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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog bite case should have been granted. Defendants demonstrated they did not have actual or constructive notice of the dog’s vicious propensities:

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Since at least 1816 … , “the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … . … ‘[T]here is no cause of action in negligence as against the owner of a dog who causes injury, but one may assert a claim in strict liability against a dog owner for harm caused by the dog’s vicious propensities when the owner knew or should have known of those propensities” … . S.K. v Kobee, 2018 NY Slip Op 00770, Fourth Dept 2-2-18

ANIMAL LAW (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT))/DOG BITES (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT))

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SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST, DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT).

The Fourth Department remitted the matter to Surrogate’s Court for a determination of the reasonableness of the attorney’s fees Surrogate’s Court had awarded petitioner. Petitioner trustee filed a petition for judicial settlement and final accounting regarding a trust. Surrogate’s Court awarded attorney’s fees to the petitioner but did not make the required findings:

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We … agree with objectants that the Surrogate erred in approving the attorneys’ fees, costs and disbursements requested by petitioner without considering the required factors. “It is well settled that, in determining the proper amount of attorneys’ fees and costs, the court should consider the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained’ ” … .Here, the Surrogate failed to make any findings with respect to the Potts factors [Matter of Potts, 213 App Div 59, 62], and we are therefore unable to review the Surrogate’s implicit determination that the attorneys’ fees, costs and disbursements are reasonable … . We therefore modify the decree by vacating the award of attorneys’ fees, costs and disbursements, and we remit the matter to Surrogate’s Court for a determination whether those fees, costs and disbursements are reasonable, following a hearing if necessary … . Matter of JPmorgan Chase Bank, N.A., 2018 NY Slip Op 00775, Fourth Dept 2-2-18

ATTORNEYS (FEES, SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))/TRUSTS AND ESTATES (ATTORNEY’S FEES, SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))/ATTORNEY’S FEES (SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))

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MOTION TO RENEW, BASED UPON A CHANGE IN THE LAW, MADE WHEN THE CASE WAS NO LONGER PENDING, WAS UNTIMELY (FOURTH DEPT).

The Fourth Department determined the plaintiff’s motion to renew, based upon a change in the law, made when the case was no longer pending, was properly denied as untimely. A case relied upon in deciding the motion had been disavowed by the 2nd Department:

CPLR 2221 (e) does not impose a time limit on motions for leave to renew, unlike motions for leave to reargue, which must be made before the expiration of the time in which to take an appeal … . A motion based on a change in the law formerly was considered a motion for leave to reargue, with the same time limit, i.e., before the time to appeal the order expired … . Over time, the rule evolved to allow such a motion “where the case was still pending, either in the trial court or on appeal” .. . The Ct. of Appeals explained … that denying as untimely a motion for leave to reargue based on a change in the law “might at times seem harsh, [but] there must be an end to lawsuits” … .

After the statute was amended in 1999 to specify that a motion based on a change in the law is a motion for leave to renew, courts have nevertheless properly continued to impose a time limit on motions based on a change in law …  … “[T]here is no indication in the legislative history of an intention to change the rule regarding the finality of judgments” … . Here, the case was no longer pending when plaintiff made his motion for leave to renew based on a change in the law, and we therefore conclude that the motion insofar as it sought leave to renew was untimely … . Redeye v Progressive Ins. Co., 2018 NY Slip Op 00763, Fourth Dept 2-2-18

CIVIL PROCEDURE (MOTION TO RENEW, BASED UPON A CHANGE IN THE LAW, MADE WHEN THE CASE WAS NO LONGER PENDING, WAS UNTIMELY (FOURTH DEPT))/RENEW, MOTION TO (CIVIL PROCEDURE, MOTION TO RENEW, BASED UPON A CHANGE IN THE LAW, MADE WHEN THE CASE WAS NO LONGER PENDING, WAS UNTIMELY (FOURTH DEPT))/CPLR 2221  (MOTION TO RENEW, BASED UPON A CHANGE IN THE LAW, MADE WHEN THE CASE WAS NO LONGER PENDING, WAS UNTIMELY (FOURTH DEPT))

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GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that it is improper for a court to consider whether there was “good cause” for making an untimely dispositive motion when the “good cause” argument is raised for the first time in the reply papers:

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Defendants’ summary judgment motion was made 618 days after the deadline set forth in the court’s scheduling order and 204 days after the filing of the note of issue. Defendants did not make the motion in time to be heard on the court’s November 21, 2016 motion calendar. Nonetheless, defendants’ moving papers failed to address the issue of “good cause” required to make a summary judgment motion more than 120 days after the filing of the note of issue or after the date established by the court in a scheduling order (CPLR 3212 [a]…). Plaintiffs opposed the motion on the ground that it was untimely. It was only in reply papers that defendants addressed the issue of “good cause.” The court considered the merits of the motion, granted summary judgment to defendants and dismissed the complaint. That was error.

