You are here: / CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST...

Search Results

/

CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined the inclusory concurrent count must be dismissed despite the failure to request that it be presented to the jury in the alternative:

… [U]nder the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the indictment (Penal Law § 215.51[b][i]) without also having committed the crime of criminal contempt in the second degree as charged in count 11 of the indictment (Penal Law § 215.50[3]). As these counts were “inclusory concurrent counts” as defined by CPL 300.30(4), a verdict of guilty upon the greater is deemed a dismissal of every lesser (see CPL 300.40[3][b]). Thus, although the defendant did not request that the subject counts be charged in the alternative, the conviction of the lesser count must be dismissed … . People v Bentley, 2020 NY Slip Op 04753, Second Dept 8-26-20

 

/ , ,

CERTAIN DISCOVERY DEMANDS IN THIS NEGLIGENCE AND PUBLIC HEALTH LAW ACTION AGAINST A RESIDENTIAL CARE FACILITY ON BEHALF OF A FORMER RESIDENT SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain discovery demands by plaintiff should have been granted. Plaintiff’s decedent was a resident at defendant’s residential care facility and plaintiff brought an action against the facility alleging negligent care and violations of Public Health law 2801-d:

Supreme Court should have granted those branches of the plaintiff’s motion which were to compel the defendants to comply with (1) his discovery demand number 30, (2) his discovery demand number 32 to the extent that it demands “[a]ll documents relating to meals provided to” the decedent, (3) his discovery demand number 33 to the extent that it demands “[a]ll documents relating to bed changing records for” the decedent, (4) his discovery demand number 34 to the extent that it demands “[a]ll documents relating to [the] movement of” the decedent, (5) his discovery demand number 35 to the extent that it demands “[a]ll documents relating to [the] washing of” the decedent, (6) his discovery demand number 36 to the extent that it demands “[a]ll documents relating to the change of position of” the decedent, and (7) his discovery demand number 51. Those demands related to the decedent’s care, the staffing of nurses and nursing assistants who provided care to the decedent, and complaints or investigations of alleged substandard care or abuse involving the decedent … . Olmann v Willoughby Rehabilitation & Health Care Ctr., LLC, 2020 NY Slip Op 04750, Second Dept 8-26-20

 

/ , ,

PETITION FOR A LICENSE PURSUANT TO RPAPL 881 TO ENTER A CONDOMINIUM TO MAKE REPAIRS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the petition for a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to temporarily enter a condominium to make repairs was properly granted:

RPAPL 881 allows the owner of “real property” to petition for a license to enter the “premises” of an adjoining owner when such entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owner has refused such access … . RPAPL 881 applies to “real property,” defined as “lands, tenements and hereditaments” (Real Property Law § 2). Similarly, Real Property Law § 339-g provides that “[e]ach unit, together with its common interest, shall for all purposes constitute real property.” Thus, the petitioners’ condominium unit constitutes “real property” within the meaning of RPAPL 881. …

… [W]e agree with the Supreme Court’s determination to grant that branch of the petition which was pursuant to RPAPL 881 for a license to temporarily access the appellants’ unit. The court directed that access be limited to 10 consecutive days, that the petitioners return the unit to its original condition, that the appellants be financially protected by the naming of the appellants as additional insureds on the relevant construction insurance policy, that the petitioners pay the appellants a license fee of $100 per day, and that the petitioners indemnify the appellants for any loss … . Matter of Voron v Board of Mgrs. of the Newswalk Condominium, 2020 NY Slip Op 04747,  Second Dept 8-26-20

 

/

PEOPLE’S REQUEST TO WITHHOLD DISCOVERY UNTIL FIFTEEN DAYS BEFORE A HEARING OR TRIAL, FOR THE WITNESSES’ SAFETY, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a memorandum which did not discuss the facts, determined the People’s request to withhold discovery until 15 days before a hearing or trial, for the witnesses’ safety, should have been granted:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying these standards to the matters at hand, I conclude that the Supreme Court’s determination to grant the People’s request only to the extent indicated was an improvident exercise of discretion. Under the particular facts and circumstances presented, concerns for witness safety and protection far outweigh the usefulness of the discovery of the material or information in question. People v Morales-Aguilar, 2020 NY Slip Op 04721, Second Dept 8-24-20

 

/ , ,

WHETHER MOTHER MOVED MORE THAN 40 MILES WAS AN ISSUE IN THIS MODIFICATION OF CUSTODY ACTION; FAMILY COURT TOOK JUDICIAL NOTICE THAT THE MOVE WAS 39 MILES; THE DISSENT ARGUED FAMILY COURT DID NOT DISCLOSE THE BASIS OF THE JUDICIAL NOTICE WHICH PRECLUDED A CHALLENGE TO THE FINDING (THIRD DEPT).

