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THE STAY-AWAY ORDER OF PROTECTION SHOULD NOT HAVE BEEN VACATED BASED SOLELY ON A PSYCHOLOGIST’S REPORTS IN THE ABSENCE OF ANY TESTIMONY (THIRD DEPT).

The Third Department, reversing Family Court, determined that the stay-away order of protection should not have been vacated without further fact-finding. Apparently the order was vacated based upon a psychologist’s reports without any testimony:

On … the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. …

The record shows that the stay-away order of protection was based on allegations of sexual abuse first reported by the child’s therapist and subsequently pursued by petitioner after its caseworkers interviewed the child. The petition speaks to specific acts of sexual abuse, as well as the emotional stress on the child resulting from respondent’s threatening behavior towards the mother. The decision to vacate the stay-away order of protection was made on the first day of trial and, although the psychologist’s reports were admitted into evidence, petitioner was not precluded from subpoenaing the psychologist for purposes of cross-examination. Moreover, petitioner represented that it intended to call the child’s therapist as a witness. Although we are mindful that the psychologist spoke to the therapist as a collateral source and was highly critical of the interview methods utilized by petitioner’s caseworkers, this record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This is particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. Matter of Andreija N. (Michael N.), 2019 NY Slip Op 53957, Third Dept 11-27-19

 

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE “INNOCENT POSSESSION OF A WEAPON” DEFENSE, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s possession of a weapon convictions, determined the jury should have been instructed on the “innocent possession of a weapon” defense. Defendant testified the person who had just robbed him dropped the sweatshirt, which had a handgun in the pocket. According to the defendant’s testimony, just as defendant picked up the sweatshirt the police pulled up:

The Criminal Jury Instructions provide, in relevant part, that “[a] person has innocent possession of a weapon when he or she comes into possession of the weapon in an excusable manner and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely. There is no single factor that by itself determines whether there was innocent possession. In making that determination, [the jury] may consider any evidence which establishes that the defendant had knowing possession of a weapon, the manner in which the weapon came into the defendant’s possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully or to safely dispose of it, the defendant’s opportunity, if any, to turn the weapon over to the police or other appropriate authority, and whether and how the defendant disposed of the weapon” (CJI2d[NY] Temporary and Lawful Possession).

Here, defendant’s testimony, if credited, provides sufficient facts from which the jury could find a lawful basis for defendant having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police … . People v Mack, 2019 NY Slip Op 53930, Third Dept 11-27-19

 

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DEFENDANTS’ AFFIDAVITS SUBMITTED IN REPLY TO CLAIMANT’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RAISED A QUESTION OF FACT; DEFENDANTS’ MOTION TO DISMISS THE CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined that the defendants’ motion to dismiss the claim should not have been granted. Claimant alleged she was injured when she collided with a glass exit door at Brooklyn College. The notice of intention to file a claim and the claim indicated photographs of the door were attached. Defendants apparently assumed the door in question was the front door to the building, but discovery indicated it was the back door. Defendants moved for summary judgment arguing that claimant failed to give proper notice of the location of the door as required by Court of Claims Act 11 (b). Defendants submitted affidavits stating that the computer files were searched and no photographs of the door were found. The Second Department held there was a question of fact whether the photographs of the door were attached to the notice of intention and the claim:

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, inter alia, the “place where such claim arose”… . “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party'” … . Summary judgment is to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” … . “[O]n such a motion, the court’s role is limited to issue finding, not issue resolution” … . Here, the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue. Accordingly, the Court of Claims should have denied the defendants’ motion. Shabat v State of New York, 2019 NY Slip Op 08589, Second Dept 11-27-19

 

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COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF MEDICAL MALPRACTICE RAISED FOR THE FIRST TIME IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the court should not have considered a new theory of medical malpractice raised for the first time in response to defendant’s motion for summary judgment:

