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WARRANTLESS ENTRY INTO A METH LAB JUSTIFIED BY THE EMERGENCY DOCTRINE, DANGER TO OCCUPANTS (THIRD DEPT).

The Third Department determined the police officer’s (Tobias’s) warrantless entry into a garage which was being used as a meth lab was justified by the emergency doctrine. The officer saw smoke coming from a broken window in the garage and recognized the odor associated with meth production. The officer testified his fear of an explosion and the related danger to the occupants was the reason he entered the garage:

Tobias’ testimony established that his primary reason for entering the garage was not to arrest defendant or to seize evidence. … Tobias testified that, because he knew “[m]eth labs [to be] dangerous” and to pose a “risk of explosions and fires,” both of his entries into the garage were motivated by his concern for the safety of anyone who may have remained inside … . … [W]e find that Tobias’ warrantless entries into the garage were justified by the emergency doctrine … . People v Alberts, 2018 NY Slip Op 03393 [161 AD3d 1298], Third Dept 5-10-18

suppression, suppress

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DEFENDANT WAS CHARGED WITH ENDANGERING THE WELFARE OF A CHILD BASED ON SEVERAL TYPES OF SEXUAL TOUCHING, BUT NOT KISSING, THE JURY WAS ALLOWED TO CONSIDER KISSING, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant was convicted of endangering the welfare of a child based upon a theory that was not charged in the indictment. The endangering count of the indictment alleged defendant had subjected the victim to several types of sexual touching, but not kissing. The jury was allowed to consider the evidence of kissing. The defendant was acquitted of all counts except the endangering count:

In summation, the People argued, over objection, that the defendant’s guilt of endangering the welfare of a child was established by the conduct of kissing the complainant. The Supreme Court then instructed the jury, over objection, that in order to find the defendant guilty of endangering the welfare of a child under the relevant count, the jurors were required to find that the defendant knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of the complainant, a child less than 17 years old, by engaging in sexual contact with her, defined, under the general definition in the Penal Law, as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” … . The jury returned a verdict of guilty on that count, and acquitted the defendant of the other counts submitted to it, which charged the defendant, inter alia, with engaging in vaginal and anal intercourse with the complainant.

Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories … . Here, the defendant was convicted of endangering the welfare of a child under a count of the indictment that limited the People to a particular theory or theories of endangering the welfare of a child. Therefore, the Supreme Court erred when it permitted the jury to consider a theory not charged in the indictment—that kissing endangered the complainant’s welfare … . Since the defendant’s conviction may have been based upon an uncharged theory, the judgment of conviction must be reversed and a new trial ordered. People v Vasquez, 2018 NY Slip Op 03382, Second Dept 5-9-18

​CRIMINAL LAW (INDICTMENTS, EVIDENCE, DEFENDANT WAS CHARGED WITH ENDANGERING THE WELFARE OF A CHILD BASED ON SEVERAL TYPES OF SEXUAL TOUCHING, BUT NOT KISSING, THE JURY WAS ALLOWED TO CONSIDER KISSING, CONVICTION REVERSED (SECOND DEPT))/INDICTMENTS (EVIDENCE, DEFENDANT WAS CHARGED WITH ENDANGERING THE WELFARE OF A CHILD BASED ON SEVERAL TYPES OF SEXUAL TOUCHING, BUT NOT KISSING, THE JURY WAS ALLOWED TO CONSIDER KISSING, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, INDICTMENTS, DEFENDANT WAS CHARGED WITH ENDANGERING THE WELFARE OF A CHILD BASED ON SEVERAL TYPES OF SEXUAL TOUCHING, BUT NOT KISSING, THE JURY WAS ALLOWED TO CONSIDER KISSING, CONVICTION REVERSED (SECOND DEPT))

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ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT).

