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DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, reversed defendant’s manslaughter conviction as against the weight of the evidence. The defendant had been alone with the victim, his girlfriend’s 13-month-old son, for a short time on the day the baby vomited and was gasping for breath (May 2). The baby died hours later at the hospital. Blunt force head trauma was deemed the cause of death. The defendant was not arrested until four years later after mother had unsuccessfully attempted to have the defendant admit to harming the child in recorded phone conversations. The medical examiner testified on direct that the baby was injured on May 2. But on cross the medical examiner acknowledged the baby could have been injured on May 1, when defendant had no contact with the baby. Other people had access to the baby on May 1, but they were not interviewed because the medical examiner had told the investigators the injuries occurred on May 2:

The only evidence adduced at trial that was not within the knowledge of the police in 2010, when they decided not to arrest defendant, was the testimony of a woman who dated him from 2008 to 2013, with a one-year break in 2010 when he dated [the baby’s mother]. The witness testified that, in the years following the victim’s death, defendant would sometimes talk about the victim and become emotional but would say that he was not guilty and “didn’t do it.” When questioned by the prosecutor about a written statement she had given to the police, the witness testified that defendant “admitted to doing something to the baby but he never said what or why.” On cross-examination, the witness testified that defendant, whom she had not dated for years, never admitted that he harmed the victim. All in all, the witness’ testimony was of only marginal probative value.

Given the equivocal medical evidence with respect to the time frame within which the fatal injuries could have been inflicted, the weakness of the circumstantial evidence, and the lack of direct evidence that defendant caused the victim’s injuries, we conclude that the People failed to prove defendant’s guilt beyond a reasonable doubt … . People v Gonzalez, 2019 NY Slip Op 05947, Fourth Dept 7-31-19

 

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THE PEOPLE DID NOT PROVE DEFENDANT POSSESSED A RAZOR BLADE PARTIALLY WRAPPED IN TAPE WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove that defendant possessed a razor blade partially wrapped in tape with the intent to use it unlawfully against another:

Penal Law § 265.15(4) provides, in relevant part, that “[t]he possession by any person of any . . . weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

“The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption, meaning that [it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof'” … . “Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts the statute requires be proved'” … . “If the People succeed in this endeavor, they are entitled to rely on the presumption, which form[s] part of the support for [their] prima facie case’ against the defendant” … . “The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People” … “Evidence rebutting the presumption will not negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions'” … . …

… [T]he People failed to establish beyond a reasonable doubt that the razor blade recovered from the defendant was “designed, made or adapted for use primarily as a weapon” … . There was no testimony by the detectives indicating that they knew based on their experience that the primary use of this type of instrument, by virtue of being wrapped in black tape, was as a weapon, or that they attempted to ascertain from the defendant the manner in which he utilized the blade … . Furthermore, there was no evidence from which it could be inferred that the defendant considered the instrument to be a weapon … . People v Rodgers, 2019 NY Slip Op 06002, Second Dept 7-31-19

 

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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DEFENDANT, AN OUT OF POSSESSION LESSEE, WAS NOT AN ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240 (1) OR 241 (6) AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant M & M was not a property owner in the context of Labor Law 240 (1) or 241 (6) and therefore was entitled to summary judgment. The Fourth Department noted that an issue on which Supreme Court reserved decision is not appealable:

For purposes of Labor Law §§ 240 (1) and 241 (6) liability, “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a [party] who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit’ ” … . ” [The owner] is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed’ ” … . “The key factor in determining whether a non-titleholder is an owner’ is the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” … .

Here, M and M met its initial burden of establishing that it was not an owner for purposes of Labor Law §§ 240 (1) and 241 (6) because its submissions established that “it was an out-of-possession lessee of the property [that] neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to plaintiff’s injuries’ ” … . Thompson v M & M Forwarding of Buffalo, N.Y., Inc., 2019 NY Slip Op 05875, Fourth Dept 7-31-19

 

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THE VICTIM IN THIS KIDNAPPING CASE ASKED THE DEFENDANT IF SHE COULD GO WITH HIM TO FLORIDA; THE JURY SHOULD HAVE BEEN INSTRUCTED THAT THE INTENT TO VIOLATE OR ABUSE THE VICTIM MUST HAVE EXISTED FOR MORE THAN 12 HOURS, A NEW TRIAL WAS ORDERED ON THAT GROUND; BOTH THE CONCURRENCE AND THE DISSENT ARGUED THERE HAD BEEN NO RESTRAINT WITHIN THE MEANING OF THE KIDNAPPING STATUTE (FOURTH DEPT).