It is well settled that it is improper for a court to consider the “good cause” proffered by a movant if it is presented for the first time in reply papers… . Defendants also failed to move to vacate the note of issue. The motion should thus have been denied as untimely (see CPLR 3212 [a]), and the court should have declined to reach the merits. Mitchell v City of Geneva, 2018 NY Slip Op 00740, Fourth Dept 2-2-18

CIVIL PROCEDURE (REPLY PAPERS, GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/REPLY PAPERS (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/GOOD CAUSE (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/REPLY PAPERS (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/CPLR 3212  (REPLY PAPERS, GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT))/SUMMARY JUDGMENT (GOOD CAUSE FOR DELAY IN FILING A DISPOSITIVE MOTION CAN NOT BE RAISED FOR THE FIRST TIME IN REPLY PAPERS, COURT SHOULD NOT HAVE CONSIDERED THE MOTION (FOURTH DEPT)

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DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant doctor’s motion for summary judgment on statute of limitations grounds in this medical malpractice action should not have been granted. If the action had sounded in battery, it would have been untimely. But the doctor’s papers did not demonstrate the action sounded in battery, as opposed to medical malpractice. Therefore the motion should have been denied without considering plaintiff’s papers, on which defendant relied for the “battery” argument:

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It is well established that “[a] party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party’s favor” … . Thus, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” … . “This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” … , “and every available inference must be drawn in the [non-moving party’s] favor” … . “The moving party’s [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers’ ” … . Palumbo v Bristol-Myers Squibb Co., 2018 NY Slip Op 00749, Fourth Dept 2-2-18

CIVIL PROCEDURE (SUMMARY JUDGMENT MOTIONS, DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, ANALYSIS OF SUMMARY JUDGMENT MOTIONS, DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT))

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PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a case sent back by the Court of Appeals for a determination of the appropriate discount rate on a jury verdict in a breach of contract action, held the plaintiff’s request for a jury trial on the issue should have been granted:

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… [I]t is undisputed that, prior to the original trial in this matter, plaintiff demanded a jury trial on all issues. During that trial, “[o]ver the [plaintiff’s] objection, the jury was provided with a verdict form that did not allow for any damages discount” … . Although the Court of Appeals remitted the matter for the purpose of establishing a discount rate, it did not indicate whether the discount rate should be determined by the trial court or a jury. Nevertheless, prior to the trial that is the subject of this appeal, plaintiff renewed its request for a jury, which the court denied. Contrary to defendant’s contention, neither article 50-A nor article 50-B of the CPLR requires that the discount rate be determined by the court. As the Court of Appeals stated, this is a breach of contract action… . Article 50-A deals with periodic payment of judgments in actions concerning medical and dental malpractice, and article 50-B deals with periodic payment of judgments in actions concerning personal injury, injury to property, and wrongful death. Furthermore, we conclude that Toledo v Iglesia Ni Christo (18 NY3d 363 [2012]) does not require the trial court to determine the discount rate in this case inasmuch as Toledo was a wrongful death case within the purview of CPLR article 50-B. Village of Herkimer v County of Herkimer, 2018 NY Slip Op 00756, Fourth Dept 2-2-18

CIVIL PROCEDURE (JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/DAMAGES (JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/DISCOUNT RATE (DAMAGES, JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/JURY TRIAL (BREACH OF CONTRACT, DISCOUNT RATE, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))/CONTRACT LAW (DAMAGES, JURY TRIAL, PLAINTIFF WAS ENTITLED TO A JURY TRIAL ON THE ISSUE OF THE APPROPRIATE DISCOUNT RATE TO BE APPLIED TO A JURY VERDICT IN THIS BREACH OF CONTRACT ACTION (FOURTH DEPT))

