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ALTHOUGH THE ‘LEGALLY INSUFFICIENT EVIDENCE’ ISSUE WAS NOT PRESERVED BY THE MOTION FOR A TRIAL ORDER OF DISMISSAL, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; THE ELEMENT OF RECKLESSNESS IN THIS ASSAULT CASE WAS LEGALLY INSUFFICIENT; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault convictions and dismissing the indictment, determined the evidence of recklessness was legally insufficient. Although the issue was not preserved by the motion for a trial order of dismissal, the appeal was heard in the interest of justice. The facts were not described:

Defendant failed to preserve that contention for our review, however, “because [her] motion for a trial order of dismissal was not specifically directed at the ground[] advanced on appeal’ ” … . We nevertheless exercise our power to review her challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant that the conviction of both counts of assault in the third degree is not supported by legally sufficient evidence … . The evidence submitted by the People is insufficient to establish that defendant acted recklessly, “i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation” … . People v Romeiser, 2020 NY Slip Op 04054, Fourth Dept 7-17-20

 

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THE BURGLARY PLEA COLLOQUY DID NOT INDICATE DEFENDANT INTENDED TO COMMIT A CRIME OTHER THAN TRESPASS IN THE PREMISES; THEREFORE THE COLLOQUY NEGATED AN ESSENTIAL ELEMENT OF THE CRIME; PRESERVATION FOR APPEAL IS NOT REQUIRED FOR THIS GENRE OF ERROR (FOURTH DEPT).

The Fourth Department vacated defendant’s plea to burglary because the colloquy negated an essential element of the offense. The court noted that this type of error does not require preservation for appeal. The intent to commit burglary includes the intent to commit a crime in the premises other than trespass:

Although we agree with the People that defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … , this case nevertheless falls within the rare exception to the preservation requirement … . Where a defendant’s recitation of the facts “negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered” … .

Here, defendant’s factual recitation negated at least one element of the crime. Specifically, defendant negated the “intent to commit a crime therein” element of burglary (Penal Law § 140.25) because his factual recitation contradicted any allegation that “he intended to commit a crime in the apartment other than his trespass” ( … see § 140.25). Criminal trespass in the second degree “cannot itself be used as the sole predicate crime in the intent to commit a crime therein’ element of burglary” … . The court thus had a duty to conduct an inquiry to ensure that defendant understood the nature of the crime … . Instead, the court stated, “I just want to make sure . . . [that] you still accept [the plea deal], because you have an absolute right to go to trial . . . I think you understand . . . [t]hat your defense of you going to the bathroom may be a difficult sell to a jury.” Because that minimal inquiry by the court did not clarify the nature of the crime in order to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea. People v Hernandez, 2020 NY Slip Op 04049, Fourth Dept 7-17-20

 

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FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court. determined a firefighter was not entitled to back pay for the suspension period while awaiting a disciplinary hearing because the firefighter (or his attorney) was responsible for the delay:

Civil Service Law § 75 provides that a public employee may be suspended without pay for a maximum of 30 days while awaiting a hearing on disciplinary charges (see § 75 [3]). Although an employee suspended without pay for a longer period under those circumstances is generally entitled to receive back pay, he or she waives any claim to back pay if a delay in the disciplinary hearing beyond the 30-day maximum is “occasioned by” his or her own conduct … .

We agree with respondents that petitioner is not entitled to reinstatement or back pay because petitioner was solely responsible for the delay. Petitioner’s attorney is an experienced practitioner familiar with Civil Rights Law § 50-a. As such, petitioner’s attorney either knew or should have known that, in order to secure production of the [the disciplinary file of Kelly, another firefighter], section 50-a required that he obtain either Kelly’s consent or a court order. Indeed, respondents publicly announced in multiple press releases several months before the arbitration that Kelly’s file was confidential pursuant to section 50-a. Moreover, petitioner’s attorney had specific knowledge of the contents of the file because he was involved professionally in the investigation of Kelly’s misconduct. Based on that experience and knowledge, petitioner could have taken steps to obtain the file long before the arbitration commenced, such as asking Kelly for his consent or commencing a proceeding to obtain a court order. Because petitioner failed to take any action, “the entire period of delay in holding the hearing resulted from his dilatory tactics” … . Matter of Carcone v City of Utica, 2020 NY Slip Op 04103, Fourth Dept 7-17-20

 

