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THE JUDGE SHOULD NOT HAVE DISMISSED CAUSES OF ACTION ON A GROUND (STANDING) NOT RAISED BY A PARTY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed causes of action for lack of standing when that issue was not raised by the parties:

We thus conclude that the court erred in sua sponte reaching the issue of standing with respect to the second and third causes of action … . Standing “is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” … . Inasmuch as the … respondents’ cross motion with respect to the second and third causes of action was not based on petitioners’ alleged lack of standing, there was no basis for the court to reach that issue.  Matter of Barbeau v Village of LeRoy, 2020 NY Slip Op 01732, Fourth Dept 3-13-20

 

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JUDGE WHO WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED WAS DISQUALIFIED FROM HEARING DEFENDANT’S MOTION TO VACATE HIS CONVICTION (FOURTH DEPT).

The Fourth Department, reversing County Court’s summary denial of defendant’s motion to vacate his conviction, determined the judge, who was the District Attorney when defendant was indicted, was disqualified from handling the motion:

The Judge who denied defendant’s motion had been the Niagara County District Attorney when defendant was indicted in 2007 on the charges that resulted in the judgment now sought to be vacated and, in fact, had signed the indictment. Thus, we conclude that the Judge was disqualified from entertaining the motion pursuant to Judiciary Law § 14, which provides in relevant part that “[a] judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he [or she] is a party, or in which he [or she] has been attorney or counsel” (emphasis added). Inasmuch as “this statutory disqualification deprived the court of jurisdiction,” the order on appeal is void … . We therefore reverse the order and remit the matter to County Court for further proceedings on the motion before a different judge … . People v Simcoe, 2020 NY Slip Op 01729, Fourth Dept 3-13-20

 

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TRAFFIC STOP WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION (FOURTH DEPT).

The Fourth Department, reversing the Administrative Law Judge, determined defendant’s driver’s license should not have been revoked. The record lacked substantial evidence that the police officer had probable cause to believe defendant had committed a traffic violation when he made the traffic stop which resulted in defendant’s refusing to submit to a chemical test:

A police officer initially stopped petitioner on a suspected violation of Vehicle and Traffic Law § 600 (1) (a), i.e., leaving the scene of an accident that caused property damage without reporting it. The officer observed petitioner approximately one mile from the accident site driving a white pickup truck, which matched the description of the vehicle involved in the accident. The officer effected a stop of the truck by activating the patrol vehicle’s lights and ultimately took petitioner into custody after petitioner exhibited signs and made statements that indicated he was intoxicated. Petitioner refused to submit to a chemical test, and thus his driver’s license was temporarily suspended. A refusal revocation hearing was thereafter held pursuant to Vehicle and Traffic Law § 1194 (2) (c). The Administrative Law Judge revoked petitioner’s license after concluding, inter alia, that the traffic stop was legal. In affirming that determination on petitioner’s administrative appeal, respondent concluded that the stop was lawful because the officer “had a reasonable basis for stopping” petitioner.

We agree with petitioner that respondent reviewed the determination under an incorrect legal standard inasmuch as “the Court of Appeals has made it abundantly clear’ . . . that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ . . . [,] or where the police have probable cause to believe that the driver . . . has committed a traffic violation’ ” … . We further agree with petitioner that the record lacks substantial evidence to support the determination that the officer had the requisite probable cause at the time of the stop … . Matter of Deraway v New York State Dept. of Motor Vehs. Appeals Bd., 2020 NY Slip Op 01727, Fourth Dept 3-13-20

 

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TEACHER’S LAWSUIT AGAINST STUDENTS ALLEGED INTENTIONAL, NOT NEGLIGENT, CONDUCT AND WAS THEREFORE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff-teacher’s suit against two students alleged intentional conduct (battery), not negligent conduct, and was therefore time-barred. Plaintiff was pushed into a locker by the students who were fighting each other. Although the students did not intend to touch the teacher, the doctrine of transferred intent applied:

Defendant met her initial burden by establishing that plaintiff was injured as a result of intentional conduct that constituted a battery and not negligent conduct … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … . ” The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive’; there is no requirement that the contact be intended to cause harm’ ” … . The deposition testimony of plaintiff and defendants submitted in support of the motion established that defendants intentionally caused offensive bodily contact with each other by engaging in a physical fight … . Although defendants did not intend to make physical contact with or to injure plaintiff, the contact that resulted in plaintiff’s injuries was nevertheless intentional under the doctrine of “transferred intent” … . …

Defendant thus established that this action is barred by the one-year statute of limitations applicable to intentional torts … .  Kessel v Adams, 2020 NY Slip Op 01758, Fourth Dept 3-13-20

 

