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POLICE OFFICER’S WARRANTLESS ENTRY INTO A METH LAB WAS JUSTIFIED BY WHAT WAS IN PLAIN VIEW THROUGH A PARTIALLY OPEN DOOR AND THE OFFICER’S CONCERN FOR THE SAFETY OF PEOPLE INSIDE A NEARBY TRAILER (THIRD DEPT).

The Third Department determined a warrantless search and seizure of a meth lab was valid and defendant’s motion to suppress was properly denied. Four police officers went to defendant’s property based upon a tip defendant was operating a meth lab there. Before going to the property, the police learned defendant and his girlfriend had purchased Sudafed, which is used to make methanphetamine, and that their subsequent attempts to buy Sudafed were denied. Once on the property officer DeMuth was able to see into the lab through a partially open door. He entered the lab, allegedly because he feared for the safety of  persons in a nearby trailer:

All of the attendant circumstances, including DeMuth’s knowledge of the tip and defendant’s conduct in running out the back door, justified DeMuth’s actions in conducting a limited protective sweep, which consisted of walking to the base of the trailer’s back steps, where the unknown item had been dropped, and peering inside the shed . The record establishes that, once DeMuth was lawfully in position, he was able to observe the incriminating evidence in plain view inside the shed … . …

DeMuth testified that his observations, together with his knowledge of the tip and the information obtained from the national precursor log, led him to believe that there was an active methamphetamine lab inside the shed. He stated that, based upon his training and experience regarding the dangers of methamphetamine production, particularly the risk of explosion, he immediately became concerned for the safety of the inhabitants of the trailer (which included several children), himself and his fellow officers and that he fully opened the door to the shed to provide ventilation. DeMuth’s testimony demonstrated that he had objectively reasonable grounds for believing that the contents of the shed posed an immediate danger to everyone present on the scene and, thus, that his actions in opening the door to the shed were justified … . The record establishes that the methamphetamine lab was subsequently seized by the New York State Police Contaminated Crime Scene Emergency Response Team. In view of all of the foregoing, we find that the warrantless search and seizure of the methamphetamine lab was justified by exceptions to the warrant requirement. People v Richards, 2019 NY Slip Op 07810, Third Dept 10-31-19

 

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WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE TIME AND PLACE OF THE OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defected because the time and place of the offense were not included:

… [A] waiver of indictment must be executed in strict compliance with CPL 195.20, which specifically requires, as is relevant here, that it set forth the “date and approximate time and place of each offense to be charged in the [SCI]” … . Although the statutory requirements of CPL 195.20 may be satisfied by reading the waiver of indictment and the SCI [superior court information] as a single document, here, neither document set forth the time of the charged offense (see CPL 195.20 …). Further, “this is not a ‘situation where the time of the offense is unknown or, perhaps, unknowable’ so as to excuse the absence of such information” … . Indeed, the felony complaint contains information regarding the time that the offense occurred … . We find unavailing the People’s assertion that reference in the waiver of the indictment to the underlying felony complaint, which contains the time of the offense, to be sufficient to comply with the clear and simple statutorily-required information. In view of the foregoing, the waiver of indictment and the related SCI are jurisdictionally defective, thereby requiring that the plea be vacated and the SCI dismissed … . People v Walley, 2019 NY Slip Op 07816, Third Dept 10-31-19

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED AUTHORITY TO FATHER CONCERNING VISITATION AND SHOULD NOT HAVE INVOLVED MOTHER’S BOYFRIEND IN KEEPING FATHER INFORMED ABOUT MOTHER’S HEALTH (THIRD DEPT).

The Third Department, modifying Family Court, determined Family Court should not have delegated authority to father to control some aspects of visitation, and should not have involved mother’s boyfriend, a non-party, in keeping father informed about mother’s medical or mental issues:

The court’s authority to set visitation cannot be delegated to a party … . We agree that the father can choose to temporarily suspend visitation while the mother is hospitalized for a mental health condition. However, Family Court went too far in giving the father — who is not a doctor or otherwise trained in recognizing and treating mental health conditions — that same authority in the vague situations where the mother is “decompensating or otherwise having an issue with her bipolar condition,” or permitting him to require supervision of visitation in the aftermath of those situations without further court intervention. We have no doubt that if the father believes or is informed that the mother is unstable, he will seek court permission to withhold or limit visits to protect the child … . The court also erred in directing the mother’s boyfriend — a nonparty, over whom the court had not obtained jurisdiction — to advise the father of any medical or mental issues that the mother may experience “as they are occurring or as soon as practicable thereafter” … . Matter of Aree RR. v John SS., 2019 NY Slip Op 07818, Third Dept 10-31-19

 

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THE TRACKED IN WATER WAS NOT ACTIONABLE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff was unable to demonstrate that the source of the water on which she slipped and fell was not simply tracked in rain, which was not actionable. The floor in question was temporary flooring used in a tent set up for a graduation ceremony:

We reject plaintiff’s contention that defendant failed to properly inspect the premises, or that its use of rubber mats on some portions of the flooring demonstrates that it failed to maintain its premises in a reasonably safe condition. Although defendant placed rubber mats on the flooring near the stage toward the front of the tent, the security director explained that those mats were intended to assist the graduates in approaching, crossing and leaving the stage, which was elevated and located on an incline. Plaintiff further notes that defendant chose to use two tent walls and to leave the other sides open, but she did not demonstrate that any water allegedly present on the walkway originated from those open sides, rather than having been tracked in. Nor did plaintiff establish that the subsequent placement by defendant’s staff of a mat in the area of her fall constituted notice of a dangerous condition. Property owners are not “‘required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain'” … . Further, even assuming that water was present on the temporary flooring at issue, “the mere fact that a floor or walkway becomes slippery when wet does not establish a dangerous condition” … . Van Duser v Mount St. Mary Coll., 2019 NY Slip Op 07824, Third Dept 10-31-19

 

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POLICE OFFICER ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS FOR INJURIES CAUSED BY STEPPING IN A SNOW-COVERED POTHOLE AS HE RESPONDED TO A SERIES OF VEHICLE ACCIDENTS DURING A SNOWSTORM (THIRD DEPT).

The Third Department. over a dissent, determined petitioner police officer was entitled to accidental disability retirement benefits for injuries caused by stepping in a snow-covered pothole while he responded to a series of vehicle accidents during a snowstorm:

As this Court has stated, “[t]o be deemed accidental, an injury must not have been the result of activities undertaken in the ordinary course of one’s job duties but, rather, must be due to a precipitating accidental event which is not a risk of the work performed” … .

There can be no dispute that, at the time of the incident, petitioner was performing his ordinary job duties of responding to a series of traffic accidents that had occurred during his shift and that falling on a slippery snow- and ice-covered road may be a risk of petitioner’s ordinary job duties. However, we find that falling due to a pothole concealed under the snow and ice is not such a risk … . Accordingly, given these circumstances, petitioner’s fall was a sudden and unexpected event that constitutes an accident as matter of law … . Matter of Lewis v New York State Comptroller, 2019 NY Slip Op 07828, Third Dept 10-31-19

 

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PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (THIRD DEPT).

The Third Department, over a two-justice dissent, determined petitioner’s parole was properly rescinded after a rescission hearing was triggered by a victim impact hearing:

In August 2016, letters were sent from the Department of Corrections and Community Supervision to the Albany County District Attorney’s office and the judge who imposed the sentence informing them that petitioner was scheduled to appear before respondent.Petitioner appeared before respondent in December 2017, after which he was granted parole with an open release date in February 2018. Thereafter, in January 2018, a victim impact hearing was held at which the victim’s mother and two brothers gave victim impact statements. After this hearing, petitioner was served with a notice of rescission hearing, which was subsequently held in February 2018. Following the rescission hearing, petitioner’s open release date was rescinded and a hold period of nine months was imposed. This determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

Petitioner argues that the victim impact statements and letters from the District Attorney’s office and sentencing judge disclosed no new facts about petitioner’s crime. … . … Although we agree that the letters should not have been considered as they did not reveal any information not previously known by respondent, this argument must fail with respect to the victim impact statements because neither the relevant regulation, nor the existing case law, requires that “new” information must be disclosed for parole to be rescinded (see 9 NYCRR 8002.5) …  Simply stated, although the regulation provides that such information must be “significant” and “not known” by respondent at the time of the original hearing, the origin of this information need not be “new” … .

Here, respondent was presented with previously unknown information from the mother, including that she was so traumatized by her son’s death that she did everything she could to avoid thinking about it, including never visiting his grave. The mother explained that, in the 25 years since the victim’s death, she has not celebrated Christmas, Thanksgiving or her other sons’ birthdays. She described how she thought that, once petitioner went to prison, it was done, and that she was safe, but she no longer felt safe. Matter of Benson v New York State Bd. of Parole, 2019 NY Slip Op 07829, Third Dept 10-31-19

 

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THE RELIABILITY OF THE CONFIDENTIAL INFORMANT WAS NOT ADEQUATELY CONSIDERED BY THE HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department, annulling the determination and expunging the record, found that the hearing officer had not adequately considered the reliability of the confidential informant:

… [W]e find that the Hearing Officer’s inquiry was not thorough and specific enough to afford him an adequate opportunity to assess the confidential informant’s knowledge and reliability. After briefly reviewing the investigating officer’s professional experience, the Hearing Officer, in a cursory fashion, confirmed that the investigating officer had obtained confidential information and then asked whether that information was received under any kind of duress or the product of coercion, whether he thought the information was reliable and credible and whether there was any promise of secondary gain. Nothing further was solicited from the investigating officer, who provided only two or three-word responses to each question and failed to offer any description of the confidential source’s statements or further testimony to assist the Hearing Officer’s inquiry into the reliability of the confidential information … . In addition, the investigating officer failed to explain why he found the confidential informant reliable … . Indeed, “[t]he Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness” … . The record also does not reflect that the Hearing Officer attempted to personally interview the confidential informant in order to cure these deficiencies … . Matter of Barber v Annucci, 2019 NY Slip Op 07831, Third Dept 10-31-19

 

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THE MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BECAUSE DEFENSE COUNSEL HAD NOT BEEN PROVIDED WITH A COPY OF THE SEARCH WARRANT AT THE TIME THE MOTION WAS MADE (SECOND DEPT).

