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PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

The Fourth Department determined the plea to attempted sex trafficking charged in an amended indictment count must be vacated because the count which was purportedly amended had been previously dismissed. The court further held that the waiver of appeal was invalid:

… [W]e conclude … that the court erred in eliciting defendant’s plea of guilty to attempted sex trafficking under the purported amended count 3 of the second indictment because of the previous dismissal of the underlying count… . Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , and the court lacked authority to amend a previously dismissed count and elicit defendant’s plea thereto, the judgment of conviction … must be reversed and the plea vacated … .

We agree with defendant … that his purported waiver of the right to appeal is not valid inasmuch as “the perfunctory inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” … . Although “[a] detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, . . . a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal”… . Here, although defendant signed such a written waiver, “the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant’s understanding thereof” … . We thus conclude that, “despite defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver” … . People v Wilson, 2018 NY Slip Op 02060, Fourth Deptp 3-23-18

CRIMINAL LAW (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/INDICTMENTS (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))

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PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was not knowing, voluntary and intelligent:

Although the claim has not been preserved for our review given the absence of an appropriate postallocution motion by defendant, we nevertheless exercise our interest of justice jurisdiction and take corrective action under the particular circumstances presented… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . Here, the record reveals the absence of a meaningful plea colloquy and that defendant entered his guilty plea without County Court providing any instruction on its implications or the rights that he was waiving by entering it … . People v Schmitz, 2018 NY Slip Op 01960, Third Dept 3-22-18

CRIMINAL LAW (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA  (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/COLLOQUY (CRIMINAL LAW, (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

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EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction in the interest of justice, determined the expert evidence on child sexual abuse accommodation syndrome (CSAAS) was improperly admitted to prove the crime took place, depriving defendant of a fair trial:

… [W]e acknowledge that expert testimony concerning CSAAS and similar psychological syndromes has long been admissible to explain the behavior of a victim that might be puzzling to a jury … . Here, however, the expert witness did not confine her testimony to “educat[ing] the jury on a scientifically recognized pattern of secrecy, helplessness, entrapment [and] accommodation’ experienced by a child victim” … . Instead, the expert explained “grooming” and other behaviors associated with perpetrators of child sexual abuse. Her detailed description of a typical perpetrator’s modus operandi, moreover, closely tracked the victim’s testimony concerning defendant’s conduct, and the prosecutor on summation urged the jury to conclude that defendant’s interactions with the victim fit the description of a typical perpetrator’s conduct as described by the expert. In sum, that part of the testimony of the expert describing the conduct of a typical perpetrator was not directed at explaining the victim’s behavior. Rather, it was presented “for the purpose of proving that the [victim] was sexually abused” … , which purpose was reinforced by the prosecutor’s summation. People v Ruiz, 2018 NY Slip Op 01722, Fourth Dept 3-16-18

CRIMINAL LAW (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EXPERT OPINION (CRIMINAL LAW, (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined the evidence was insufficient to support the robbery first degree charge (no evidence of threat with a dangerous instrument) and the trial court should have conducted an inquiry into defense counsel’s request to withdraw:

Indisputably, the “gun” was plastic and did not work, and there was no evidence that it could potentially harm someone… . Similarly, while there was testimony that one of the men entering the motel room was holding the tire checker, there was no evidence that any individual brandished the tire checker in a threatening manner… . … [T]here is no question that one of the individuals possessed a dangerous instrument. What was missing was any evidence that there was any verbal threat of immediate use of the instrument or that it was “employ[ed]” in any way … . * * *

… [D]efendant’s right to counsel was not adequately protected. County Court’s determination focused on the inconveniences that would result if counsel were substituted and the trial were delayed one month, as well as defendant’s propensity to complain. But it was trial counsel, not defendant, complaining that the relationship had broken down, and the request was not made on the eve of trial. While we are not suggesting that a request made by counsel warrants heightened inquiry, “a conflict of interest or other irreconcilable conflict with counsel” may constitute good cause for substitution… , and there was no inquiry here to assess the gravity of counsel’s concerns in this regard. The motion raised specific examples to support trial counsel’s claim that there was “an irretrievable breakdown” in the relationship with defendant. As such, the court should have first questioned both defendant and trial counsel about “the nature of the disagreement or its potential for resolution” prior to denying the motion … . Absent such a “minimal inquiry,” we are compelled to reverse the judgment of conviction … . People v Matthews, 2018 NY Slip Op 01499, Second Dept 3-8-18