The Second Department, reversing the manslaughter and negligent homicide convictions, over a dissent, determined that those convictions, although supported by legally sufficient evidence, were against the weight of the evidence. Defendant, whose blood alcohol level was .12, caused a highway traffic accident. Several drivers stopped and a police officer was at the scene. Another driver, who was in traffic passing by the stopped cars and the police officer, struck a car and the police officer was killed. The Second Department found that the accident in which the officer was killed, which occurred a substantial amount of time after defendant’s accident, was not “temporally proximate” to the defendant’s conduct:

… [T]he People adduced legally sufficient evidence that the defendant’s actions set in motion the events that led to the death of the police officer, and that the defendant’s conduct was a sufficiently direct cause of that result. It was reasonably foreseeable that the defendant’s conduct, including driving while intoxicated, causing the initial collision, failing to stop after the initial collision, and causing a second collision, would cause a dangerous condition on the roadway that would pose a danger to police or other first responders, particularly in the immediate aftermath of the incidents and prior to the securing of the accident scene… . The People adduced legally sufficient evidence of causation as to the counts of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, and criminally negligent homicide. …

However, the jury verdict as to the manslaughter and homicide counts was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence … , we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor … . Here, the verdict as to the manslaughter and homicide counts was against the weight of the evidence, particularly in light of the evidence that the driver of the SUV that struck the police officer failed to pay attention to conditions on the roadway, including the presence of multiple stopped vehicles and debris on the road, and approached the accident scene at a speed in excess of the speed at which other vehicles were traveling … . People v Ryan, 2018 NY Slip Op 03380, Second Dept 5-9-18

​CRIMINAL LAW (TRAFFIC ACCIDENTS, ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, TRAFFIC ACCIDENTS,ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))/LEGALLY SUFFICIENT EVIDENCE (CRIMINAL LAW,  TRAFFIC ACCIDENTS, ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, TRAFFIC ACCIDENTS, ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))/VEHICULAR HOMICIDE (ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (CRIMINAL LAW, ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT))

SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT).

The First Department determined Supreme Court should have placed defendant in a judicial diversion program in this cocaine-sale case. Defendant’s need for money to support his marijuana use qualified him for diversion, despite his prior completion of a drug treatment program:

The court improvidently exercised its discretion in denying defendant’s request to participate in the judicial diversion program. The court based this determination on the erroneous ground that defendant had failed to establish that his “substance abuse or dependence [wa]s a contributing factor to [his] criminal behavior” (CPL 216.05[3][b][iii]). “The statute does not require that a defendant’s . . . substance abuse or dependence be the exclusive or primary cause of the defendant’s criminal behavior,” but “only requires that it be a contributing factor” … . In this case, defendant pleaded guilty to selling cocaine to an undercover police officer for $300, and was found carrying that amount in prerecorded buy money, an additional $880 in cash, and three cell phones. Defendant reported that his heavy use of marijuana cost him about $50 to $60 per day. In light of these facts and other particular circumstances of this case, defendant’s need for enough money to fund that habit evidently contributed to his criminal behavior of selling cocaine.

Accordingly, the court should order judicial diversion pursuant to CPL article 216, giving due recognition to the drug treatment program defendant has already completed. This result is consistent with one of the purposes of judicial diversion, which is to permit a defendant to achieve a disposition other than a felony conviction, where appropriate. People v Alston, 2018 NY Slip Op 03324, First Dept 5-8-18

CRIMINAL LAW (DIVERSION, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/JUDICIAL DIVERSION (CRIMINAL LAW, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/DIVERSION (CRIMINAL LAW, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))/SENTENCING (JUDICIAL DIVERSION, SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT))

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AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a dissenting opinion, reversed the Appellate Division and sent the matter back to the Appellate Division for a factual determination whether the trial judge’s credibility assessment of a spectator who claimed to have overheard jurors speaking about the defendant in derogatory terms was supported by the weight of the evidence. After questioning the spectator the trial judge determined no further inquiry was required. The Appellate Division reversed defendant’s conviction over a dissent:

… [W]e are asked to determine whether the trial court abused its discretion when it chose not to conduct an inquiry of two sworn jurors pursuant to People v Buford (69 NY2d 290 [1987]). Alerted to a complaint by a courtroom spectator that during a break in the trial the spectator allegedly overheard the jurors refer to defendant by a derogatory term, the trial court immediately called the spectator to the stand and elicited sworn testimony regarding her allegation. At the conclusion of the examination, the judge determined that a Buford inquiry was not required based on the testimony provided. We conclude on this record that the trial court made an implied credibility finding that the spectator was not worthy of belief and therefore a Buford inquiry was not warranted. This determination by the trial court was not reviewed by the Appellate Division. It was error for the Appellate Division to opine as to what remedy was warranted in response to the content of the spectator’s allegation, without determining whether the allegation was credible in the first instance. Accordingly, we reverse the Appellate Division order and remit the case to that Court to exercise its own fact-finding power to consider and determine whether the trial court’s finding as to the spectator’s credibility was supported by the weight of the evidence. * * *

