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GAP IN BATHROOM STALL DOOR AT MCDONALD’S RESTAURANT, IN WHICH INFANT PLAINTIFF’S FINGER WAS PINCHED AND PARTIALLY SEVERED WHEN THE DOOR SLAMMED SHUT, WAS NOT UNREASONABLY DANGEROUS AND WAS OPEN AND OBVIOUS, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the gap in a bathroom stall door at a McDonald’s restaurant, in which infant plaintiff’s finger was pinched and partially severed when her brother slammed the door, was not an unreasonably dangerous condition. In addition, the court found the condition was open and obvious and there was no duty to warn. The dissent noted the testimony that McDonald’s now installs finger guards which raised questions of fact whether defendants were on notice the door presented an unreasonably dangerous condition:

Defendants met their initial burden by establishing that the stall door did not constitute an unreasonably dangerous condition … , and plaintiffs failed to raise a triable issue of fact in response … . The affidavit of plaintiffs’ expert was ” speculative and not sufficiently probative to defeat defendant[s’] motion for summary judgment’ ” … . Contrary to plaintiffs’ further contention, we conclude that the alleged hazard posed by the bathroom stall door was also open and obvious, and therefore defendants had no duty to warn that the door presented a finger-pinching hazard … . Christopher J.G. v Derico of E. Amherst Corp., 2019 NY Slip Op 04857, Fourth Dept 6-14-19

 

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE VERDICT SHEET DID NOT REFLECT THE TRIAL EVIDENCE ON THE APPLICABLE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to set aside the defense verdict in this medical malpractice case should have been granted. Plaintiff alleged her bowel was perforated during surgery. The defense expert testified the bowel must be fully inspected as it is replaced, section by section. However, defendant surgeon testified he did not fully inspect the bowel. In addition the jury was asked to determine whether the bowel was subjected to a “focused inspection.” However there was no trial evidence equating a “focused inspection” with the standard of care. A new trial was necessary:

The weight of the evidence greatly preponderates in favor of plaintiff due, in no small part, to defendant’s testimony that he not only failed to perform a “focused inspection” of the bowel, but that “[he could not] not observe it” as he returned it into plaintiff’s abdomen. In not “observing” the bowel, defendant plainly could not have conducted a careful visualization of the body part as it was returned to plaintiff’s body; therefore he was plainly not performing a “focused inspection.” Defendant also admitted that “[he] didn’t specifically look for [bruising]” of the bowel, which his own expert testified is required when inspecting the bowel during an aortobifemoral bypass surgery.

Defendant also testified that he only looked at the bowel’s top side. Although his expert did not testify that defendant was personally required to view the other side, she did explain that the other surgeon in the operating room must view that side so that both surgeons, collectively, can view the entire bowel. Defendant did not testify that he ensured that the assisting surgeon carefully viewed the back side of the bowel, segment by segment. Moreover, the assisting surgeon did not testify that defendant instructed her to do so. Inasmuch as defendant’s conduct does not meet the standard articulated by the expert witnesses, we conclude that the evidence so preponderates in plaintiff’s favor that the court erred in denying her motion to set aside the verdict … Monzon v Porter, 2019 NY Slip Op 04855, Fourth Dept 6-14-19

 

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A FAMILY COURT PROCEEDING IS CIVIL IN NATURE AND THE CONFRONTATION CLAUSE APPLIES ONLY IN CRIMINAL MATTERS, THEREFORE DOCUMENTS WRITTEN BY A PSYCHIATRIST WHO DID NOT TESTIFY WERE ADMISSIBLE (FOURTH DEPT).