CRIMINAL LAW (EVIDENCE, ATTORNEYS, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/ROBBERY (DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/EVIDENCE (ROBBERY, DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/DANGEROUS INSTRUMENT (ROBBERY, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/RIGHT TO COUNSEL  (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/WITHDRAW (CRIMINAL LAW, DEFENSE COUNSEL, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))

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DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department, over a dissent, determined defendant’s motion to suppress his statement and a buccal swab should have granted but the error was harmless. The dissent argued the error was not harmless. The court noted that a violation of the right to counsel can be raised on appeal even when the error was not preserved:

… [A] recording of the defendant’s custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, “I think I need a lawyer.” The defendant’s statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant’s unequivocal request for counsel. Therefore, the remainder of the defendant’s statement after that point, as well as the buccal swab that he provided to the police after that point, should have been suppressed from evidence … . People v Bethea, 2018 NY Slip Op 01474, Second Dept 3-7-18

CRIMINAL LAW (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION,  DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/RIGHT TO COUNSEL (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/BUCCAL SWAB (CRIMINAL LAW, SUPPRESSION, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction after a weight of the evidence analysis, over a dissent, determined that defendant had proved the affirmative defense of mental disease or defect by the preponderance of the evidence:

… [W]e conclude that the jury was not justified in finding that the preponderance of the evidence failed to establish that the defendant lacked the substantial capacity to know or appreciate that his conduct was wrong at the time that he possessed the loaded firearm and shot Wright. The undisputed trial evidence established that at the relevant time, the defendant was suffering from auditory hallucinations, paranoia, and “incorrect perceptions” of reality. The opinion of the People’s expert psychologist that the defendant did not suffer a schizoaffective disorder, notwithstanding such a diagnosis by the defendant’s treating psychiatrists over the past three years, was conclusory. Moreover, the psychologist’s alternative theory that the defendant’s hallucinations were due to his use of PCP were purely speculative and without adequate evidentiary support. The psychologist’s conclusion that the defendant was motivated by revenge against a person he mistakenly perceived to have stolen his shorts was also speculative and contrary to the credible evidence presented. We accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor … , and weigh conflicting expert evidence … . However, on this record, the rational inferences which can be drawn from the evidence presented at trial do not support the conviction. People v Spratley, 2018 NY Slip Op 01488, Second Dept 3-7-18

CRIMINAL LAW (MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))

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ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s conviction after a weight of the evidence analysis, determined the evidence did not support the conclusion defendant acted as an accomplice in the assault of a homeless man. The codefendant doused the homeless man with lighter fluid and set him on fire. The defendant said “Do that shit man” and recorded the incident on his phone for one minute before attempting put out the fire:

For the defendant to be held criminally liable for the conduct of the codefendant, the People had to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned, or intentionally aided the codefendant to engage in that conduct, and that the defendant did so with the state of mind required for the commission of the offense (see Penal Law § 20.00). A defendant’s mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime, is not enough for accessorial liability … .

It is undisputed that the defendant did not assist the codefendant in dousing the victim with lighter fluid or setting fire to the victim, and did not supply any of the materials to the codefendant to commit the criminal act. The defendant’s actions, in uttering, “Do that shit, man,” as the codefendant doused the victim with lighter fluid, and in filming this incident for approximately one minute before rendering any aid to this particularly vulnerable and helpless victim, were deplorable. However, his actions did not support the jury’s finding beyond a reasonable doubt that he solicited, requested, commanded, importuned, or intentionally aided the codefendant to assault the victim, and that he did so sharing the codefendant’s state of mind. People v Fonerin, 2018 NY Slip Op 01480, Second Dept 3-7-18

CRIMINAL LAW (ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/ACCOMPLICE LIABILITY (CRIMINAL LAW,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE LIABILIITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, ACCOMPLICE LIABILITY,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT).

The Third Department reversed (modified) Supreme Court’s dismissal of products liability complaint against the distributor (At Last Sportswear) and seller (Walmart) of plaintiff’s clothing which caught fire. The court also determined the Enerco defendants (the manufacturer, designer, and distributor of the heater which ignited the clothes) were aggrieved by the order, based upon joint liability principles, and therefore could appeal it:

Although liability can be apportioned between any tortfeasors, whether they are codefendants or nonparties, if an alleged tortfeasor was a codefendant whom the court had dismissed from the case, the law of the case doctrine would preclude the remaining defendants from introducing at trial any evidence regarding the same type of defect or error by that alleged tortfeasor that was previously litigated … . Thus, the Enerco defendants were entitled to challenge motions by any codefendants seeking to be released from the action, they were aggrieved by any orders granting dismissal and they could, therefore, appeal any such orders. …

