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CONSIDERING ALL THE MITIGATING FACTORS, DEFENDANT SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault conviction in the interest of justice and adjudicating defendant a youthful offender, in a full-fledged, comprehensive opinion by Justice Troutman, determined mitigating factors supported youthful offender status. Defendant was attacked by another high school student and didn’t realize the victim, a teacher, had intervened. The defendant injured the teacher’s hand with a knife. The Fourth Department went through all the so-called Cruikshank mitigating factors (People v Cruickshank, 105 AD2d 325, 334 [3d Dept 1985]) and further noted the sentencing court did not abuse its discretion by considering additional factors not mentioned in Cruikshank. All involved, including the prosecutor, the victim and the probation department, had recommended a youthful offender adjudication:

In addition to the Cruickshank factors, the parties raised and the court considered additional matters related to equity and discrimination. We reject defendant’s contention that the court abused its discretion in considering matters outside the Cruickshank factors. The applicable precedent states that the factors that must be considered “include” those nine factors … , and thus, as a matter of logic, those factors were never meant to be an exhaustive list of considerations. We conclude that matters of equity and discrimination are appropriate for sentencing courts to consider. Although we do not conclude that the court abused its discretion, we urge future courts to consider whether a defendant may be facing discrimination based on protected characteristics such as race or gender and to take an intersectional approach by considering the combined effect of the defendant’s specific characteristics and any bias that may arise therefrom … . Here, the prosecutor employed appropriate and effective restorative justice techniques and advocated for the result he believed just. We note that “prosecutors have ‘special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … , and this prosecutor deserves to be commended for discharging those responsibilities here. People v Z.H., 2020 NY Slip Op 07824,, Fourth Dept 12-23-20

 

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WITNESS TAMPERING CONVICTION AFTER TRIAL REVERSED; NO CHARGES WERE PENDING AT THE TIME OF THE COMMUNICATIONS WITH THE WITNESS (FOURTH DEPT).

The Fourth Department, reversing the witness tampering conviction and dismissing the indictment, determined the evidence was legally insufficient:

On appeal from a judgment convicting him upon a jury verdict of tampering with a witness in the third degree … , defendant contends that the conviction is based upon legally insufficient evidence. We agree. Although the evidence established that defendant assaulted the victim in violation of an order of protection and a few days later left the victim voicemails threatening her with violence if she pressed charges against him, defendant had not yet been arrested or charged with a crime in connection with the violation of the order of protection at the time he left the voicemails. Thus, at that time, the victim was not “about to be called as a witness in a criminal proceeding” … . People v Diroma, 2020 NY Slip Op 07817, Fourth Dept 12-23-20

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HE REPRESENTED HIMSELF AT RESENTENCING (FOURTH DEPT). ​

The Fourth Department, reversing the resentencing, determined defendant was deprived of his right to counsel when he represented himself at resentencing:

We agree with defendant’s contention in his main and pro se supplemental briefs, as the People correctly concede, that he was deprived of his right to counsel when Supreme Court permitted defendant to represent himself at the resentencing proceeding without properly ruling on defendant’s multiple requests for assignment of counsel … . Denial of the right to counsel during a particular proceeding does not invariably require remittal for a repetition of the tainted proceeding, or any other remedy, inasmuch as “the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole” … . Here, however, the court’s failure to consider defendant’s motion for assigned counsel had an adverse impact on the resentencing proceeding because the absence of counsel prevented defendant from, inter alia, adequately contesting his adjudication as a second felony offender and arguing against the imposition of the maximum sentence permissible under the law. We therefore reverse the resentence and remit the matter to Supreme Court for resentencing, and we direct the court to ensure that defendant is afforded his right to counsel … . People v Caswell, 2020 NY Slip Op 07810, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS DEFENDANT’S EXPERT’S OPINION THAT NERVE DAMAGE WAS NOT THE RESULT OF DEVIATION FROM THE STANDARD OF CARE; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit did not raise a question of fact in this medical malpractice case:

Although plaintiff submitted a physician’s affidavit in opposition to defendant’s motion, “[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician’s summary judgment motion” … . Where “the expert’s ultimate assertions are . . . unsupported by any evidentiary foundation, . . . [his or her] opinion should be given no probative force and is insufficient to withstand summary judgment” … . Here, plaintiff’s expert did not rebut the opinion in defendant’s affidavit that defendant’s surgical technique was appropriate to the situation in light of the fact that decedent’s lung was adherent to the heart, nor did plaintiff’s expert rebut defendant’s opinion that any possible phrenic nerve damage was the result of stretching caused by traction sutures and did not constitute a deviation from the standard of care. Campbell v Bell-Thomson, 2020 NY Slip Op 07807, Fourth Dept 12-23-20

 

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THE SENTENCING COURT DID NOT CONSIDER THE REQUIRED FACTORS WHEN SENTENCING DEFENDANT AFTER DEFENDANT’S VIOLATION OF THE TERMS OF INTERIM PROBATION; SENTENCE VACATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the sentencing court did not take the necessary factors into consideration in sentencing defendant after defendant violated the terms of interim probation:

We agree with defendant that the court failed to exercise its discretion at sentencing. “[T]he sentencing discretion is a matter committed to the exercise of the court’s discretion . . . made only after careful consideration of all facts available at the time of sentencing” … . Due consideration should be “given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … .

Here, the court initially imposed a sentence of interim probation and advised defendant that, if he violated the terms of interim probation, the court would impose a term of 4½ years’ incarceration with 3 years’ postrelease supervision. When defendant violated the terms of interim probation, the court informed defendant at sentencing that it would not consider a lesser sentence because “your word is your word. That was the deal. I don’t think that would speak well for the program nor would it speak well of me . . . I’d lose confidence in myself.” The court further stated that “[w]e made an agreement, we made a deal . . . I’m going to abide by that deal.” The sentencing transcript is devoid of any indication that the court considered the crime charged, defendant’s circumstances, or the purpose of the penal sanction … . Nor is there any indication that the court considered the presentence report, which was prepared after the plea. We conclude that “the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis” … . People v Ruise, 2020 NY Slip Op 07785, Fourth Dept 12-23-20

 

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THERE IS NO CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION IN NEW YORK; PLAINTIFF’S DECEDENT, A CHILD, WAS MURDERED BY MOTHER’S BOYFRIEND: THE SUIT ALLEGING THE COUNTY DID NOT ADEQUATELY INVESTIGATE PRIOR REPORTS OF CHILD ABUSE SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the complaint, determined there is no cause of action for negligent investigation in New York:

At the age of five, plaintiff’s decedent was brutally murdered by his mother’s boyfriend … . Plaintiff thereafter commenced this wrongful death action, alleging that the County of Erie (defendant), through its Child Protective Services office, had inadequately investigated multiple prior reports of child abuse and neglect concerning the decedent child. …

As defendant correctly contends, “New York does not recognize a cause of action sounding in negligent investigation” of child abuse and neglect … . “Moreover, ‘a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Hart v County of Erie, 2020 NY Slip Op 07779, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action alleging defendant doctor caused the bowel perforation should have been dismissed because plaintiff’s expert’s affidavit did not address it:

The affidavit of plaintiff’s expert addressed defendant’s conduct only with respect to the claims that he failed to diagnose and treat the bowel perforation intraoperatively and failed to timely and properly treat the bowel perforation postoperatively. Plaintiff’s expert acknowledged that bowel perforation is a known complication from this type of surgery. Thus, plaintiff failed to raise a triable issue of fact with respect to the claims that defendant negligently caused the bowel perforation … . We therefore conclude that the court erred in denying defendant’s motion with respect to those claims, and we modify the order accordingly. Bristol v Bunn, 2020 NY Slip Op 07773, Fourth Dept 12-23-20

 

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CLAIMANT’S DECEDENT WAS KILLED IN A MULTIVEHICLE ACCIDENT IN WHITE OUT CONDITIONS ON A STATE HIGHWAY; QUESTIONS OF FACT ABOUT NOTICE OF THE RECURRING CONDITION AND PROXIMATE CAUSE (NO SNOW FENCE) WERE RAISED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this “white out” traffic accident case should not have been granted. Claimants argued the state had notice of a recurring white=out condition caused by blowing snow on a portion of a state highway. Claimant’s decedent died in a multivehicle accident in white out conditions:

… [T]he claimants raised a triable issue of fact with respect to whether defendant had actual knowledge of “an ongoing and recurring dangerous condition in the area of the accident” … . Notably, claimants submitted a Highway Safety Investigation Report that was prepared by an employee of defendant in December 2008. The report states that it was written in response to the subject accident with the purpose of “evaluat[ing] the frequency and potential for similar accidents and evaluate potential countermeasures.” The report compared the number and severity of the accidents on that portion of highway to those occurring elsewhere on I-390, and noted that, “[a]lthough the number of accidents in the study area was lower, the severity of the accidents was [greater].” The report also noted that “[s]everal factors exist which increase the degree of risk of poor visibility and drifting due to blowing snow in this section.” Such factors included the large, flat airport property next to the highway, the “abrupt, topographic change due to the proximity of the airport runway and former Pennsylvania railroad embankment,” and the section’s slight reverse curve. The data thus suggested that “snow on the road [was] an issue to be addressed in this area” and that, although the number of accidents was not extraordinarily high, “their occurrence was sufficiently sensational, disquieting to the public, and disruptive to the traveling public and [defendant] to justify making more than ordinary efforts to prevent them.” Furthermore, the deposition testimony of employees of defendant established that, for years prior to the accident, blowing and drifting snow had been an issue on that section of I-390.

We also agree with claimants that the court erred in determining that defendant established that the lack of a snow fence was not a proximate cause of the accident. Klepanchuk v State of N.Y. Dept. of Transp., 2020 NY Slip Op 07766, Fourth Dept 12-23-20

 

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FAILURE TO FILE A NOTICE OF CLAIM AGAINST THE NEW YORK TRANSIT AUTHORITY (AS OPPOSED TO THE CITY OF NEW YORK) IN THIS SLIP AND FALL CASE, AND THE FAILURE TO APPLY FOR PERMISSION TO FILE A LATE NOTICE OF CLAIM, GAVE RISE TO THIS LEGAL MALPRACTICE AND JUDICIARY LAW 487 ACTION WHICH SHOULD NOT HAVE BEEN DISMISSED; THE DISTINCTION BETWEEN THE TWO CAUSES OF ACTION EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice and Judiciary Law 487 causes of action against one of two groups of attorney-defendants should not have been dismissed. The first group of attorneys (the Schneider defendants) failed to file a timely notice of claim against the New York Transit Authority (NYTA) in this slip and fall case. Then plaintiff retained the second group of attorneys (the Kletzkin defendants) and the action was dismissed with prejudice. Then plaintiff sued both groups of attorneys for legal malpractice and for violations of Judiciary Law 487. Supreme Court granted the Kletzkin defendants motion to dismiss and denied the Schneider defendants’ motion to dismiss. The facts were not discussed, but the court noted the difference between a legal malpractice and a Judiciary Law 487 cause of action:

… [T]he plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile … .

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” … . Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849, Second Dept 12-23-20

 

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