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DEFENDANT’S SUPPRESSION MOTION PAPERS RAISED A FACTUAL ISSUE REQUIRING A HEARING, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined defendant had raised a factual issue requiring a suppression hearing:

“When made before trial, suppression motions must be in writing, state the legal ground of the motion and contain sworn allegations of fact made by defendant or another person” … . A hearing may be denied “unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” … .

Here, defendant specifically alleged that officers “responded to [the scene] after . . . defendant, or someone at his behest, called 911” and that defendant, upon their arrival, told them that he “found [the victim] on the stairs bleeding and was trying to help him.” Defendant alleged that, based on that information, “[t]he police removed [him] from the scene and placed him in the back of a police vehicle, and took his personal cell phone from him” without reasonable suspicion or probable cause justifying the intrusion. Although the People contended that defendant made other statements to the officers that heightened their level of suspicion and justified the intrusion, defendant’s motion papers disputed this assertion, alleging instead that, at the time of the intrusion, “the police knew nothing more than [that the victim] appeared to have been shot, and [that defendant] . . . had discovered him and summoned help while trying to give assistance at the scene.” Indeed, at oral argument on the motion, defendant further explained that he specifically disputed what information the police had at the time of the intrusion. We conclude that, under these circumstances, defendant sufficiently raised a factual issue necessitating a hearing … . People v White, 2021 NY Slip Op 01639, Fourth Dept 3-19-21

 

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STATEMENTS MADE AFTER DEFENDANT ASSERTED HIS RIGHT TO REMAIN SILENT SHOULD HAVE BEEN SUPPRESSED, BUT THE ERROR WAS HARMLESS; CRIMINAL POSSESSION OF A WEAPON WAS A CONTINUING CRIME AND SHOULD HAVE BEEN CHARGED AS A SINGLE COUNT, NOT FOUR COUNTS; AN OBJECTION OR A MOTION FOR A MISTRIAL IS NECESSARY TO PRESERVE AN ERROR AFTER A CURATIVE INSTRUCTION HAS BEEN GIVEN (FOURTH DEPT).

The Fourth Department determined statements made after defendant unequivocally asserted his right to remain silent should have been suppressed, but the error was harmless. In addition the Fourth Department dismissed three counts of criminal possession of a weapon because all four counts related to the uninterrupted possession of a single weapon at different times. The court also noted that if the trial court gives a curative instruction after an objection, another objection or a motion for a mistrial is necessary to preserve the issue for appeal:

… [D]efendant told the police three times that he did not wish to speak to them. We conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is supported by the record with respect to the first such instance, because in that instance he “did not clearly communicate a desire to cease all questioning indefinitely” … , “especially in light of his continued participation in the conversation” … . We further conclude, however, that the remainder of the court’s determination is not supported by the record, inasmuch as, twice more during the questioning, “defendant said that he did not want to talk about [the crimes], thus unequivocally invoking his right to remain silent” … . Consequently, the court was required to suppress the statements that defendant made after invoking his right to remain silent for the second time. * * *

Defendant … contends in his main brief that the court erred in refusing to dismiss various counts of the indictment charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) inasmuch as the indictment charged him with multiple counts of that crime based on his commission of a singular continuing offense. We agree. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged defendant with four separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) for the uninterrupted possession of a single weapon at different times. We conclude that such possession “constituted a single offense for which he could be prosecuted only once” … . Consequently, we affirm that part of the judgment convicting defendant of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) in count 17 of the indictment, and we modify the judgment by reversing those parts convicting him of that crime under counts 8, 11, and 16 of the indictment and dismissing those counts of the indictment. People v Johnston, 2021 NY Slip Op 01632, Fourth Dept 3-19-21

 

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THE PROOF OF CONSTRUCTIVE POSSESION OF WEAPONS WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department reversed defendant’s convictions for criminal use of a firearm and criminal possession of weapon because the proof of constructive possession was legally insufficient:

… [T]he evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and we therefore modify the judgment accordingly. Those counts were based on defendant’s constructive possession of a rifle that was found in the house after the police entered. The People failed to establish that defendant “exercised dominion or control over [the rifle] by a sufficient level of control over the area in which [it was] found” to establish that she had constructive possession of it … . People v Lora, 2021 NY Slip Op 01597, Fourth Dept 3-19-21

 

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AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).