If, on remittal, the Appellate Division finds, upon its own factual review, that the record supports the trial court’s determination that the spectator lacked credibility, no further action was required. If the Appellate Division finds that the credibility determination was not supported, it must determine whether the trial court abused its discretion in not taking further action … . … [A] credible allegation that a juror is grossly unqualified to serve or engaged in substantial misconduct within the meaning of CPL 270.35 cannot be ignored by the trial court, and failure to appropriately remedy the matter is reversible error. People v Kuzdzal, 2018 NY Slip Op 03304, CtApp 5-8-18

​CRIMINAL LAW (JURORS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/JURORS (CRIMINAL LAW, BIAS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/APPEALS (CRIMINAL LAW, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))

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EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing defendant’s conviction, determined that a statement heard in the background of a 911 call should not have been admitted as an excited utterance. The statement ostensibly identified the defendant as the man who had just shot three people. Other than the defendant’s fingerprint found on the van the shooter got into, there was no evidence identifying the defendant as the shooter. Two trial judges had ruled the 911 statement inadmissible before a third trial judge allowed it to come in. The Court of Appeals held that the law of the case doctrine did not prohibit the third judge from ruling on the admissibility of the statement, but the statement was inadmissible because there was no evidence the declarant observed the shooting:

The decision to admit hearsay as an excited utterance is an evidentiary decision, “left to the sound judgment of the trial court”… , and thus may be reconsidered on retrial … . There is no reason to apply a different rule to a successor judge within the same trial and we, therefore, have no basis to adopt a per se rule prohibiting a substitute judge from exercising independent discretion concerning an evidentiary trial ruling.  * **

A “spontaneous declaration or excited utterance — made contemporaneously or immediately after a startling event — which asserts the circumstances of that occasion as observed by the declarant” is an exception to the prohibition on hearsay … . “The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination”… . Although hearsay, excited utterances may be admissible because, “as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant’s belief as to the facts just observed by him, may be received as testimony of those facts”… . … “[I]t must be inferable that the declarant had an opportunity to observe personally the event described in the [spontaneous] declaration” … . Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and “assert[ing] the circumstances of” the event causing the excitement … . People v Cummings, 2018 NY Slip Op 03306, CtApp 5-8-18

​CRIMINAL LAW (EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EVIDENCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/HEARSAY (CRIMINAL LAW, EXCITED UTTERANCE, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EXCITED UTTERANCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/LAW OF THE CASE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))

PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurring opinion, determined that the “place of business” exception the the stature criminalizing possession of an unlicensed firearm as a felony did not apply to defendant, who was a swing manager at a McDonald’s restaurant. While working at the restaurant the defendant’s firearm discharged accidentally and wounded him:

The question presented on this appeal is whether the “place of business” exception to Penal Law § 265.03 (3) applies to an employee who possessed an unlicensed firearm at work. Defendant contends that “place of business” simply means one’s place of employment, and therefore the exception applies. We read the exception to narrowly encompass a person’s “place of business,” when such person is a merchant, storekeeper, or principal operator of a like establishment. People v Wallace, 2018 NY Slip Op 03305, CtApp 5-8-18

​CRIMINAL LAW (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/PLACE OF BUSINESS (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/WEAPON, POSSESSION OF (PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))

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DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCHED THE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT).

The Fourth Department determined defendant great-grandmother’s motion for summary judgment in this negligent supervision action was properly granted. Defendant was care for plaintiff’s five-year-old daughter, Isabella. When defendant went to bed she left Isabella with 16-year old Freeman, a neighbor who had watched Isabella more than 10 times in the past without incident. Freeman killed plaintiff’s daughter while defendant was asleep:

It is well established that ” an intervening intentional or criminal act will generally sever the liability of the original tort-feasor’ ” … . “The test to be applied is whether under all the circumstances the chain of events that followed [an allegedly] negligent act or omission was a normal or foreseeable consequence of the situation created by the [alleged] negligence” … . Thus, an intervening criminal act by a third party that is ” extraordinary under the circumstances’ ” or ” not foreseeable in the normal course of events’ ” breaks the causal chain and exonerates the original tortfeasor of liability … .

