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ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined that attempted menacing of a police officer is not a cognizable crime because “attempt” is included in the offense. This was a mode of proceedings error that did not have to be preserved:

We agree with defendant … that his conviction of attempted menacing a police officer or peace officer must be reversed because that offense is not a legally cognizable crime. As relevant here, Penal Law § 120.18 provides that “[a] person is guilty of menacing a police officer or peace officer when he or she intentionally places or attempts to place a police officer . . . in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, . . . pistol, . . . or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer.” Thus, according to the definition of menacing a police officer or peace officer set forth in the Penal Law, the attempt to commit the crime is already an element of the offense, and “there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” … . Although defendant failed to raise this issue at trial, preservation is not required inasmuch as this issue constitutes a mode of proceedings error … . People v Dibble, 2019 NY Slip Op 07165, Fourth Dept 10-4-19

 

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OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT WAS NOT RESPONSIBLE FOR REPAIR OF THE DANGEROUS CONDITION; LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant landlord’s motion for summary judgment in this slip and fall case should have been granted. Although there was a dangerous condition, defendant, as an out-of-possession landlord, was not responsible for its repair:

… [D]efendant submitted the lease between defendant and plaintiff’s employer, which provided that the lessee was responsible for all maintenance and repair of the premises except for “Major Improvements,” which the lease defined as “any major repair (repairs that are not of the nature of ordinary maintenance such as local patches, caulking, flashing)” including “replacement of the roof, replacement of load-bearing walls and foundations, [and] repairs to the concrete floor.” We conclude that maintenance of the allegedly bent or defective metal strip was not a “Major Improvement[]” under the lease … .

Further, the record established that defendant relinquished control of the premises. The fact that, under the lease, defendant reserved the right to enter the leased premises for purposes of inspection and performing “Major Improvements,” is ” insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord’ ” … . “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists” … , and plaintiff failed to allege a specific statutory violation pertaining to the metal strip … . Addeo v Clarit Realty, Ltd., 2019 NY Slip Op 07163, Fourth Dept 10-4-19

 

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THE ZONING BOARD OF APPEALS’ RULING THAT A BREAKWALL AND RETAINING WALLS ON LAKEFRONT PROPERTY WERE FENCES WHICH VIOLATED THE CODE WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ANNULLED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that the Zoning Board of Appeals’ (ZBA’s) ruling that the breakwall and retaining walls on lakefront property were fences which violated the code was not supported by substantial evidence. The matter was brought as a hybrid CPLR article 78 proceeding and action under 42 USC §§ 1983, 1985, and 1988:

… [T]he undisputed relevant evidence establishes that the walls do not fall within the plain meaning of fences as defined by Code former § 77-1 inasmuch as they were not erected for the purpose of enclosing or dividing a piece of land …. Instead, the breakwall was constructed to maintain the shoreline of the lake in light of the future construction of a house on petitioner’s property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field, and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. We thus conclude that the ZBA’s determination affirming the order to remedy with respect to the violations of the Code that depend on the walls being considered fences lacks a rational basis and is not supported by substantial evidence. Matter of Fox v Town of Geneva Zoning Bd. of Appeals, 2019 NY Slip Op 07160

 

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THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the offense to which defendant pled guilty, criminal sexual act in the first degree, does not have forcible compulsion as an element and therefore the risk assessment must be reduced by 10 points. However the court noted that an upward department might be appropriate and sent the matter back:

… [T]he court erred in that assessment inasmuch as defendant pleaded guilty to criminal sexual act in the first degree under subdivision (3) of Penal Law § 130.50, which does not require evidence of forcible compulsion … , and there was no other evidence in the record establishing that defendant used forcible compulsion in committing the crime. When those 10 points are subtracted, defendant’s total score makes him a presumptive level two risk.

Nevertheless, we note that an upward departure from the presumptive level may be warranted, i.e., there may be evidence of “an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”… . Here, however, “because defendant was determined to be a level three sex offender, County Court had no reason to consider whether clear and convincing evidence exists to warrant such a departure” … . People v Weber, 2019 NY Slip Op 07197, Fourth Dept 10-4-19

 

