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BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant (Mr. Brown) was not entitled to the jury instruction on the justification defense. The Court of Appeals found that the defendant was the initial “deadly force” aggressor because he was wielding the gun before the unarmed victim (Mr. Cabbagestalk) “swiped” at the gun:

Mr. Wolf [an eyewitness who testified at trial] said he heard the older man [defendant] say, “Stay away from my daughter, don’t come around here.” Mr. Cabbagestalk responded, “you can’t tell me where to be.” According to Mr. Wolf, Mr. Cabbagestalk was “getting in the older guy’s face a little bit,” “trying to back him down,” and Mr. Marshall [who was with Mr. Cabbagestalk] was trying to calm Mr. Cabbagestalk down.

Mr. Wolf testified … he observed Mr. Cabbagestalk throwing a few punches at Mr. Brown but that he believed those punches did not reach Mr. Brown. Mr. Wolf also testified that Mr. Brown was holding a gun slightly “above waist high” and “pointed away from him.” Mr. Cabbagestalk then “swiped” at Mr. Brown’s gun …  … [A]t some point before Mr. Cabbagestalk’s last swing or swipe, Mr. Cabbagestalk said, “if you going to pull a gun out, you got to use it.” Mr. Brown did just that, shooting Mr. Cabbagestalk in the chest.  * * *

Because Mr. Brown’s drawing of his gun under these circumstances constituted the imminent threat of deadly physical force, the “initial aggressor” rule bars Mr. Brown from claiming justification unless a reasonable jury could conclude either: (1) that Mr. Brown withdrew from the encounter after drawing his gun, communicated that withdrawal to Mr. Cabbagestalk, and Mr. Cabbagestalk thereafter used or threatened imminent use of deadly physical force (Penal Law § 35.15[1][b]), or (2) that Mr. Cabbagestalk himself was the initial “deadly force” aggressor. No reasonable jury could reach either conclusion based on the evidence in this case, even viewing the evidence in the light most favorable to Mr. Brown (as we must). People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19

 

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THE SEVERE EMOTIONAL DISTRESS ELEMENT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT REQUIRE OBJECTIVE MEDICAL EVIDENCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined it was not necessary to present objective medical evidence to establish the severe emotional distress element of intentional infliction of emotional distress:

On appeal from an order and judgment that awarded plaintiff money damages following a nonjury trial, we reject defendants’ contention that the evidence is legally insufficient to establish that plaintiff suffered severe emotional distress. Although severe emotional distress is an element of the tort of intentional infliction of emotional distress … , Supreme Court properly concluded that plaintiff was not required to present objective medical evidence in order to establish that element of her cause of action … . Fellows v Rosati, 2019 NY Slip Op 03508, Fourth Dept 5-3-19

 

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THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined there was legally insufficient evidence that the defendant shared the co-defendant’s intent to kill, and the verdict was against the weight of the evidence. The co-defendant walked up to the defendant on the street and shot him. The defendant was present at the scene and picked the co-defendant up and drove away after the shooting. The defendant was convicted under an accomplice or accessorial liability theory:

A “defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … . Indeed, evidence that a defendant was at the crime scene and even assisted the perpetrator in removing evidence of that crime is insufficient to support a defendant’s conviction where the People fail to offer evidence from which the jury could rationally exclude the possibility that the defendant was without knowledge of the perpetrator’s intent … . “An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose”… . We have no difficulty concluding that there is a valid line of reasoning and permissible inferences by which the jury could have found that defendant intentionally aided the codefendant after the murder, but we cannot conclude that there is legally sufficient evidence to support the inference that defendant shared the codefendant’s intent to kill the victim … . The People offered no motive for the crime … , and the evidence indicating that defendant was staring at the victim 40 minutes before the shooting and that defendant may have dropped off the codefendant at the bar prior to the shooting was plainly insufficient to establish that defendant was aware of and shared the codefendant’s intent to kill the victim … . * * *

Even assuming, arguendo, that the evidence is legally sufficient, viewing the evidence in light of the elements of the crime as charged to the jury … , we further conclude that the verdict is against the weight of the evidence … . A review of the weight of the evidence requires us to first determine whether an acquittal would not have been unreasonable … . If so, we must ” weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . We conclude that an acquittal would not have been unreasonable in this case and, based on the weight of the evidence, we further conclude that the jury was not justified in finding defendant guilty beyond a reasonable doubt. People v Mcdonald, 2019 NY Slip Op 03494, Fourth Dept 5-3-19

 

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VASTLY DIFFERENT ACCOUNTS OF THE INCIDENT PRECLUDED SUMMARY JUDGMENT, SUPREME COURT REVERSED, EXTENSIVE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined questions of fact precluded summary judgment. The plaintiff’s and defendants’ versions of events, which are vastly different, are explained in detail in the decision. Plaintiff, who was in the back of an ambulette with a patient in a wheelchair, alleged that the driver pulled out fast causing plaintiff to fall and causing the wheelchair to tip over onto plaintiff. The driver alleged he had fastened the wheelchair to the floor of the ambulette and made sure plaintiff was strapped into his seat. He further alleged he drove safely. The driver acknowledged that the wheelchair had tipped over backwards:

We disagree with the dissent’s statement that “defendants have failed to offer any explanation of the proximate cause of the accident.” It is plaintiff’s burden as the moving party for summary judgment to establish defendants’ negligence as a proximate cause of plaintiff’s injuries. Here, defendants adequately rebutted plaintiff’s claim of negligence on their part, and thus plaintiff has failed to establish defendants’ negligence and proximate cause. If a trier of fact finds defendants’ version of events to be credible, then no liability should be imposed on them. Bajaha v Mercy Care Transp., Inc., 2019 NY Slip Op 03457, First Dept 5-2-19​

 

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HAVING DEFENDANT WAIT WITH TWO POLICE OFFICERS WHILE A THIRD TOOK HIS ID TO AN APARTMENT TO VERIFY DEFENDANT’S CLAIM HE WAS VISITING A FRIEND IN THE APARTMENT WAS NOT JUSTIFIED UNDER DE BOUR, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division in this street stop case, determined having defendant “stand right there” with two police officers, while a third took defendant’s ID to an apartment to verify defendant’s claim he was visiting a friend there, was not justified under De Bour:

Defendant … was approached by New York Police Department officers after they observed him exiting and reentering a building in a New York City Housing Authority development several times. Upon the officers’ request, defendant explained that he was visiting a friend who lived in the building. The officers asked defendant for his identification, which he provided. An officer then took defendant’s identification to the eleventh floor of the building to verify whether the occupant of the apartment defendant identified knew him … . Another officer instructed defendant to “stand right there” under the watch of two officers. When the first officer returned, having determined that the occupant of the apartment did not know defendant, defendant was arrested for trespassing. At the precinct, officers conducted a search of defendant’s person incident to his arrest and recovered 42 bags of crack cocaine from his groin area. * * *

At its inception, this was “a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area” … . That request implicated only level one of De Bour … and required only an objective credible reason to make basic inquiries of defendant … . On this record, the initial inquiry was justified.

However, the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of De Bour. People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19

 

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EVIDENCE OF MOTHER’S FAILURE TO COMPLY WITH CONDITIONS OF A SUSPENDED JUDGMENT WAS INCOMPLETE, AND, ALTHOUGH THE EVIDENCE OF FATHER’S FAILURE TO COMPLY WAS SUFFICIENT, FAMILY COURT DID NOT TAKE THE BEST INTERESTS OF THE CHILDREN INTO CONSIDERATION, TERMINATION OF PARENTAL RIGHTS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the evidence did not support the alleged violations of a suspended judgment by mother and the termination of father’s and mother’s parental rights. The decision is fact-specific and cannot be fairly summarized here. In a nutshell the evidence presented by the petitioner with regard to mother’s alleged non-compliance with the suspended judgment was incomplete, and Family Court failed to consider the best interests of the child:

With regard to the mother’s engagement in services, the caseworker testified that she had not received a return call from Trinity prior to the hearing and, as such, she was not aware whether the mother had engaged in any alcohol and drug treatment. The mother, however, testified that she made an appointment for an intake at Trinity prior to the filing of the subject motion and had thereafter commenced treatment on November 3, 2017. The caseworker also testified that, as she had also not heard back from the mother’s Family Services counselor, she had no information as to whether the mother was engaged in either the protective parenting or the domestic violence programs. With regard to mental health counseling, the mother alleged that she had called and made an appointment prior to the filing of the subject motion, and the caseworker confirmed that the mother did attend an initial intake on November 17, 2017; however, the caseworker was unaware if the mother was following up with any recommended treatment as she had not spoken with the mother’s Family Services counselor. * * *

With regard to the father, although we find that Family Court’s determination revoking the suspended judgment is supported by a sound and substantial basis in the record … , such noncompliance “does not automatically result in termination of his . . . parental rights” … . Rather, even at this stage of the proceedings, Family Court was required to consider the best interests of the children  … . Matter of Nahlaya MM. (Britian MM.), 2019 NY Slip Op 03418, Third Dept 5-2-19

 

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THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT).

