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THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT).

The Second Department, reducing defendant’s assault and reckless endangerment convictions, over a dissent, determined the depraved-indifference element of the charges was not supported by the weight of the evidence. The defendant’s 20-month-old foster child had second and third degree burns on his legs. Mother consistently explained she heard screaming coming from the bathroom where she saw the child trying to get out of the tub and the child’s three-year-old sister standing outside the tub as the tub was filling up with hot water. The People tried to prove, through an expert (Yurt), that the child had been held in hot water. But there were inconsistencies in the expert’s testimony. Defendant explained that she was afraid to take the child to the hospital and instead tried to treat the burns after talking to a pharmacist and going on line:

The inconsistencies in Yurt’s [the People’s expert’s] testimony undermined the People’s already tenuous theory that the defendant affirmatively caused the burns. …

Accordingly, to establish the “depraved indifference” element of the subject offenses, we are left with the defendant’s failure to obtain proper medical care for the child. This case is thus squarely controlled by Lewie and Matos. As in those cases, while the evidence in this case shows that the defendant “cared much too little about [the] child’s safety, it cannot support a finding that she did not care at all” (People v Lewie, 17 NY3d at 359; see People v Matos, 19 NY3d at 476). Like the defendant in Matos, the defendant in the present case took measures, “albeit woefully inadequate” ones, to care for the child, by inquiring about proper burn care at a pharmacy, purchasing ointments and bandages, and keeping the burns covered. Those measures are commensurate with the measures taken by the defendant in Matos who reacted to a beating that caused her child severe internal bleeding and multiple broken bones by making a homemade splint for her son’s leg and giving him ibuprofen (see id. at 476). People v Verneus, 2020 NY Slip Op 03256, Second Dept 6-10-2o

 

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SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT).

The Second Department determined Supreme Court mischaracterized the scope of the waiver of appeal rendering the waiver invalid:

… [T]he court mischaracterized the effect of the waiver on the defendant’s right to appeal. In this regard, the court, after describing the function of an appellate court, concluded its explanation of the waiver by stating: “What all this means, though, is that this plea and the sentence I am going to impose are final and that higher court will not have a chance to review it.”

“The improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court” … . Accordingly, it was incorrect for the Supreme Court to convey to the defendant that an appellate court would have no authority to review the plea or the sentence under any circumstances.

Furthermore, the record in this case does not include any “clarifying language” indicating that “appellate review remained available for certain issues” or that “the right to take an appeal was retained” … . Although the People cite to a written waiver that was apparently signed by the defendant, the Supreme Court “failed to confirm that [the defendant] understood the contents of the written waiver[ ]” … . In any event, the written waiver does not indicate that appellate review remained for certain limited issues, but rather, merely stated that “[the] sentence and conviction will be final” … . People v Christopher B., 2020 NY Slip Op 03242, Second Dept 6-10-20

 

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FLAWED LINEUP IDENTIFICATION WAS NOT CORROBORATED BY OTHER EVIDENCE; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification by the victim was flawed. The conviction was deemed against the weight of the evidence because the flawed identification was not corroborated by other evidence:

The evidence presented at trial established that the complainant described the perpetrator to the police as balding with no facial hair. The participants in the lineup five days later wore hats to conceal their hairlines. However, the defendant’s significant facial hair was visible. Further, the defendant was the only participant in the lineup who was wearing a yellow shirt. Although the shirts of the participants in the lineup were covered with a cloth, the defendant’s shoulders remained visible. The perpetrator had also worn a yellow shirt. After viewing the lineup, the complainant told the investigating officer that she recognized the defendant’s yellow shirt as the shirt worn by the perpetrator, indicating that the most significant similarity between the perpetrator and the defendant visible to her was his yellow shirt.