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DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY OF TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this wrongful death case were entitled to discovery of tax returns to determine whether the parents of the plaintiff-children were married. If the parents were married when mother died, the statute of limitations had passed:

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Individual tax returns are generally not discoverable unless the movant makes a ” requisite showing that [the] tax returns [are] indispensable to [the] litigation and that [the] relevant information possibly contained therein [is] unavailable from other sources’ ” … . A wrongful death action has a two-year statute of limitations from the date of the decedent’s death…  Where the sole distributee is an infant, the statute is tolled “until appointment of a guardian or the majority of the sole distributee, whichever is earlier”… . Where, however, the decedent is married and the surviving spouse is thus a distributee of the estate, the infancy toll does not apply because the spouse “was available both to seek appointment as the personal representative of the estate and to commence an action on behalf of the children in a timely fashion” … . Has K’Paw Mu v Lyon, 2018 NY Slip Op 00687, Fourth Dept 2-2-18

CIVIL PROCEDURE (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/DISCOVERY (TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TAX RETURNS (CIVIL PROCEDURE, DISCOVERY, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/STATUTE OF LIMITATIONS (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/WRONGFUL DEATH  (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TRUSTS AND ESTATES (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))

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INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a new trial because the court did not properly instruct the jury on the definition of a “building” within the meaning of the burglary statute:

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… “[T]he court instructed the jurors that a dwelling is a building which is usually occupied by a person lodging therein at night. A bedroom in a home, where there is more than one tenant, may be considered independent of the rest of the house and may be considered a separate dwelling within a building.’ The court, however, failed to include the part of the definition of building that would require the jury to determine whether the house at issue consisted of two or more units’ and whether the bedroom at issue was a unit that was separately secured or occupied’ (Penal Law § 140.00 [2]). Consequently, given the omission of the definition of [“unit”] and/or [“separately secured or occupied,”] the instruction did not adequately convey the meaning of [“building”] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met’ ” … . People v Downey, 2018 NY Slip Op 00758, Fourth Dept 2-2-18

CRIMINAL LAW (INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, BURGLARY, (INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/BURGLARY (JURY INSTRUCTIONS, INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/BUILDING (DEFINITION, BURGLARY STATUTE, INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))

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PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT).

The Fourth Department dismissed an Article 78 petition seeking to prohibit retrial in a manslaughter case. The Fourth Department had dismissed the manslaughter count after determining the verdict was repugnant. The Court of Appeals agreed the verdict was repugnant but held that dismissal of the was not required:

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Petitioner was convicted of manslaughter in the first degree as a hate crime … and criminal possession of a weapon in the third degree … . On appeal from the judgment of conviction, we determined that the verdict convicting him of manslaughter in the first degree as a hate crime yet acquitting him of manslaughter in the first degree was inconsistent, i.e., ” legally impossible,’ ” inasmuch as all of the elements of manslaughter in the first degree are elements of manslaughter in the first degree as a hate crime … . We thus modified the judgment by reversing that part convicting him of manslaughter in the first degree as a hate crime and dismissing that count of the indictment.

The Court of Appeals agreed that “the jury’s verdict was inconsistent, and thus repugnant” … , but disagreed with our remedy of dismissal. The Court explained that there is “no constitutional or statutory provision that mandates dismissal for a repugnancy error,” …  and that “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element” … . … As a result, the Court determined that the People could “resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury” … . Matter of DeLee v Brunetti, 2018 NY Slip Op 00742, Fourth Dept 2-2-18

CRIMINAL LAW (REPUGNANT VERDICTS, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))/REPUGNANT VERDICTS (CRIMINAL LAW, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))

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PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department noted that periods of postrelease supervision cannot run consecutively. An illegal sentence must be corrected even if the issue is not raised on appeal:

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… [T]he court erred in directing that the periods of postrelease supervision run consecutively to the periods of postrelease supervision imposed in appeal No. 1 … . “Penal Law § 70.45 (5) (c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term” … . We cannot allow an illegal sentence to stand … and we therefore modify the judgment …  accordingly. People v Mcmillian, 2018 NY Slip Op 00649, Fourth Dept 2-2-18

CRIMINAL LAW (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/SENTENCING (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/POSTRELEASE SUPERVISION  (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT))

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