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CONSECUTIVE SENTENCES WHICH AMOUNTED TO A LIFE SENTENCE WITHOUT PAROLE WERE NOT WARRANTED (FOURTH DEPT).

The Fourth Department, ordering the consecutive sentences to run concurrently, determined a de facto life sentence without parole was not warranted:

Defendant’s conviction stems from his conduct in firing a shotgun at police officers while inside his girlfriend’s home and not allowing the girlfriend’s daughter to leave the home. * * *

… [T]he sentence is unduly harsh and severe. Although defendant’s crimes were undoubtedly serious and could easily have resulted in death or injury to the officers, no one was injured or killed during the shootout. We conclude that the de facto life sentence without parole is not warranted here. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences on the counts of attempted aggravated murder shall run concurrently with each other … . People v Youngblood, 2022 NY Slip Op 00751, Fourth Dept 2-4-22

 

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COUNTY COURT COULD NOT CORRECT AN ILLEGAL SENTENCE WITHOUT FORMALLY RESENTENCING THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, vacating the sentence on one count of the indictment, determined County Court should not have corrected a sentencing mistake without formally resentencing the defendant:

… [T]he sentence originally imposed on the count of criminal possession of a weapon in the third degree was illegal and the court erred in attempting to correct it without formally resentencing defendant at a proceeding at which he was present or securing defendant’s waiver of the right to be present at such a proceeding … . We therefore modify the judgment by vacating the sentence imposed on count two of the indictment, and we remit the matter to County Court for resentencing on that count, at which time defendant must be permitted to appear. People v Abergut, 2022 NY Slip Op 00791, Fourth Dept 2-4-22

 

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THE SEARCH OF DEFEFNDANT’S VEHICLE BY PAROLE OFFICERS WAS NOT COMPLETELY UNRELATED TO AN ILLEGAL FRISK BY A POLICE OFFICER WHICH REVEALED THE CAR KEYS; COCAINE FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing County Court’s denial of a suppression motion and dismissing the indictment, determined the search of defendant parolee’s vehicle after an illegal frisk revealed the keys was not justified. Parole officers accompanied a police investigator to a health facility where defendant was known to be as part of a police, not a parole, investigation. The illegal frisk occurred when defendant left the health facility and before the parole officers learned defendant had driven there in violation of his parole terms. Therefore the search of defendant’s vehicle could not be justified as a distinct and completely unrelated “parole” investigation:

The testimony further establishes that the parole officers’ suspicion of a parole violation and their investigation thereof arose only after defendant’s parole officer requested that the police investigator hand over the fruit of the unlawful search and seizure, i.e., the keys, and the police investigator left the scene. The parole officers began their investigation—pressing the fob, questioning defendant, waiting for the purported owner of the vehicle to emerge from the building, and viewing surveillance footage—as a direct result of the unlawful seizure of the keys from defendant’s person. Indeed, defendant’s parole officer did not learn of defendant’s possible connection to the vehicle until he pressed the fob, which activated the lights of the vehicle. Inasmuch as the investigation by the parole officers was precipitated by the police investigator’s unlawful seizure of the keys from defendant, the subsequent discovery of the contraband in the vehicle was not “based solely on information obtained prior to and independent of the illegal [search and seizure]” … . Thus, the court’s determination that the parole officers’ investigation was independent of the unlawful seizure of the keys is not supported by the record. People v Smith, 2022 NY Slip Op 00790, Fourth Dept 2-4-22

 

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DEFENSE COUNSEL INEFFECTIVE; IN THIS MURDER CASE IN WHICH THE EXTREME EMOTIONAL DISTURBANCE (EED) DEFENSE WAS RAISED, DEFENDANT’S MILITARY SERVICE RECORDS, SOCIAL SECURITY DISABILITY RECORDS AND PTSD DIAGNOSIS SHOULD HAVE BEEN PRESENTED AND A PSYCHIATRIC EXPERT SHOULD HAVE BEEN CONSULTED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing County Court and ordering a new trial, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defendant presented an extreme emotional disturbance (EED) defense in this murder case. But the defense consisted only of his and his girlfriend’s testimony. Defense counsel did not request defendant’s Social Security disability records which showed a post-traumatic-stress-disorder (PTSD) diagnosis related to three tours of duty in Iraq and did not consult an expert about defendant’s PTSD:

Defense counsel testified at the CPL article 440 hearing that, in preparing for trial, she requested and received defendant’s military records, which indicated that defendant had been diagnosed with PTSD, but she did not request or review records relating to defendant’s Social Security disability benefits, even though defendant informed her that he received such benefits. She also accompanied defendant to an interview conducted by the People’s expert, who concluded that defendant was not “suffering from active PTSD symptoms during the shooting,” but she did not seek an independent expert opinion. Rather than introducing expert or medical evidence, defense counsel attempted to establish an EED defense through the testimony of defendant and his girlfriend. Although defense counsel did not clearly recall the details of the case, and her file had been destroyed, she thought that she might have opted not to introduce defendant’s military records at trial because she was uncertain how to lay a foundation for their admissibility.

