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THERE WAS INSUFFICIENT EVIDENCE DEFENDANT PARTICIPATED IN THE MUGGING, INSUFFICIENT EVIDENCE THE VICTIM SUFFERED PHYSICAL INJURY, AND INSUFFICENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED THE VICTIM’S WALLET AND CELL PHONE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the convictions were not supported by legally sufficient evidence and were against the weight of the evidence. The victim said he was mugged by three men and his wallet and cell phone were stolen. The police were able to track the cell phone and, based on the tracking device, stopped a car 30 to 40 minutes after the mugging. There were four men, including defendant, in the car. The other three men in the car pled guilty. The wallet and cell phone were found in the car. The evidence that defendant participated in the mugging was insufficient, the evidence the victim suffered physical injury was insufficient, and the evidence defendant constructively possessed the wallet and cell phone was insufficient:

… [W]e find that the People failed to prove, beyond a reasonable doubt, defendant’s identity as one of the perpetrators of the robbery and assault.  * * *

Given the paucity of proof regarding the victim’s injuries, we agree with defendant that the evidence fails to establish that the victim suffered a physical injury within the meaning of Penal Law § 10.00 (9) … . * * *

… [T]he … circumstantial evidence falls short of proving, beyond a reasonable doubt, that defendant constructively possessed the wallet and the credit and debit cards contained therein or that any such possession was knowing. Although the testimony demonstrated that the wallet was found somewhere in the back seat, there was no other evidence connecting defendant to the stolen property or demonstrating his awareness of its presence inside the vehicle. … [T]he victim asserted that there were three black males involved in the robbery and assault and there were four black males in the vehicle when it was stopped some 30 to 40 minutes afterward, leaving open the possibility that one of the passengers entered the vehicle after the robbery and assault … . People v Green, 2021 NY Slip Op 02841, Third Dept 5-6-21

 

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PLAINTIFF TESTIFIED IT HAD RAINED FOR ONLY FIVE MINUTES BEFORE SHE SLIPPED AND FELL ON WATER ON THE FLOOR; THEREFORE HER TESTIMONY ESTABLISHED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff testified it had only begun raining five minutes before she slipped and fell on water on the floor, which she did not see until after she fell:

Defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall … . Their property manager stated in an affidavit that she conducted a search of defendants’ records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff’s accident, and found none except for the complaint made by plaintiff after she fell. That someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff’s accident does not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff’s own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell … . A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff’s fall … . Barreto v 750 Third Owner, LLC, 021 NY Slip Op 02868, First Dept 5-6-21

 

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PLAINTIFF, ON A BICYCLE, WAS STRUCK BY A BUS AND SUFFERED TRAUMATIC BRAIN INJURY, A TORN ROTATOR CUFF AND SEVERAL HERNIATED DISCS; THE JURY’S DAMAGES AWARDS, WHICH INCLUDED $0 FOR FUTURE PAIN AND SUFFERING AND PAST AND FUTURE LOST WAGES, WERE DEEMED UNREASONABLE; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT).

The First Department vacated several of the jury’s damages awards and ordered a new trial on damages. Plaintiff was struck by a bus while on a motorized bike resulting in traumatic brain injury, a torn rotator cuff and several herniated discs:

The jury’s award of $0 for future pain and suffering is inconsistent with its award of $250,000 for future medical expenses and, in any event, against the weight of the evidence and materially deviates from what would be reasonable compensation … .

Given the jury’s finding that plaintiff sustained a “significant limitation of use,” and its award of future medical costs over a period of 25 years, it is clear that the jury found plaintiff to have suffered injuries that will continue to impair his life into the future, and the award of $0 for future pain and suffering is irreconcilable with this finding and cannot stand … .

The award of $750,000 for past pain and suffering deviates materially from what would be considered reasonable compensation in light of plaintiff’s shoulder, spine, and traumatic brain injuries … .

The $0 awards for past and future lost earnings were against the weight of the evidence in light of plaintiff’s testimony regarding his prior income and current unemployment. Dr. Cornelius E. Gorman testified that plaintiff’s “career is lost” and that he “cannot qualify for competitive employment” given his cognitive deficits. The jury had no reasonable basis for depriving plaintiff of damages for past and future loss of earnings … . Scott v Posas, 2021 NY Slip Op 02885, First Dept 5-6-21

 

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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, justify the full search of the trunk of the car. Therefore the firearm found in the trunk should have been suppressed:

… “[T]he automobile exception. . . is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” … . * * *

We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” … , and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower-and no broader-than [sic] the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” … , we find that here the search of the trunk was not supported by probable cause. Consequently, the gun found therein, and the statements made by defendant thereafter, should have been suppressed. People v Ponder, 2021 NY Slip Op 02880, First Dept 5-6-21

 

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THE USE OF TRANSLATORS TO DOCUMENT INFORMATION IN AN ACCUSATORY INSTRUMENT DID NOT RENDER THE INSTRUMENTS FACIALLY INSUFFICIENT BY ADDING A LAYER OF HEARSAY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined that the use of translators in documenting information in an accusatory instrument did not create an additional layer of hearsay. The three accusatory instruments at issue, therefore, were deemed facially sufficient. Two of the accusatory instruments did not refer to the use of a translator, and the third did:

… “[I]n evaluating the sufficiency of an accusatory instrument,” a court does “not look beyond its four corners (including supporting declarations appended thereto)” ( … see CPL 100.15 [3]; 100.40 [1] [c] …). Courts must “not rely on external factors to create jurisdictional defects not evident from the face of the” accusatory instrument … . Instead, “[w]hether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument” … ..

