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A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminally negligent homicide conviction, determined the evidence was against the weight of the evidence. Apparently, a wheel came off defendant’s truck, another truck hit the wheel and overturned on a car, killing the driver:

The testimony at trial established that defendant came into possession of the pickup truck several weeks before the accident, but that its last valid inspection was three years before the accident. Although the People established that the pickup truck had a forged inspection sticker, there was no evidence that defendant knew it was forged. Several witnesses testified that, in the three days preceding the accident, the pickup truck was making loud grinding noises and that, either the day before the accident or the day of the accident, defendant asked a person with mechanical experience what that person thought might be the issue. That person opined that the noise was likely being caused by a wheel or the brakes.

An inspection of the driver’s side wheel and truck after the accident established some significant problems with the wheel, and witnesses testified that the existence of problems would have been noticeable and would have created issues with steering. The testimony also established, however, that the severity of the problems could not have been known to the operator unless the wheel was removed from the truck. * * *

At most, the evidence established that defendant failed to perceive a risk, which does establish criminal negligence beyond a reasonable doubt … . People v Pinnock, 2020 NY Slip Op 06884, Fourth Dept 11-20-20

 

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THE PEOPLE DEMONSTRATED THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO LOCATE THE DEFENDANT; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court on the People’s appeal, determined the indictment should not have been dismissed on speedy trial grounds because the People demonstrated the exercise of due diligence in attempting to locate the absent defendant:

In computing the time within which the People must be ready for trial, the court must exclude, inter alia, the period of delay resulting from defendant’s absence (see CPL 30.30 [4] [c] [i]). “A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence” (id.). …

… [W]e conclude that the People established that they exercised due diligence in attempting to locate defendant during the time period at issue at the hearing. Law enforcement officers routinely checked computer databases, social media outlets, criminal history reports and information from other government agencies to attempt to identify locations where defendant might be located. In addition, officers investigated all of the addresses associated with defendant to varying degrees, speaking with maintenance workers, neighbors, tenants, and defendant’s mother. In attempting to conduct subsequent interviews with defendant’s mother, law enforcement officers learned that she no longer resided at the same address. Law enforcement officers also contacted and spoke with all of defendant’s known employers. Although law enforcement officers did not conduct a full investigation of one address that appeared on one credit agency report, one of the officers testified at the hearing that credit reports were not reliable because “anyone . . . could go apply for a credit card online today and write [any address] on the application.” Without any corroboration of defendant’s affiliation with that address, the officer did not investigate beyond driving to the address and verifying that it was a commercial and retail building. Ultimately … the officers’ periodic database searches yielded a potential address in Georgia.

“[N]otwithstanding the fact that greater efforts could have been undertaken”… , we conclude that the People established that they exercised the requisite due diligence in attempting to locate defendant during the time period at issue … . People v Anderson, 2020 NY Slip Op 06881, Fourth Dept 11-20-20

 

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DEFENDANT CLAIMED IN HIS DEPOSITION HE COULDN’T STOP AT THE RED LIGHT BECAUSE THE FLOOR MAT HAD ROLLED UP UNDER THE BRAKE PEDAL; PLAINTIFF SUBMITTED THE DEPOSITION AS PART OF PLAINTIFF’S SUMMARY JUDGMENT MOTION; THE MAJORITY HELD THE DEPOSITION WAS HEARSAY AND THEREFORE COULD NOT DEFEAT SUMMARY JUDGMENT; TWO DISSENTERS ARGUED THE USUAL HEARSAY RULES DID NOT APPLY BECAUSE THE DEPOSITION WAS SUBMITTED BY PLAINTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the plaintiff’s motion for summary judgment in this intersection traffic accident was properly granted. The defendant, in his deposition, claimed he was unable to stop at the red light because the floor mat had rolled up under the brake pedal. The plaintiff submitted defendant’s deposition testimony as part of plaintiff’s summary judgment motion. The majority considered defendant’s testimony hearsay and therefore insufficient to defeat summary judgment. The dissenters argued the hearsay rule did not apply because plaintiff submitted the deposition and thereby raised triable issues of fact, or, in the alternative, waived any objection to the hearsay:

Plaintiff met his initial burden on the motion of establishing as a matter of law that defendant was negligent in his operation of the vehicle inasmuch as defendant failed to stop at a red light … . Contrary to defendant’s contention, he failed to raise an issue of fact whether the emergency doctrine applies here … . The emergency doctrine provides that, “when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the [driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . However, “[t]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making” … . Stated differently, “it is settled law that the emergency doctrine has no application where . . . the party seeking to invoke it has created or contributed to the emergency” … . Further, although hearsay evidence may be considered in opposition to a motion for summary judgment, it is not by itself sufficient to defeat such a motion … . Here, defendant testified at his deposition that, at the time of the accident, he was not sure why he could not apply his brakes. He learned after the accident from a body shop mechanic that “[t]he floor pad was rolled up underneath the brake pedal.” He also testified that the floor mat sliding underneath his brakes was “the only reason [he could] think of” for his inability to brake. In view of that deposition testimony, we conclude that defendant’s reliance on the emergency doctrine was based solely on hearsay and speculation and thus did not raise a triable issue of fact whether that doctrine applies. The record includes no affidavit or deposition testimony from defendant’s mechanic. Watson v Peschel, 2020 NY Slip Op 06880, Fourth Dept 11-20-20

 

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FATHER’S PETITION TO MODIFY CUSTODY TO ALLOW HIS RELOCATION TO NORTH CAROLINA SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition to modify custody to allow his relocation to North Carolina should not have been granted:

In its decision, the court considered the relevant Tropea factors but erred in applying those factors to the facts and circumstances in the case at bar. Contrary to the court’s determination, the father “failed to establish that the child’s life would be enhanced economically, emotionally and educationally by the proposed relocation” … . While the father established that he will enjoy greater economic job opportunities in North Carolina, those nominal financial gains will be negated by the greater cost of living in the area of North Carolina where he will be relocating. Additionally, as noted by the court, the father had unrealistic goals for housing in North Carolina. Notably, the father testified that he was presently paying monthly rent of $900 for a home in Olean, New York, but wanted to purchase a home in North Carolina for between $200,000 and $250,000. He acknowledged that he could not afford a home within that price range on his own and would need the financial assistance of family, his employer, and his fiancée. There is no evidence in the record, however, that anyone had committed to providing that needed assistance or had the financial ability to do so. The father also failed to establish that the child would receive a better education in North Carolina inasmuch as there is no evidence in the record comparing the schools in North Carolina to those in Olean, New York … . Furthermore, the father admitted that he had “zero” family living in North Carolina. On the other hand, the father’s mother currently lives in Olean, New York, and the father’s aunt lives nearby in Wellsville, New York. The maternal grandmother, great-grandmother and great-grandfather all live in Olean, New York. The father therefore failed to establish that he and the child would receive similar support residing in North Carolina … . In our view, the only factor that fully supported the father’s request for relocation was a “fresh start,” away from Olean, New York, where he and the mother struggled with an opiate addiction. That factor, standing alone, is insufficient to warrant relocation … . Gasdik v Winiarz, 2020 NY Slip Op 06918, Fourth Dept 11-20-20

 

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for a modification of custody to accommodate relocation should not have been dismissed without holding a hearing:

… [T]he mother alleged that she had specific employment advancement opportunities at her job in Monroe County, and “economic necessity . . . may present a particularly persuasive ground for permitting the proposed move” … . In addition, the mother alleged that the relocation would enhance the child’s extracurricular activities, a factor that may support a relocation … . In addition, the Attorney for the Child indicated that the child favored the relocation, another factor that may support a relocation petition … . Consequently, the petition sufficiently alleged that the relocation would be in the child’s best interests … , and the court erred in dismissing it on the ground that it did not. Finally, to the extent that the decision indicates that the court dismissed the petition on the ground that the mother failed to allege a sufficient change in circumstances, that was error … . Matter of Betts v Moore, 2020 NY Slip Op 06907, Fourth Dept 11-20-20

 

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POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction, determined the investigating officer’s opinion that the death was a homicide and the victim’s mother’s testimony about the personal background of the victim should not have been admitted:

Defendant’s contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide was committed in this case is preserved for our review only in part … . To the extent that defendant’s contention is unpreserved, we exercise our power to review it as a matter of discretion in the interest of justice … , and we conclude that the court erred in admitting that testimony because it ” ‘usurp[ed] the jury’s fact-finding function’ ” … .

We further agree with defendant that the court erred in permitting the victim’s mother to testify regarding the victim’s personal background, including various aspects of the victim’s life and his family relationships. It is well settled that “testimony about [a] victim[‘s] personal background[] that is immaterial to any issue at trial should be excluded” … and, here, the testimony of the victim’s mother regarding the victim’s personal background was not relevant to a material issue at trial. People v Salone, 2020 NY Slip Op 06903, Fourth Dept 11-20-20

 

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ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT).