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BECAUSE PETITIONER WAS REINSTATED IN HER JOB AND BACKPAY HAD BEEN PROVIDED FOR THE PERIOD OF WRONGFUL SUSPENSION BY THE TIME THE CONTEMPT HEARING WAS HELD, PETITIONER COULD NOT SHOW SHE HAD BEEN PREJUDICED BY ANY FAILURE TO COMPLY WITH THE RELEVANT ORDER; THEREFORE THE EMPLOYER SHOULD NOT HAVE HELD IN CONTEMPT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s employer (NYS Department of Transportation [DOT}]) should not have been held in contempt for the alleged failure to quickly restore petitioner to the payroll and provide backpay because DOT had fulfilled those directives by the time the contempt hearing was held:

… [W]e conclude that the court erred in granting that part of petitioner’s motion seeking to have the DOT respondents adjudged in contempt of the October 2015 judgment. “A finding of civil contempt must be supported by four elements: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) [i]t must appear, with reasonable certainty, that the order has been disobeyed; (3) the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party; and (4) prejudice to the right of a party to the litigation must be demonstrated” … . A movant seeking a contempt order bears the burden of establishing the foregoing elements by clear and convincing evidence … . We review a court’s ruling on a contempt motion for an abuse of discretion … .

Here, we conclude that petitioner failed to show by clear and convincing evidence that the failure of the DOT respondents to immediately comply with the directives of the October 2015 judgment ” defeat[ed], impair[ed], impede[d] or prejudice[d]’ ” petitioner’s rights … . We are mindful that “[a]ny penalty imposed [for a civil contempt] is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both” … . By the time the court conducted the hearing on petitioner’s contempt motion, it was undisputed that she had been restored to the payroll, was receiving payment, and had been awarded back pay for the time she was wrongly suspended without pay. Thus, the goals of civil contempt would not be furthered by granting petitioner’s motion absent any prejudice to her once the relevant DOT respondents complied with the directives of the October 2015 judgment and restored her to paid status. Matter of Mundell v New York State Dept. of Transp., 2020 NY Slip Op 04099, Fourth Dept 7-17-20

 

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CLAIMANT FINANCIAL ADVISOR HIRED TO SELL INSURANCE PRODUCTS WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant financial advisor who entered a written agreement to sell insurance products for Penn Mutual was an employee entitled to unemployment insurance benefits:

Claimant testified that he filled out an application with Penn Mutual, participated in an interview at which his commission rate and initial stipend were discussed, underwent a background check and thereafter signed a full-time soliciting agent’s contract … . Although claimant had to pay a monthly telephone fee, as well as any postage or photocopying costs that he incurred, he was provided a cubicle at Penn Mutual’s office, the use of the company’s receptionist and the ability to book a conference room, all at no charge to him. Claimant was given an in-house email address as well as letterhead and business cards bearing the agency’s name and address. Additionally, claimant was afforded the opportunity to qualify for health/dental insurance … and to participate in a matching 401(k) program; claimant also initially was covered under Penn Mutual’s errors and omissions policy. Claimant acknowledged that he was able to set his own schedule and to sell insurance products other than those offered by Penn Mutual; however, he also testified that he was required to meet with his managing director almost weekly, and that the managing director, in turn, scheduled training workshops that claimant was strongly encouraged to attend, reviewed and, if necessary, corrected the client applications submitted by claimant, directed claimant to develop a business plan and helped him do so, provided feedback on claimant’s performance, as set forth in the sales quarterly reports generated by Penn Mutual, and warned him that his contract might not be renewed if his performance was not satisfactory … . Matter of Thorndike (Penn Mut. Life Ins. Co.–Commissioner of Labor), 2020 NY Slip Op 03964, Third Dept 7-16-20

 

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DEPARTMENT OF HEALTH PROPERLY DENIED THE FOIL REQUEST FOR CERTAIN DOCUMENTS ON THE GROUND THE DOCUMENTS WERE NOT ‘REASONABLY DESCRIBED’ (THIRD DEPT).

