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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution:

… [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered … . We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it … . People v Ross, 2023 NY Slip Op 01381, Fourth Dept 3-17-23

Practice Point: Here is was deemed reversible error to instruct the jury on construction possession of a weapon because there was no evidence defendant exercised control over the area where the weapon was found.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither officer had any training in making visual speed estimates:

It is undisputed that the officers did not use radar at any point, nor did they pace the vehicle—i.e., follow it at a consistent distance—to confirm their visual estimates before initiating the stop. When questioned regarding their training to visually estimate a vehicle’s speed without pacing, one officer stated that he did not recall receiving such training, and the other testified that he did not believe such training existed. On further questioning, one of the officers testified that he had experience visually estimating speed due to the amount of time he spent on the road as a patrol officer, but failed to provide a reasoned explanation of how the time he spent driving on city streets enabled him to acquire the ability to visually estimate speed.

… [T]he People failed to establish the officers’ training and qualifications to support their visual estimates of the speed of the vehicle in which defendant was a passenger … . … [I]nasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping the vehicle in which defendant was a passenger in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized as a result of the traffic stop. People v Suttles, 2023 NY Slip Op 01380, Fourth Dept 3-17-23

Practice Point: Here the traffic stop was based on the officers’ visual estimate of speed (40 to 45 mph in a 30 mph zone). At the suppression hearing no evidence of the officers’ training or qualifications re: a visual speed estimate was presented. The People, therefore, did not prove the legality of the traffic stop.

 

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HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, affirming defendant’s conviction, determined the rule that evidence of a victim’s prior violent acts should not be admitted in support of the justification defense unless defendant was aware of those prior violent acts at the time of the incident. Here there was evidence the victim had four youthful offender adjudications in which the victim acted violently. The defendant stabbed the victim with a pen knife and claimed the victim was attacking him with a broken beer bottle. The trial judge instructed the jury on the justification defense:

Defendant stabbed the victim in the chest with a small knife, causing life-threatening injuries. At trial, the court determined that defendant was entitled to raise a justification defense. Defendant sought to introduce evidence of the specific violent conduct underlying four of the victim’s prior youthful offender adjudications to prove that the victim was the initial aggressor with respect to deadly physical force … . Supreme Court, in accordance with Miller, prohibited the jury from considering that evidence for that purpose. The Appellate Division affirmed … .

“Youthful Offender status provides youth four key benefits: relief from [a] record of a criminal conviction, reduced sentences, privacy from public release of the youth’s name pending the Youthful Offender determination on misdemeanor offenses only, and confidentiality of the Youthful Offender record” (Report of the Governor’s Commission on Youth, Public Safety, and Justice 135 [2014]). Youthful offender designations are given to those who have “a real likelihood of turning their lives around,” and the protection gives these individuals “the opportunity for a fresh start, without a criminal record” … . Given these policy concerns, we see no reason to revisit the Miller rule in this case. People v Guerra, 2023 NY Slip Op 01352, CtApp 3-16-23

Practice Point: Where the defendant raised the justification defense, proof of prior violent acts by the victim is not admissible unless the defendant was aware of them at the time of the incident (not the case here).

 

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PLAINTIFFS-TENANTS DID NOT SHOW DEFENDANT LANDLORD ENGAGED IN A FRAUDULANT SCHEME TO DEREGULATE; THEREFORE THE DEFAULT FORMULA TO SET THE BASE DATE RENT PURSUANT TO THE RENT STABILIZATION CODE SHOULD NOT BE USED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the default formula for determining the plaintiffs-tenants’ legal regulated rent pursuant to the Rent Stabilization Code should not be used because there was no evidence of a fraudulent scheme to deregulate. Rather defendants’ deregulation was based upon a misinterpretation of the law:

Matter of Regina Metro. Co., LLC v New York State Div. of Hous. and Community Renewal was decided after Supreme Court granted plaintiffs’ motion (35 NY3d 332 [2020]). There, this Court made clear that, under the pre-Housing Stability and Tenant Protection Act of 2019 law applicable here, “review of rental history outside the four-year lookback period [i]s permitted only in the limited category of cases where the tenant produced evidence of a fraudulent scheme to deregulate and, even then, solely to ascertain whether fraud occurred—not to furnish evidence for calculation of the base date rent or permit recovery for years of overcharges barred by the statute of limitations” … . In fraud cases, because the reliability of the base date rent has been tainted, “this Court sanctioned use of the default formula to set the base date rent” … . Regina also held that “deregulation of [ ] apartments during receipt of J-51 benefits was not based on a fraudulent misstatement of fact but on a misinterpretation of the law [and so] a finding of willfulness is generally not applicable to cases arising in the aftermath of Roberts [and] [b]ecause conduct cannot be fraudulent without being willful, it follows that the fraud exception to the lookback rule is generally inapplicable to Roberts overcharge claims” … .