… [T]he complaint and bill of particulars were only sufficient to put defendant on notice of an allegation that, in January 2013, he failed to properly compare the 2013 EC [echocardiagram] with the 2011 EC contained in decedent’s medical record, and determine that a dilation in decedent’s aorta had increased. Plaintiffs’ papers were insufficient to put defendant on notice of plaintiffs’ new theory of liability – raised for the first time in her expert’s opinion – that he deviated from the standard of care in August 2011, when interpreting the 2011 EC … . Here, where negligence is specifically alleged to have occurred only between December 2012 and January 2013, we conclude that the vague, ambiguous, nonspecific and open-ended assertion “prior or subsequent thereto” contained in plaintiffs’ bill of particulars failed to put defendant on notice of a claim that he acted negligently in August 2011. Carroll v New York City Health & Hosps. Corp., 2019 NY Slip Op 08524, First Dept 11-26-19

 

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DEFENDANT, A PAIN MANAGEMENT PHYSICIAN WHO OPERATED A “PILL MILL,” WAS PROPERLY CONVICTED OF RECKLESS MANSLAUGHTER IN THE DEATHS OF TWO PATIENTS WHO DIED OF OPIOID OVERDOSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined that defendant, a pain-management doctor, was properly convicted of manslaughter, recklessly causing the death of two persons [Haeg and Pappoid] to whom defendant prescribed opioids as part of a “pill mill” operation:

… [W]e conclude that the evidence was sufficient to support the jury’s finding that defendant acted recklessly. A rational juror could have concluded, based on a valid line of reasoning and permissible inferences, that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and Rappold would take more drugs than prescribed and would die by overdose, and, given defendant’s position as their medical doctor, that defendant’s conduct constituted a “gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]). * * *

The fact that Haeg and Rappold took the substances defendant prescribed for them in a greater dosage than prescribed is neither an intervening, independent agency nor unforeseeable. It is a direct and foreseeable result of defendant’s reckless conduct. As explained, viewing the evidence in the light most favorable to the People, a rational juror could conclude that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that Haeg and Rappold would take the medications he prescribed at a higher dose than prescribed in order to attain a narcotic high rather than for legitimate pain management, and that they would die as a result. People v Stan XuHui Li, 2019 NY Slip Op 08544, Ct App 11-26-19

 

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DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TWO CROSS-EXAMINE THE TWO POLICE OFFICERS WHO IDENTIFIED THE DEFENDANT AS THE SHOOTER ABOUT ALLEGATIONS OF THE OFFICERS’ DISHONESTY ARISING FROM OTHER COURT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing defendant’s conviction, determined the trial court abused its discretion when it denied defense counsel’s requests to cross-examine the two police witnesses about prior acts of dishonesty. The two officers presented the only evidence which identified the defendant as the shooter in this attempted murder prosecution:

At the suppression hearing held before trial, that officer’s testimony supported defendant’s contention that, in preparing to testify in an unrelated federal criminal proceeding, he had misled the prosecutor in that case with respect to his involvement in a ticket-fixing scheme. … Defense counsel … was not permitted to explore what defense counsel characterized as that officer’s lies to the federal prosecutor regarding those activities.

… [T]he court limited exploration of that officer’s prior bad acts to his participation in the ticket-fixing scheme, and did not permit inquiry with respect to that officer’s deceit of the federal prosecutor.

That ruling was an abuse of discretion as a matter of law. * * *

We also conclude that the trial court abused its discretion as a matter of law in precluding cross-examination of both officers with respect to prior judicial determinations that addressed the credibility of their prior testimony in judicial proceedings. People v Rouse, 2019 NY Slip Op 08522, Ct App 11-25-19

 

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SANDOVAL RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT A 1991 BURGLARY WAS ERROR; DEFENDANT HAD AN UNBLEMISHED RECORD FOR THE LAST 23 YEARS; ERROR DEEMED HARMLESS (THIRD DEPT).

The Third Department determined County Court should not have ruled defendant could be cross-examined about a 1991 burglary conviction in this assault, DWI and reckless driving case arising from a single car accident. The defendant’s record had been unblemished for 23 years, when he was released from prison. The defendant argued that, but for the Sandoval ruling, he would have testified. The Third Department found the error harmless, however:

In gauging whether a conviction is too remote, courts often consider the period of time during which the defendant was incarcerated, as County Court did here. For instance, in People v Wright (38 AD3d 1004 [2007], lv denied 9 NY3d 853 [2007]), this Court allowed inquiry about 20-year-old rape and robbery convictions where the defendant had been released from prison “only nine months prior to the present offense” … .