Here, even assuming, arguendo, that defendant was negligent to some extent in supervising Isabella on the night in question, we nevertheless conclude, as a matter of law, that Freeman’s intentional murder of Isabella severed the chain of causation and eliminated any liability on defendant’s part (see id.). The record contains numerous undisputed facts supporting that conclusion. Freeman had previously watched Isabella on more than 10 occasions, all without incident, and they had even colored together before. Freeman and Isabella got along well for years before the murder, and defendant never observed any “red flags” or troubling indicia about Freeman generally, or his interactions with Isabella in particular. Defendant was unaware of any mental problems with Freeman. Indeed, there is no suggestion that Freeman had ever exhibited any questionable behavior or tendencies in the past, whether or not known to defendant. Tennant v Lascelle, 2018 NY Slip Op 03279, Fourth Dept 5-4-18

​NEGLIGENCE (NEGLIGENT SUPERVISION, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/NEGLIGENT SUPERVISION (DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/CRIMINAL ACT (NEGLIGENCE, SEVERS LIABILITY, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing:

… [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure the presence of a witness who had potentially exculpatory information, and we agree with defendant that such a failure may serve as the basis for a finding of ineffective assistance of counsel … . At trial, defense counsel stated on the record that the witness had been subpoenaed to testify on defendant’s behalf. The witness did not testify, however, and there is nothing in the trial record indicating why. According to defendant’s moving papers, when the witness did not appear to testify, defense counsel merely stated: “Oh, well.” There is no dispute that defense counsel did not attempt to utilize the procedure for securing the trial testimony of a material witness … , or to seek a continuance to obtain the witness’s voluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she was never subpoenaed.

The court denied that part of the motion based on its determination that defendant could have raised his claim on his direct appeal or in his prior CPL 440.10 motions … . That was error. Because the witness resided in another state and went by a different surname, it was not until 2014—after defendant made his two prior CPL 440.10 motions—that defendant was able to obtain an affidavit from her. The affidavit contains information not contained in the trial record and substantially supports defendant’s claim of ineffective assistance. Significantly, it raises an issue of fact whether the witness was ever subpoenaed by defense counsel. That issue of fact is separate and distinct from the witness’s information about the murder itself, which was known to defendant through the 2004 police report. Defendant could not have discovered and raised the issue of fact until 2014, when he was able to identify, locate, and obtain an affidavit from the witness. People v Borcyk, 2018 NY Slip Op 03256, Fourth Dept 5-4-18

​CRIMINAL LAW (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ATTORNEYS (MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,  DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))

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DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT).

The Fourth Department determined the evidence was legally sufficient to support the assault first conviction stemming from defendant’s allowing his dog to attack the victim. The court noted that the motion for a trial order of dismissal at the close of the People’s case was adequate to preserve the challenge to the legal sufficiency of the evidence of intent, even though the renewal of the motion at the close of evidence referred to the earlier motion:

The conviction arises from a dog attack that caused the victim to sustain injuries that included broken bones in his hands and the amputation of a portion of one of his fingers. The victim as well as witnesses to the attack testified that two pit bull terriers that had escaped their owner’s property attacked the victim, biting at his arms and legs, as the victim attempted to protect his dog from the pit bulls. Defendant, who was a friend of the owner of the pit bulls, arrived at the scene in a van driven by another man. Defendant exited the van, retrieved the two pit bulls and placed them in the van. After the pit bulls were secured in the van, the victim stood in front of the van and angrily told defendant that the police had been called and “you’re not going anywhere.” Defendant responded by asking the victim, “you coming at me? Are you going to stop me from leaving?” At that point defendant opened the van door and issued a command to the larger pit bull, who attacked the victim a second time, inflicting the injuries to the victim’s hands.

Defendant contends that the evidence is legally insufficient to support the conviction inasmuch as the People failed to prove that he intended to cause serious physical injury to the victim … . Viewing the evidence in the light most favorable to the People … , we conclude that the evidence is legally sufficient to establish such intent … . People v Bacon, 2018 NY Slip Op 03258, Fourth Dept 5-4-18

CRIMINAL LAW (DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/ANIMAL LAW (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT/DOGS (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))

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