Since the complainant’s identification of the defendant as the perpetrator was not corroborated by any other evidence, we conclude, based upon our review of the facts, that there is a reasonable doubt as to whether the defendant committed this crime. People v Mann, 2020 NY Slip Op 03249, Second Dept 6-10-20

 

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the warrantless search of defendant’s backpack was not justified. The appeal was heard because the waiver of appeal was deemed invalid:

Officer Musa approached the defendant, who, in response to Officer Musa’s inquiry, provided his name. The defendant was carrying a backpack, and Officer Musa observed what appeared to be credit cards or identification cards in an outside mesh pocket. Officer Musa arrested the defendant for criminal trespass, handcuffed him, and removed the backpack from the defendant. Officer Musa then searched the backpack at the scene of the arrest … . * * *

” All warrantless searches presumptively are unreasonable per se,’ and, thus, [w]here a warrant has not been obtained, it is the People who have the burden of overcoming’ this presumption of unreasonableness” …. ” [E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag'” … . People v Chy, 2020 NY Slip Op 03244, Second Dept 6-10-20

 

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THE APPELLATE DIVISION COULD NOT DECIDE THE APPEAL OF THE DENIAL OF A SUPPRESSION MOTION ON A GROUND NOT RELIED UPON BY THE SUPPRESSION COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division could not decide the appeal of the denial of a suppression motion on a ground (exigent circumstances) that was not relied on by the suppression court:

… [D]efendant moved to suppress physical evidence found inside a suitcase that he was carrying at the time of his arrest, relying on People v Gokey (60 NY2d 309 [1983]), and arguing that exigent circumstances were needed to justify a warrantless search of the closed suitcase. Supreme Court determined that Gokey did not apply and, therefore, made no findings regarding the existence of exigent circumstances. The Appellate Division affirmed on a different ground, determining, as both defendant and the People argued, that Gokey did apply and accepting the People’s argument that exigent circumstances—namely, the protection of evidence or the safety of the police or the public—justified the search … .

“Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant” (CPL 470.15 [1]). “This provision is a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court'” … . The statute ” bars the Appellate Division from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court'” … . This “restriction applies in equal force to this Court which itself has no broader review powers'” … .

Here, the Appellate Division did not err in determining that Gokey was applicable, the only reviewable issue before it. However, “[b]ecause the suppression court did not deny the motion on the ground that there were exigent circumstances, that issue was not decided adversely to defendant and it could not be invoked by the Appellate Division” … . Accordingly, the Appellate Division erred in deciding that issue. People v Harris, 2020 NY Slip Op 03208, CtApp 6-9-20

 

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NO APPEAL LIES FROM DECLINING TO SIGN AN ORDER TO SHOW CAUSE (FIRST DEPT).

The First Department noted that no appeal lies from declining to sign an order to show cause:

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (CPLR 5701[a][2] … ). To the extent defendant seeks review of the ex parte order pursuant to CPLR 5704, such relief is denied. Review under CPLR 5704 would not, in any event, address the merits of the motion defendant sought to make by order to show cause … .

To the extent defendant contends that we should review the order or grant leave to appeal in the interest of justice, we decline to do so. Chi Young Lee v Osorio, 2020 NY Slip Op 03186, First Dept 6-4-20

 

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ABSENCE OF APPROXIMATE TIME OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) WAS NOT JURISDICTIONAL AND WAS THEREFORE WAIVED BY THE GUILTY PLEA; ABSENCE OF DA’S SIGNATURE ON THE WAIVER OF INDICTMENT DID NOT INVALIDATE IT; CONSECUTIVE SENTENCES FOR CRIMES ARISING FROM ONE CONTINUOUS INCIDENT WERE NOT ILLEGAL (THIRD DEPT).

The Third Department determined: (1) the failure to include the approximate time of the offense in the Superior Court Information (SCI) was not a jurisdictional defect and the defect was waived by the guilty plea; (2) the district attorney’s failure to sign the waiver of indictment did not invalidate it; and (3) consecutive sentences for possession of a stolen car and damage caused to a police car (by the stolen car) were appropriate:

… [W]here, as here, the approximate time of the offenses is nonelemental and the defendant makes no argument that he or she lacked notice of the precise crimes for which he or she waived prosecution by indictment, the omission of such information is a nonjurisdictional defect, and, thus, any challenge with respect thereto is forfeited by a guilty plea … . We also note that, here, the approximate time of the offenses is readily ascertainable from the local court accusatory instruments … . …

