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SEVERE ABUSE FINDING SUPPORTED BY FATHER’S FAILURE TO SEEK IMMEDIATE MEDICAL CARE FOR THE SERIOUSLY INJURED CHILD (FOURTH DEPT).

The Fourth Department, over a dissent, determined the evidence supported the severe abuse finding against father on the ground father delayed in seeking medical attention for the child’s severe injuries:

Family Court’s finding of severe abuse was based on two incidents in which the father found the older child at the bottom of the basement stairs in the morning. After the first incident, the older child sustained back and leg injuries, torso abrasions and facial bruising that was so severe that she could not open her eyes all the way. After the second incident, the child had two lacerations across the front of her neck that required significant medical attention. * * *

A finding of severe abuse requires clear and convincing evidence that a child was found to be abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in [Penal Law § 10.00 (10)]” (Social Services Law § 384-b [8] [a] [i]; see Family Ct Act §§ 1046 [b] [ii]; 1051 [e]). Here, the older child suffered severe injuries, including cuts to her throat that required a significant amount of medical attention and serious bruising. The act of cutting the older child’s throat twice demonstrates that the actor did so because he or she simply did not care whether grievous harm would result to the older child. Even assuming, arguendo, that the evidence did not establish that the father was the one who inflicted those injuries, we conclude that the evidence demonstrates that he was in the home when the older child sustained her serious physical injuries and that he offered no compelling explanation for what caused them or why he failed to seek immediate medical help for her after discovering those injuries … .

We disagree with the dissent’s view that petitioner was required to present evidence that the father’s delay in seeking medical treatment exacerbated the older child’s injuries or complicated the older child’s medical treatment. Matter of Mya N. (Reginald N.–Sadie H.), 2020 NY Slip Op 04266, Fourth Dept 7-24-20

 

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THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the persistent felony offender statement was inadequate because it did not clearly describe the periods of defendant’s incarceration, which tolls the ten-year cut off for consideration of prior felonies. The matter was remitted for the submission of a valid statement and resentencing:

The sentences upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]). It is undisputed that, here, the sentences for defendant’s two prior violent felony convictions were imposed more than 10 years before defendant committed the subject violent felony offense (see §§ 70.04 [1] [b]; 70.08 [1] [a], [b]). Thus, the prior violent felony convictions may be considered predicate violent felony convictions only in accordance with the tolling provision of section 70.04 (1) (b) (v) based upon defendant’s subsequent periods of incarceration.

Because the tolling provision of Penal Law § 70.04 (1) (b) (v) is implicated, the persistent violent felony offender statement filed by the People was required to “set forth the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling of the ten year limitation” (CPL 400.15 [2]; see CPL 400.16 [1], [2]). Here, however, the statement filed by the People did not comply with that requirement … . Moreover, contrary to the position taken by the People that the statement substantially complies with CPL 400.15, the absence of the required information deprived defendant of the requisite “reasonable notice and an opportunity to be heard” with respect to the tolling period … . People v Watkins, 2020 NY Slip Op 04265, Fourth Dept 7-24-20

 

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DEFENDANT TOLD THE POLICE HE DIDN’T WANT TO TALK, HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED BUT THE ERROR WAS HARMLESS; CONSECUTIVE SENTENCES FOR POSSESSION OF THE KNIFE AND MURDER BY STABBING FOUND PROPER (FOURTH DEPT).

The Fourth Department determined defendant’s statement should have been suppressed but found the error harmless. The Fourth Department further held that defendant was properly sentenced to consecutive sentences for possession of the knife and murder by stabbing:

… [D]efendant unequivocally informed the police immediately after being advised of his Miranda rights that “he didn’t want to talk.” No reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police … . Regardless, the police continued the interrogation, thereby failing to ” scrupulously honor[ ]’ defendant’s right to remain silent” … .

Nevertheless, the error is harmless because the evidence of defendant’s guilt is overwhelming and there is no reasonable possibility that any error in admitting defendant’s statements to the police contributed to his conviction … . * * *

In cases concerning consecutive sentencing in the CPW [criminal possession of a weapon] context, we employ a framework that “appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used” … . To determine whether a single act constituted both offenses under section 70.25 (2), we look to when the crime of possession was completed, i.e., both the actus reus and mens rea … .”Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed” … . Consecutive sentencing is permissible here because defendant’s act of possessing the knife was accomplished before he used it to kill the victim and “defendant’s possession [thereof] was marked by an unlawful intent separate and distinct from” his intent with respect to the homicide … . Indeed, the mental state associated with the CPW count, i.e., intent to use the knife unlawfully, is discrete from the mental state associated with the homicide count, i.e., negligence … . People v Colon, 2020 NY Slip Op 04257, Fourth Dept 7-24-20

 

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DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home owner’s motion for summary judgment in this Labor Law 200 action should have been granted. Defendant was not home when plaintiff fell through an open hole in the deck while removing a window. The defendant demonstrated he did not have any control over the manner of plaintiff’s work and did not have actual or constructive knowledge of the dangerous condition. Supreme Court should not have considered the affidavit of a nonparty who was not previously disclosed as a witness who had actual notice of the condition.