We conclude on this record that defendant met his burden of establishing that he received less than meaningful representation. People v Jackson, 2022 NY Slip Op 00785, Fourth Dept 2-4-22

 

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MANSLAUGHTER FIRST DEGREE IS NOT AN “ARMED FELONY” WITHIN THE MEANING OF CRIMINAL PROCEDURE LAW 720.10; COUNTY COURT WAS REQUIRED TO DETERMINE WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, determined County Court was required to decide whether defendant in this Manslaughter First Degree case should be afforded youthful offender status:

… [W]e note that defendant’s “waiver of his right to appeal was invalid . . . and, in any event, [would] not bar his contention that [County] Court failed to properly consider youthful offender treatment” … . On the merits, … the court erred in determining that he was ineligible for youthful offender status. … [M]anslaughter in the first degree is not an “armed felony” for purposes of CPL 720.10 (2) (a) (ii) … . Thus, defendant’s eligibility for youthful offender status did not turn … on the existence of a statutory mitigating factor enumerated in CPL 720.10 (3) … . Inasmuch as defendant is otherwise eligible for youthful offender status on this conviction (see CPL 720.10 [1], [2]), the court was obligated to make a discretionary youthful offender determination before imposing sentence (see CPL 720.20 [1] … ). We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record a determination whether defendant should be afforded youthful offender status … . People v Graham, 2022 NY Slip Op 00784, Fourth Dept 2-4-22

 

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DEFENDANT WAS A PRIME, NOT A GENERAL, CONTRACTOR AND DEMONSTRATED HE DID NOT EXERCISE SUPERVISION OR CONTROL OVER PLAINTIFF’S WORK; THEREFORE DEFENDANT WAS NOT LIABLE UNDER LABOR LAW 240(1) AND 241(6); HOWEVER, DEFENDANT DID EXERCISE SOME CONTROL OVER WORK-SITE SAFETY AND THEREFORE MAY BE LIABLE UNDER LABOR LAW 200 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant prime contractor, Kilian, did not supervise or control plaintiff’s work and therefore was not liable on the Labor Law 240(1) and 241(6) causes of action stemming from plaintiff’s fall down an open stairway at a house under construction. The Fourth Department noted the difference between a general contractor and a prime contractor. Here, Kilian (the prime contractor) demonstrated he did not exercise supervision or control over plaintiff’s work. However, Kilian did exercise some control over work-site safety and therefore may be liable under Labor Law 200 for the dangerous condition (open stairwell):

“A general contractor will be held liable under [Labor Law §§ 240 (1) and 241 (6)] if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors” … . Here, Collins, not Kilian, hired plaintiff’s employer to perform work on the project, and Kilian established through the documentary evidence and deposition testimony that he exercised no control or supervision over plaintiff’s work and had no authority to enforce safety standards against plaintiff … . Thus, Kilian established as a matter of law that he was not a general contractor subject to liability pursuant to Labor Law §§ 240 (1) or 241 (6), and plaintiff failed to raise a triable issue of fact … . …

… [T]o the extent that the section 200 claim against Kilian is based on the theory that he was negligent with respect to the dangerous condition of the stairwell, we conclude that Kilian failed to establish as a matter of law that he did not have control over the work site or that he lacked actual or constructive notice of the dangerous condition, i.e., the unguarded, open stairwell … . Clifton v Collins, 2022 NY Slip Op 00780, Fourth Dept 2-4-22

 

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ALTHOUGH THE PRELIMINARY INJUNCTION IN THIS BREACH OF CONTRACT ACTION WAS PROPERLY IMPOSED, SUPREME COURT SHOULD HAVE REQUIRED THE POSTING OF AN UNDERTAKING (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined that, although the preliminary injunction in this breach of contract action was properly imposed, Supreme Court should have provided for an undertaking:

… [T]he court erred in granting the preliminary injunction without providing for an undertaking. With certain exceptions that are not applicable here, prior to the court granting a preliminary injunction, a plaintiff must post an undertaking in an amount fixed by the court (see CPLR 6312 [b] … ), and that requirement may not be waived … . TDA, LLC v Lacey, 2022 NY Slip Op 00779. Fourth Dept 2-4-22