The Fourth Department, over a concurrence and a dissent, determined the jury instruction on the intent element of kidnapping was wrong requiring reversal. Defendant, who was over 21, drove to Florida with the victim, who was 14, and had sex with her during the trip. The victim asked defendant if she could come with him and snuck out of the house without her mother’s knowledge. The concurrence argued the restraint element of kidnapping was not proven, but agreed with the majority because that element had been conceded by the defense. The dissent would have reversed and dismissed the indictment, finding the conviction was against the weight of the evidence:

… [T]he weight of the evidence supports a determination that defendant did not innocently acquiesce to the mere request of a 14-year-old acquaintance to drive her to Florida, but rather took advantage of a 14-year-old child’s age and inexperience, by driving the victim across multiple state lines, away from her family, in order to engage in an unlawful sexual relationship with a child. * * *

We interpret the statute to mean that kidnapping in the first degree requires that a defendant both restrain a victim for more than 12 hours and possess, for more than 12 hours during the period of restraint, the intent to violate or abuse the victim sexually. Here, however, the court instructed the jury that “intent does not require advanced planning, nor is it necessary that the intent be in the person’s mind for any particular period of time.” … [W]e conclude that the instruction was erroneous inasmuch as it permitted the jury to find that the element of intent pursuant to section 135.25 (2) (a) had been established even if the jury did not find that the intent existed for more than 12 hours during a period of over 12 hours of restraint.  * * *

FROM THE DISSENT: Under these circumstances, it cannot be said that defendant either “secreted” or “held” the victim in his car, or that he intended to prevent her “liberation.” She was there voluntarily and of her own accord, which is the very antithesis of being “secreted” or “held” somewhere. People v Vail, 2019 NY Slip Op 05848, Fourth Dept 7-31-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NOT REQUESTED BY A PARTY, HERE THE ABILITY FOR UNLIMITED AMENDMENT OF A NOTICE OF CLAIM WHICH HAD NOT YET BEEN FILED; SUA SPONTE ORDERS ARE NOT APPEALABLE; LEAVE TO APPEAL GRANTED AS AN EXERCISE OF DISCRETION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that Supreme Court should not, sua sponte, have granted relief which was not requested by a party. Petitioner allegedly was injured trying to board a subway train. Before filing a notice of claim petitioner commenced a CPLR 3102 (c) proceeding to obtain discovery before starting the action. The court granted the petition and, sua sponte, gave the petitioner permission to amend the notice of claim, which had not yet been filed, within 30 days of filing the note of issue. The Second Department noted that a sua sponte order is not appealable and exercised its discretion to grant leave to appeal (CPLR 5701[a][2]; [c]):

Turning to the merits, “[p]ursuant to CPLR 2214(a), an order to show cause must state the relief demanded and the grounds therefor'” . “However, the court may grant relief that is warranted by the…  facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … .

Here, the Supreme Court strayed from this principle when, in addition to granting, in effect, that branch of the petition which was for an order preserving material related to the accident, it also sua sponte granted a nearly unlimited prospective right to the petitioner to amend a notice of claim that had not yet been served. This sua sponte relief was dramatically different from the pre-action discovery that was the subject of the petition … . Furthermore, the papers before the court did not support the award of such additional relief, since the absence of a notice of claim rendered it impossible to determine whether the future notice of claim or any amendments thereto would be in compliance with General Municipal Law § 50-e. We also agree with the appellants that they were prejudiced insofar as the court set a permissive timeline for amending the notice of claim that potentially could be, inter alia, beyond the statute of limitations and after the completion of discovery. Matter of Velez v City of New York, 2019 NY Slip Op 05781, Second Dept 7-24-19

 

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DEFENDANT’S WAIVER OF AN APPEAL FROM A JURY VERDICT (AS OPPOSED TO A GUILTY PLEA) WAS VALID (THIRD DEPT). ​