The Fourth Department determined father’s right to confront witnesses in this termination-of-parental-rights proceeding was not violated by the admission in evidence of two documents written by a psychiatrist who did not testify. A Family Court proceeding is civil in nature and the Confrontation Clause applies only in criminal matters:

Although the father’s contention is framed in terms of a violation of his right to confront the witnesses against him, “Family Court matters are civil in nature and the Confrontation Clause applies only to criminal matters” … . In addition, while every litigant has a right, guaranteed by the Due Process Clauses of both the Federal and State Constitutions, to confront the witnesses against them … , “this right is not absolute” in civil actions … . The Family Court Act permits the admission of hearsay at dispositional hearings if such evidence is “material and relevant” … . Here, because the father did not object to either the relevancy or materiality of the challenged exhibits, we conclude that the exhibits were properly admitted in evidence … . Matter of Ramon F. (Wilson F.), 2019 NY Slip Op 04852, Fourth Dept 6-14-19

 

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PEOPLE FAILED TO PROVE THE VICTIM-AGE AND TIME-PERIOD ELEMENTS OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for predatory sexual assault against a child. Essentially the People did not present evidence to support the assaults occurred before the victim turned 13 or during a period of less than three months (statutory criteria):

Without narrowing the time frame, it is entirely possible that the testified-to instances of anal sexual conduct that allegedly occurred at that residence happened before the statute’s effective date or after the victim turned 13 years old. The People also failed to establish that the criminal conduct occurred over a period of time not less than three months in duration (see Penal Law §§ 130.96, 130.75 [1]). In short, there were no “markers” in the evidence at trial about when the conduct occurred that would allow the jury to conclude that defendant committed predatory sexual assault against a child at the relevant time … . People v Partridge, 2019 NY Slip Op 04848, Fourth Dept 6-14-19

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, ISSUE THAT WAS ADDRESSED BY THE DEFENDANT IN ITS REPLY PAPERS AND THE JUDGE IS PRESERVED FOR APPEAL, COMPLIANCE WITH REGULATIONS IS NOT DISPOSITIVE ON THE ISSUE OF NEGLIGENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff tripped over a wheelchair scale in a hallway of defendant’s nursing home. The Fourth Department noted that the issue was preserved for appeal despite the absence from the record of the memorandum which raised the issue. The issue was addressed in defendant’s reply papers and noted in the court’s written decision. The Fourth Department held that the scale was not an open and obvious hazard as a matter of law and the fact that the scale was alleged to have been in compliance with the National Fire Prevention Associations’s Life Safety Code would not be dispositive on the issue of negligence:

… [P]laintiff’s contention that defendant failed to meet its initial burden on its motion for summary judgment is properly before us inasmuch as it involves a “question of law appearing on the face of the record . . . [that] could not have been avoided by the opposing party if brought to that party’s attention in a timely manner” … . …

… [T]he facts here simply do not warrant concluding as a matter of law that the [wheelchair scale] was so obvious that it would necessarily be noticed by any careful observer, so as to make any warning superfluous’ ” and to support a conclusion that it was not a hazard as a matter of law … . …

Defendant also did not meet its initial burden on the motion by submitting the deposition testimony of one of its employees, who opined that the wheelchair scale was in compliance with the National Fire Prevention Association’s Life Safety Code, 2000 Edition (Code). Even assuming, arguendo, that defendant’s employee was qualified to render an opinion concerning defendant’s compliance with the Code … , we conclude that defendant is not entitled to summary judgment because it is well settled that “compliance with regulations or a building code is not dispositive on the issue of negligence” … . Rivera v Rochester Gen. Health Sys., 2019 NY Slip Op 04835, Fourth Dept 6-14-19

 

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REQUEST TO SUBMIT CPCS SEVENTH DEGREE TO THE JURY AS A LESSER INCLUDED OFFENSE OF CPCS FIFTH DEGREE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED ON THAT COUNT (FOURTH DEPT).

The Fourth Department determined the request to submit Criminal Possession of a Controlled Substance (CPCS) seventh degree to the jury as a lesser included offense of COCS fifth degree should have been granted:

We agree with defendant, however, that the court erred in refusing to submit CPCS in the seventh degree (Penal Law § 220.03) to the jury as a lesser included offense of CPCS in the fifth degree. A party who seeks to have a lesser included offense submitted to the jury must satisfy a two-pronged test: “First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37) . . . Second, the party making the request for a charge-down must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater’ ” … . Both prongs are satisfied here. CPCS in the seventh degree is a lesser included offense of CPCS in the fifth degree under Penal Law § 220.06 (5)  … . Furthermore, there is a reasonable view of the evidence that defendant committed the lesser offense but not the greater … . A person is guilty of CPCS in the fifth degree when he or she knowingly and unlawfully possesses cocaine weighing 500 milligrams or more (see § 220.06 [5]), whereas a person is guilty of CPCS in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance (see § 220.03). In his trial testimony, defendant denied possessing the crack rock, but admitted to possessing the dime bags. A forensic chemist testified that the weight of the crack rock was greater than the aggregate weight of the pure cocaine in the rock and the dime bags combined. If the jury credited defendant’s testimony with respect to the rock, it reasonably could have found that defendant possessed some amount of cocaine, but that the People failed to establish that he possessed cocaine weighing 500 milligrams or more. We therefore modify the judgment by reversing that part convicting defendant of CPCS in the fifth degree, and we grant defendant a new trial on that count. People v Patterson, 2019 NY Slip Op 04825, Fourth Dept 6-14-19

 

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THE RECORD WAS INSUFFICIENT TO ALLOW THE CONCLUSION THAT DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, A POST-TRIAL EVIDENTIARY PROCEEDING MIGHT ANSWER THE QUESTIONS LEFT OPEN BY THE TRIAL RECORD; ANY ERROR IN ADMITTING DNA EVIDENCE WHERE CONSENT, NOT IDENTITY, IS THE ISSUE IS HARMLESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissent, determined (1) the record was insufficient to demonstrate defendant did not receive effective assistance of counsel and (2) because the DNA evidence was not offered to identify the defendant any error in introducing it was harmless. The defendant argued that defense counsel did not review the surveillance video the People provided and pursued a theory at trial that was at odds with the video evidence. In addition, defense counsel told the jury in his opening statement that defendant would testify (he did not testify), The defendant, who worked at a hotel, unlocked a hotel-room door for a couple who were drunk. At some point defendant had sexual contact with the woman while the man slept. Defendant said the sexual contact was consensual. The video evidence contradicted the time-line the defendant had described. The majority concluded the record evidence was not sufficient to conclude that defense counsel did not review or did not understand the significance of the video evidence, and the failure to call the defendant as a witness did not prove ineffective assistance as a matter of law. To make a sufficient record, a 440 motion would be necessary:

Mr. Lopez-Mendoza argues that his attorney’s opening statement undermined his case by promising the defendant would take the stand and making arguments contradicted by video evidence, then failing to call defendant to the stand and closing with a new version of events. The ineffective assistance, he argues, was caused by either his attorney’s failure to review the video evidence or his failure to understand its importance. Either way, Mr. Lopez-Mendoza contends, that failure proved disastrous.

The defendant “bears the ultimate burden of showing . . . the absence of strategic or other legitimate explanations for counsel’s challenged actions” … . The record here is insufficient to make that showing. Although “[i]t simply cannot be said that a total failure to investigate the facts of a case, or review pertinent records, constitutes a trial strategy resulting in meaningful representation”… , the limited record in this case does not conclusively establish that counsel was ineffective. On its own, the decision not to call a witness after promising to do so does not establish ineffective assistance of counsel as a matter of law … . * * *

“[T]he lack of an adequate record bars review on direct appeal . . . wherever the record falls short of establishing conclusively the merit of the defendant’s claim” … . Here, it is “essential[] that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10” … . Such a proceeding could answer the questions left open on this record, including whether counsel reviewed the video evidence at all, or whether he may have misunderstood that the evidence was flatly inconsistent with his opening argument. People v Lopez-Mendoza, 2019 NY Slip Op 04759, CtApp 6-13-19

 

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LEGALLY INSUFFICIENT EVIDENCE THAT THE SUBSTANCE REFERENCED IN THE GRAND JURY TESTIMONY WAS COCAINE, INDICTMENT PROPERLY DISMISSED (THIRD DEPT).