… [T]he defendant established, prima facie, that he did not exercise supervision or control over the performance of the work giving rise to the accident … . Further, to the extent that the accident could be viewed as arising from a dangerous or defective premises condition at the work site, the defendant established, prima facie, that he did not create or have actual or constructive notice of the alleged dangerous condition … .

In opposition, the plaintiffs failed to raise a triable issue of fact. We disagree with the Supreme Court’s determination to consider the affidavit of a nonparty witness submitted by the plaintiffs in opposition to the defendant’s motion. In his discovery demands, the defendant sought disclosure of, inter alia, the name of any witness who had actual notice of the alleged condition, or the nature and duration of such condition. The nonparty witness was not disclosed in the plaintiffs’ discovery responses, the plaintiffs failed to offer an excuse for their failure to do so, and nothing that transpired during discovery would have alerted the defendant of the potential significance of the nonparty’s testimony … . Casilari v Condon, 2020 NY Slip Op 04146, Second Dept 7-22-20

 

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THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT).

The Second Department determined that, in the context of a civil trial alleging false imprisonment stemming from police officers entering plaintiffs’ apartment to execute a search warrant, the city does not have to prove the police properly corroborated the informant’s allegations on which the warrant was based. Apparently, the informant provided “bad … information:”

To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged … . “The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment” … . Unlike in a criminal prosecution, where the hearsay statements of an informant can only constitute probable cause if it is demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge, in a trial in a civil action alleging false arrest or false imprisonment, it is not “appropriate for a jury to determine, as a factual matter, whether the police obtained sufficient corroboration of the information provided by an informant” … . In a civil action resulting from the detention of the occupants of premises searched pursuant to a search warrant, “there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer” … . Ali v City of New York, 2020 NY Slip Op 04138, Second Dept 7-23-20

 

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THE PROOF DID NOT SUPPORT SURROGATE’S COURT’S FINDING THAT THERE WAS A CONFIDENTIAL RELATIONSHIP BETWEEN RESPONDENTS AND THE DECEDENT AND THE PROOF DID NOT SUPPORT THE FINDING THAT RESPONDENTS EXERTED UNDUE INFLUENCE UPON DECEDENT (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the evidence did not support the finding that the respondents, decedent’s daughter Ellen and her son, Alex, exerted undue influence upon the decedent. In addition, the proof did not support the finding of a confidential relationship between respondents and the decedent:

Here, although the record establishes that Ellen and Alexander held a position of trust with decedent, and that Ellen assisted decedent with her finances and was named decedent’s power of attorney, the record also reflects that, despite Ellen’s position of trust, decedent was actively and personally involved in managing her real estate and in drafting her estate plan, and that she directed her personal attorney and the branch manager at her bank to act according to her own desires based on her own personal, stated reasons. …

Here, the record reflects that Ellen and Alexander wanted to benefit from decedent’s estate, and that Ellen assisted decedent in executing the relevant estate plan and making the disputed transactions. The relevant inquiry, however, is not what Ellen and Alexander may have wanted, asked for, or facilitated, but rather whether decedent’s free will, independent action, and self-agency were overcome by their conduct … . In this case, the record establishes that decedent informed her attorney in 2011 that she did not want petitioner to have any further power over her affairs, that decedent thereafter worked with her attorney directly in order to revise her estate plan, and that decedent discussed with her attorney her personal reasons for altering her prior estate plan to the exclusion of petitioner. Indeed, decedent’s attorney testified that he never prepared a document that decedent did not personally authorize, and testimony from numerous non-beneficiaries established decedent’s capacity and active management of her own affairs during the relevant time frame, albeit with the assistance of Ellen. Simply put, the record does not reflect that decedent at any time lost her free will or agency, and instead the record reflects that she took the disputed actions based on her stated personal motives. Matter of Kotsones, 2020 NY Slip Op 04102, Fourth Dept 7-17-20

 

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CERTAIN LABOR LAW 200, COMMON LAW NEGLIGENCE, AND LABOR LAW 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; QUESTION OF FACT RE: WHETHER PLAINTIFF WAS THE SOLE CAUSE OF THE ACCIDENT IN THIS LADDER-FALL CASE; THE PROJECT COORDINATOR MET SEVERAL DEFINITIONS OF ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240(1), INCLUDING AS THE HOLDER OF AN EQUITABLE INTEREST IN THE PROPERTY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined common law negligence and Labor Law 200 causes of action should have been dismissed re: several defendants because of the absence of supervisory control, several of the Labor Law 241(6) causes of action should have been dismissed because the Industrial Code provisions did not apply, and plaintiff should not have been awarded summary judgment on his Labor Law 240(1) cause of action because there was a question of fact whether plaintiff was the sole proximate cause of the fall, The dissenters argued plaintiff’s summary judgment motion on his Labor Law 240(1) cause of action was properly granted. Plaintiff fell when he switched from one ladder to another and the ladder kicked out from under him. The definition of “owner” within the meaning of Labor Law 240(1) was discussed in some depth:

Although the term owner generally refers to the titleholder of the property, it may “also encompass[ ] one who has an interest in the property [and] . . . who contracted for or otherwise ha[d] the right to control the work” … . Here, Tucker Homes [the project coordinator] had an equitable interest in the property by virtue of provisions in its contract with the titleholders that permitted it to take possession of the deed and obtain legal title to the property if the titleholders did not pay for the home’s construction. Moreover, Tucker Homes, as the only entity that had a contractual relationship with RGGT [defendant subcontractor], was the only entity that could insist that RGGT adhere to safety practices and obtain insurance. The titleholders, by contrast, had no contractual relationship with RGGT and did not obtain any insurance on the project. Thus, the court properly concluded that Tucker Homes, “as the only party with [both] a property interest and the right to insist on safety practices,” was an owner within the meaning of the Labor Law … . …

Even if Tucker Homes was not an “owner” for purposes of the Labor Law, we conclude that the court properly determined that Tucker Homes was a general contractor based on its power to enforce safety standards and essentially select the responsible subcontractors to perform work on the project, such as RGGT … . …

Plaintiff also met his burden of establishing that Tucker Homes was, at the very least, a statutory agent of the titleholders, and Tucker Homes did not raise a triable issue of fact in opposition … . Unrefuted evidence established that, under the terms of the subcontract, Tucker Homes had the power to supervise and control the work being done by RGGT at the time of the accident … . …

… [T]he court erred in granting plaintiff’s motion with respect to the Labor Law § 240 (1) claim, and we further modify the order accordingly. Plaintiff failed to meet his initial burden on that part of the motion inasmuch as issues of fact exist whether plaintiff was the sole proximate cause of his accident … . Walkow v MJ Peterson/Tucker Homes, LLC, 2020 NY Slip Op 04098, Fourth Dept 7-17-20

 

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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was not entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a truck which apparently failed to yield the right of way and pulled into the path of defendant’s car. The majority held there was a question of fact whether defendant saw what she should have seen when approaching the intersection. The dissenters argued defendant was entitled to assume the truck would yield the right of way:

” It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield’ ” ( … see Vehicle and Traffic Law § 1142 [a]). “Nevertheless, a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … . Here, defendant’s own submissions, including her own deposition testimony, raised an issue of fact whether she met her “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Brooks v Davis, 2020 NY Slip Op 04021,, Fourth Dept 7-17-20

 

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ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT).

The Fourth Department, reversing defendant’s robbery conviction and ordering a new trial on that count, determined the defendant should have been allowed to present a witness to demonstrate the note he presented to the bank employee did not threaten the use of force (an element of the robbery charge). The Fourth Department noted that secondary evidence (hearsay testimony) and extrinsic documentary evidence, which is prohibited for collateral issues, may be admissible when the evidence is relevant to a core issue:

“It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” … . That rule, however, “has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide” … . “Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement. Under such circumstances, the right to present a defense may encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay’ ” … . Here, defendant sought to call a witness whose testimony related to the content of the note defendant presented to the bank employee in the first incident. Defendant specifically sought to establish that the note he presented contained language that, according to defendant, did not threaten the immediate use of force, contrary to the testimony of the bank employee who received it. Although a threat of immediate use of force may be implicit and does not require the use of any specific words … , the use of threatening language is nevertheless a factor for the jury to consider when determining whether the defendant presented such a threat … . Inasmuch as the content of the note was relevant to whether defendant, either explicitly or implicitly, threatened the use of force, we conclude that the proposed testimony pertained to a noncollateral issue and that the court should have allowed the proposed witness to testify … . People v Snow, 2020 NY Slip Op 04024, Fourth Dept 7-17-20

 

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THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirmed defendant’s murder conviction after addressing several unusual issues in depth: (1) The prosecutor obtained a ex parte order allowing the opening and reading of defendant’s non-legal mail to determine whether defendant was threatening an eyewitness. After reading two batches of mail, the prosecutor determined no threats were being made, informed defense counsel of the order and turned the mail over to defense counsel. The First Department determined there were no related grounds for disqualifying the prosecutor or for granting a mistrial. (2) When the defendant was on the stand he denied knowing the knife (murder weapon) could be flipped open with one hand. During her questioning the prosecutor demonstrated that the knife could be flipped open. The Second Department determined the “prosecutor-as-an-unsworn witness” argument did not warrant a mistrial, in part because of the curative instructions to the jury. (3) The knife was brought into the jury room after a request from the jury about which the court and the attorneys were not made aware. The judge and the attorneys had agreed that the jury’s examination of the knife would be allowed and the examination was done according to the agreed procedure. This was not an O’Rama violation because it involved only the examination of a physical object, not an instruction or the substance of any trial evidence. Therefore a mistrial on this ground was not warranted. People v Jenkins, 2020 NY Slip Op 04014, First Dept 7-16-20

 

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