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AT THE SUPPRESSION HEARING THE PEOPLE DEMONSTRATED THE TRAFFIC STOP OF DEFENDANT’S VEHICLE WAS BASED ON A POLICE OFFICER’S COMPUTER DMV CHECK WHICH SHOWED DEFENDANT’S INSURANCE HAD LAPSED; IN SUPPORT OF THE SUPPRESSION MOTION THE DEFENDANT SUBMITTED VERIFICATION THAT THE INSURANCE HAD NOT LAPSED; AT THAT POINT THE PRESUMPTION OF RELIABILITY DISAPPEARED AND THE PEOPLE WERE REQUIRED TO SHOW THE RELIABILITY OF THE DMV CHECK, WHICH THEY FAILED TO DO (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the People did not meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The traffic stop was justified by a DMV check showing the insurance of defendant’s vehicle had lapsed. In support of defendant’s motion to suppress, defendant presented a verification of insurance form demonstrating coverage had not lapsed. At that point the presumption that the DMV check was accurate disappeared and the People were required to demonstrate the information relied upon by the police was accurate. The People failed to so demonstrate:

… [D]efendant’s submission of the verification of insurance form in support of his supplemental motion was sufficient to challenge the presumed reliability of the information obtained by the officer that the vehicle’s registration was suspended due to an insurance lapse … . It was therefore incumbent upon the People to submit proof at the suppression hearing in addition to the officer’s testimony to establish the reliability of the information received by the officer, and the People failed to meet that burden … . People v Walker, 2023 NY Slip Op 05902, Fourth Dept 11-17-23

Practice Point: At a suppression hearing the People must first demonstrate the police conduct was legal. Here the traffic stop was based on a DMV check showing an insurance lapse. Defendant presented proof the insurance had not lapsed. At that point the presumption the DMV check was reliable disappeared and the People were required to show the DMV check was in fact reliable, which they failed to do. Suppression should have been granted.

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence, determined the judge should have granted defendant’s request for a hearing before sentencing defendant as a persistent violent felony offender. There had been no determination whether the criteria for sentencing as a persistent violent felony offender (at least two sentences for violent felonies within the last 10 years) had been met:

Although defendant admitted at sentencing that he had been convicted of the prior violent felony offenses alleged in the People’s persistent violent felony offender statement, defendant did not concede that he had been sentenced on at least two of those violent felonies within 10 years prior to the commission of the instant offense, and the People’s statement did not set forth the commencement date, termination date, and place of imprisonment for each period of incarceration to be used for tolling of the ten-year limitation as required by CPL 400.15 (2). Moreover, as the People correctly concede, the record does not include a specific finding by the court regarding whether there was sufficient incarceration tolling for defendant’s prior violent felony convictions to count as predicate convictions. People v Scott, 2023 NY Slip Op 05900, Fourth Dept 11-17-23

Practice Point: Here defendant’s request for a hearing to determine whether the criteria for sentencing him as a persistent violent felony offender should have been granted.

 

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THE MAJORITY CONCLUDED THE GUN SHOTS AND THE 911 CALL STATING FOUR BLACK KIDS, ONE WITH A GUN, WERE WALKING AROUND JUSTIFIED APPROACHING DEFENDANT ON THE STREET AND JUSTIFIED PURSUING HIM AND SEARCHING HIM WHEN HE RAN; TWO DISSENTERS NOTED THAT THE DEFENDANT DID NOT MATCH THE 911 CALLER’S DESCRIPTION AND ARGUED HIS FLIGHT ALONE DID NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police lawfully approached the defendant on the street, lawfully pursued him when he ran, and lawfully searched him, recovering a handgun. The police had heard gun shots and were aware of a 911 call indicating four Black kids were walking around and one had a gun. The dissenters argued that the police were justified in approaching the defendant but that defendant’s flight did not justify the pursuit and search:

… [T]he officers, when they encountered defendant on the street, had a “founded suspicion that criminal activity [was] afoot” … , thereby justifying a common-law approach and inquiry of all four men … . Contrary to defendant’s contention, we conclude that his flight when lawfully approached by the police justified the ensuing pursuit, especially considering the unorthodox manner in which he was running, which, again, was observed before the officers gave chase … . At that point, it was reasonable for the officers to suspect that defendant possessed a firearm or was otherwise involved in the shooting that occurred minutes earlier less than a block away. * * *