By comparison, here, defendant had been released from prison for 23 years, with an unblemished record leading up to this event. Under these circumstances, we conclude that County Court abused its discretion in allowing inquiry into the 1991 conviction, which was simply too remote … . People v Cole, 2019 NY Slip Op 08452, Third Dept 11-21-19

 

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MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED; DEFENDANT AND CO-DEFENDANT EACH CLAIMED THE OTHER POSSESSED THE COCAINE FOUND IN THE CAR AFTER A TRAFFIC STOP (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s (Maldonaldo’s) trial should have been severed from the co-defendant’s trial;

… [W]e agree with defendant that his motion for a separate trial should have been granted (see CPL 200.40 [1]). “[S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer [the] defendant’s guilt” … . Through counsel and by testifying on his own behalf, Maldonado denied knowledge of the cocaine’s existence in his car and instead pointed the finger at defendant. Specifically, he testified that defendant had brought the Bugles chip bag into the car, that he did not know the contents of that bag, that he would not have allowed the bag in his car if he did and that defendant had his hands in the area where the bag was later discovered when the traffic stop was initiated. In contrast, defendant argued — through counsel and without testifying — that he lacked knowledge of the cocaine’s presence in the car and that the cocaine must have belonged to Maldonado, given that it was found in Maldonado’s car and that he had a criminal history involving drug possession and distribution — a subject brought out during cross-examination of Maldonado. By seeking to implicate each other, defendant’s and Maldonado’s defenses were clearly antagonistic, mutually exclusive and irreconcilable, and created “a significant possibility that the jury unjustifiably concluded by virtue of the conflict itself that both defenses were incredible and gave undue weight to the [People’s] evidence” … . People v Colon, 2019 NY Slip Op 08449,Third Dept 11-21-19

 

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DEFENDANT MANUFACTURER DID NOT ELIMINATE QUESTIONS OF FACT WHETHER THE SNOW THROWER WAS DEFECTIVELY DESIGNED AND WHETHER WARNINGS WERE ADEQUATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant snow-thrower manufacturer’s motion for summary judgment in this products liability case should not have been granted. Plaintiff alleged he turned off the snow thrower before placing his hand inside the mechanism in an attempt to clean out a blockage. The impeller was allegedly still spinning at that point and two of plaintiff’s fingers were amputated. Plaintiffs’ expert opined that a $20 clean-out tool should have been provided. The defendant failed to eliminate questions of fact about whether the snow thrower was defective and whether the warnings were adequate:

According to the plaintiffs’ expert, a clean-out tool “would have been technologically and economically feasible to include with the snow [thrower] in 1983” since the defendant manufactured a clean-out tool costing approximately $20 that was sold in Germany in 1983 as part of a “safety kit.” Based on the foregoing, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the causes of action sounding in negligence and strict products liability based on design defect.

… [A]lthough the defendant submitted evidence that certain warnings were placed on the snow thrower and in the owner’s manual, the defendant failed to establish, prima facie, that it adequately warned users that the impeller may continue to rotate after the engine is turned off … . The defendant also failed to establish, prima facie, that the plaintiff was aware of the danger of putting his hand inside the discharge chute after turning off the engine, or that he would not have heeded more prominent or express warnings on the snow thrower … . Samyn v Ariens Co., 2019 NY Slip Op 08435 [177 AD3d 917], Second Dept 11-20-19

 

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SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF WATER ON THE FLOOR IN THIS SLIP AND FALL CASE; SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school did not demonstrate it did not have constructive knowledge of water on the floor of the cafeteria where plaintiff slipped and fell:

… [T]he School District failed to demonstrate, prima facie, that it did not have constructive notice of the alleged water condition that caused the plaintiff to fall. The deposition testimony of the School District’s head custodian merely referred to the general cleaning and inspection practices of the custodial staff in relation to the south cafeteria of the school, but provided no evidence regarding any specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Williams v Island Trees Union Free Sch. Dist., 2019 NY Slip Op 08443, Second Dept 11-20-19

 

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