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Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper; The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507

The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507:

Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in connection with petitioner’s application for an area variance from a provision of the Town of Whitestone’s Zoning Ordinance. The proceeding was commenced in Supreme Court, Onondaga County, and by …order …that court, sua sponte, transferred the proceeding to Supreme Court, Oneida County, pursuant to CPLR 507. We agree with petitioner that the court erred in transferring the proceeding sua sponte. CPLR 509 provides that the place of trial may be changed to another county “by order upon motion, or by consent.” CPLR 510 provides the grounds for the change of the place of trial, upon a motion. A court “is authorized to change venue only upon motion and may not do so upon its own initiative” …. Additionally, a CPLR article 78 proceeding seeking to annul a determination denying a request for an area variance does not affect the title to, or the possession, use or enjoyment of, real property, and thus the court erred in relying on CPLR 507 in transferring the proceeding.  Matter of Mimassi v Town of Whitestone Zoning Board of Appeals, 189, CA 12-01652, 4th Dept. 3-22-13

 

 

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Petition for Retention for Involuntary Psychiatric Treatment Granted

In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote:

Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) “continually” for 15 months. At one point during that period, Paulina D. weighed only 52 pounds. Orders were issued directing her involuntary admission and retention at the Hospital pursuant to Mental Hygiene Law §§ 9.27 and 9.33. In January 2013, the Hospital petitioned for an order authorizing Paulina D.’s continued involuntary retention pursuant to Mental Hygiene Law § 9.33. …

“Pursuant to Mental Hygiene Law § 9.33, the Supreme Court may authorize the retention of a patient in a hospital for involuntary psychiatric care upon proof by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to himself [or herself] or others” … .  Matter of Paulina D, 2013 Slip Op 01988, 2012-02212, Index No 500039/13, 2nd Dept 3-22-13

 

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Procedure for Invalidation of a Stipulation to the Record

The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal:

It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … .  Once plaintiff stipulated to the record on appeal, he was no longer entitled to move to settle the record or, indeed, to seek leave to reargue or renew a motion to settle the record that preceded the stipulation.  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” …, and plaintiff made no such showing here.  Hale v Meadowood Farms of Cazenovia, LLC, et al, 351, CA 12-01192, 4th Dept. 3-22-13

 

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SORA Finding Reduced Twenty Points—No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

 

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Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

 

 

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Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … . People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

 

 

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Notice of Intention to Offer Molineux Evidence During Jury Selection and Molineux Hearing Upon Completion of Jury Selection Are Timely

The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely:

According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the potential impact of that evidence on voir dire. It is well settled that “a defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on the admissibility of such evidence” … . People v Holmes, 258, KA 09-01281, 4th Dept. 3-22-13

 

 

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Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

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Defendants Accused of Crimes Not Listed in the Controlling Statutes Are Not Eligible for the Judicial Diversion Program—The Statutes Do Not Allow for Judicial Discretion

In a full-fledged opinion by Justice Centra, the Fourth Department determined a Monroe County Court Judge exceeded his authority by allowing defendants accused of crimes not listed in the relevant statute to participate in the judicial diversion program.  The Court wrote:

CPL 216.00 (1) provides as follows: “ ‘Eligible defendant’ means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law or any other specified offense as defined in subdivision four of section 410.91…’”

It is undisputed that respondent defendants were not charged with any offenses under Penal Law §§ 220 or 221, or any specified offense in CPL 410.91. In our opinion, that ends the inquiry, and respondent defendants are not eligible for judicial diversion. It is well settled that “ ‘[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’ ” ….Likewise, “statutory interpretation always begins with the words of the statute” … .* * *

… [W]e agree with petitioner that she is also entitled to declaratory relief . “Although a declaratory judgment often revolves around a particular set of facts, [t]he remedy is available in cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved” … . [T]he “criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases” … .

[The opinion includes discussion of the nature and application of petitions for mandamus to compel and prohibition, and the County Court Judge’s argument that the use of judicial discretion re: the diversion program is allowed by statute.] Matter of Doorley v Hon John L. DeMarco, et al, 122, OP12-01563, 4th Dept. 3-22-13

 

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Stuck Door Could Constitute a “Dangerous Condition”

In finding that a stuck door could constitute a “dangerous condition,” the Fourth Department wrote:

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when, in the course of his employment, he was delivering a package to defendant’s property. He attempted to open a door but, according to plaintiff, the door would not open because it was stuck and defendant had prior notice that “the door stuck on occasion.” Defendant moved for summary judgment dismissing the complaint on the sole ground that the “condition alleged by Plaintiff, [i.e.], the door that would not open on the date of the accident, is not an inherently dangerous condition giving rise to a duty in tort.” We conclude that Supreme Court erred in granting the motion.

As the Court of Appeals has written, the issue “whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally [one] of fact for the jury” … . With respect to summary judgment motions, it is well established that “[a] motion for summary judgment must be denied ‘if there is any significant doubt as to the existence of a triable issue [of fact], or if there is even arguably such an issue’ . . . Moreover, summary judgment is seldom appropriate in a negligence action” … . Bielicki v Excel Industries, Inc., 335, CA 12-01494, 4th Dept. 3-22-13

 

 

 

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