The Fourth Department remitted the case for a ruling on defendant’s motion for a trial order of dismissal. An appellate court cannot consider a motion not ruled upon:

Defendant … contends that the evidence is legally insufficient to support the conviction with respect to all counts. At the close of proof, defendant moved for a trial order of dismissal, and the court reserved decision. There is no indication in the record that the court ruled on defendant’s motion (cf. CPL 290.10 [1]). Thus, we may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . People v Johnson, 2021 NY Slip Op 01675, Fourth Dept 3-19-21

 

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THE ALLEGED VICTIM IN THIS RAPE PROSECUTION TESTIFIED SHE PROMPTLY NOTIFIED HER BOYFRIEND OF THE RAPE AND, A FEW HOURS LATER, NOTIFIED HER MOTHER; HER MOTHER TESTIFIED BUT THE BOYFRIEND WAS NOT CALLED; THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE TESTIMONY WOULD BE CUMULATIVE; THE CONCEPT OF “CUMULATIVE” EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the defense request for the missing witness jury instruction should have been granted. The alleged victim in this rape case testified she promptly reported the rape to her boyfriend and, a few hours later, told her mother. The People called her mother as a witness, but not her boyfriend. The trial judge denied the missing witness charge on the ground that the testimony would be cumulative:

In People v Smith (33 NY3d 454 [2019]), the Court of Appeals held that the proponent of a missing witness charge has no initial burden to show that the missing testimony would not be cumulative of the remaining testimony, and that the concept of cumulativeness in this context functions only as a tool for defeating an otherwise-meritorious request for a missing witness instruction (id. at 458-460). Thus, the Court of Appeals explained, the opponent of the missing witness instruction has the burden of showing that the missing testimony would be cumulative in order to defeat the requested instruction on that ground (id.).

Applying the standard set forth in Smith, we conclude that the People failed to show that the boyfriend’s testimony would have been cumulative of the mother’s testimony. The respective accounts would concern different outcries, separated by several hours and many blocks. The boyfriend could not have duplicated the mother’s account of the complainant’s outcry, because the boyfriend was not present during that particular event. Conversely, the mother could not have duplicated the boyfriend’s account of the complainant’s outcry, because the mother was not present during that particular event. People v Garcia, 2021 NY Slip Op 01571, Fourth Dept 3-19-21

 

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THE PEOPLE WERE NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ISSUE WHETHER THE CHEMICAL BREATH TEST SHOULD BE SUPPRESSED; NEW SUPPRESSION HEARING ORDERED (FOURTH DEPT).

The Fourth Department, on an appeal by the People, determined County Court should not have suppressed the chemical breath test evidence in this DWI case because the People were not given an opportunity to respond to that suppression issue. The matter was remitted for a new suppression hearing:

… [T]he court erred in granting that part of defendant’s omnibus motion seeking to suppress evidence because the court failed to notify the People of its intention to consider that issue and failed to give the People an opportunity to present evidence at the hearing on that issue … . At the Huntley hearing, the issues of the officer’s compliance with Vehicle and Traffic Law § 1194 and defendant’s limited right to counsel were merely ancillary. Moreover, we reject defendant’s contention that the limited evidence that was admitted at the hearing supports the court’s determination to suppress the chemical breath test results. The evidence at the hearing established that the police administered a field breath test and then a chemical breath test at the jail, only the latter of which is the subject of section 1194 (2) (a) and would be admissible at trial … , but the court conflated the administration of both tests in determining that suppression was warranted. On this record, it is unclear whether the officer complied with section 1194 (2) (b) by warning defendant of the consequences of refusal in ” ‘clear and unequivocal language’ ” before administering the chemical test … . The record is also unclear whether defendant, who made a request to speak with his attorney, was afforded the opportunity to do so prior to deciding whether to submit to the chemical breath test … . People v Williams, 2021 NY Slip Op 01570, Fourth Dept 3-19-21

 

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ALTHOUGH DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT DID RAISE A QUESTION OF FACT ON THE VALIDITY OF THE SERVICE OF PROCESS WHICH REQUIRES A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment on the ground defendant had not been properly served with the complaint should not have been granted. The matter was remitted for a hearing to determine the validity of the service of process:

” ‘Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served’ ” … . Although ” ‘bare and unsubstantiated denials are insufficient to rebut the presumption of service . . . , a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing’ ” … . Here, the presumption of service was created by the affidavit of plaintiff’s process server, but defendant rebutted that presumption by submitting, inter alia, his sworn affidavit in which he averred that he had never been personally served, that since at least 2013 he had rented out the dwelling at the address reflected on the affidavit of the process server, that it had been rented to the individual reflected on the affidavit of service, that defendant “did not live or otherwise reside [at the address] in any form,” and instead that he had been living at another address at the time of the purported service. Contrary to plaintiff’s contention, defendant’s submissions raised ” ‘a genuine question’ ” on the issue whether service was properly effected in accordance with CPLR 308 (2) … . Garvey v Global Asset Mgt. Solutions, Inc., 2021 NY Slip Op 01664, Fourth Dept 3-19-21

 

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THE ACKNOWLEDGED VIOLATION OF THE INDUSTRIAL CODE WAS MERELY “SOME EVIDENCE OF NEGLIGENCE” TO BE CONSIDERED BY THE FACTFINDER AND WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON THE LABOR LAW 241 (6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined plaintiff was not entitled to summary judgment on the Labor Law 241 (6) cause of action, despite the acknowledged violation of an Industrial Code provision, 12 NYCRR 23-1.7 (d). Plaintiff alleged he slipped and fall on metal decking on which there was some snow. 12 NYCRR 23-1.7 (d) requires that snow be removed from places where worker walk. The Fourth Department noted that the violation of the regulation, as opposed to a statute, is merely “some evidence of negligence” to be considered by the jury:

… [P]laintiff’s claim that defendants are liable under Labor Law § 241 (6) is based on the alleged violation of 12 NYCRR 23-1.7 (d), which, in pertinent part, directs that workers not be permitted to use “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires that substances such as snow and ice be “removed . . . or covered to provide safe footing.” It is undisputed that “12 NYCRR 23-1.7 (d) mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and [thus] is precisely the type of ‘concrete specification’ ” upon which liability under section 241 (6) may be premised … . Moreover, defendants do not challenge plaintiff’s showing that the subject regulation was violated. As defendants correctly contend, however, the violation of 12 NYCRR 23-1.7 (d) is not conclusive with respect to defendants’ liability and, instead, merely constitutes “some evidence of negligence and thereby reserve[s], for resolution by a [factfinder], the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” … . In particular, we conclude that plaintiff’s own submissions, including the deposition of [defendant] Burke’s owner who testified—in contrast to plaintiff’s testimony—regarding his efforts to clear snow from the metal decking upon arriving at the work site prior to any workers, “raised factual issues with respect to the reasonableness of the safety measures undertaken at the work site” … . Chrisman v Syracuse Soma Project, LLC, 2021 NY Slip Op 01663, Fourth Dept 3-19-21

 

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DEFENDANTS WERE NOT ENTITLED TO A DIRECTED VERDICT ON THE EMPLOYMENT DISCRIMINATION CAUSE OF ACTION; DEFENSE COUNSEL’S REMARK ABOUT THE FINANCIAL CONSEQUENCES OF A PLAINTIFF’S VERDICT DEPRIVED PLAINTIFF OF A FAIR TRIAL; THE COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION OVER ACTIONS SEEKING MONEY DAMAGES FROM THE STATE, RELEVANT CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendants’ motion for a directed verdict should not have been granted and the defense attorney’s remark in summation warranted a new trial. Plaintiff alleged he was denied promotion at the Central New York Psychiatric Center (CNYPC) because the defendants deemed him mentally unstable due to his status as a veteran of the Iraq war.  The directed verdict awarded defendants on that issue was reversed. The defense counsel’s remark in summation that one of the individual defendants would have to “open up her checkbook and write somebody a check” if plaintiff wins deprived plaintiff of a fair trial (the state is required to indemnify defendants as state officers and employees). This case was brought in Supreme Court. The Fourth Department noted that the Court of Claims has exclusive jurisdiction over actions against the state for money damages (apparently the relevant causes of action were properly dismissed for that reason):

Plaintiff … contends that the court erred in granting defendants’ motion for a directed verdict with respect to plaintiff’s cause of action under the New York Human Rights Law alleging discrimination based on military status … . We agree. * * * Based upon the … testimony that plaintiff was not promoted because “[t]here was a question after [plaintiff’s] military service about his [mental] stability,” the jury could have rationally inferred that defendants refused to promote plaintiff in part because they perceived that combat veterans, such as plaintiff, develop dangerous and disqualifying mental health issues as a result of their military service. Thus, “it cannot be said that ‘it would . . . be utterly irrational for a jury to reach [a verdict in favor of plaintiff]’ ” … . * * *

… [R]emarks about a party’s financial status “have been universally condemned by the courts of this State” … . The defense attorney’s argument that his clients should not be “forced to open [their] checkbook” likely conveyed that the individual defendants would be required to pay any damages out-of-pocket. That remark was “grossly improper” … . Moreover, it misrepresented the law to the jury. The State has a duty to indemnify its employees for judgments that arise out of actions within the scope of their public duties, although that duty does not arise from injury or damage resulting from intentional wrongdoing on the part of the employee (see Public Officers Law § 17 [3] [a]). Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 2021 NY Slip Op 01661, Fourth Dept 3-19-21

 

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THE SENTENCE FOR CRIMINAL POSSESSION OF A WEAPON SHOULD HAVE BEEN CONCURRENT WITH THE SENTENCE FOR MURDER (FOURTH DEPT).

The Fourth Department determined the sentence for criminal possession of a weapon should not have been imposed consecutively to the sentence for murder:

… [T]he court erred in directing that the sentence imposed on count three of the indictment, charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), run consecutively to the sentence imposed on count one, i.e., murder in the second degree. The People had the burden of establishing that the consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions … , and they failed to meet that burden. The People failed to present evidence at trial that defendant’s act of possessing the loaded firearm ‘was separate and distinct from’ his act of shooting the victim … . People v Alligood, 2021 NY Slip Op 01628, Fourth Dept 3-19-21

 

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