… [T]he record contains a copy of defendant’s written waiver of indictment, which, although signed by defendant in open court in the presence of counsel, reveals a blank signature line intended for the District Attorney’s endorsement. However, the record also reveals that an order approving that waiver was entered by County Court thereafter (see CPL 195.30), and, therein, the court expressly found, among other things, that the waiver was consented to by the District Attorney (see CPL 195.10 [1] [c]). Under these circumstances, we view the absence of the District Attorney’s endorsement on the written waiver of indictment to be a technical violation of the statute that in no way infringed upon defendant’s right to indictment by a grand jury … . …

… [W]hile the … crimes occurred in the course of one continuous criminal incident, the charges arose from separate, distinct acts … . County Court’s imposition of consecutive sentences with respect to those crimes was therefore not illegal. People v Light, 2020 NY Slip Op 03148, Third Dept 6-4-20

 

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14-MONTH DELAY IN THE TRANSCRIPTION OF THE RECORD DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO APPEAL (THIRD DEPT).

The Third Department determined the 14-month stenographic delay, which prevented the perfection of defendant’s appeal until after his release, did not deprive him of due process of law. Defendant contested his resentence after pleading guilty to a probation violation:

Defendant argues that he was deprived of his right to appeal — and, thus, his right to due process — by approximately 14 months of stenographic delays prior to him obtaining the complete record in this matter so as to perfect his appeal … . He asserts that, because he has since been released from custody, and, thus, may no longer reasonably challenge the propriety of the resentence imposed — apparently the only issue taken with regard to the underlying proceedings — this Court should vacate, with prejudice, Supreme Court’s finding that he violated his probation and dismiss the associated declaration of delinquency … .

Despite the unfortunate appellate delay, defendant has failed to establish that it resulted in prejudice so as to warrant the summary remedy he seeks … ; his sole argument regarding his resentence would have been equally unpersuasive had it been before us on any earlier date. * * * Without some showing of how he has been prejudiced by this singular claim being rendered moot, we cannot conclude that defendant suffered a deprivation of due process by the delays alleged … . People v McCray, 2020 NY Slip Op 03154, Third Dept 6-4-20

 

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HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, reversing Supreme Court, determined the habeas corpus petition seeking the release from prison of a 68-year-old prisoner because of the danger of contracting COVID-19 should not have been granted. At the time the appeal was heard, the inmate, Muntaqim, was hospitalized with COVID-19. The appeal was heard as an exception to the mootness doctrine because the situation is likely to recur. Although the petition established Muntaqim was incarcerated under conditions which could cause him serious harm, the petition did not demonstrate the prison personnel were deliberately indifferent to the risk. The prison respondents outlined the steps taken and the prison to reduce the spread of the disease:

Petitioner arguably established that Muntaqim was “incarcerated under conditions posing a substantial risk of serious harm” … . Annexed to the petition is a letter from a physician who discussed Muntaqim’s medical condition and opined that he was at extreme risk of “a serious and possible fatal outcome if infected with the novel coronavirus” responsible for causing COVID-19, as well as a letter from a group of physicians who explained that the novel coronavirus is quite infectious and that serious outbreaks in prisons were inevitable given the close contact between individuals inherent to the prison setting. … What petitioner failed to demonstrate, however, was deliberate indifference on the part of prison officials. Petitioner provided nothing from anyone with firsthand knowledge — including Muntaqim, who neither verified the petition nor submitted an affidavit in support of it — as to what was being done to combat the spread of the novel coronavirus at SCF [Sullivan Correctional Facility] or to protect inmates at high risk from COVID-19. In contrast, respondents came forward with the affidavit of respondent Superintendent of SCF, who detailed the steps that had been taken up to that point to prevent the introduction of the novel coronavirus into the facility and reduce the risks of potential transmission. … Supreme Court determined that DOCCS had “done nothing wrong” in its response to the burgeoning threat. Petitioner has not demonstrated the subjective element of deliberate indifference required to establish an Eighth Amendment violation. People ex rel. Carroll v Keyser, 2020 NY Slip Op 03169, Third Dept 6-4-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20