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Trial Judge Should Have Allowed Slightly Late Peremptory Challenge—Conviction Reversed

The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge.  Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake:

After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory challenges to the first group of prospective jurors in the panel.  The prosecutor exercised several challenges, followed by defense counsel.  As the court began to indicate the number of challenges that remained for each side, defense counsel immediately asked if he could exercise a peremptory challenge to the prospective juror in question on appeal.  When the court said no, defense counsel indicated that he had “crossed [the prospective juror’s name] out by mistake.”  The court reiterated that it would not permit the challenge, indicating that it had warned the attorneys about adhering to the court’s procedures.

“Under these circumstances, ‘we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [his] challenge,’ ” and we thus conclude that the court’s refusal to permit the challenge was an abuse of discretion … .  Inasmuch as “the right to exercise a peremptory challenge against a specific prospective juror is a ‘substantial right’ . . . , reversal is mandated” … . People v Rosario-Boria, 1007, 4th Dept 10-4-13

 

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Failure to Make Motion for Trial Order of Dismissal Not Ineffective Assistance

In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:

…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13

 

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Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial

In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:

If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury’s verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People’s medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant’s claim that he merely held the knife.

But the jury was also free to accept defendant’s account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant’s version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant’s version supported the assisted suicide defense because it decided to give the charge … .

Under these circumstances, the portion of the court’s instruction that the assisted suicide defense is not made out if defendant “actively” caused the decedent’s death, along with the expansive definition of the word “active” given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word “active,” nor its antonym “passive,” appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, First Dept 10-3-23

 

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Checkpoint Vehicle Stop Illegal

The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional:

The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was “essentially to serve the governmental interest in general crime control” … . It is undisputed that the primary purpose of the checkpoint was to deter or control auto theft. Contrary to the People’s assertions, the interest in “controlling automobile thefts,” as described in this case, “is not distinguishable from the general interest in crime control” … . Under the applicable precedents, a secondary goal of promoting highway safety does not justify a checkpoint stop. People v Velez. 2013 NY Slip Op 06437, 1st Dept, 10-3-13

STREET STOPS, SUPPRESSION, SEARCH AND SEIZURE

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Accidental Disability Retirement Benefits (Police Officers)

The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits.  The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing resisted arrest.  The Third Department wrote:

Initially, we note that petitioner has the burden of demonstrating that he is entitled to receive accidental disability retirement benefits, and the Comptroller’s determination will be upheld if supported by substantial evidence … .  In order to qualify as an accident, the precipitating event must be “a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact” … .  Notably, an injury will not be considered accidental if it “‘results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Matter of Rodriques v DiNapoli, 515935, 3rd Dept 10-3-13

 

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Retroactive Transfer of Liability to Special Fund Proper

The Third Department affirmed the board’s determination that retroactive transfer of liability to the Special Fund to a time within seven years of the underlying injury was proper:

Pursuant to Workers’ Compensation Law § 25-a, liability is transferred to the Special Fund “when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation” (…see Workers’ Compensation Law § 25-a [1]).  Here, there is no dispute that these conditions have been met and the only issue before us is whether the Board properly transferred liability to the Special Fund retroactively to a period of time prior to the lapse of seven years following claimant’s injury.

While the retroactive transfer of liability to the Special Fund is limited to no longer than two years prior to the date of the application to reopen (see Workers’ Compensation Law § 25-a [1-a]…), there is no statutory requirement that there be a seven year lapse from the date of a claimant’s injury prior to the date of a retroactive transfer of liability (see Workers’ Compensation Law § 25-a [1-a]).  Accordingly, we conclude that the Board’s determination, that Workers’ Compensation Law § 25-a does not preclude a retroactive transfer of liability to the Special Fund to a time period within seven years of the underlying injury, is not unreasonable, irrational or inconsistent with the purpose of the statute …, and the Board has set forth sufficient reasons for no longer following any prior decisions to the contrary. Canfora v Goldman Sachs…, 515529, 3rd Dept 10-3-13

 

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Negligence of Dog Owners In Calling A Dog Which Ran Into Bicyclist’s Path Is Actionable

Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:

Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal’s “aggressive or threatening behavior” is “fundamentally distinct” from one caused by an animal owner’s negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities “would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.). * * *

Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13

 

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Plaintiff Should Have Been Allowed to Voluntarily Discontinue Lawsuit

The First Department determined Supreme Court should have permitted plaintiff to voluntarily discontinue the lawsuit:

The court erred in declining to permit plaintiff to voluntarily discontinue the action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance “upon terms and conditions, as the court deems proper.” While the determination upon such an application is generally within the sound discretion of the court …, a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted … . No special circumstances have been shown here, especially since the action is still in the early stages of litigation. Nor was there any showing that plaintiff sought the discontinuance only to avoid an adverse determination in this action ,,, . Since we are granting plaintiff’s motion, the cross motion to compel discovery must be denied.  Bank of Am NA v Douglas, 2013 NY Slip 06440, 1st Dept 10-3-13

 

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ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court’s sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court’s determination to deny the child’s motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child’s interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary … . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

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Failure to Inquire About Defendant’s Understanding of Intoxication Defense Required Vacation of Guilty Plea

The Second Department determined defendant’s guilty plea should be vacated because the defendant could not recall the events due to his intoxication and the court made no inquiry about whether the defendant was aware of the significance of his intoxication (a possible intoxication defense):

The defendant pleaded guilty to assault in the second degree (see Penal Law § 120.05). At the plea allocution, the defendant indicated that he had a very limited recollection of the incident, but admitted his guilt based on photographs, police reports, and witness statements. The County Court acknowledged that the defendant could not recollect the incident because he had been drinking alcoholic beverages at the time of the assault, and that the defendant’s alleged intoxication at the time of the incident could negate the intent element of the crime of assault in the second degree (see Penal Law §§ 15.25, 120.05). While defense counsel stated that he had discussed “a possible intoxication defense” with the defendant and that the defendant understood it, the court made no inquiry of the defendant to ensure that he was aware of the significance of his claim of intoxication … . The court’s failure to conduct any such inquiry of the defendant requires vacatur of the defendant’s plea of guilty… . People v Jiminez, 2013 Slip Op 06386, 2nd Dept 10-2-13

 

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