he Third Department determined Family Court properly found that mother had not moved beyond the 40-mile limit imposed by the settlement agreement. The Family Court judge took judicial notice of the distance involved in the move which was determined to be 39 miles. The dissent argued Family Court erred in not specifying the basis for the judicial notice, thereby making it impossible to challenge:

From the dissent:

Although it is well settled that “‘a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of undisputable accuracy'” … , judicial notice of a fact is improper when it is “from a hearsay source or from unidentifiable or nonindisputable sources outside the record or at a time subsequent to the close of testimony” … . Fundamental fairness thus dictates that a court, before it takes judicial notice of a fact, provide the parties with the basis for its notice and “afford the parties the opportunity to be heard as to the propriety of taking judicial notice in the particular instance” … . Otherwise, the determination of whether such fact is or is not “of common knowledge or determinable by resort to sources of indisputable accuracy” cannot be properly tested or reviewed … .

… .Family Court never disclosed the basis for its 39-mile calculation, and it announced that it was taking judicial notice of that “fact” after testimony had concluded and only in the context of its written decision. As such, the parties never had an opportunity to be heard on this issue or dispute the basis for such judicially noticed finding. Nor does the record reflect that Family Court had a factual basis for its conclusion that the relocation provision of the agreement — which the court itself recognized as ambiguous — required that the 40-mile radius be measured between the outermost borders of Deposit and Clarks Summit, rather than from the parties’ respective residences or some other location, particularly since the language of the agreement requires the mother’s residence for the children, and not the boundary line of Clarks Summit, to be within a 40-mile radius from an undetermined location in Deposit. Indeed, the testimony of both parties contradicts the court’s interpretation … . Matter of Lonny C v Elizabeth C., 2020 NY Slip Op 04620, Third Dept 8-20-20

 

/ ,

THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

/ , ,

THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the “luring a child” convictions, over a two-justice dissent, determined the convictions were against the weight of the evidence. The court noted that if the evidence of an element of an offense is legally insufficient the conviction of that offense is against the weight of the evidence:

The evidence at trial established that, when defendant was 30 years old, he met 16-year-old BD on an adult dating website. The two thereafter communicated via cell phone, text messages, Facebook messaging, Skype and Snapchat. Shortly thereafter, NS, a friend of BD, initiated contact with defendant through Facebook. NS was also 16 years old at the time. While communicating for weeks with both BD and NS via cell phone, text messages, Facebook, Skype and Snapchat, defendant lied about his age and his military status, among other things. Also, he flattered the girls by saying that they were “really cute” and that he “really liked” them. Both girls lived in Ontario County and were juniors in high school.

Defendant eventually met NS in person and drove her to his house in Monroe County, where they had sexual intercourse. Over the ensuing two or three weeks, defendant drove NS to his house three more times to engage in sexual activity. In the meantime, defendant twice had both sexual intercourse and oral sexual contact with BD, once at her house in Ontario County after picking her up at school and driving her home, and the other time at his house after driving her there. * * *

… [T]o convict defendant of luring a child, the People were required to establish that, on or about the dates alleged in the indictment, defendant lured the victims into his motor vehicle, that the victims were less than 17 years of age, and that defendant engaged in that activity for the purpose of committing a felony sex offense against the victims … . In our view, the People failed to prove that defendant lured the victims into a motor vehicle. …

The fact that defendant drove the victims to his house days and weeks later cannot transform his statements into luring. People v Ringrose, 2020 NY Slip Op 04719, Fourth Dept 8-20-20

 

/ ,

THE JURY FOUND THE DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY WHICH AFFECTED HIS ABILITY TO CONTROL HIS BEHAVIOR AND WAS THEREFORE ENTITLED TO RELEASE; UPON THE STATE’S MOTION THE VERDICT WAS SET ASIDE; THE APPELLATE DIVISION REVERSED FINDING THAT THE STATE WAS NOT PREJUDICED BY ALLEGED JUROR MISCONDUCT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the sex offender civil management verdict, which found defendant did not suffer from a mental abnormality and was therefore entitled to release, should not have been set aside. The state argued the jury foreperson’s telling the jury that, according to the foreperson’s father, “if inmates wanted to do something in prison they could do it” constituted jury misconduct. The remark was relevant to the expert testimony about the ways an inmate can act out sexually. The defendant argued he had not been cited for sexual misbehavior during his 30 years in prison, so the evidence he could have acted out was relevant to his ability to control his behavior:

… [W]e conclude that petitioner [the state] was not prejudiced by the foreperson’s failure to disclose during voir dire that his father previously worked as a correction officer… . We note that several of the jurors in this case either worked in prison or had close relations who worked as correction officers or in law enforcement. Neither party seems to have considered that to have been a disqualifying attribute because those jurors were selected to serve on the jury. Indeed, because the trial was held in the shadow of Auburn Correctional Facility, it would have been difficult for the parties to select 12 qualified jurors with no connection to the prison. Petitioner’s attorney was well aware of that fact and seized upon it during summation, urging the jurors to draw upon their knowledge of the internal workings of prisons in order to decide the case. Petitioner had every reason to believe that a jury packed with prison employees and their relations would likely return a verdict unfavorable to the convicted offender. Petitioner cries foul only because its strategy backfired. Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20

 

/ ,

ALTHOUGH THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING A VIOLENT COURTROOM SCENE IN A MOVIE TO BE PLAYED FOR THE JURY BECAUSE THE DEFENDANT HAD QUOTED DIALOGUE FROM IT, THE ERROR WAS HARMLESS; THE DISSENT ARGUED IT WAS NOT HARMLESS ERROR (FOURTH DEPT).

The Fourth Department determined it was harmless error to allow the prosecutor in this murder case to show part of a movie from which the defendant had posted dialogue. The dissent argued the error was not harmless:

… [T]he court abused its discretion when it permitted the prosecutor to play for the jury a scene from the film, The Boondock Saints. The scene takes place inside a courtroom, where the protagonists threaten everyone with pistols. Some people in the scene, presumably those playing the jurors, watch in astonishment while ducking for cover. The protagonists make loud, self-aggrandizing statements, declaring themselves vigilantes tasked by God with bringing justice to the world (e.g. “Each day we will spill their blood till it rains down from the sky!”). For those who do not behave morally, the protagonists offer a message: “One day you will look behind you and you will see we three . . . and we will send you to whichever God you wish.” The protagonists put their guns to the back of the defendant’s head while he is knelt on the floor in an execution-style pose. Gunfire erupts, and everyone runs out of the courthouse screaming.

The prosecutor’s ostensible reason for playing that particular scene was to rebut defendant’s testimony that he was coerced by his accomplice into participating in the murder and subsequently lying to the police. The relevance of that scene is that defendant posted quotations from it on social media two days after the victim’s murder and one day before he gave the allegedly coerced statement to the police. …

Because the probative value of the scene from The Boondock Saints video was substantially outweighed by the danger that its admission would prejudice defendant or mislead the jury, the court abused its discretion in admitting it … . People v Horn, 2020 NY Slip Op 04712, Fourth Dept 8-20-20

 

/

TREE-CUTTING IS A COVERED ACTIVITY PURSUANT TO LABOR LAW 240 (1) AND 241 (6) IF DONE IN CONNECTION WITH A COVERED CONSTRUCTION PROJECT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor 240 (1) should not have been granted, defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied, and defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted. Plaintiff was injured cutting trees, which is a covered activity when done in connection with a construction project:

Although trees are not structures and tree removal in and of itself is not an enumerated activity within the meaning of Labor Law § 240 (1), tree removal performed to facilitate an enumerated activity does come within the ambit of this statute (see Lombardi v Stout, 80 NY2d 290, 296 [1992]). Defendant failed to meet its initial burden on that part of its motion because defendant’s own submissions raised a triable issue of fact whether plaintiff’s tree removal work at the time of the accident was ancillary to the larger construction project, specifically the culvert installation work, that was ongoing at the time of the accident … . Contrary to plaintiff’s further contention, however, the court properly denied his cross motion seeking summary judgment on the issue of defendant’s liability under section 240 (1) inasmuch as plaintiff failed to eliminate all triable issues of fact whether his tree removal work “[fell] into a separate phase easily distinguishable from other parts of the larger construction project” … . …

Although it is well settled that Labor Law § 241 (6) does not apply to a worker who engages in tree trimming that is unrelated to construction, demolition or excavation work … , as noted above, there is a triable question of fact whether plaintiff’s work at the time of his accident was related to the culvert installation work and was thus related to construction, demolition or excavation work.  …

[Re: the Labor law 200 cause of action] defendant met its burden … by submitting evidence establishing “that the alleged dangerous condition arose from the . . . methods [of plaintiff’s employer] and that defendant did not exercise supervisory control over the removal of the tree or any aspect of plaintiff’s activities” … . Krencik v Oakgrove Constr., Inc., 2020 NY Slip Op 04642, Fourth Dept 8-20-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy