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JURY SHOULD NOT HAVE BEEN CHARGED ON THE ‘COMBAT BY AGREEMENT’ EXCEPTION TO THE JUSTIFICATION DEFENSE, CRITERIA EXPLAINED; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT).

Although the error was deemed harmless, the Second Department determined the jury should not have been instructed on the “combat by agreement” exception to the justification defense. Defendant was on a bus when rival gang members got on the bus. Defendant (14 years old) pulled out a gun and shot, killing an innocent passenger:

Supreme Court should not have charged the jury with respect to the combat by agreement exception to the justification defense. The court granted the People’s request for the instruction based upon generalized evidence that the defendant was a member of a gang which had a rivalry with other local gangs, including the gang with which the persons who approached the defendant were affiliated. However, any evidence of an alleged agreement in this case was tacit, open-ended as to time and place, and applicable to all members of the gangs of the parties involved as well as to all members of their affiliate gangs. The combat by agreement exception to justification is generally limited to agreements to combat between specific individuals or small groups on discrete occasions … . As there was no evidence of a combat agreement between the defendant and the specific persons who approached him on the bus, or among rival gang members during a discrete period of time or at a specific location, there was no reasonable view of the evidence that the combat by agreement exception applied to negate a justification defense in this case … . People v Anderson, 2020 NY Slip Op 01179, Second Dept 2-19-20

 

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SCHOOL-GROUNDS-PROXIMITY-RESIDENCE PROHIBITION APPLIED TO PETITIONER, A LEVEL THREE SEX OFFENDER, EVEN THOUGH THE OFFENSE FOR WHICH HE WAS BEING PAROLED WAS BURGLARY; SECOND DEPARTMENT DISAGREED WITH THE RESOLUTION OF THIS ISSUE BY THE THIRD AND FOURTH DEPARTMENTS; APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court and disagreeing with the Third and Fourth Departments, determined Executive Law 259-c (14), which prohibits sex offenders from entering school grounds, applied to petitioner in this habeas corpus proceeding. Petitioner had been designated a level three sex offender and was subsequently arrested and incarcerated for burglary. He was not released on parole for the burglary conviction when his sentence was complete because housing which complied with the school-grounds condition could not be found. Although the habeas corpus petition was moot because defendant had been released at the time of the appeal, the exception to the mootness doctrine allowed appellate review:

Executive Law § 259-c(14) provides, in relevant part, that “where a person serving a sentence for an offense defined in [Penal Law articles 130, 135, or 263, or Penal Law §§ 255.25, 255.26, or 255.27] and the victim of such offense was under the age of [18] at the time of such offense or such person has been designated a level three sex offender pursuant to [Correction Law § 168-l(6)], is released on parole or conditionally released pursuant to [Executive Law § 259-c(1) or (2)], the [Board of Parole] shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in [Penal Law § 220.00(14)], . . . while one or more of such persons under the age of [18] are present.”

As a result of its inartful wording and use of the term “such person,” Executive Law § 259-c(14) has been interpreted in opposing fashion by the Appellate Division, Third Department (see People ex rel. Negron v Superintendent Woodbourne Corr. Facility, 170 AD3d 12) and the Appellate Division, Fourth Department (see People ex rel. Garcia v Annucci, 167 AD3d 199). Inasmuch as the statute is amenable to competing interpretations, we agree with the appellants that the language of the statute is ambiguous and should be interpreted with reference to its legislative history and the purpose of the enactment of the 2005 amendment … . The legislative history clearly supports an interpretation that imposes the SARA [Sexual Assault Reform Act]-residency requirement based on either an offender’s conviction of a specifically enumerated offense against an underage victim or the offender’s status as a level three sex offender … . People ex rel. Rosario v Superintendent, Fishkill Corr. Facility, 2020 NY Slip Op 01178, Second Dept 2-19-20

 

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS NEGLIGENT MAINTENANCE CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this stairway slip and fall case. Plaintiff could not identify the cause of her fall and handrails were not required:

In a premises liability case, a defendant moving for summary judgment can establish its prima facie entitlement to judgment as a matter of law on the issue of negligent maintenance by showing that the plaintiff cannot identify the cause of his or her accident … . “Although proximate cause can be established in the absence of direct evidence of causation [and] . . . may be inferred from the facts and circumstances underlying the injury, [m]ere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action” … . Where it is just as likely that some factor other than a dangerous or defective condition, such as a misstep or a loss of balance, could have caused an accident, any determination by the trier of fact as to causation would be based upon sheer speculation … . Here, in support of its motion for summary judgment, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony. Based upon the plaintiff’s testimony that she did not know what caused her to lose her footing, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint on the issue of negligent maintenance … . Gaither-Angus v Adelphi Univ., 2020 NY Slip Op 01147, Second Dept 2-19-20​

 

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PLAINTIFF WAS LEANING INSIDE THE OPEN DOOR OF A VAN WHEN THE VAN SUDDENLY MOVED FORWARD; THE RELATED VIOLATION OF THE VEHICLE AND TRAFFIC LAW CONSTITUTED NEGLIGENCE PER SE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this vehicle-injury case should have been granted. Plaintiff was leaning into the open sliding door of a van when the van suddenly moved forward. Plaintiff sued the owner of the van (J & D) and the driver. The related violation of the Vehicle and Traffic Law constituted negligence per se:

A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by presenting uncontroverted evidence that the driver stepped on the gas pedal while she was leaning into the vehicle, causing the vehicle to move forward and her to be injured by the sliding of the minivan’s door into her back (see Vehicle and Traffic Law § 1162 … ). This negligence can be imputed to J & D, which was the owner of the vehicle, through the presumption that the operator was driving the vehicle with the owner’s express or implied consent (see Vehicle and Traffic Law § 388[1]). Edwards v J&D Express Serv. Corp., 2020 NY Slip Op 01145, Second Dept 2-19-20

 

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RESPONDENT WAS A CUSTOMER OF PETITIONER SECURITIES CORPORATION WITHIN THE MEANING OF FINANCIAL INDUSTRY REGULATORY AUTHORITY (FIRA) RULES AND THEREFORE COULD COMPEL ARBITRATION (FIRST DEPT). ​

The First Department, reversing Supreme Court, over an extensive dissent, determined respondent was a customer of petitioner (LekUS) and therefore could compel FINRA (Financial Industry Regulatory Authority) arbitration. Petitioner had been sued by FINRA in connection with shares of Cannibis Science, Inc. (CBIS) purchased by respondent and held by petitioner for trading:

The record establishes that respondent was a customer of nonparty Lek Securities UK, Ltd. (LekUK), where he had his account, and was also a client of petitioner Lek Securities Corp. (LekUS), with which he had a series of direct agreements. Under those agreements, LekUS conditioned its provision of depository and execution services for certain trades on respondent’s providing certain representations and an indemnity … .

Specifically, respondent purchased shares of Cannabis Science, Inc. (CBIS) in a series of transactions in 2015 and 2016 that required that the shares be held and sold in the United States. For each transaction, respondent executed an agreement (Deposit Agreement) directly with LekUS pursuant to which LekUS deposited the shares in its account at the Depository Trust & Clearing Corporation (DTCC). In each Deposit Agreement, (1) respondent represented that his answers to certain questions were true and acknowledged that LekUS would rely on those representations; (2) LekUS agreed to act as the “Processing Broker” to provide the services of depositing and reselling the shares; and (3) LekUS accepted respondent’s “Deposit Securities Request” on certain conditions, including that any claims by respondent or disputes arising from respondent’s representations in the Deposit Agreement “shall be governed by New York law and subject to the exclusive venue and jurisdiction of the courts and arbitration forums in the City and State of New York,” and that respondent would indemnify LekUS in connection with claims arising from respondent’s representations in the Deposit Agreement or from “the deposit process or the subsequent sale of the securities.”

When respondent sought to trade the CBIS shares deposited with LekUS, he communicated with Michael Mainwald, who was located at the office of LekUS, had a LekUS phone number and email address, and was registered with FINRA as the “principal operating officer” of LekUS.

… LekUS notified respondent that it had been sued by FINRA in connection with CBIS transactions and that LekUS sought indemnification by defendant pursuant to the Deposit Agreements. …

… [R]espondent was a “customer” of LekUS within the meaning of FINRA Rule 12200, and was therefore entitled to demand arbitration. Matter of LEK Sec. Corp. v Elek, 2020 NY Slip Op 01134, First Dept 2-18-20

 

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PLAINTIFF WAS INJURED WHEN THE CEILING COLLAPSED WHILE HE WAS TAKING OUT WALLS, THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that plaintiff’s Labor Law 240(1) ,241(6) and 200 causes of action should not have been dismissed. Plaintiff was in the process of taking down two bathroom walls when the ceiling collapsed:

To prevail on a Labor Law § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure (in this case, the collapse of a ceiling), a plaintiff must show that the failure of the structure in question was a foreseeable risk of the task he was performing, creating a need for protective devices of the kind enumerated in the statute … .

Here, there are issues of fact as to whether the ceiling was in such an advanced state of disrepair due to water damage that plaintiff’s work on the bathroom walls exposed him to a foreseeable risk of injury from an elevation-related hazard, the fall of the ceiling, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries. Because the evidence of water stains on the bathroom ceiling could provide constructive notice of a dangerous condition, summary judgment dismissing plaintiff’s common-law negligence and Labor Law § 200 claims was also improperly granted. …

Defendants failed to show that plaintiff was not engaged in demolition work to trigger Labor Law § 241(6). His task was part of a larger project that included the demolition of interior walls, “which altered the structural integrity of the building'”( … Industrial Code § 23-1.4[b][16]). Issues of fact exist as to whether Industrial Code § 23-3.3(b)(3) and (c), pertaining to demolition, were violated or whether any such violation was a proximate cause of plaintiff’s injuries. Clemente v 205 W. 103 Owners Corp., 2020 NY Slip Op 01117, First Dept 2-18-20

 

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PLAINTIFF WAS INJURED ATTEMPTING TO ENTER A BUILDING FROM A SCAFFOLD THROUGH A WINDOW CUT-OUT; THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS AWARE THAT METHOD OF ENTERING THE BUILDING WAS PROHIBITED BY DEFENDANTS; THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, over a three-judge dissent, determined defendants’ motion for summary judgment should not have been granted in this Labor Law 240(1) action. Plaintiff was injured when he fell attempting to enter a building from a scaffold through a window cut-out. Although there was evidence of a standing order prohibiting use of that method for entering the building, other workers used that method:

A defendant has no liability under Labor Law § 240 (1) when plaintiffs: (1) “had adequate safety devices available,” (2) “knew both that” the safety devices “were available and that [they were] expected to use them,” (3) “chose for no good reason not to do so,” and (4) would not have been injured had they “not made that choice” … . Here, a triable issue of fact exists as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the apparent accepted practice of entering the building through the window cut-outs from the scaffolding. Indeed, as the Appellate Division dissent concluded, the Appellate Division majority (and the dissent here) “ignore[] the evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose” … .

Given defendants’ purported acquiescence to this alleged practice, the general contractor’s standing order directing workers not to enter the building through the cut-outs is insufficient to entitle defendants to summary judgment … . Further, the accepted practice could have negated the normal and logical inclination to use the scaffold, stairs, or hoist instead of the cut-outs … . Finally, in context and given the other conflicting evidence in the record, a factfinder should determine whether plaintiff’s statement that he “wasn’t supposed to pass through there” unambiguously establishes that he knew he was expected to use the safety devices. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 2020 NY Slip Op 01116, CtApp 2-18-20

 

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‘RELIABLE HEARSAY’ IN A PRESENTENCE INVESTIGATION (PSI) REPORT IS A SUFFICIENT BASIS FOR A FINDING DEFENDANT USED VIOLENCE IN THE COMMISSION OF A SEX OFFENSE; LEVEL TWO RISK ASSESSMENT UPHELD (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined documentary evidence of “reliable hearsay” was sufficient for a finding defendant used violence to coerce the child victim in this “course of sexual conduct against a child” case, Therefore defendant was properly adjudicated a level two risk of reoffense:

At a SORA hearing conducted as defendant was nearing completion of his prison sentence, he was adjudicated a level two risk of reoffense due, in part, to the assessment of ten points under risk factor one, use of violence. That finding was based on information in the Presentence Investigation (PSI) report prepared in connection with the offense stating that “[o]n one or more occasions, he used physical force to coerce the victim into cooperation,” information also included in the case summary prepared by the Board of Examiners of Sex Offenders. Defendant argues that this evidence was insufficient to supply evidence of use of violence because it constituted hearsay and did not more specifically describe his conduct. …

SORA adjudications, by design, are typically based on documentary evidence under the statute’s “reliable hearsay” standard. Case summaries and PSI reports meet that standard … , meaning they can provide sufficient evidence to support the imposition of points. PSI reports are prepared by probation officers who investigate the circumstances surrounding the commission of the offense, defendant’s record of delinquency or criminality, family situation and social, employment, economic, educational and personal history, analyzing that data to provide a sentencing recommendation (see CPL 390.30[1]). Their primary function is to assist a criminal court in determining the appropriate sentence for the particular defendant based on the specific offense. Defendants have a right to review the report prior to sentencing (see CPL 390.50[2][a]) and may challenge the accuracy of any facts contained therein at that time (see CPL 400.10). * * *

Because there is record support for the imposition of points under risk factor one, there is no basis to disturb the Appellate Division order. People v Diaz, 2020 NY Slip Op 01114, CtApp 2-18-20

 

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THE ERRONEOUSLY UNSEALED RECORD OF A CRIMINAL PROCEEDING TERMINATED IN FAVOR OF THE DEFENDANT SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING COURT, MATTER REMITTED FOR RESENTENCING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, over a three-judge dissenting opinion, determined the sentencing court should not have considered the erroneously unsealed records of a prior criminal action which was terminated in favor of the defendant. The matter was sent back for resentencing. “A court is without authority to consider for sentencing purposes erroneously unsealed official records of a prior criminal action or proceeding terminated in favor of the defendant. Where violation of the sealing mandate of CPL 160.50 impacts the ultimate sentence, the error warrants appropriate correction. Such is the case here, where the court imposed on defendant a higher sentence than promised at his plea, based on its finding that the unsealed trial record—which the court mistakenly believed it could consider—established defendant’s violation of a pre-sentence condition of his plea:”

Before sentencing, defendant was arrested and prosecuted for a crime allegedly committed after entering his plea. At defendant’s request, the sentencing court agreed to adjourn defendant’s sentencing pending resolution of the matter. The jury acquitted defendant of the new charge and the official record, including the trial transcript, was sealed in accordance with CPL 160.50.

The day following that acquittal, the prosecutor informed the court which had accepted defendant’s criminal possession plea that the People would be requesting an enhanced sentence on the criminal possession conviction because defendant violated a pre-sentence condition of the plea by engaging in criminal conduct during the sentencing adjournment, as made clear by defendant’s trial testimony in the other case. The prosecutor then moved to unseal the records in the prior criminal action terminated by acquittal, arguing “justice requires” unsealing because the trial testimony was relevant to defendant’s request to be sentenced under the terms of his plea. The court granted the motion. People v Anonymous, 2020 NY Slip Op 01113, CtApp 2-18-20

 

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UNDERCOVER OFFICER’S DISTRESS SIGNAL, A GROUP OF MEN NEAR THE UNDERCOVER OFFICER YELLING, DEFENDANT’S STRUGGLING WITH THE UNDERCOVER OFFICER, DEFENDANT’S BREAKING FREE OF AN OFFICER’S RESTRAINT AND RUNNING, DEFENDANT’S FORCIBLY TAKING PROPERTY FROM THE UNDERCOVER OFFICER, AND THE FELLOW OFFICER RULE, COMBINED TO JUSTIFY THE SEIZURE AND SEARCH OF DEFENDANT; THE MOTION COURT PROPERLY REOPENED THE SUPPRESSION HEARING TO ALLOW THE PEOPLE TO SUBMIT ADDITIONAL TESTIMONY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined that the police had probable cause to arrest defendant at the time defendant was seized and searched. Therefore defendant’s suppression motion was properly denied. The court noted that the distress signal made by the undercover officer together with the observation by Officer Regina of a group of men near the undercover officer yelling provided reasonable suspicion. Seeing defendant struggling with the undercover officer and the defendant’s breaking free and running when an officer attempted to restrain him provided probable cause for arrest. The First Department further determined the suppression hearing was properly reopened to allow the People to present additional testimony. The evidence at the reopened hearing provided another lawful basis for defendant’s arrest (the defendant had forcibly taken property from the undercover officer–probable cause imputed to the arresting officer by the fellow officer rule):

While Regina’s testimony established the requisite probable cause to arrest defendant, the court providently exercised its discretion in granting the People’s motion to reopen the suppression hearing before rendering a decision in order to permit the People to call an officer with additional information tending to establish reasonable suspicion … .The court had not made any ruling, and the circumstances did not pose a risk of tailored testimony.

Upon granting the People’s motion to present additional evidence, the court expressly stated that it had not yet rendered a decision … . Despite defendant’s arguments to the contrary, there is nothing in the hearing transcript to suggest that the court previously forecasted its decision or provided guidance to the People. The court’s very brief remark at the end of the initial hearing about an aspect of the facts cannot be viewed as “direction from the court” … , and was highly unlikely to result in tailored testimony … .

The evidence adduced at the reopened hearing established another lawful basis for defendant’s arrest. The undercover officer testified that, as he was attempting to buy drugs from another person, defendant interfered and forcibly took property from the officer. This gave the undercover officer probable cause to arrest defendant for robbery, which may be imputed to the arresting officer by way of the fellow officer rule … . The combination of the undercover officer’s distress signal, the field team officers’ observation of defendant in a struggle with the undercover officer, and the undercover officer’s act of chasing defendant satisfied the requirement that the arresting officer act on “direction of” or “communication with” a fellow officer … . The court’s general finding of probable cause can be reasonably interpreted as encompassing this theory … . People v Fraser, 2020 NY Slip Op 01037, First Dept 2-13-20

 

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