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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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THE RESPONDENT CITY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS SURROUNDING THE BUS-VEHICLE COLLISION AND WAS NOT PREJUDICED BY THE TEN MONTH DELAY IN FILING THE NOTICE OF CLAIM; PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, EVEN IN THE ABSENCE OF AN ADEQUATE EXCUSE (LAW OFFICE FAILURE) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent city in this bus-vehicle accident case had timely knowledge of the essential facts of the incident and therefore was not prejudiced by the late notice of claim. The court noted that law office failure is not an adequate excuse for failing to timely file a notice of claim, but using that excuse did not mandate denial of the motion:

Supreme Court improvidently exercised its discretion in denying petitioner’s application, as petitioner established that respondents acquired actual knowledge of the essential facts within the statutorily prescribed filing period … . As the record showed, the accident involved an NYCTA-owned bus and an NYCTA driver, and was immediately investigated by an NYCTA supervisor. Therefore, petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were permitted leave to file a late notice of claim … .

In response to petitioner’s showing, respondents offered no particularized evidence suggesting that they would be prejudiced by the delay. Therefore, respondents have failed to rebut petitioner’s showing … . Clarke v New York City Tr. Auth., 2023 NY Slip Op 06591, First Dept 12-21-23

Practice Point: If the municipality has timely knowledge of the essential fact underlying a claim (here a bus-vehicle accident) and is not prejudiced by the delay, a motion for leave to file a late notice of claim may be granted even in the absence of an adequate excuse.

 

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PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO SERVE THE DEFENDANT; PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE BY ALTERNATIVE MEANS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had exercised due diligence in attempting to serve defendant and was entitled to a second extension of time to serve the defendant:

Supreme Court improvidently exercised its discretion in denying plaintiff a second extension to serve Dr. Hanandeh under CPLR 306-b, as plaintiff established good cause for the late service by proffering evidence of diligent efforts to serve the doctor … . Plaintiff attempted service at an Ohio address obtained through investigation, which turned out to be the home of Dr. Hanandeh’s parents and brother, and also attempted service at Dr. Hanandeh’s last known New York address as provided by his former employer, defendant New York City Health and Hospitals Corporation … .

In addition, plaintiff established entitlement to an extension of time in the interest of justice because, in addition to showing that she made diligent efforts to obtain jurisdiction, she made a showing that Dr. Hanandeh did not incur any prejudice by the delay, and in fact has known of the suit since before plaintiff requested the second extension … .

Under the circumstances presented, plaintiff is also entitled to effectuate service by alternative means, as she made a showing that service on Dr. Hanandeh was impracticable, and that service by email was reasonably calculated to apprise him of this action (CPLR 308 …). Dixon v New York City Health & Hosps. Corp., 2023 NY Slip Op 06592, Third Dept 12-21-23

Practice Point: Because plaintiff demonstrated due diligence in attempting the serve the defendant and the lack of prejudice to the defendant, plaintiff was entitled to a second extension of time to serve and service by alternative means.

 

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IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).

The Third Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was legally insufficient. The Third Department noted the issue was preserved by a written motion to dismiss submitted at the close of the People’s case and ruled upon after the close of defendant’s case. The Third Department also compared the criteria for a motion to dismiss for legal insufficiency and a determination a conviction is against the weight of the evidence. The trial evidence demonstrated only that defendant was inattentive when he rounded a turn and struck the back of the victim’s car as it was waiting to make a turn while travelling about 45 mph. That was not enough to demonstrate criminal negligence:

Defendant preserved the claim of legal insufficiency when County Court reserved upon a written motion to dismiss presented at the close of the People’s case and ultimately denied the motion at the close of defendant’s case … .

A review of legal sufficiency requires this Court to “view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . Whereas, a review of whether a verdict is against the weight of the evidence requires the court to “view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” … . * * *

“The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . Here, the People argue that a failure to brake — for what is alleged to be a period of 10 to 18 seconds — constitutes criminal negligence. But even taking the facts in the light most favorable to the People, a failure to brake, without more, does not constitute criminal negligence … . People v Munise, 2023 NY Slip Op 06562, Third Dept 12-21-23

Practice Point: Here the victim died after a rear-end collision. Proof that defendant failed to see the victim’s car and failed to timely brake does not support a criminally negligence homicide conviction.

Practice Point: Making a motion to dismiss at the close of the People’s case which is ruled on after the defendant’s case preserves the legal insufficiency argument for appeal.

Practice Point: The decision includes a comparison of the “legal insufficiency” and “against the weight of the evidence” analytical criteria.

 

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A DEFENDANT CHARGED WITH A CLASS A FELONY CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION PURSUANT TO CPL 195.10 (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s guilty plea and dismissing the superior court information, determined defendant was not eligible to waive the indictment and plead to a superior court information because the controlling statute does not apply to A felonies. Defendant was charged with an A-II felony:

Defendant’s primary contention is that the waiver of indictment and SCI were jurisdictionally defective … . CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by [SCI] when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b]). To this end, the Court of Appeals has held that “when an accused is held for [g]rand [j]ury action upon a felony complaint that charges a class A felony, . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, defendant was held for grand jury action upon a felony complaint charging him with predatory sexual assault against a child, a class A-II felony that is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment … . Defendant’s waiver of indictment encompassed this charge and, thus, was expressly prohibited under CPL 195.10 and is invalid, “render[ing] the resulting procedure employed to procure defendant’s guilty plea unauthorized” … . People v Smith, 2023 NY Slip Op 06563, Third Dept 12-21-23

Practice Point: Defendants charged with a class A felony are not eligible, pursuant to CPL 195.10, to waive indictment and plead to a superior court information.

 

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DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

The Third Department, reversing County Court, over a two-justice dissent, determined defendant was entitled to resentencing in this manslaughter case under the Domestic Violence Survivors Justice Act (DVSJA). The dissenters agreed that defendant met the DVSJA criteria for a reduced sentence, but argued the sentence that was imposed was not unduly harsh:

… [W]e disagree with County Court’s determination that defendant’s abuse was anything less than “substantial,” as defendant’s own account of the specific acts of violence, which is largely corroborated by various witnesses in the record, and the injuries suffered as well as the psychological abuse that came alongside such violence was sufficient to fall under the ambit of the DVSJA. Although the court accurately concluded that the relationship between defendant and the victim was mutually abusive, that does not foreclose a determination that defendant was a victim of abuse … . Moreover, such conduct is readily explained in Lesswing’s [the forensic psychologist’s] report as typical of those persons suffering from battered person syndrome, particularly in the case of defendant who had a lengthy history of exposure to domestic violence over the course of her life … . People v Brenda WW., 2023 NY Slip Op 06564, Third Dept 12-21-23

Practice Point: Here in this manslaughter case  the defendant met the criteria for a reduced sentence under the Domestic Violence Survivors Justice Act (DVSJA). Two dissenters agreed that defendant met the criteria but argued the imposed sentence was not unduly harsh.

 

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THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.

 

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A “HIGH COST LOAN” AS DEFINED BY THE BANKING LAW IS A DEFENSE TO A FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the loan in this foreclosure action violated the Banking Law such that there is a defense to foreclosure pursuant to RPAPL 1302(2):

RPAPL 1302(2) provides, in pertinent part, that “[i]t shall be a defense to an action to foreclose a mortgage [for a high-cost home loan] that the terms of the home loan or the actions of the lender violate any provision of,” among other things, Banking Law § 6-l … . “A home loan is a ‘high-cost home loan’ if, among other things, the total points and fees charged exceed five percent of the total loan amount” … . Here, the defendants demonstrated potential merit to their defense that their loan constituted a “high-cost home loan,” because the lender allegedly financed certain closing costs, thereby receiving indirect compensation related thereto … , and that the terms of the loan or actions of the lender violated provisions of Banking Law § 6-l. Wilmington Trust, N.A. v Newman, 2023 NY Slip Op 06557, Second Dept 12-20-23

Practice Point: Pursuant to RPAPL 1302(2), a “high cost loan” within the meaning of the Banking Law is a defense to a foreclosure action.

 

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RESTORATION OF AN ACTION TO THE ACTIVE CALENDAR AFTER FAILURE TO FILE A NOTE OF ISSUE IS AUTOMATIC IF NO 90-DAY NOTICE HAS BEEN SERVED AND NO ORDER OF DISMISSAL HAS BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar after plaintiff’s failure to file a note of issue should should have been granted. No 90-day notice had been served and no order of dismissal had been issued:

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 … . In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue … .

Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216. The restoration of the action to the active calendar should have been automatic. Rosario v Cummins, 2023 NY Slip Op 06547, Second Dept 12-20-23

Practice Point: Here plaintiff failed to file a note of issue by a court-ordered deadline. Restoration of the action to the active calendar is automatic if no 90-day notice has been served and no order of dismissal has been issued.

 

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THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should have been dismissed because plaintiff did not demonstrate the process server exercised diligence because resorting to “nail and mail” service:

The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” … . “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant’s home. There was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of employment, which was known to the plaintiff. Niebling v Pioreck, 2023 NY Slip Op 06526, Second Dept 12-20-23

Practice Point: A process server’s failure to exercise due diligence  in trying to locate a defendant before resorting to “nail and mail” service, including making inquiries about defendant’s whereabouts and place of employment, will result in dismissal of the complaint.

 

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