The Third Department determined the respondent’s (NYS Department of Health’s) denial of petitioners’ request for certain documents relating to respondents’ communications with Ancestry.com concerning death records was properly denied on the ground the requested documents were not “reasonably described” such that they could be located with a “reasonable effort:”

… [R]espondent established that its indexing system did not permit searching either its paper or electronic records by the name of an entity, and that it had no method of searching its correspondence records, whether on paper or in digital form, for the terms provided in petitioners’ request. * * *

… [W]e find that respondent satisfied its burden to demonstrate that petitioners’ FOIL request did not provide a reasonable description of the records sought that was adequate to permit respondent to identify and locate the requested documents … . Matter of Reclaim the Records v New York State Dept. of Health, 2020 NY Slip Op 03968, Third Dept 7-16-20

 

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THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirmed defendant’s murder conviction after addressing several unusual issues in depth: (1) The prosecutor obtained a ex parte order allowing the opening and reading of defendant’s non-legal mail to determine whether defendant was threatening an eyewitness. After reading two batches of mail, the prosecutor determined no threats were being made, informed defense counsel of the order and turned the mail over to defense counsel. The First Department determined there were no related grounds for disqualifying the prosecutor or for granting a mistrial. (2) When the defendant was on the stand he denied knowing the knife (murder weapon) could be flipped open with one hand. During her questioning the prosecutor demonstrated that the knife could be flipped open. The Second Department determined the “prosecutor-as-an-unsworn witness” argument did not warrant a mistrial, in part because of the curative instructions to the jury. (3) The knife was brought into the jury room after a request from the jury about which the court and the attorneys were not made aware. The judge and the attorneys had agreed that the jury’s examination of the knife would be allowed and the examination was done according to the agreed procedure. This was not an O’Rama violation because it involved only the examination of a physical object, not an instruction or the substance of any trial evidence. Therefore a mistrial on this ground was not warranted. People v Jenkins, 2020 NY Slip Op 04014, First Dept 7-16-20

 

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AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Article 78 review must be confined to the ground asserted in the agency’s initial FOIL decision and could not consider the grounds asserted in the agency’s subsequent decision issued after petitioner brought the Article 78 proceeding. The ground for the initial decision had been abandoned in the second decision. The court noted that the petitioner’s demand for the metadata of the disclosed documents must be denied because metadata was not “reasonably described” in the FOIL request:

This proceeding is not in the nature of mandamus to compel. Instead, the standard of review is whether the denial of the FOIL request was “affected by an error of law” (CPLR 7803[3] … ), for which judicial review is “limited to the grounds invoked by the agency” in its determination … . Since respondents abandoned the exemption raised in their initial decision, they cannot meet their burden to “establish[] that the . . . documents qualif[y] for the exemption” … . Further, as respondents “did not make any contemporaneous claim that the requested materials” fit the newly raised exemptions, “to allow [them] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL” … . …

An agency is only required to produce “a record reasonably described” (Public Officers Law § 89[3][a]). Contrary to petitioner’s contention, the FOIL request for “complete copies” of communications and documents cannot fairly be read to have implicitly requested metadata associated with those copies. Matter of Barry v O’Neill, 2020 NY Slip Op 04007, First Dept 7-16-20

 

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DEFENDANT’S SENTENCE REDUCED TO TIME-SERVED BASED UPON HIS HEALTH (FIRST DEPT).

The First Department reduced defendant’s sentence for assault second, aggravated harassment and criminal possession of a weapon based upon defendant’s health:

The trial evidence established that the defendant engaged in a 10-month campaign of harassment, wherein he terrorized the attorneys and two female staff at the law firm representing his wife in divorce proceedings. The defendant called the firm more than 1,500 times during that period, and engaged in vile communication which became progressively more sexual, racist and threatening in nature. The evidence likewise supports the conclusion that defendant caused physical injury to his wife’s matrimonial lawyer when defendant hit the victim in the shin with his four-pronged cane during a court proceeding. * * *

While we otherwise find no basis to disturb defendant’s sentence and do not consider him deserving of this court’s leniency, we exercise our interest of justice jurisdiction. In so doing, we extend to him the compassion and consideration he neglected to show the four women simply doing their jobs, and reduce his sentence to time served because of defendant’s age and chronic health conditions (including coronary artery disease, hypertension and diabetes), and the fact that he has only a few months to serve before his release date. People v Spinac, 2020 NY Slip Op 04002, First Dept 7-16-20

 

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall:

Defendant (Stop 1) did not meet its initial burden of demonstrating “that it neither created a hazardous condition, nor had actual or constructive notice of its existence” … , as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they “failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall” … . Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff’s accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff’s lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.

The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started. Ruiz v Stop 1 Gourmet Deli, 2020 NY Slip Op 04000, First Dept 7-16-20

 

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