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THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that two jurors who stated they would tend to believe the testimony of police officers should have been excused for cause:

The first prospective juror stated in response to a question concerning police officers that she “was raised to respect them” and that, because “they’re the people that are protecting you, you should trust them.” When further probed about weighing the credibility of a police officer’s testimony against a defendant’s testimony, she stated that she would “most likely [believe] the police officer.” The second prospective juror stated that, because of his work as an emergency medical technician, he saw police “in a very positive light.” When asked the same question about whose version of events he would believe, the prospective juror stated “[t]o be completely honest, probably the first responder police officer.”

Further, both prospective jurors repeated that they would likely believe a police officer’s account of an event over a defendant’s version after the court attempted to rehabilitate them … . Thus, their respective affirmative answers when the court asked them if they could be fair and impartial were “insufficient to constitute . . . unequivocal declaration[s]” that they could set aside their stated bias in favor of police officers … . After the court denied his challenges for cause, defendant used peremptory challenges to remove the two prospective jurors from the venire and, therefore, “[b]ecause defendant exhausted all of his peremptory challenges before the completion of jury selection, reversal is required” … . People v Smith, 2023 NY Slip Op 03647, Fourth Dept 6-30-23

Practice Point: Here the for cause challenges to two jurors who said they would tend to believe the testimony of police officers should have been granted. Because defendant exhausted all peremptory challenges, reversal was required. The fact that the jurors said they could be fair and impartial was not enough to warrant denial of the challenges.

 

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DEFENDANT SCHOOL SUPERINTENDENT’S DISCUSSION OF PLAINTIFF CROSS-COUNTY COACH’S TERMINATION WITH STUDENTS WAS ABSOLUTELY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant school superintendent’s (Brantner’s) statements to students about plaintiff cross-country coach (who was terminated) were absolutely privileged:

“The absolute privilege defense affords complete immunity from liability for defamation to an official [who] is a principal executive of State or local government . . . with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, plaintiff does not dispute that Brantner, as superintendent, is a government official to whom the absolute privilege would apply … . The question presented is whether Brantner was acting within the scope of her duties as superintendent when she met with members of the cross-country team in a classroom before school to discuss plaintiff’s termination.

We conclude that … Brantner’s statements were made during the course of the performance of her duties as a school superintendent and were about matters within the ambit of those responsibilities.  Brantner testified at her deposition that the school board asked her to speak with the students, who had appeared at school board meetings demanding to know why plaintiff had been fired …  In any event, even assuming, arguendo, that Brantner decided on her own to meet with the students, we conclude that she was acting within the scope of her duties when making the statements. Although Education Law § 1711 … does not specifically authorize superintendents to meet with students, the statute is not an exhaustive list delineating every action that a school superintendent is permitted to engage in, and the absence from the statute of a reference to a particular category of action does not mean that it is unauthorized. In our view, a school superintendent does not act ultra vires when speaking to students in a school setting about a matter related to their education or extracurricular activities. Panek v Brantner, 2023 NY Slip Op 03636, Fourth Dept 6-30-23

Practice Point: Because the defendant school superintendent was acting within the scope of her duties when she discussed plaintiff cross-country coach’s termination with students, her statements were absolutely privileged and will not support a defamation action.

 

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IN THIS INTERSECTION TRAFFIC ACCIDENT CASE, ALTHOUGH THE STATE DEMONSTRATED THE INTERSECTION WAS SAFE WHEN CONSTRUCTED, CLAIMANT RAISED A QUESTION OF FACT WHETHER INCREASED TRAFFIC RENDERED THE INTERSECTION UNSAFE AND WHETHER THE STATE WAS AWARE OF THE DANGER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined claimant’s cause of action alleging the intersection where claimant was injured in a traffic accident was dangerous should not have been dismissed. Although the state demonstrated the intersection was not dangerous when constructed, claimant raised a question of fact whether increased traffic rendered the intersection dangerous and whether the state was aware of the danger:

Under the ordinary rules of negligence, the State “has a nondelegable duty to keep its roads reasonably safe . . . , and the State breaches that duty ‘when [it] is made aware of a dangerous highway condition and does not take action to remedy it’ ” … . The duty includes the “continuing duty to review [a planned intersection] in light of its actual operation” … . Although the State established that its design of the intersection in 1974 was reasonably safe, claimant raised an issue of fact whether the intersection was reasonably safe at the time of the accident in light of the significant increase in traffic at that intersection over the years for drivers turning left onto the I-690 West ramp … . Claimant submitted the affidavit of her expert, who averred that the significant increase in traffic volume warranted the installation of a left-turn-only lane for eastbound drivers turning left onto Collingwood. Indeed, the expert averred that there was insufficient sight distance for eastbound left-turning vehicles because of the continuous line of oncoming traffic. Lilian C. v State of New York, 2023 NY Slip Op 03618, Fourth Dept 6-30-23

Practice Point: Here in this traffic-accident negligent-highway-design case, the state demonstrated the intersection was safe when constructed in 1974. But the claimant’s expert raised a question of fact whether increased traffic rendered the intersection unsafe. Claimant also raised a question of fact whether the state was aware of the danger.

 

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DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined the judge should not have found the police entry into defendant’s residence (the Payton issue) was justified by the parole warrant without a hearing to determine validity of the parole warrant:

” … A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein . . . provided that, as here, the officers ‘reasonably believe[d] the defendant to be present’ in the premises … . … Inasmuch as defendant challenged the factual basis for and the continued validity of the parole violation warrant at the time of his arrest, which he alleged was executed solely by police officers unaccompanied by parole officers, that was error.

Pursuant to 9 NYCRR 8004.2 (a), a parole violation warrant cannot be issued without “probable cause to believe that [the parolee] has violated one or more of the conditions of their release.” “Probable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is more probable than not that the subject releasee has committed the acts in question” (9 NYCRR 8004.2 [b]). If a parole officer believes that there is probable cause that the parolee has violated a condition of release “in an important respect,” that parole officer is required to report that to the parole board “or a designated officer,” such as a senior parole officer (9 NYCRR 8004.2 [a]), at which time “a notice of violation may be approved” (9 NYCRR 8004.2 [c]) and a warrant for “retaking and temporary detention may [be] issue[d]” by, among others, a designated officer (9 NYCRR 8004.2 [d]). Notably, a parole violation warrant may be administratively canceled “[a]t any time” after it is issued (9 NYCRR 8004.11 [a]).

Here, inasmuch as defendant sufficiently raised the Payton issue in his omnibus motion, and the People’s opposition papers did not resolve the issue as a matter of law, the court should have afforded defendant the opportunity to put the People to their proof regarding the alleged probable cause for the warrant, i.e., absconding, and whether the warrant was still active at the time defendant was arrested … . People v McCracken, 2023 NY Slip Op 03614, Fourth Dept 6-30-23

Practice Point: Here the entry into defendant’s home was justified by a parole warrant. Because the defendant challenged the validity of the parole warrant, and the People did not demonstrate its validity in their papers, defendant was entitled to a judicial determination after a hearing.

 

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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family:

… Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his assigned counsel accepted payment from his family. … [T]rial courts have the “ongoing duty” to ” ‘carefully evaluate serious complaints about counsel’ ” … . * * *

Here, defendant sent a letter to the court alleging … that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4]). Although the court began to engage defense counsel in a discussion concerning defendant’s letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, “You are going to represent [defendant] at trial.” The court then addressed defendant directly and concluded its comments to him by stating … “You are not going to get another attorney.” At no time did the court make any inquiry into defendant’s allegation that his family had paid defense counsel to represent him. … [W]e conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint … . People v Jackson, 2023 NY Slip Op 03609, Fourth Dept 6-30-23

Practice Point: Here defendant requested new counsel on the ground his assigned attorney was being paid by his family (apparently a violation of County Law). The judge’s failure to inquire into the complaint violated defendant’s right to counsel.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been avoided had it been raised below:

Executive Law § 296 (5) (a) (2) provides in relevant part that it “shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof . . . [t]o discriminate against any person because of . . . lawful source of income . . . in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.” Plaintiff alleged in its amended complaint that it sent two testers to defendants’ properties seeking to rent the properties. The testers asked defendants if they accepted security agreements, which are issued by the Erie County Department of Social Services to landlords in the amount of one month’s rent in lieu of a cash deposit. Defendants responded that they accepted those agreements, but that they also required tenants to put down a cash deposit of one-half of a month’s rent for the security deposit.

… The allegations in the amended complaint support the inference that, for a person whose lawful source of income is public assistance … , defendants imposed a different term or condition for the rental than for a person whose lawful source of income was not public assistance. In particular, for a person on public assistance, defendants required one-half’s month rent, in cash, as a security deposit in addition to the security agreements. Housing Opportunities Made Equal v DASA Props. LLC, 2023 NY Slip Op 03607, Fourth Dept 6-30-23

Practice Point: The Executive Law prohibits landlords from discriminating against potential tenants by requiring a cash deposit in addition to security agreements issued by the county.

Practice Point: An issue not raised below will be considered on appeal if it presents a question of law which could not have been avoided if raised below.

 

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THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

​The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the People did not demonstrate the legality of the street stop at the suppression hearing. The police had a warrant to search defendant’s apartment and anyone in it. Before the warrant was executed, the defendant left the apartment and the SWAT team stopped him. The People relied on the allegation that defendant was violating the Vehicle and Traffic Law at the time of the stop by walking in the middle of the street. The Fourth Department found the evidence of a Vehicle and Traffic Law violation was insufficient. Therefore the People failed to demonstrate the legality of the police conduct:

… [W]here the issue presented is whether the People have demonstrated “the minimum showing necessary” to establish the legality of police conduct, “a question of law is presented for [our] review” … . Here, the court refused to suppress the physical evidence on the ground that the officers’ observation of defendant walking in the roadway provided probable cause for them to believe that defendant had violated the Vehicle and Traffic Law, which justified the initial stop and the subsequent pursuit of defendant. Vehicle and Traffic Law § 1156 (a) requires that, “[w]here sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.” Here, when asked at the suppression hearing if he had seen defendant “doing anything illegal,” the testifying police officer responded, “[o]ther than walking down the center of the road, no.” Even assuming, arguendo, that we can infer the presence of a sidewalk based on the officer’s response, we conclude that the People failed to establish that a sidewalk was available and that it could “be used with safety” …, especially when considering that defendant was stopped in January in central New York. Nor did the People establish that defendant, by walking “down the center of the road,” violated section 1156 (b), which requires a pedestrian, where sidewalks are not provided, to “walk only on the left side of the roadway or its shoulder facing traffic” inasmuch as a pedestrian is only required to do so “when practicable.” Thus, we agree with defendant that, under the circumstances of this case, the People failed to meet their burden of establishing the legality of the police conduct. People v Montgomery, 2023 NY Slip Op 03606, Fourth Dept 6-30-23

Practice Point: At a suppression hearing the People have the initial burden of demonstrating the legality of the police conduct. That issue is a question of law which can be reviewed by an appellate court. Here the stop was based on the allegation defendant violated the Vehicle and Traffic Law by walking in the middle of the street. The People made no attempt to show there were sidewalks or, if there were sidewalks, that they were passable in January. The Vehicle and Traffic Law violation was not supported by sufficient proof. The People therefore did not prove the legality of the police conduct and the suppression motion should have been granted.

 

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ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police had reasonable suspicion defendant was about to commit a crime when he grabbed at his waistband and ran. The police saw the defendant stop his car in the street and aggressively approach another car on foot. When the police told him to stop, he ran. The majority agreed with the dissent that defendant’s grabbing at his waistband did not provide reasonable suspicion he had a weapon. Rather the police saw enough to have reasonable suspicion the defendant was about to commit a crime when he aggressively approached the other car:

We agree with defendant that his arm movements directed at his waistband and his flight would not, without more, justify police pursuit. As the court determined, however, it was reasonable for the officers to suspect that defendant was about to commit a crime because he approached the woman in an aggressive manner with clenched fists while yelling at her. The officers thus properly ordered defendant to stop and could have lawfully frisked him had he not run away. Because the stop was supported by reasonable suspicion, we conclude that the subsequent pursuit was also supported by reasonable suspicion, especially considering that, immediately following the stop, defendant turned his back to the officers, grabbed at his waistband, and then fled on foot, leaving his vehicle in the middle of the street with its driver’s door open.

From the dissent:

… [D[efendant’s digging at his waistband, flight, and leaving his car in the street “do not provide additional specific circumstances indicating that defendant was engaged in criminal activity” … . While defendant’s actions, “viewed as a whole, [may have been] suspicious, . . . there is nothing in this record to establish that the officers had a reasonable suspicion” that defendant had committed, was committing, or was about to commit a crime … . People v Cleveland, 2023 NY Slip Op 03597, Fourth Dept 6-30-23

Practice Point: Both the majority and the dissent agreed that defendant’s grabbing at his waistband and running did not provide the police with reasonable suspicion. The majority found that defendant’s stopping his car in the street and aggressively approaching a woman in another car with clenched fists provided the police with reasonable suspicion and justified pursuit. The dissent disagreed.

 

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PRECEDENT DID NOT REQUIRE THE TRIAL JUDGE TO ADMIT, UNDER SANDOVAL, EVIDENCE OF A PRIOR CONVICTION SIMILAR TO THE OFFENSE ON TRIAL; RATHER THAT PRECEDENT ONLY HELD EVIDENCE OF A PRIOR CONVICTION SHOULD NOT BE EXCLUDED SOLELY BASED ON SIMILARITY; THE PREJUDICE VERSUS PROBATIVE-VALUE ANALYSIS SHOULD STILL BE APPLIED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge was not bound by Fourth Department precedent to admit, under Sandoval, evidence of a prior possession of a weapon conviction in this criminal possession of a weapon prosecution. The Fourth Department has held that evidence of a prior conviction should not be excluded solely based on similarity with the offense on trial. But here the Fourth Department made clear that the prejudice versus probative-value analysis should still be applied where the crimes are similar:

… [T]he court cited this Court’s decision in People v Stanley (155 AD3d 1684 [4th Dept 2017] …) and advised defense counsel that she “may want to discuss [her arguments] with the Fourth Department,” explaining that Stanley was “their ruling, not my ruling” and that it was “bound by [the Fourth Department’s] rulings.” …

Stanley, however, stands for the proposition that “[c]ross-examination of a defendant concerning a prior crime is not prohibited solely because of the similarity between that crime and the crime charged” … . That means that a Sandoval application by the People should not be automatically denied merely because a prior conviction is similar in nature to the present offense, and certainly does not mean that a court must automatically grant the People’s application. There was nothing in Stanley that “bound” the court in this case and, to the contrary, the court was required to make its own discretionary balancing of the probative value of defendant’s prior conviction against its potential for undue prejudice … . People v Colon, 2023 NY Slip Op 03583, Fourth Dept 6-30-23

Practice Point: Precedent holding that, under Sandoval, evidence of a prior conviction should not be excluded solely because it is similar to the crime on trial does not mean that similar crimes should automatically be admitted. The prejudice versus probative-value analysis should be still be applied to similar crimes.

 

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THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the voters whose absentee ballots were unsuccessfully challenged on the ground the voters did not meet the village-residency-requirements were necessary parties in this proceeding and the matter had to be remitted to add them and consider whether their absentee ballots are valid:

Viewing Election Law § 5-220 (2) together with Election Law § 9-209, there is no statutory authority, under the circumstances here, permitting a challenge by petitioners to the absentee ballots submitted by the challenged voters. In view of the statutory scheme, the only opportunity for an objection to be lodged during the post-election review of an absentee ballot is after such ballot has been deemed invalid following a review under Election Law § 9-209 (8) (e), which presupposes an initial review under Election Law § 9-209 (2). … [T]he improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review. Even assuming it was a ground, there is still no indication in the record that any review under Election Law § 9-209 (2) has occurred or, more importantly, that any determination under Election Law § 9-209 (8) (e) has been made here by the canvassing authority as to the invalidity of any absentee ballots and that such determination has been objected to — i.e., the statutory predicate for judicial review (see Election Law § 9-209 [8] [e]). There is likewise no explicit authority within Election Law § 9-209 permitting a court to either conduct that review or make that determination in the first instance. Matter of Hughes v Delaware County Bd. of Elections, 2023 NY Slip Op 03431, Third Dept 6-26-23

Practice Point: When absentee ballots are challenged, the voters who submitted the ballots are necessary parties.

Practice Point: Any challenge to absentee ballots must be made in accordance with the procedures described in the Election Law, not the case here.

 

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