The Second Department determined the handgun seized in a warrantless search inside a home should have been suppressed, and subsequent statements made by the defendant should have been suppressed as the fruit of the illegal search. The defendant’s psychiatrist had called the police to tell them defendant had a gun and was paranoid. The defendant had previously threatened to shoot police officers. Officer Temple was given permission by defendant’s mother to enter the home. Then defendant ran to the back of the house and threw something under a chair. After the defendant was in custody Officer Temple went back into the house, lifted up the chair and seized a handgun from under the chair. Up until that point Officer Temple did not know what the object was, so the plain-view justification for a warrantless search was not available:

Contrary to the People’s contention, the consent of the defendant’s mother to the police to enter the home to speak with the defendant did not constitute a consent to Officer Temple’s search of the living room … . Moreover, contrary to the People’s contention, the seizure of the firearm does not fall within the plain view exception … . Officer Temple’s testimony as to what he believed the object was, based upon the 911 call, his police experience, and military training, does not meet the requirement of the plain view doctrine, since he testified that he did not know what the object was until he moved the chair … . The People do not assert on appeal that the seizure was lawful pursuant to the emergency exception and, in any event, any exigency abated once the defendant was detained … .

Under the circumstances of this case, the physical evidence that was recovered from the residence must be suppressed, as the search was illegal, and the defendant’s subsequent statements to law enforcement officials must be suppressed as fruit of the poisonous tree … . People v Hickey, 2019 NY Slip Op 03364, Second Dept 5-1-19

 

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STATEMENTS MADE BY THE DEFENDANT WHEN HE WAS HANDCUFFED IN THE BACK SEAT OF A POLICE CAR SHOULD HAVE BEEN SUPPRESSED, TANGIBLE EVIDENCE RETRIEVED AS A RESULT OF THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS WELL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant’s statements, made when he was handcuffed in the back seat of a police car, should have been suppressed. Defendant had possession of a wallet and had demanded money from the owner of the wallet in exchange for its return. The owner of the wallet went to the police. The police spoke to the defendant on the phone, and he again demanded money for the wallet. The defendant again demanded money for the wallet when the police went to his house. The wallet was retrieved after defendant made the statements in the police car, so the wallet should have been suppressed as well:

Not only was the defendant handcuffed in the back seat of a police vehicle, the detectives testified that the defendant was bargaining with them for his freedom by offering to get the wallet if they would remove the handcuffs and release him. Detective Bookstein specifically testified that the defendant was not free to leave the police vehicle. The record also demonstrates that the statements that the defendant made to the detectives during their conversation with him about the wallet were the result of the functional equivalent of interrogation and should have been suppressed … . People v Torres. 2019 NY Slip Op 03380, Second Dept 5-1-19

 

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DESPITE MOTHER’S VIOLATION OF SIX CONDITIONS OF A SUSPENDED JUDGMENT, TERMINATING HER PARENTAL RIGHTS WAS NOT IN THE BEST INTERESTS OF HER SPECIAL NEEDS CHILD (SECOND DEPT). ​

The Second Department, reversing Family Court, noting that mother had violated six conditions of a suspended judgment, determined it was not in the best interests of the child to terminate mother’s parental rights. The special needs child had been severely neglected by mother (medical neglect). However, mother demonstrated she genuinely loved the child and had learned how to care for him:

The record evidence demonstrated that the mother had learned how to provide the special care that the child needs and that the mother was emotionally attuned to the child’s needs … . Furthermore, the mother obtained stable housing and engaged in counseling … . While the mother expressed her distrust of the preventive services workers and refused to provide releases for her other children’s schools, the evidence demonstrated that the mother never denied the preventive services workers access to her home or to her other children.

The mother also made progress in addressing the issues that led to the child being removed from her custody by taking responsibility for the initial neglect that led to the child being removed from her care. Moreover, the mother has cooperated with other services and providers. In addition, the record demonstrates that the mother genuinely loves the child and has shown vigilance in attending to his needs. The testimony at the hearing demonstrated that the mother’s interaction with the child was appropriate, the visits were going well, and the interaction between the mother and the child has been positive. The record further demonstrates that the child’s siblings are connected to him and desire for him to return to the home. Finally, the mother has a support system in place that she had not had previously. Matter of Markel C. (Kwanza H.), 2019 NY Slip Op 03332, Second Dept 5-1-19

 

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QUESTION OF FACT WHETHER DEFENDANT VIOLATED VEHICLE AND TRAFFIC LAW 1141 BY MAKING A LEFT TURN IN FRONT OF PLAINTIFF’S VEHICLE, DEFENDANT AVERRED PLAINTIFF WAS DRIVING TOO FAST, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff made out a prima facie case, alleging the defendant, without warning, made a left turn in front of him in violation of Vehicle and Traffic law 1141, defendant raised a question of fact about whether she violated the statute by averring plaintiff was driving too fast:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” … . A violation of this statute constitutes negligence per se … . …

The defendant driver averred that, as she approached the intersection, she slowed her vehicle, activated her left hand turn signal, and “looked to ensure that the roadway was clear.” As she was in the process of turning, she noticed the plaintiff’s vehicle for the first time and observed it traveling toward her at such an excessive rate of speed that she was unable to avoid the impact. The foregoing was sufficient to raise a triable issue of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff’s vehicle was “so close as to constitute an immediate hazard” … . Brodney v Picinic, 2019 NY Slip Op 03314, Second Dept 5-1-19

 

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