Defects that do not appear on the “the face of the” accusatory instrument are “latent deficienc[ies]” that do not require dismissal … . * * *

We conclude that, when evaluating the facial sufficiency of an accusatory instrument, no hearsay defect exists where … the four corners of the instrument indicate only that an accurate, verbatim translation occurred, and the witness or complainant adopted the statement as their own by signing the instrument after the translation … . People v Slade, 2021 NY Slip Op 02866, CtApp 5-6-21

 

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DEFENDANT FAILED TO PRESENT EVIDENCE THAT THE AREA OF PLAINTIFF’S SLIP AND FALL WAS INSPECTED OR CLEARED OF ICE AND SNOW DURING THE TWO DAYS PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant UPS did not demonstrate the lack of constructive notice of the snow and ice condition upon which plaintiff allegedly slipped and fell:

UPS failed to demonstrate, prima facie, that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell in the early morning of January 1, 2011 … . In support of that branch of its motion which was for summary judgment dismissing the complaint, UPS failed to submit any evidence concerning the condition of the subject area after it had been cleared of snow and ice on December 29, 2010, or within a reasonable time prior to the plaintiff’s fall on the morning of January 1, 2011 … . UPS submitted evidence demonstrating that it ceased all snow removal efforts on December 29, 2010, in relation to a storm that dropped a significant amount of snow, and that the area where the plaintiff fell was free of ice at that time. However, it submitted no evidence as to when the area was inspected again between December 29, 2010, and the time of the plaintiff’s accident more than two days later. Under the circumstances, triable issues of fact exist including whether the alleged ice condition that caused the plaintiff to slip and fall was visible and apparent, and whether it had existed for a sufficient length of time before the accident such that UPS could have discovered and corrected it … . Anderson v United Parcel Serv., Inc., 2021 NY Slip Op 02777, Second Dept 5-5-21

 

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THE EVIDENCE RELIED UPON BY COUNTY COURT TO DENY DEFENDANT’S RESENTENCING PURSUANT TO THE DRUG LAW REFORM ACT (DLRA) WAS NOT SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION FAVORING RESENTENCING (SECOND DEPT).

Second Department, reversing County Court, determined the evidence relied upon by County Court was not sufficient to overcome the statutory presumption in favor of resentencing pursuant to the Drug Law Reform Act (DLRA):

Where, as here, a defendant is eligible for resentencing relief pursuant to the 2004 DLRA and CPL 440.46, there is a statutory presumption in favor of resentencing …  . Although resentencing is not mandatory, there is a presumption that th.e defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like those committed by the defendant was excessively harsh … .

Under the circumstances of this case, the factors relied upon by the County Court in denying the motion, including the defendant’s criminal history, the quantity of drugs involved in the underlying offenses, and the defendant’s disciplinary infractions while incarcerated, were insufficient to overcome the statutory presumption … . People v Williams, 2021 NY Slip Op 02831, Second Dept 5-5-21

 

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the matter back for resentencing:

“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court” … , and “‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law'” … .

Here, this Court previously determined, on the merits, that the defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal … . People v Kaval, 2021 NY Slip Op 02823, Second Dept 5-5-21

 

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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured:

Viewing the evidence in the light most favorable to the prosecution… , we find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial also established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . Accordingly, we modify the judgment by reducing the defendant’s convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and we remit the matter to the Supreme Court, Queens County, for sentencing. People v Aragundi, 2021 NY Slip Op 02811, Second Dept 5-5-21

 

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WITHOUT EVIDENCE THE TWO POSSESSION-OF-A-WEAPON CHARGES RELATED TO DISTINCT EVENTS, CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing the convictions and vacating the sentences, determined there was no evidence the two possession-of-a-weapon charges were based upon distinct events. Therefore consecutive sentences should not have been imposed:

County Court should not have imposed consecutive sentences upon the defendant’s conviction of the two counts of criminal possession of a weapon in the third degree. Sentences imposed for two or more offenses may not run consecutively where, among other things, “a single act constitutes two offenses” … . Here, there was no showing that the defendant’s acts underlying the crimes were separate and distinct and consequently, consecutive sentences could not be imposed (see Penal Law § 70.25[2 … ).

Under the particular circumstances of this case, we reverse the judgments of convictions, vacate the sentences imposed thereon, and remit the matters … for further proceedings, at which the People should be given the opportunity to withdraw their consent to the plea agreement, should they be so advised … . People v Adams, 2021 NY Slip Op 02808, Second Dept 5-5-21

 

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