The Third Department, affirming defendant’s conviction, determined a defendant may validly waive an appeal from a jury verdict:

… “[A] defendant may waive his or her right to appeal from a jury verdict” … . The People set forth the terms of the postverdict agreement on the record, including that defendant would waive his right to appeal for a sentencing commitment of time served. County Court then engaged in a thorough colloquy with defendant, during which defendant acknowledged that he had discussed the agreement with counsel to his satisfaction and understood it. County Court explained the right to appeal from the conviction and eventual sentence, distinguished it from the trial rights that defendant had exercised and made clear that defendant was being asked to give it up as part of the agreement. Defendant confirmed that he understood all of this and orally waived his right to appeal. He further executed a written waiver that was handed up prior to sentencing, a document that included assurances that it had been signed by defendant in open court after consulting with defense counsel. We are satisfied from the foregoing that, notwithstanding isolated uses of language more appropriate for a waiver executed as part of a plea agreement, defendant knowingly, voluntarily and intelligently waived his right to appeal … . People v Shanks, 2019 NY Slip Op 05724, Third Dept 7-18-19

 

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STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

 

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WAIVER OF APPEAL INVALID; ALREADY COMPLETED SENTENCE REDUCED BECAUSE OF THE IMMIGRATION CONSEQUENCES OF THE ORIGINAL SENTENCE; MATTER CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reducing the defendant’s already completed sentence in the interest of justice, determined the waiver of appeal was invalid and the immigration consequences of defendant’s sentence warranted a reduction to 364 days:

Given the defendant’s age of 20 years, that he had dropped out of high school in the 11th grade, that he had documented mental health issues, and his limited experience in the criminal justice system, the Supreme Court’s terse colloquy regarding the appeal waiver was insufficient  … . A written appeal waiver, such as the one signed by the defendant, is “not a complete substitute for an on-the-record explanation of the nature of the right to appeal” … . It is not “sufficient for the trial court to defer to the defendant’s off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant” … . Thus, the appeal waiver does not preclude review of the defendant’s excessive sentence claim.

Although the defendant has served his respective sentences, the question of whether the sentences imposed should be reduced is not academic, because those sentences may have potential immigration consequences … .

Considering all of the relevant circumstances of this case, including the potential immigration consequences to the defendant, his sentences should be reduced to concurrent definite terms of imprisonment of 364 days … . People v Bakayoko, 2019 NY Slip Op 05677, Second Dept 7-17-19

 

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THE INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO OUT-OF-STATE ADOPTION OR FOSTER CARE, NOT TO THE PLACEMENT OF A CHILD WITH AN OUT-OF-STATE PARENT; QUESTION CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; REGULATION RELIED ON TO APPLY THE ICPC CONFLICTS WITH THE CONTROLLING STATUTE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Webber, in a matter of first impression, and refusing to follow the 2nd Department, determined that the Interstate Compact for the Placement of Children (ICPC) applies only to children to be adopted or placed in foster care in another state, not, as here, to the placement of a child with the father in another state. The issue was considered on appeal as an exception to the mootness doctrine because it is likely to reoccur. The First Department held that the controlling statute, Social Services Law 374-a,  clearly states that the ICPC applies only to out of state foster care or adoption, and the regulation which states otherwise (Association of Administrators of the Interstate Compact on the Placement of Children. AAICPC, Regulation 3) improperly expands the statutory language:

There is no dispute that the ICPC was intended to provide children in need of foster and adoptive families with more possible placements across state lines. The purpose of the statute was twofold: to assure the placement would be in a child’s best interests, and to preclude the “sending State from exporting its foster care responsibilities to a receiving State” … . Thus the ICPC was enacted to provide children in need of foster and adoptive families with more options, while still paying heed to concerns about the children’s welfare.

There is also nothing in the language of the statute or the legislative history to indicate that the ICPC was ever intended to address any individual other than an out-of-state foster or adoptive parent. The language explicitly limits its applicability to out-of-state placements in foster care or as a preliminary to a possible adoption … . The limitation reflects the ICPC’s purpose which was to provide “a uniform legislative framework for the placement of children across state lines in foster and/or adoptive homes” … . Matter of Emmanuel B. (Lynette J.), 2019 NY Slip Op 05640, First Dept 7-18-19

 

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