From the dissent:

… [D]efendant did not match the description provided by the 911 caller of the person the caller said had a gun … . Although defendant was observed walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion,” i.e., “in the absence of other objective indicia of criminality that would justify pursuit” … . People v Watkins, 2023 NY Slip Op 05804, Fourth Dept 11-17-23

Practice Point: The majority held the police properly approached the defendant on the street based upon hearing gunshots and a 911 call stating four Black kids, one with a gun, were walking around. The majority further held that defendant’s flight justified pursuit and a search of defendant’s person. Two dissenters noted that the defendant did not match the 911 caller’s description and argued his flight alone did not justify the pursuit.

 

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ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint in this traffic accident case should not have been granted. Plaintiff pulled into defendant’s lane of traffic to go around a mail truck. Just prior to the collision with plaintiff two other cars had passed the mail truck by pulling into defendant’s lane, yet plaintiff had not disengaged the cruise control. There was a question of fact whether defendant responded appropriately to the emergency:

A person facing an emergency is “not automatically absolve[d] . . . from liability” … . In determining whether the actions of a driver are reasonable in light of an emergency situation, the factfinder must consider “both the driver’s awareness of the situation and [the driver’s] actions prior to the occurrence of the emergency” … .

Defendant admitted that, after she noticed the mail truck, she observed two motor vehicles pass it by pulling out from behind the truck, crossing completely into the westbound lane, and returning to the eastbound lane of travel, but she nevertheless continued in the westbound lane without deactivating her cruise control. She then saw plaintiff’s vehicle cross over into her lane “possibly to see if there was oncoming traffic” before it reentered the eastbound lane. It was not until that point that plaintiff deactivated her cruise control, which had been set to 45 miles per hour. We conclude that issues of fact exist whether, given her observations, defendant responded reasonably under the circumstances … . Carollo v Solotes, 2023 NY Slip Op 05803, Fourth Dept 11-17-23

Practice Point: Here plaintiff entered defendant’s oncoming law to pass a mail truck and collided with defendant. Usually an emergency will absolve a driver of liability. But there was evidence two other cars had pulled into defendant’s lane to pass the mail truck and defendant did not disengage the cruise control. Therefore there was a question of fact whether defendant responded reasonably to the emergency.

 

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AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window fell and struck plaintiff on the head:

… [I]nasmuch as the record establishes that plaintiff and the supervisor were working together on the scissor lift to remove the window by prying off the metal flashing and removing the caulk, and that the supervisor then granted plaintiff permission to use the bathroom and lowered the lift to the ground while leaving the window unsecured on the second story of the building when the window was susceptible to falling, it cannot be said that plaintiff’s conduct was the sole proximate cause of the accident … . We thus conclude that plaintiff’s “conduct during the [window removal] process ‘raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1)’ ” … . Reyes v Episcopal Senior Hous. Greece, LLC, 2023 NY Slip Op 05898, Fourth Dept 11-17-23

Practice Point: Apparently because plaintiff’s supervisor gave plaintiff permission to lower the lift to go to the bathroom, leaving the second-story window he was working on unsecured, plaintiff was not the “sole proximate cause” of the accident (which would preclude Labor Law 240(1) liability). At most he was comparatively negligent, which is not a bar to summary judgment.

 

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted:

... [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother … . Further, the record establishes that the father has no “accustomed close involvement in the children’s everyday life” … and thus we conclude that the need to “give appropriate weight to . . . the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements” does not take precedence over the need to give appropriate weight to the necessity for the relocation … .

From the dissent:

… [T]he Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children’s future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee … . …

… [M]other did not establish that the children’s lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them … . The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location … .

The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son’s newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized … . Matter of Martin v Martin, 2023 NY Slip Op 05893, Fourth Dept 11-17-23

Practice Point: Here mother’s declining health was a factor granting mother’s petition to relocate near her mother in Tennessee. The dissent argued the referee ignored the impact of the move on the children’s contact with father and mother did not demonstrate the children would be better cared for or better educated in Tennessee.