Plaintiffs failed to meet their burden on summary judgment. Defendants’ deregulation of the apartments was based on this same “misinterpretation of the law” involved in Regina and therefore that conduct did not constitute fraud … . Defendants’ subsequent re-registering of the apartments occurred after the four-year lookback period, and plaintiffs have failed to offer evidence that it somehow affected the reliability of the actual rent plaintiffs paid on the base date. Casey v Whitehouse Estates, Inc., 2023 NY Slip Op 01351, CtApp 3-16-23

Practice Point: In order to use the default formula pursuant to the Rent Stabilization Code, there must have been a fraudulent scheme to deregulate on the part of the landlord. Here there was no evidence of a fraudulent scheme as opposed to a misinterpretation of the law.

 

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BOTH THE HIPAA PRIVACY RULE AND THE PUBLIC OFFICERS LAW APPLY TO THE FOIL REQUEST FOR RECORDS DOCUMENTING INJURIES SUFFERED BY ATHLETES USING THE OLYMPIC TRAINING FACILITIES IN THE ADIRONDACK PARK; THE HIPAA DEIDENTIFICATION PROCEDURE SHOULD BE APPLIED TO THE REQUESTED RECORDS (THIRD DEPT). ​

The Third Department noted that the HIPAA deidentification procedure was applicable to the FOIL request for sports-related injuries at the Olympic facilities in the Adirondack Park. The FOIL request was made to the respondent NYS Olympic Regional Development Authority:

… [T]he health-related information contained in the reports at issue is subject to the protections of both HIPAA and Public Officers Law § 87 (2) (b). Specifically, the HIPAA Privacy Rule, among other things, addresses the use and disclosure of “individually identifiable health information,” which is defined as “any information, including demographic information collected from an individual, that . . . is created or received by a health care provider, . . . relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and . . . identifies the individual . . . or[,] with respect to which[,] there is a reasonable basis to believe that the information can be used to identify the individual” (42 USC § 1320d [6]). Further, as relevant here, Public Officers Law § 89 (2) (b) (i) expressly provides for the protection of medical history, which refers to “information that one would reasonably expect to be included as a relevant and material part of a proper medical history” … . Upon our review, we conclude that the information provided on the subject forms falls within these protections, as it directly pertains to the relevant individual’s present health condition and would reasonably be included as part of his or her medical history. Matter of Getting the Word Out, Inc. v New York State Olympic Regional Dev. Auth., 2023 NY Slip Op 01334, Third Dept 3-16-23

Practice Point: Where a FOIL request involves medical records, the HIPAA Privacy Rule applies and the HIPAA deidentification procedure should be applied to the requested records.

 

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CONFLICTING EXPERT EVIDENCE ABOUT ICE ON THE PARKING LOT BEFORE THE SNOW STORM BEGAN PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact raised by conflicting expert evidence in this ice slip and fall case. Although it was snowing at the time of the fall, there were questions of fact whether the ice was there before it began snowing:

… [W]e find that [defendant] established triable issues of fact as to whether the ice that he slipped on existed prior to the storm that was in progress and whether defendants had actual or constructive notice of same … . Plaintiff’s experts based their opinions on weather data similar to that of defendant’s expert, as well as additional sources of meteorological data. In reviewing this data, it cannot be said that plaintiff’s experts’ affidavit was not based on data or was conclusory … . Significantly, any disagreements between the experts would present a credibility determination appropriate for the finder of fact, such that summary judgment was inappropriate … . Marra v Zaichenko, 2023 NY Slip Op 01335, Third Dept 3-16-23

Practice Point: Where there is conflicting expert evidence in a slip and fall case, here concerning the presence of ice before the snow began to fall, summary judgment is not appropriate.

