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DEFENDANT WAS PROPERLY PROHIBITED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT FALSE ARREST AND POLICE BRUTALITY LAWSUITS FILED AGAINST THE OFFICER (SECOND DEPT).

The Second Department noted that the defendant was properly prohibited from cross-examining a police officer about four federal lawsuits filed against the officer:

The Supreme Court providently exercised its discretion in prohibiting the defendant from cross-examining a police witness with respect to the allegations of false arrest and/or police brutality in four federal lawsuits filed against that witness. “Where a lawsuit has not resulted in an adverse finding against a police officer . . . defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness” … . “In cross-examining a law enforcement witness, the same standard for good faith basis and specific allegations relevant to credibility applies, as does the same broad latitude to preclude or limit cross-examination” . “First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead t… he jury, or create a substantial risk of undue prejudice to the parties”… . Here, the complaints in each of the identified actions contain only allegations of unlawful police conduct by large groups of officers, and did not set forth specific acts of misconduct against the police witness individually. Thus, cross-examination of this witness regarding the federal lawsuits was properly denied … . People v Crupi, 2019 NY Slip Op 03614, Second Dept 5-8-19

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, HEARSAY IS ADMISSIBLE IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this slip and fall case should not have been granted. The complaint alleged plaintiff’s decedent tripped over a raised portion of a sidewalk. The evidence included plaintiff’s decedent’s explanation of the cause of the fall as described by plaintiff-wife. Defendants argued plaintiffs could not prove the cause of the fall because decedent’s statements were inadmissible hearsay. The Second Department noted that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only evidence. Here there was circumstantial evidence of the cause of the fall:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact. They failed to demonstrate that the cause of the decedent’s fall could not be established by admissible evidence, either direct or circumstantial … . While the defendants contend that the plaintiff’s deposition testimony as to what the decedent told her as to how the accident occurred constituted inadmissible hearsay, hearsay may be considered on a motion for summary judgment so long as the hearsay evidence is not the only evidence of a triable issue of fact … . The defendants’ submissions included the plaintiff’s own deposition testimony concerning her personal observations of the location of the accident shortly after the event and photographs of the claimed defect. Thus, the defendants failed to carry their burden of demonstrating that the plaintiff could not establish, through direct or circumstantial evidence, that the decedent tripped and fell as the result of a defect in the sidewalk.

Further, since the defendants failed to submit evidence as to when they last inspected the sidewalk, they failed to establish lack of constructive notice of the allegedly defective condition of the sidewalk … . Kontorinakis v 27-10 30th Realty, LLC, 2019 NY Slip Op 03579, Second Dept 5-8-19

 

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EVIDENCE DID NOT SUPPORT THE FINDING THAT DEFENDANT BREACHED THE CONTRACT TO CREATE A WEBSITE FOR PLAINTIFF, JUDGMENT AFTER A NON-JURY TRIAL REVERSED (SECOND DEPT).

The Second Department, reversing a judgment in favor of plaintiff after a non-jury trial, determined the evidence did not support the finding that defendant breached the contract to develop a website for the plaintiff. The agreement did not require defendant to finish developing the website by a specific date and defendant was working on the website during the period the agreement was in effect:

“The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” … . ” [A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'” … . When a contract does not specify the time for performance, the law will imply a reasonable time … . What constitutes a reasonable time for performance depends upon the facts and circumstances of the case … .

Here, the parties’ agreement provided that the defendant would provide services related to developing and maintaining a website for the plaintiff’s business. The agreement did not mandate that the website be operational by any particular date; only that the defendant would receive an advance if the website was operational by February 14, 2012. The evidence adduced at trial established that the defendant did provide services related to the development of the website. Moreover, the evidence did not establish that the defendant breached the parties’ agreement by failing to provide an active and operational website within a reasonable time. Fernandez v Abatayo, 2019 NY Slip Op 03571, First Dept 5-8-19

 

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EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of unspecified paraphilic disorder (USPD) can be admitted in a sex offender civil management trial. The evidence was excluded at the Mental Hygiene Law article 10 trial. The verdict that defendant does not suffer from a mental abnormality was vacated and the petition was reinstated:

In Matter of State of New York v Hilton C. (158 AD3d 707 [2d Dept 2018] …), the 2nd Department held that the evidence in the record before it, which is similar to the evidence in the record presently before us, failed to establish that “the diagnosis of unspecified paraphilic disorder [USPD] has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible” … . In the absence of any other New York State appellate authority, Supreme Court … that USPD was precluded as a diagnosis in article 10 proceedings.

However, we find, contrary to the 2nd Department, and consistent with the decision in Matter of Luis S. v State of New York (166 AD3d 1550 [4th Dept 2018]) that the type of evidence presented at the Frye hearing … in this case — such as the evidence concerning the inclusion of USPD as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which signals its general acceptance by the psychiatric community — is sufficient to satisfy the State’s burden of showing that the USPD diagnosis meets the Frye standard.

Accordingly, the verdict that respondent does not suffer from a mental abnormality, rendered after the article 10 trial, from which USPD evidence was excluded, must be vacated, the petition reinstated, and the matter remanded for further proceedings, including a determination whether the evidence meets the threshold standard of reliability and admissibility … . Matter of State of New York v Jerome A., 2019 NY Slip Op 03531, First Dept 5-7-19

 

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THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE JURY INSTRUCTION COULD BE APPROPRIATE IN A SECOND DEGREE ASSAULT CASE, BUT HELD THAT GIVING THE DEADLY-FORCE JUSTIFICATION-DEFENSE INSTRUCTION WAS NOT ERROR HERE (CT APP).

The Court of Appeals, over a concurrence, determined the jury was properly instructed on the “deadly force” justification defense on the assault second count. Defendant was convicted of beating the victim with a belt with a metal buckle, which was deemed a “dangerous instrument.” The defendant argued he was entitled to the “non-deadly” or “ordinary” physical force justification-defense jury instruction:

The Penal Law defines “[d]eadly physical force” as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [11]). A “[d]angerous instrument” is defined as “any instrument, article, or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (id. § 10.00 [13]). Defendant argues that the statutory definitions, while similar, are not identical and that a jury may convict a defendant of a crime containing a dangerous instrument element without necessarily concluding that the defendant used deadly physical force. …

There is no per se rule regarding which justification instructions are appropriate based solely on the fact that the defendant has been charged with second-degree assault with a dangerous instrument. Instead, as in every case where the defendant requests a justification charge, trial courts must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified, and, if so, which instructions are applicable … .

Under the particular circumstances of this case, the jury instruction does not require reversal … . Viewing the record in the light most favorable to defendant, there is no reasonable view of the evidence that defendant merely “attempted” or “threatened” to use the belt in a manner readily capable of causing death or serious physical injury … but that he did not “use” it in that manner … . People v Vega, 2019 NY Slip Op 03530, CtApp 5-7-19

 

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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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