3rd Dept 7-3-14

 

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Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

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Work-Related Call to Coworker Which Triggered Harassment by Coworker’s Husband Was Proper Basis for Workers’ Compensation Benefits

The Third Department determined the claimant was properly awarded workers’ compensation benefits for exacerbation of post traumatic stress disorder.  A work-related phone call made by the claimant to a coworker caused the coworker’s husband to suspect a romantic relationship between claimant and the coworker.  The coworker’s husband undertook a course of threatening conduct which culminated in an unsuccessful murder-for-hire plot:

Whether the injury producing event arose out of and in the course of claimant’s employment depends upon whether it “originated in work-related differences or purely from personal animosity” … . If there is “any nexus, however slender, between the motivation for the assault and employment,” an award of workers’ compensation benefits is appropriate … . Here, the work-related phone call from claimant to his coworker’s home was the basis for the subsequent harassment of claimant at his place of employment, the employer’s internal investigation and claimant’s request for a transfer — all of which exacerbated claimant’s preexisting stress disorder. As the record reveals no connection between claimant and the coworker’s husband outside of claimant’s work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant’s preexisting condition and claimant’s employment …  Matter of Mosley v Hannaford Bros Co, 2014 NY Slip Op 04997, 3rd Dept 7-3-14

 

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