 

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THE NEGLIGENCE CAUSE OF ACTION AGAINST PLAINTIFFS’ INSURANCE BROKERS SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE BROKERS FAILED TO PROCURE ADEQUATE COVERAGE AND FAILED TO INFORM PLAINTIFFS OF THE DEFINITIONS AND TERMS OF THE POLICY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the plaintiffs-insureds’ negligence cause of action against their insurance brokers should not have been dismissed:

Supreme Court improperly dismissed plaintiffs’ causes of action for negligence against Thompson Flanagan and WIA, the brokers. Plaintiffs sufficiently pleaded a cause of action for negligence against the brokers which was distinct and not duplicative of their breach of contract claim. “‘The law is reasonably settled . . . that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so'” … . Thus, “‘a party who has engaged a person to act as an insurance broker to procure adequate insurance is entitled to recover damages [for breach of contract] from the broker if the policy obtained does not cover a loss for which the broker contracted to provide insurance, and the insurance company refuses to cover the loss'” … .. Additionally, “[a]n insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction” and “[t]hus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract” … . Here, in addition to alleging both brokers breached a contract to procure adequate insurance coverage, plaintiffs also assert that they failed to inform them of the definitions and terms of the policy. The latter allegations implicate a duty and potential breach by the brokers independent from the contract … . Florence Capital Advisors, LLC v Thompson Flanagan & Co., LLC, 2023 NY Slip Op 01358, First Dept 3-16-23

Practice Point: Here the plaintiffs-insureds stated a cause of action sounding in negligence against their insurance brokers for failure to procure adequate insurance and failing to inform plaintiffs of the definitions and terms of the policy. The negligence allegations alleged a duty independent from the contract.

 

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THE MENTAL HYGIENE LAW DOES NOT REQUIRE A TESTIMONIAL HEARING BEFORE THE REMOVAL OF A GUARDIAN FOR AN INCAPACITATED PERSON (FIRST DEPT).

The First Department noted that removal of a guardian does not require a testimonial hearing:

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing … . This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP [incapacitated person], whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … . Matter of Edgar V.L., 2023 NY Slip Op 01360, First Dept 3-16-23

Practice Point: Although the Mental Hygiene Law requires a testimonial hearing before the appointment of a guardian for an incapacitated person, no hearing is required for the removal of a guardian.

 

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THE UNEXPLAINED DELAY OF 38 MONTHS IN SEEKING A WARRANT FOR A DNA SAMPLE FROM THE DEFENDANT, WHO HAD BEEN IDENTIFIED AS THE RAPIST BY THE COMPLAINANT RIGHT AWAY, VIOLATED DEFENDANT’S RIGHT TO A SPEEDY TRIAL; CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, reversing the Appellate Division, determined that the inexplicable delay in seeking a DNA sample from the defendant in this rape case violated defendant’s right to a speedy trial. The complainant reported the rape right away and named the defendant as the perpetrator. The defendant denied having sex with the complainant and refused to voluntarily provide a DNA sample. 38 months later the People applied for and were granted a warrant for the DNA sample. Defendant was convicted after a trial. The majority opinion went through the Taranovich (37 NY2d 442) pre-indictment-delay factors:

“Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . It has not established good faith in this case. Here, 24 months are wholly unexplained by the record or any of the People’s papers in this matter and 7 months at a point late in the timeline are flimsily justified as necessary to decide the case required DNA evidence and then figure out how to get DNA evidence from defendant. The People’s own submissions demonstrate the emptiness of the claim that the police and the People did not know how to obtain defendant’s DNA and could not have figured it out sooner: not only did the assigned ADA obtain guidance on the warrant process in November of 2010—two years before the People filed their ultimately successful warrant application—but the investigator who eventually prepared the warrant application managed to figure out the procedure in part of a day. Indeed, our own case law dating back to at least 1982 provides the needed guidance on how to address this routine legal matter … . People v Regan, 2023 NY Slip Op 01353, CtApp 3-16-23

Practice Point: Although much longer pre-indictment delays have been excused, here the unexplained 38-month delay in applying for a warrant for a DNA sample from the defendant, who had been identified right away as the rapist by the complainant, violated defendant’s right to a speedy trial requiring reversal of the rape conviction.

 

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PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing County Court, determined: (1) defendant’s marijuana conviction was properly vacated under the Marihuana Regulation and Taxation Act (MRTA); (2) once vacated, the court had the authority to substitute a conviction for the vacated conviction (which it did); but (3) the court committed reversible error by failing to consider whether substituting a conviction served the interest of justice. The matter was remitted for the “interest of justice” ruling:

… [T]he main questions presented are whether the County Court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction, and whether the court failed to consider if it was not in the interests of justice to do so. We hold that the court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction. We further hold that the court committed reversible error by failing to consider, as required by the statute, whether it was not in the interests of justice to substitute a conviction for an appropriate lesser offense. People v Graubard, 2023 NY Slip Op 01308, Second Dept 3-15-23

Practice Point: Under the Marihuana Regulation and Taxation Act (MRTA) persons convicted of marihuana offenses which have been eliminated or reduced may move to vacate the conviction. Once vacated, the statute allows the substitution of another conviction but the court must consider whether the substitution serves the interest of justice.

 

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