[At Last’s and Walmart’s] expert opined that the dress materials complied with and exceeded the requirements of the Federal Flammable Fabrics Act (15 USC § 1191 et seq. [hereinafter FFA]) and accompanying regulations (16 CFR part 1610) for general wearing apparel, as well as the industry standard, that the dress was reasonably safe and suitable for its intended use, that it was not defective in any manner and that this type of 100% cotton dress was a standard commodity.  …

… [T]he Enerco defendants submitted an affidavit from their own expert, who opined that the FFA standards are insufficient to determine whether a garment is safe because it addresses only some factors affecting flammability of the fabric but not the design of the garment itself … . He supported his opinion with literature in which industry professionals addressed the inadequacy of the FFA standards to protect consumers. These competing expert opinions present a triable issue of fact regarding whether a design defect exists … . …

The parties’ experts disagreed as to whether labels warning about the dress’s flammability and the need to be cautious around heat sources were appropriate for such general wearing apparel and existed in the United States market for this type of garment. Thus, factual issues remain regarding whether At Last Sportswear and the Wal-Mart defendants breached a duty to warn. Palmatier v Mr. Heater Corp., 2018 NY Slip Op 01368, Third Dept 3-1-18

PRODUCTS LIABILITY (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/CIVIL PROCEDURE (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/APPEALS (JOINT TORTFEASORS, (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))/JOINT TORTFEASORS (QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT DISMISSING THE PRODUCTS LIABILITY COMPLAINT AGAINST THE DISTRIBUTOR AND SELLER OF CLOTHES WHICH CAUGHT FIRE AFTER CONTACT WITH A HEATER, THE HEATER DEFENDANTS WERE AGGRIEVED BY THE DISMISSAL UNDER JOINT LIABILITY PRINCIPLES AND THEREFORE COULD APPEAL (THIRD DEPT))

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DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT).

The Third Department, affirming defendant’s depraved indifference murder conviction, noted the difference between a “legal sufficiency” analysis and a “weight of the evidence” analysis on appeal, and reiterated that criminally negligent homicide is not a lesser included offense within depraved indifference murder. Here the two-year old victim was subjected to severed physical abuse over a period of days or longer:

Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. A legal sufficiency challenge requires us to “view the evidence in the light most favorable to the People and evaluate whether ‘there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged'” … . A legally sufficient verdict may, however, be against the weight of the evidence … . The latter review requires us to assess whether acquittal was a reasonable possibility and, if so, to weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” in deciding whether the verdict was justified … . * * *

Criminally negligent homicide demands that a person act “with criminal negligence” and, in doing so, “causes the death of another person” (Penal Law § 125.10). Inasmuch as criminal negligence involves a person failing “to perceive [the] substantial and unjustifiable risk” of the result set forth by the statute (Penal Law § 15.05 [4]), a person does not commit criminally negligent homicide unless he or she fails to perceive a substantial and unjustifiable risk of death …  In contrast, Penal Law § 125.25 (4) demands that an adult person, “[u]nder circumstances evincing a depraved indifference to human life, . . . recklessly engage[] in conduct which creates a grave risk of serious physical injury or death to another person less than [11] years old” and that ends in the other person’s death (emphasis added).

The definition of serious physical injury encompasses injuries that do not create a substantial risk of death or cause death, such as those that cause “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]). As we have previously held, it is therefore theoretically possible to commit depraved indifference murder of a child by “engag[ing] in conduct that creates and disregards a grave risk of serious physical injury, causing death, without . . . engaging in conduct that creates . . . a substantial risk of death, causing death” … . People v Stahli, 2018 NY Slip Op 01359, Third Dept 3-1-18

CRIMINAL LAW (DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/APPEALS (CRIMINAL LAW, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/CRIMINALLY NEGLIGENT HOMICIDE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/DEPRAVED INDIFFERENCE MURDER (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LESSER INCLUDED OFFENSE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))

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COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal:

… County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiver does not foreclose a defendant’s challenge that a court failed to make the requisite on-the-record determinations regarding youthful offender treatment … . Pursuant to CPL 720.10 (3), “a youth who has been convicted of . . . criminal sexual act in the first degree . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Where, as here, the only barrier to youthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), “the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)”… . This determination is mandatory, without regard to whether it has been requested or purportedly waived … . People v Martz, 2018 NY Slip Op 01222, Third Dept 2-22-18

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/APPEALS (CRIMINAL LAW, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/YOUTHFUL OFFENDER (COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/SEX OFFENSES (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))

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