 

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ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23

 

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice:

The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as plaintiff’s son here, made many of the same allegations of negligence and malpractice against defendant as plaintiff does in this case. Both cases involved whether defendant properly monitored the patients and the babies and made proper decisions regarding oxytocin administration, and whether defendant made the proper decision to continue with vaginal delivery instead of proceeding with a cesarean section. Alternatively, defendant established that Laraby received specific, confidential information in the prior litigation that is substantially related to the present litigation … . In particular, Laraby had access to the litigation strategy to defend defendant against the allegations of malpractice, including speaking with and receiving reports of expert witnesses. Brandice M.C. v Wilder, 2023 NY Slip Op 05871, Fourth Dept 11-17-23

Practice Point: Here plaintiff’s attorney had represented the defendant in this medical malpractice action in a case where the issues were substantially the same. The motion to disqualify the attorney and the attorney’s small law firm should have been granted.

 

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IN A MANDAMUS PROCEEDING WHICH IS TRIGGERED BY A DEMAND BY PETITIONER, AN UNREASONABLE DELAY IN MAKING THE DEMAND WILL RENDER THE PROCEEDING TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s Article 78 proceeding was time-barred because petitioner unreasonably delayed making the demand which triggered the four-month statute of limitations (laches):

“[W]here, as here, the proceeding is in the nature of mandamus to compel, it ‘must be commenced within four months after refusal by respondent, upon demand of petitioner, to perform its duty’ ” … . ” ‘[A] petitioner[, however,] may not delay in making a demand in order to indefinitely postpone the time within which to institute the proceeding. The petitioner must make his or her demand within a reasonable time after the right to make it occurs, or after the petitioner knows or should know of the facts which give him or her a clear right to relief, or else, the petitioner’s claim can be barred by the doctrine of laches’ ” … . “The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time” and “does not refer to the equitable doctrine of laches” … . Inasmuch as “[t]he problem . . . is one of the [s]tatute of [l]imitations[,] . . . it is immaterial whether or not the delay cause[s] any prejudice to the respondent” … . “[T]he four-month limitations period of CPLR article 78 proceedings has been ‘treat[ed] . . . as a measure of permissible delay in the making of the demand’ ” … . Matter of Cor Van Rensselaer St. Co. III, Inc. v New York State Urban Dev. Corp., 2023 NY Slip Op 05867, Fourth Dept 11-17-23

Practice Point: Where a mandamus proceeding is triggered by a demand by petitioner, an unreasonable delay in making the demand will render the proceeding time-barred.

 

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THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT HE WOULD BE HAPPY TO APPLY FOR A WARRANT BUT DEFENDANT WOULD BE DETAINED UNTIL THE WARRANT WAS PROCURED; BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE FOR A SEARCH WARRANT, THE OFFICER’S STATEMENT WAS MISLEADING; DEFENDANT’S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN (FOURTH DEPT).

The Fourth Department, suppressing the drugs found in defendant’s car and defendant’s related statements, determined the consent to search was not voluntarily given. The officer told the defendant he would be happy to apply for a warrant but defendant would be detained until the warrant was obtained. However, the officer told the defendant, if he consented to the search he would be allowed to leave, even if contraband were found. The officer did not have probable cause to search the car, so his claim he would be happy to procure a warrant was misleading:

… [T]he record establishes that defendant consented to the search of his vehicle with the understanding that, if he refused, the detective would obtain a warrant and search the vehicle anyway, and that in the meantime the vehicle would be detained at the scene. We note that a suspect’s consent to search that is based on threatened action by the police is deemed voluntary only where there are valid legal grounds for the threatened action … . Further, we agree with defendant that the voluntariness of his consent therefore turns on whether the detective could lawfully have obtained a search warrant, which may be issued “only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur” … .

In our view, the detective did not have probable cause to believe that defendant had committed a crime or that the vehicle contained contraband when defendant consented to the warrantless search, and, thus, the detective’s threat to obtain a search warrant was hollow and misleading. People v Barner, 2023 NY Slip Op 05839, Fourth Dept 11-17-23

Practice Point: If a defendant’s consent to a search is procured by a misleading statement by a police officer, the defendant’s consent is not voluntarily given.

 

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