The Third Department, in an appeal by the People, affirmed County Court’s dismissal of the indictment because there was legally insufficient evidence that the substance involved was cocaine:

“‘Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL 70.10 [1] …). “The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction” … . “[I]n a drug-related prosecution[, as we have here,] the People’s case is legally sufficient if the evidence provides a ‘reliable basis’ for inferring the presence of a controlled substance” … . “More than conclusory assertions that the defendant possessed a drug are required at the [g]rand [j]ury stage” … . …

The evidence presented to the grand jury consisted of sparse testimony from the CI and an investigator involved in the controlled transactions, with most of the substance of that testimony having been supplied through leading questions. As to the first transaction, the CI testified, in a conclusory manner, that he believed the substance to be crack cocaine, without providing any description of the substance or explanation for his belief … , and, with respect to the second transaction, the CI did not express any belief as to the nature of the substance he received from defendant … . Additionally, although the investigator testified that he received white chunky substances from the CI, his testimony surrounding the testing of those substances was sorely lacking. He did not provide any detail as to his training and experience in field testing, explain how field testing occurs or specifically identify what he did in this case to determine that both substances were cocaine. People v Carlin, 2019 NY Slip Op 04788, Third Dept 6-13-19

 

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DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. During the trial the victim of the robbery twice misidentified the defendant before identifying the defendant, first indicating he did not see the defendant in the courtroom and then indicating a spectator was the assailant. Defense counsel pursued the misidentification defense throughout the trial, successfully challenging the admission of a surveillance video. But in summation defense counsel essentially conceded that defendant was one of the assailants. The Second Department noted that a witness who participated in a procedurally-defective pretrial identification procedure may still identify the defendant at trial if the People demonstrate the in-court identification is based upon the witness’s independent observation of the defendant, here the observations made during the robbery itself:

“A witness may identify the perpetrator of a crime as part of his or her in-court testimony, notwithstanding the existence of a procedurally-defective pretrial identification procedure, provided that the People establish by clear and convincing evidence that the in-court identification is based upon the witness’s independent observation of the defendant” … . Here, contrary to the defendant’s contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant’s in-court identification of the defendant would be based on his independent observations during the robbery … . * * *

… [D]efense counsel’s confused and contradictory actions, effectively conceding the dispositive issue, deprived the defendant of his right to the effective assistance of counsel … . Given defense counsel’s opening statement and his conduct throughout the course of the trial in advancing his misidentification defense, his decision to abandon his chosen defense midstream in favor of a nebulous and contradictory argument that no forcible taking of property had occurred, “was so unreasonable, inconsistent, and devoid of any possibility of success that it does not even rise to the level of trial strategy” … . Under the circumstances, the defendant was deprived of the effective assistance of counsel and is entitled to a new trial. People v Goondall, 2019 NY Slip Op 04721, Second Dept 6-12-19

 

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THE NEGATIVE CHARACTER TESTIMONY WAS PROPERLY STRUCK, NOT BECAUSE SUCH EVIDENCE IS GENERALLY INADMISSIBLE, BUT BECAUSE THE WITNESS WAS ONLY FAMILIAR WITH THE DEFENDANT’S CHARACTER IN THE WORKPLACE, WHICH WAS NOT RELEVANT TO THE ALLEGED SEXUAL MISCONDUCT WITH A CHILD (SECOND DEPT).

The Second Department determined the negative character evidence was properly stricken. Negative character evidence (i.e., that the witness never heard that defendant acted in a sexually inappropriate or sexually abusive manner in the workplace) is admissible if it relates to the appropriate community. Here the community the witness testified about was the workplace, which was not the relevant community because the alleged sexual misconduct with a child occurred in secret and outside the workplace:

Contrary to the conclusion of the Supreme Court, negative evidence of reputation—i.e., that the witness never heard anyone say anything negative about the defendant—can constitute relevant character evidence … . However, relevant character evidence must be of reputation generally in the community where the crime occurred … . Although that community is more broadly defined in modern times … , the defendant’s reputation in the workplace for lack of sexual impropriety was in no way relevant to whether he sexually abused a child in secret and outside of the workplace. Accordingly, the character evidence was properly stricken, since that evidence was irrelevant. People v Durrant, 2019 NY Slip Op 04716, Second Dept 6-12-19

 

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