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DEFENDANT WAS ENTITLED EITHER TO THE VACATION OF HIS GUILTY PLEA OR TO A SENTENCE WHICH CONFORMED WITH THE SENTENCE PROMISE; DEFENDANT’S 440 MOTION WAS NOT BARRED BY PROVISIONS OF CPL 440.10 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to either the vacation of his guilty plea or the imposition of a sentence which conformed to the plea bargain. Defendant had pled guilty to a drug possession charge and was told at the time of the plea he would not serve more than a year and a half in addition to his concurrent Massachusetts sentence. However, the Massachusetts sentence was subsequently reduced because of a cooperation agreement. Defendant’s 440 motion was not barred by CPL 440.10 (2) (c) or (2) (b):

… [D]efendant’s motion is not barred by CPL 440.10 (2) (c) inasmuch as the relevant ground for relief did not arise until several years after the deadline to file a direct appeal from the judgment had expired. Further, contrary to the court’s determination, defendant’s motion is not barred by CPL 440.10 (2) (b) inasmuch as he never filed a direct appeal from the judgment.

On the merits, it is well settled that, “[g]enerally, when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored’ ” … . Here, the “reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … , i.e., “the judge’s specific representation [that defendant’s guilty plea in New York] would thereby extend his [aggregate] incarceratory term by a year and a half only” … . People v Valerio, 2019 NY Slip Op 07192, Fourth Dept 10-3-19

 

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ALTHOUGH DEFENDANT DID NOT VIOLATE THE VEHICLE AND TRAFFIC LAW IN MAKING A LEFT TURN, THE OFFICER REASONABLY BELIEVED THERE WAS A VIOLATION; THE TRAFFIC STOP WAS JUSTIFIED AND THE SUPPRESSION MOTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined: (1) the left turn made by the defendant from the right-most lane did not violate Vehicle and Traffic Law 1160; and (2) the officer who stopped the defendant reasonably believed the turn was a traffic violation. Therefore the traffic stop was justified:

Unlike the language used in other subsections of section 1160, the language of subsection (b) does not specify how close to the center line a vehicle must be when it completes its turn, nor does it designate a specific lane within which the vehicle must complete the turn (compare § 1160 [b] with § 1160 [a], [c], [e]). In light of the more specific language employed elsewhere in the statute, we read the use of the more general phrase “right of the center line” as meaningful and intentional … . Indeed, reading “right of the center line” to mean the lane to the immediate right of the center line, or as close to center as possible, would improperly render the more specific language used elsewhere in the statute superfluous … . …

… [S]uppression [of the seized weapon] is not required here because the stop was the result of the officer’s objectively reasonable belief that he observed a traffic violation … . In light of ” the reality that an officer may suddenly confront a situation in the field as to which the application of a statute is unclear—however clear it may later become[,]’ ” an officer’s misreading of a statute that is susceptible of multiple interpretations and has not been definitively construed by New York appellate courts may amount to a reasonable mistake of law justifying a traffic stop … . Notwithstanding our interpretation of Vehicle and Traffic Law § 1160 (b) above, the “right of the center line” language is, in our view, susceptible of multiple interpretations, including the interpretation taken by the officer here, and the ambiguity has not previously been definitively construed. People v Turner, 2019 NY Slip Op 07190, Fourth Dept 10-3-19

 

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INSUFFICIENT PROOF OF THE TESTING USED TO DETERMINE THE SUBSTANCES WERE CONTRABAND DRUGS, POSSESSION OF DRUGS CHARGE ANNULLED (THIRD DEPT).

The Third Department annulled the possession of drugs charge because the proof of the testing procedures used on the substances alleged to be drugs was insufficient:

When positive results of a test of suspected contraband drugs are used as evidence at a disciplinary hearing, 7 NYCRR 1010.5 (d) directs that certain documents, including “a statement of the scientific princip[les] and validity of the testing materials and procedures used,” be included in the record. This required document does not appear in the record, nor was it provided to petitioner despite his specific request and objections. Further, testimony from the testing officer offered no evidence of the procedures used. In view of the foregoing, that part of the determination finding petitioner guilty of possessing drugs is not supported by substantial evidence and must be annulled … . Matter of McFarlane v Annucci, 2019 NY Slip Op 07123, Third Dept 10-3-19

 

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RESTITUTION ORDERED AT SENTENCING (ABOUT $45OO) WAS ABOUT $500 HIGHER THAN THE AMOUNT AGREED TO IN THE PLEA DEAL, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that defendant is entitled to the opportunity to withdraw his plea because the amount of restitution ordered by the sentencing judge was about $500 higher than the amount ($4100) agreed to in the plea deal:

… “[A] sentencing court may not impose a more severe sentence than one bargained for without providing the defendant the opportunity to withdraw his or her plea” … . Because the restitution imposed exceeds the amount presented by the People to which defendant agreed at the time of the plea and he seeks, among other things, vacatur of the plea, we deem it appropriate to exercise our interest of justice jurisdiction to take corrective action … . Accordingly, we remit the matter for the purpose of allowing defendant to either accept the enhanced restitution amount or give defendant an opportunity to withdraw his plea … . People v Waldron, 2019 NY Slip Op 07116, Third Dept 10-3-19

 

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APPELLANT WAS NOT AGGRIEVED BY SUPREME COURT’S DECISION WHICH DENIED HER MOTION WITHOUT PREJUDICE PENDING FURTHER DISCOVERY; THEREFORE THE APPEAL MUST BE DISMISSED (THIRD DEPT).

The Third Department determined the plaintiff’s Joan and Christopher Porco were not aggrieved by Supreme Court’s ruling and therefore could not appeal it. The underlying action alleges Civil Rights Law (right to privacy) violations related to a film made by defendant about a crime committed by Christopher Porco. The complaint alleged the film had been republished making the action timely. Supreme Court denied the motion without prejudice to try again after discovery:

Christopher Porco is not an aggrieved party. Defendant’s motion sought dismissal of only those claims asserted by Joan Porco. In other words, defendant did not seek any relief against Christopher Porco. Supreme Court likewise did not grant defendant any relief against him. Accordingly, Christopher Porco has no basis to appeal from the February 2018 order.

Regarding Joan Porco, Supreme Court held that she could not rely on the relation back doctrine for her claims in the amended complaint to be timely asserted. The court nonetheless denied defendant’s motion without prejudice to renew upon completion of discovery after considering plaintiffs’ republication argument. … Accordingly, the court neither granted defendant any affirmative relief against Joan Porco nor withheld any affirmative relief requested by Joan Porco. Indeed, the only affirmative relief sought by Joan Porco was for leave to serve a second amended complaint, which the court granted and is not contested on appeal. Because Joan Porco was not granted incomplete relief, the exception to the aggrievement requirement … does not apply in this case.

Furthermore, a party is not aggrieved when his or her interests are only remotely or contingently affected by the order appealed from … . Although Joan Porco’s claims are subject to dismissal in the future given that Supreme Court denied defendant’s motion without prejudice to renew, it is possible that defendant may never seek to renew its motion. And, even if defendant did move to renew, we can only surmise at this juncture how the court would decide it. Finally, to the extent that Joan Porco is dissatisfied with the court’s rationale concerning the relation back doctrine, such dissatisfaction does not make her an aggrieved party … . Porco v Lifetime Entertainment Servs., LLC, 2019 NY Slip Op 07122, Third Dept 10-3-19

 

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NEW JERSEY PAROLEE’S CONSENT TO SEARCH AS A CONDITION OF PAROLE DID NOT APPLY TO A SEARCH DONE BY NEW YORK CITY POLICE IN QUEENS; STATEMENTS MADE WITHOUT MIRANDA WARNINGS, INCLUDING THE CONSENT TO SEARCH, AS WELL AS THE FRUITS OF THE SEARCH, PROPERLY SUPPRESSED (SECOND DEPT).

The Second Department determined Supreme Court properly suppressed statements made without Miranda warnings, including the consent to search a safe, as well as the firearms seized from the safe. Although defendant was on parole in New Jersey, the search was done in Queens by New York City police. Therefore the consent to search provided by parolees as a condition of parole was not applicable:

… [A]lthough Soto had consented to searches by New Jersey parole officers as a condition of his parole, the record reveals that the NYPD officers, not the New Jersey parole officers, searched the safe after they were notified that the New Jersey parole officers found what appeared to be heroin in the apartment. Accordingly, the People cannot rely on Soto’s consent given as a condition of parole to justify the warrantless search of the safe … . Furthermore, since the NYPD officers failed to advise Soto of his Miranda rights prior to questioning him and obtaining his consent to open the safe, his statements regarding the safe and his consent to open it cannot be characterized as voluntary … . Moreover, the People failed to proffer any argument as to why the warrantless search was proper as to Santiago. Accordingly, we agree with the Supreme Court’s determination granting those branches of Soto’s omnibus motion which were to suppress the firearms evidence and the statements made by him to the NYPD officers without the benefit of Miranda warnings, and that branch of Santiago’s omnibus motion which was to suppress the firearms evidence … . People v Santiago, 2019 NY Slip Op 07099, Second Dept 10-2-19

 

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