The Second Department, reversing County Court, determined the motion to suppress should not have been granted without a hearing because defense counsel had not been provided with a copy of the search warrant at the time the motion was made:

In evaluating whether a defendant’s factual allegations in a suppression motion are sufficient to warrant a hearing, the court must assess “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … .

We disagree with the County Court’s decision to deny that branch of the defendant’s omnibus motion which sought to controvert the search warrant without holding a hearing, as defense counsel did not have access to even a redacted copy of the search warrant applications at the time the motion was made … . Although in moving to controvert the search warrant, defense counsel did not make precise factual averments, he was not required to do so as he did not have access to the search warrant applications at issue … . People v Lambey, 2019 NY Slip Op 07793, Second Dept 10-30-19

 

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DEFENSE PEREMPTORY CHALLENGES TO WHITE JURORS NOT SUPPORTED BY RACE-NEUTRAL REASONS; THE ALLEGED ERROR IN INSTRUCTING THE JURY ON THE JUSTIFICATION DEFENSE WAS NOT PRESERVED (SECOND DEPT).

The Second Department determined defense peremptory challenges to prospective white jurors were not justified on race-neutral grounds and the alleged error in instructing the jury on the justification defense was not preserved:

The defendant contends that the Supreme Court erred in disallowing his peremptory challenges to two prospective white jurors because he provided sufficient race-neutral explanations for challenging them … . However, defense counsel’s proffered explanations for challenging the two jurors “amounted, essentially, to no reason at all” … . Thus, we agree with the court’s determination that the proffered explanations were pretextual and with the court’s disallowal of the defendant’s peremptory challenges. Moreover, the court did not act improperly by, sua sponte, directing the defendant’s counsel to provide race-neutral explanations for the peremptory challenges … .

The defendant contends that the Supreme Court’s instruction to the jury regarding the defense of justification was erroneous because the court included an instruction regarding the use of physical force to resist arrest. This contention is without merit. The justification charge, taken as a whole, correctly instructed the jury as to the defense of justification, and was a correct statement of the applicable law (see CPL 300.10[2] … ). The defendant also contends that the justification instruction was erroneous because the court did not instruct the jurors that, if they found the defendant not guilty of charges of attempted murder in the first degree based on the defense of justification, they were not to consider the lesser counts of aggravated assault upon a police officer and attempted aggravated assault upon a police officer. The defendant failed to preserve this contention for appellate review, and we decline to review this issue in the exercise of our interest of justice jurisdiction … . People v Foxworth, 2019 NY Slip Op 07790, Second Dept 10-30-19

 

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42 USC 1983 IS NOT SUBJECT TO THE MUNICIPAL-LAW NOTICE OF CLAIM REQUIREMENT; THE NOTICE OF THE MALICIOUS PROSECUTION ACTION WAS TIMELY; THE PETITION TO FILE LATE NOTICES OF CLAIM FOR THE REMAINING STATE LAW CLAIMS SHOULD NOT HAVE BEEN GRANTED; THE EXCUSES WERE NOT VALID AND THE VILLAGE DID NOT HAVE TIMELY NOTICE OF THE CLAIMS SIMPLY BY VIRTUE OF THE POLICE REPORT AND THE INVOLVEMENT OF A POLICE OFFICER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a partial dissent, determined: (1) the 42 USC 1983 action was not subject to the notice of claim requirement of the General Municipal Law; the notice of claim for the malicious prosecution cause of action was timely because the limitations period began when the underlying charges were dismissed; and (3) the petition for leave to file late notices of claim for the state law discrimination, false arrest, abuse of process, excessive force, failure to intervene, denial of access to the courts, intimidation and intentional infliction of emotional distress actions should not have been granted:

The petitioner’s explanation that the counsel who represented him during the criminal proceeding did not advise him of the notice of claim requirement and that he did not learn of the requirement until … he retained his current attorney to represent him in a potential civil action did not constitute a reasonable excuse for his failure to timely serve the Village with a notice of claim for the remaining state law claims … . The petitioner’s ignorance of the law does not constitute a reasonable excuse … . Moreover, the petitioner’s assertion that he knowingly delayed commencing any action against the Village while the criminal charges were pending due to unsubstantiated claims of fear and intimidation does not constitute a reasonable excuse … . …

The petitioner did not establish that the Village acquired actual knowledge of the essential facts constituting the remaining state law claims within 90 days after they arose or a reasonable time thereafter. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . “[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation” … . Here, the involvement of a Village police officer in arresting the petitioner did not, without more, establish that the Village acquired actual knowledge of the essential facts constituting the petitioner’s remaining state law claims within 90 days following their accrual or a reasonable time thereafter … . Matter of Nunez v Village of Rockville Ctr., 2019 NY Slip Op 07783, Second Dept 10-30-19

 

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