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Court Should Not Have Imposed a Greater Sentence Based Solely on Bare Fact Defendant Had Been Arrested Since His Guilty Plea

The Fourth Department determined County Court erred when it enhanced defendant’s sentence based solely on the indication in the presentence report that he had been arrested after his guilty plea:

On the day of sentencing, the court noted that, two weeks after defendant’s plea of guilty, defendant was arrested in the Town of Allegany and charged with a violation and a class A misdemeanor. The court thereafter imposed on defendant a term of imprisonment, rather than one of the lesser alternatives it had previously mentioned, based upon defendant’s postplea arrest. The record is clear that the court based its determination to impose a term of imprisonment solely on the information contained in the presentence report that defendant had been arrested and charged with the violation and misdemeanor. Notably, in response to the court’s inquiry concerning “what was happening” with that matter, defense counsel responded that he did not represent defendant on the matter and that it was still pending in local court. Thus, we conclude that, in imposing a term of imprisonment, the court erred in relying on the ” mere fact’ ” that defendant had been arrested …, and that it failed to “carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis” for defendant’s arrest … . People v Kolata, 2014 NY Slip Op 05101, 4th Dept 7-3-14

 

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Resident Who Assisted Supervising Physician But Who Exercised No Independent Medical Judgment Entitled to Summary Judgment

The Fourth Department determined defendant should have been granted summary judgment in a medical malpractice action. Defendant was a resident who assisted the supervising physician (Dr. Hall).  The court determined defendant had demonstrated he exercised no independent medical judgment during the treatment of the plaintiff (David Green):

It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” .. . Here, in support of his motion, defendant submitted evidence establishing that defendant Walter Hall, M.D., the supervising physician, conducted the initial meeting with plaintiff David Green, the patient. Defendant also submitted evidence establishing that Dr. Hall supervised defendant throughout all of the surgeries involved, reviewed all notes that defendant wrote, determined which surgical method would be used, decided to discontinue the first operation to obtain further information about the cyst or tumor that was to be excised, and decided to perform the subsequent operations. Furthermore, “[a]lthough the evidence demonstrated that [defendant] played an active role in [Dr. Hall’s] procedure, it did not demonstrate the exercise of independent medical judgment” by defendant … . Green v Hall, 2014 NY Slip Op 05084, 4th Dept 7-3-14

 

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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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Cause of Action Accruing Outside New York Brought by a Nonresident Deemed Untimely—Relevant Law Explained

In finding an action brought by a nonresident based upon a cause of action which accrued outside New York untimely, the Second Department explained the applicable law:

” [W]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued'” … . When borrowing the foreign jurisdiction’s statute of limitations, its tolling provisions are also borrowed … .

Here, it is undisputed that the applicable limitations period is three years under either New York law or Kazakh law (see CPLR 214[2]; Kazakh Civil Code Article 178). In general, “the applicable Statute of Limitations is triggered once a cause of action accrues” … . “A cause of action accrues, for the purpose of measuring the period of limitations, when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court'” …. An action to recover for a liability created or imposed by statute must be instituted “according to the language of the statute generating the liability” … . Grynberg v Giffen, 2014 NY Slip Op 04901, 2nd Dept 7-2-14

 

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Court’s Refusal to Allow Defendant to Inspect His Laptop Computer, Evidence from Which Was Central to the People’s Case, Was Reversible Error

The Second Department determined that denial of defendant’s request to inspect his laptop computer, from which evidence was extracted to prosecute him, was reversible error:

The trial court erred in denying the defendant’s motion to compel the People to provide the defendant with the opportunity to inspect the laptop computer that was seized from his home and for an adjournment of the trial, in order to permit the defense to examine that computer (see CPL 240.20[1][f]…). The defendant was entitled to inspect the laptop computer, pursuant to CPL 240.20(1)(f), and the defendant made a timely demand to inspect the laptop computer (see CPL 240.20[1][f]…).

Further, the laptop computer was central to the People’s case against the defendant; the People’s expert witness testified, at length, as to his examination of the laptop computer, the evidence that was extracted from that computer, and the basis for his conclusion that such evidence was accessed from or uploaded to the internet by the defendant. Additionally, the prosecution provided no reason for its failure to provide the computer to the defense. Under these circumstances, this error warrants reversal … . People v Naran, 2014 NY Slip Op 04969, 2nd Dept 7-2-14

 

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Defendant Not Afforded Right to Testify Before Grand Jury—Indictment Dismissed

The Second Department determined the indictment must be dismissed (without prejudice) because the defendant was not afforded his right to testify before the grand jury:

CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. “[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify . . . after the Grand Jury ha[s] committed itself to a vote based on the prosecution’s ex parte presentment of evidence” … . Thus, a defendant who provides timely notice “prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote” … .

Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear (see CPL 190.50[5][a]…). Here, the People’s notice pursuant to CPL 190.50 indicated that the defendant was “scheduled to testify” before the grand jury on June 8, 2010, and that his testimony was required to have been given before 5:00 p.m. on that date. The record reveals that the defendant provided the People with written notice of his intent to testify before the grand jury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, the defendant provided the People with the requisite notice more than 24 hours in advance of his proposed appearance. Under these circumstances, the defendant was entitled to testify prior to the grand jury’s vote. People v Ellison, 2014 NY Slip Op 04957, 2nd Dept 7-2-14

 

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Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

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