The Fourth Department, reducing the criminal contempt first conviction to criminal contempt second, determined the evidence was legally insufficient. The defendant violated the order of protection by going inside the protected person’s house but there was insufficient evidence of any contact between the defendant and the protected person:

… [T]he People adduced legally insufficient evidence that defendant intentionally violated “that part” of the protective order that required him to “stay away from the [protected] person,” as required for a conviction for criminal contempt in the first degree under Penal Law § 215.51 (c) … . Rather, the evidence proves only that defendant committed the lesser included offense of criminal contempt in the second degree under section 215.50 (3) by going to the protected person’s house, and we therefore modify the judgment accordingly … . People v Crittenden, 2020 NY Slip Op 06901, Fourth Dept 11-20-20

 

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THE UNIQUE PROOF REQUIREMENTS FOR CRIMINAL CONTEMPT FIRST DEGREE FOR VIOLATION OF AN ORDER OF PROTECTION WERE NOT MET; THE FACT THAT DEFENDANT STIPULATED TO THE ACCURACY OF AN INACCURATE SPECIAL INFORMATION ABOUT A PRIOR CRIMINAL CONTEMPT CONVICTION DOES NOT REQUIRE A DIFFERENT RESULT (FOURTH DEPT). ​

The Fourth Department reduced the criminal contempt first degree convictions to criminal contempt second degree for violation of an order of protection, explaining the proof requirements for criminal contempt first were not met and noting that defendant’s stipulation to an inaccurate special information re a predicate offense does not require a different result:

The People were required to establish as an element of the offense of criminal contempt in the first degree that defendant had been previously convicted, within the preceding five years, of the crime of aggravated criminal contempt or criminal contempt in the first or second degree “for violating an order of protection” that “require[d] the . . . defendant to stay away from the person or persons on whose behalf the order was issued” (Penal Law § 215.51 [c]). Thus, this is a situation where the enhancing element of an offense is not merely the existence of a prior conviction, but also the existence of additional facts related to that prior conviction … . The special information filed by the People to assert the existence of the predicate conviction (see CPL 200.60 [1], [2]) alleges only that defendant previously had been convicted of the crime of criminal contempt in the second degree, without specifying whether that previous conviction involved the violation of an order of protection or of any stay-away provision therein … .

The fact that defendant stipulated to the accuracy of the imprecise special information did not relieve the People of their burden of establishing the predicate conviction and related facts as part of their case-in-chief … . People v Barrett, 2020 NY Slip Op 06899, Fourth Dept 11-20-20

 

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THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff should not have been allowed to cross-examine the defense expert using the deposition of decedent’s husband, who was available to testify. The defense motion to set aside the verdict in this negligence and Public-Health-Law violation case should have been granted:

Supreme Court erred in allowing plaintiff to cross-examine a defense expert using the deposition of decedent’s husband, a nonparty. CPLR 3117 limits the use of a nonparty’s deposition at trial to either the impeachment of that nonparty as a witness … , or for “any purpose against any other party” in case of the nonparty’s unavailability at trial … . Here, plaintiff was not using the husband’s deposition testimony to impeach the husband’s own trial testimony, and the husband was available and testified at trial. Contrary to plaintiff’s assertion, CPLR 4515 does not permit a party to cross-examine an expert with all the materials that the expert reviewed in formulating his or her opinion, regardless of the independent admissibility of those materials … . “That statute provides only that an expert witness may on cross-examination ‘be required to specify the data and other criteria supporting the opinion’ ” … . Because the testimony pertained directly to the central issue to be resolved by the jury, i.e., the quality of care that decedent received, the error was not harmless … . Williams v Ridge View Manor, LLC, 2020 NY Slip Op 06894, Fourth Dept 11-20-20

 

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DEFENDANT SHOULD HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER RE TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE, WHICH ARE NOT VIOLENT FELONIES (FOURTH DEPT).

The Fourth Department determined the sentences for two counts of criminal possession of a weapon third degree, D felonies, were illegal:

… [T]he determinate terms of incarceration of seven years imposed on counts 2 and 10 of the indictment, for criminal possession of a weapon in the third degree, class D felonies, are illegal. Those crimes are not violent felonies (see generally Penal Law § 70.02 [1] [c]), and therefore, the court should have sentenced defendant as a second felony offender on those counts and imposed indeterminate terms of incarceration (see § 70.06 [3] [d]; [4] [b]). Furthermore, inasmuch as defendant must be sentenced to indeterminate terms of incarceration, he is not subject to a period of postrelease supervision on those counts (see § 70.45 [1 …). People v Lovette, 2020 NY Slip Op 06892, Fourth Dept 11-20-20

 

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