 

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CLAIMANTS’ APPLICATION TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimants’ application to file a late notice of claim against the county in this traffic accident case should not have been granted. Claimants alleged ice and snow had been allowed to accumulate on the road causing the driver to lose control and strike a tree. Claimants’ eight-year-old son was injured. The Fourth Department, in a comprehensive discussion, went through each “late-notice-of-claim” factor and found only one (county not prejudiced by the delay) favored the claimants:

… [O]f all the relevant circumstances evaluated—infancy, reasonable excuse, actual knowledge, and substantial prejudice—only one, lack of substantial prejudice, favored granting claimants’ application. Despite the well-settled principle that “actual knowledge of the claim is the factor that is accorded ‘great weight’ in determining whether to grant leave to serve a late notice of claim” … and instead “weigh[ed] heavily” the lack of substantial prejudice, even though claimants’ showing in that regard, while adequate, was not particularly strong. Under these circumstances—which include the nearly 22-month period between the accident and claimants’ application for leave to serve a late notice of claim, the improper weighing of the substantial prejudice factor at the expense of the actual knowledge factor, and claimants’ failure to demonstrate a nexus between the son’s infancy and the delay or to otherwise proffer a reasonable excuse for the delay—we conclude that the court abused its discretion in granting that part of the application seeking leave to serve a late notice of claim on the County … . Matter of Antoinette C. v County of Erie, 2022 NY Slip Op 00776, Fourth Dept 2-4-22

 

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THE SCHOOL BOARD DID NOT VIOLATE THE OPEN MEETINGS LAW WHEN IT CONSULTED WITH ITS ATTORNEY IN A CLOSED SESSION BEFORE DECIDING NOT TO RENEW PLAINTIFF FOOTBALL COACH’S EMPLOYMENT; THERE IS AN EXCEPTION TO THE OPEN MEETINGS LAW FOR LEGAL ADVICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff high school football coach was not entitled to summary judgment on the cause of action alleging the school board violated the Open Meetings Law by deciding not to renew plaintiff’s employment after a closed meeting. The Open Meetings Law did not apply to the board’s closed-door consultation with its attorney:

It is well settled that “[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]” (Public Officers Law § 103 [a] … ). While an executive session may be called to discuss, inter alia, “matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person” (§ 105 [1] [f]), the public body may do so only upon a majority vote of its membership and after “identifying the general area or areas of the subject or subjects to be considered” (§ 105 [1]). However, section 108 (3) clarifies that “[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law.” Because “communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in [a] determination . . . , are exempt from the provisions of the Open Meetings Law” … .

There is no dispute that, during the closed session … , the Board and the District superintendent met with the District’s counsel seeking legal advice “regarding the [p]laintiff’s legal employment status, employment rights, [and] the process for appointing school employees.” We thus agree with defendants that the attorney-client exemption applies and that the court erred in determining that there was a violation of the Open Meetings Law … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2022 NY Slip Op 00772, Fourth Dept 2-4-22

 

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PETITIONER-MOTHER’S APPLICATION TO HAVE THE MALTREATMENT FINDING DEEMED UNFOUNDED AND EXPUNGED PROPERLY DENIED; MOTHER WOULD NOT ALLOW HER 16-YEAR-OLD DAUGHTER INTO THE HOME; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, affirmed the NYS Office of Children and Family Services’ (OCFS’s) denial of petitioner-mother’s application to have reports by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged. Petitioner allegedly refused to allow her 16-year-old daughter into the home, which caused her daughter to find other places to stay. The dissent agreed with the majority’s conclusion that mother’s failure to exercise adequate care and supervision constituted maltreatment, but disagreed with the majority’s finding that the daughter was placed in imminent risk of danger:

From the dissent:

OCFS’s decision recited a plethora of facts relative to petitioner’s failure to exercise the requisite degree of care or supervision. The same cannot be said regarding whether such failure harmed the child or imminently harmed the child. Rather, only in a conclusory fashion did OCFS find that petitioner’s failure to exercise a minimum degree of care caused the child’s physical, mental or emotional condition to be impaired or to be in imminent danger of being impaired. Indeed, OCFS’s decision noted, and the record confirms, that, when the child stayed with the neighbor, the neighbor’s residence was “safe” and posed “no concerns.” OCFS also noted that the neighbor was approached about potentially obtaining custody of the child. Based on what OCFS found, substantial evidence, in our view, does not support the determination that the child was harmed or was in imminent risk of harm … . Matter of Tammy OO. v New York State Off. of Children & Family Servs., 2022 NY Slip Op 00706, Third Dept 2-3-22

 

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