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CONTRARY TO SUPREME COURT’S RULING, THE PURCHASE CONTRACT DID NOT INCLUDE A CLAUSE LIMITING PLAINTIFF’S REMEDY FOR A BREACH TO RETAINING THE DEPOSIT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the purchase contract did not have a limitation of remedies clause restricting plaintiff’s damages for a breach to retaining the deposit:

A limitation of remedies “will not be implied and to be enforceable must be clearly, explicitly and unambiguously expressed in a contract”… . Indeed, “[s]uch clauses are . . . strictly construed against the party seeking to avoid liability” (id. at 219), and ” a provision must be included in the agreement limiting a party’s remedies to those specified in the contract in order for courts to find that th[o]se remedies are exclusive’ ” … . Here, nothing in the contract stated that plaintiff’s contractual right to retain the deposit upon defendant’s breach was plaintiff’s sole and exclusive remedy for such a breach. The court thus erred in granting the cross motion on that ground … . Lundy Dev. & Prop. Mgt., LLC v Cor Real Prop. Co., LLC, 2020 NY Slip Op 01751, Fourth Dept 3-13-20

 

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DEFENDANT, WHO CO-OWNED THE PROPERTY FOR A TWO-YEAR PERIOD, DEMONSTRATED HE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE HAZARDOUS LEAD PAINT CONDITION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this lead-paint exposure case should have been granted. Defendant was a co-owner of the subject property but he was able to demonstrate his connection to the property was such that he did not have actual or constructive notice of the hazardous lead paint condition:

… [D]efendant owned the subject property, as a tenant in common, with his father during the period of plaintiffs’ tenancy from 1992 to 1994. In support of his motions, defendant submitted his affidavit, wherein he averred, among other things, that he was a co-owner of the property “on paper only,” that his father handled all day-to-day maintenance of the property, and that defendant never entered plaintiffs’ apartments or hired anyone to make repairs thereto during plaintiffs’ tenancy. Defendant further averred that he did not have a key to the apartments and that he never spoke to or received complaints from plaintiffs or plaintiffs’ mother. Defendant’s submissions also established that he had no knowledge of inspections for or the existence of lead paint at the property during plaintiffs’ tenancy and that he was unaware that the property was constructed at a time before lead paint was banned, that paint was peeling at the property, that lead paint posed a danger to young children, and that young children lived on the property.

Regardless of whether defendant’s father had actual or constructive notice through his own involvement with the property, that notice cannot be imputed to defendant absent evidence of defendant’s own actual or constructive notice … . McDowell v Maldovan, 2020 NY Slip Op 01748, Fourth Dept 3-13-20

 

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WHERE THERE IS A DISCREPANCY THE ORDER MUST BE CONFORMED WITH THE DECISION (FOURTH DEPT).

The Fourth Department noted a discrepancy between the decision and the order. Therefore the order was conformed to the decision:

… [W]e note that, in its bench decision, Family Court determined that the child ,,, was derivatively neglected. Inasmuch as there is a conflict between the decision and the order in appeal No. 1, that order must be conformed to the decision (… see generally CPLR 5019 [a]). We therefore modify the order … by vacating that part of the order determining that the child was derivatively abused and substituting therefor a determination that the child was derivatively neglected. Matter of Aaren F. (Amber S.), 2020 NY Slip Op 01739, Fourth Dept 3-13-20

 

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RECKLESS ENDANGERMENT CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; BECAUSE THE LEGAL SUFFICIENCY OF THE CONVICTION WAS NOT CHALLENGED IT MUST BE REVERSED NOT REDUCED BY THE APPELLATE COURT; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; INADEQUATE PROOF OF VALUE (FOURTH DEPT).

The Fourth Department reversed the reckless endangerment, grand larceny, possession of stolen property, and arson third degree convictions, and affirmed the murder, assault and arson second degree convictions. With respect to reckless endangerment first degree, the conviction was against the weight of the evidence and the appellate court could not reduce the conviction to a lesser included because defendant did not argue the evidence was legally insufficient. So the reckless endangerment conviction was reversed. The grand larceny/possession of stolen property convictions were not supported by adequate proof that the value of the stolen vehicle was more than $100. Arson third degree was dismissed as an inclusory concurrent count of arson in the second degree:

We agree with defendant … that the verdict finding him guilty of reckless endangerment in the first degree is against the weight of the evidence. “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person” … . Count five of the indictment alleged that defendant recklessly engaged in conduct creating a grave risk of death to emergency responders when he intentionally started the fire. We agree with defendant that the verdict on that count is against the weight of the evidence because the People did not prove beyond a reasonable doubt that defendant acted with depraved indifference to human life when he set the fire … . Inasmuch as defendant is challenging only the weight of the evidence with respect to that count and does not challenge the legal sufficiency of the evidence with respect to that count, we cannot reduce the conviction to the lesser included offense of reckless endangerment in the second degree … . * * *

We further agree with defendant that the verdict finding him guilty of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree is against the weight of the evidence. With respect to each of those counts, the People were required to establish that the value of the stolen motor vehicle exceeded $100 … . It is well settled that a witness “must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . “Conclusory statements and rough estimates of value are not sufficient” … . Although the monetary element of each crime is quite low, the People did not attempt to meet that threshold through the testimony of any witness. The testimony of a detective that the vehicle was “[d]efinitely worth over probably 10,000” did not satisfy the monetary element of either crime inasmuch as he provided no basis of knowledge for his statement of value. We therefore further modify the judgment by reversing those parts convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and dismissing counts eight and nine of the indictment. People v Box, 2020 NY Slip Op 01813, Fourth Dept 3-13-20

 

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ALTHOUGH THE ASSAULT JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, THE PEOPLE DID NOT OBJECT TO IT AND THE APPELLATE COURT MUST ASSESS THE SUFFICIENCY OF THE EVIDENCE ACCORDING TO THE INSTRUCTION; ASSESSED IN THE LIGHT OF THE JURY INSTRUCTION, THE ASSAULT COUNTS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; THE CRIMINAL USE OF A FIREARM JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, VIOLATING DEFENDANT’S RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED (FOURTH DEPT).

The Fourth Department, over a dissent, reversed the assault convictions, while affirming the murder conviction. The codefendant, intending to kill the decedent, also shot the two assault victims. Defendant was charged with murder and assault as an accomplice. Although the indictment charged assault under a transferred intent theory, the jury was instructed to find the defendant guilty of assault only if he intended injure the assault victims. Because, on appeal, the sufficiency of the evidence must be measured by the what the jury was instructed to consider, and because there was no evidence the defendant intended to injure the assault victims (as opposed to the decedent), the assault convictions were not supported by legally sufficient evidence. Although the defendant did not preserve the error by objecting to another inaccurate jury instruction which did not track the indictment, the criminal use of a firearm count was also dismissed because defendant’s right to the tried only on the crimes charged was violated:

“The doctrine of transferred intent’ serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other lucky mistake,’ the intended target was not the actual victim” … . Although that theory may be applied to assault charges … , County Court’s jury instruction in this case mandated that the jury could convict defendant of the counts of assault in the first degree only if they found that he acted “with the intent to cause serious physical injury to” each assault victim, rather than instructing the jury that they could convict defendant of those crimes if they concluded that he intended to cause such injury to the deceased victim but the codefendant actually caused injury to the assault victims. The prosecution did not object to that charge, and it is well settled that, when reviewing a “jury’s guilty verdict, our review is limited to whether there was legally sufficient evidence . . . based on the court’s charge as given without exception” … . Inasmuch as there is insufficient evidence that defendant knew that either of the assault victims was present or that he intended any harm to either of them … , we conclude that the evidence is not legally sufficient with respect to the assault counts as charged to the jury. * * *

Although the court’s jury instructions did not specify assault in the first degree as the underlying crime for the criminal use of a firearm in the first degree count, and defendant did not object to the court’s instructions and thus did not preserve this issue for our review, we conclude that “preservation is not required” … , inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged” in the indictment … . Therefore, based on the indictment, defendant could only be convicted of that charge if he committed assault in the first degree … . Thus, we conclude that, because “the conviction[s] of assault in the first degree cannot stand, the conviction of criminal use of a firearm in the first degree, which requires commission of [the] class B violent felony offense[ of assault in the first degree] while possessing a deadly weapon, also cannot stand” … . People v Spencer, 2020 NY Slip Op 01823, Fourth Dept 3-13-20

 

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IT WAS (HARMLESS) ERROR TO ALLOW A POLICE OFFICER TO IDENTIFY DEFENDANT IN SECURITY CAMERA FOOTAGE (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to allow a police officer to identify defendant in security camera footage:

Defendant … contends that the court erred in permitting a police detective to give testimony identifying defendant as the shooter in the security camera footage and drawing certain inferences from that footage … . To the extent that defendant’s contention is preserved for our review (see CPL 470.05 [2]), we conclude that any error in the admission of that testimony is harmless … . We note that the court sustained at least one objection from defense counsel after a nonresponsive answer from the police detective and issued a curative instruction with respect to that answer, which the jury is presumed to have followed … . We also note that the court’s final instructions to the jury alleviated much of the prejudice of the police detective’s testimony of which defendant now complains. The court instructed the jury that they were the sole and exclusive judges of the facts, that the testimony of police officers should not automatically be accepted, and that defendant’s identity was a disputed issue in the case. The court also instructed the jury how it should evaluate the accuracy of identification testimony. Again, the jury is presumed to have followed those instructions … . People v Jordan, 2020 NY Slip Op 01817, Fourth Dept 3-13-20

 

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