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ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction under New York’s terrorism statute, applying a weight of the evidence review, determined that, although the defendant threatened to kill a judge in letters to his wife, there was no proof the threat was made to influence or affect the policy or conduct of a unit of government:

As relevant here, “[a] person is guilty of making a terroristic threat when[,] with intent to . . . influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping, he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense”… .

… [C]ritically missing is evidence demonstrating that defendant intended to influence a policy of a governmental unit by intimidation or coercion or affect the conduct of a governmental unit — a necessary element of the crime of making a terroristic threat … . …

… [T]he letters here do not indicate that defendant, by threatening violent acts, intended to influence the judge’s policy or conduct. Indeed, the record reflects that, in the time between when the two letters were written, defendant was granted visitation by the subject judge. In our view, they reflect defendant’s vented anger towards those individuals involved in his Family Court proceedings … . … [V]iewing the evidence in a neutral light, it cannot be concluded that defendant intended by his actions to influence a governmental policy or affect a governmental unit and, therefore, the verdict finding defendant guilty of making a terroristic threat is against the weight of the evidence … . People v Richardson, 2018 NY Slip Op 08368, Thirid Dept 12-6-18

CRIMINAL LAW (ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/APPEALS (CRIMINAL LAW, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/TERRORISM (CRIMINAL LAW, EVIDENCE ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))/JUDGES (CRIMINAL LAW, APPEALS, TERRORISM, ALTHOUGH DEFENDANT THREATENED TO KILL A JUDGE THE EVIDENCE DID NOT SUPPORT THE TERRORISM CONVICTION, THERE WAS NO EVIDENCE THE THREAT WAS MADE TO INFLUENCE OR AFFECT THE POLICY OR CONDUCT OF A GOVERNMENTAL UNIT, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE REVIEW (THIRD DEPT))

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QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant-store’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell over a small table that was behind a taller table thinking that it was possible to walk behind the taller table:

“Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . Even a condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances”… .

Here, the defendants failed to establish, prima facie, that the table at issue was open and obvious and not dangerous given the surrounding circumstances at the time of the accident, including the evidence submitted by the defendants on their motion as to the lighting conditions and the presence of other customers in the area … . Further, the defendants’ own evidence, including the deposition testimony of their employees, demonstrated the existence of a triable issue of fact as to whether the space on the side of the table on which the plaintiff was injured could be anticipated as an area of egress by the plaintiff. Elfassi v Hollister Co., 2018 NY Slip Op 08279, Second Dept 12-5-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT).

The Second Department noted that the anonymous 911 was properly admitted into evidence, in part, because the call was nontestimonial:

We agree with the Supreme Court’s determination to admit into evidence at the trial a recording of a 911 emergency telephone call made by an unidentified caller. The recording was admissible under the present sense impression exception to the hearsay rule  … . Moreover, the admission of the recording did not violate the defendant’s right of confrontation. Since the primary purpose of the statements by the unidentified caller was to obtain an emergency response to a burglary in progress, the statements were not testimonial in nature … . People v Torres, 2018 NY Slip Op 08337, Second Dept 12-5-18

CRIMINAL LAW (EVIDENCE, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/TESTIMONIAL HEARSAY (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))

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DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT).

The Second Department noted that defendant driver’s allegation that plaintiff driver stopped suddenly in this rear end collision case was not sufficient to create a question of fact:

… [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he was stopped at a red light for 45 seconds before the defendant’s vehicle struck the plaintiff’s vehicle in the rear… . In opposition, the defendant averred that the accident occurred after the plaintiff made a sudden stop in the middle of the road. However, the defendant did not submit any evidence as to the distance he had maintained from the plaintiff’s vehicle, or the speed at which he was traveling, prior to the collision. Without such evidence, the assertion that the plaintiff’s vehicle came to a sudden stop was insufficient to rebut the inference that the defendant was negligent … . Auguste v Jeter, 2018 NY Slip Op 08274, Second Dept 12-5-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( REAR END COLLISIONS, DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT))

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POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff police officer was patrolling defendants’ property (at defendants’ request) when he slipped and fell an on outside stairway. Both the negligence cause of action and the General Municipal Law 205-a cause of action presented questions of fact. The section 205-a cause of action was properly based upon an alleged violation of the Property Maintenance Code of New York State:

The injured plaintiff’s mere inability to identify the precise nature of the slippery substance upon which he alleges he fell “cannot be equated with” a failure to identify the cause of his fall … . The defendants … failed to establish, prima facie, that they lacked constructive notice of the alleged hazardous substance on the step … , that the lighting for the area was adequate, and that the lack of a handrail on the steps was not a hazardous condition that may have been a proximate cause of the injuries … . …

The defendants … failed to demonstrate, prima facie, that Property Maintenance Code of New York State (2010) § 306.1, which requires a handrail on “[e]very exterior and interior flight of stairs having more than four risers,” did not apply to the location where the injured plaintiff’s accident occurred. …

… [W]e agree with the Supreme Court that the plaintiffs were not entitled to summary judgment on the issue of liability  … . The plaintiffs failed to demonstrate, prima facie, the defendants’ “neglect, omission, willful or culpable negligence” in violating Property Maintenance Code of New York State … . Moreover, the plaintiffs failed to eliminate all material issues of fact regarding whether the alleged hazardous condition actually existed. Furthermore, to the extent that the cause of action is predicated upon a violation of Property Maintenance Code of New York State… , the plaintiffs’ proffered evidence … failed to establish, prima facie, that the injured plaintiff’s accident resulted directly or indirectly from the absence of a handrail … . Stancarone v Sullivan, 2018 NY Slip Op 08344, Second Dept 12-5-18

NEGLIGENCE (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/POLICE OFFICERS (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/GENERAL MUNICIPAL LAW 205-a (POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/PROPERTY MANAGEMENT CODE OF NEW YORK STATE (SLIP AND FALL, POLICE OFFICER SLIPPED AND FELL ON AN OUTSIDE STAIRWAY WHEN PATROLLING DEFENDANTS’ PROPERTY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE AND GENERAL MUNICIPAL LAW 205-a CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an adverse inference jury instruction, not striking the answer, was the appropriate sanction in this negligent supervision case. Plaintiffs, coguardians of a blind and disabled adult (Nicholas), alleged negligent supervision and training of an employee (Escajadillo) of the respite care facility where Nicholas fractured his leg. Rosa’s employment records had been negligently destroyed by the facility:

Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ” will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate … . Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate … .

Here, because the plaintiffs asserted causes of action alleging negligent training and supervision, the defendants’ knowledge of any prior wrongdoing by its employees and information concerning their training are issues central to the plaintiffs’ causes of action, and the employees’ personnel files would be critical in determining those issues … . In support of their motion, the plaintiffs established that the defendants improperly failed to “suspend [their] routine document retention/destruction policy and put in place a litigation hold’ to ensure the preservation of relevant documents'” … , resulting in the negligent destruction of Escajadillo’s personnel file. However, the plaintiffs did not demonstrate that they were deprived of the ability to establish their case. Accordingly, the drastic sanction of striking the defendants’ answer is not appropriate … , but the lesser sanction of directing that an adverse inference charge be given at trial with respect to Escajadillo’s personnel file is warranted … . Squillacioti v Independent Group Home Living Program, Inc., 2018 NY Slip Op 08343, Second Dept 12-5-18

NEGLIGENCE (ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/EVIDENCE (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/SPOLIATION (NEGLIGENCE, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION, ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT))

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SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT).

The Second Department determined Supreme Court properly relied upon the results of a Frye hearing involving the same expert (and judge) in a prior trial. The expert was allowed to testify plaintiff’s injuries could not have been caused by the traffic accident. There was a defense verdict:

“The long-recognized rule of Frye v United States . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . “General acceptance can be demonstrated through scientific or legal writings, judicial opinions, or expert opinions other than that of the proffered expert” … . Further, even if the proffered expert opinion is based upon accepted methods, it must satisfy “the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case” … .

In this case, we agree with the Supreme Court’s determination to permit the expert’s testimony without first holding a hearing to determine its admissibility … . “A court need not hold a Frye hearing where[, as in the case at bar,] it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” … . Moreover, in this particular case, there was a proper foundation for the admission of the expert’s opinion. Shah v Rahman, 2018 NY Slip Op 08342, Second Dept 12-5-18

NEGLIGENCE (SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/EVIDENCE (FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/EXPERT OPINION (FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/FRYE HEARING (SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EVIDENCE, FRYE HEARING, SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT))

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DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defense counsel was ineffective for failing to request a jury instruction on petit larceny as a lesser included offense of robbery. The defense theory was that defendant did not use violence to take $20.00 from the victim but rather used trickery, claiming the victim had broken defendant’s liquor bottle. Defense counsel requested a jury charge on fraudulent accosting, which is not a lesser included offense of robbery:

… [P]etit larceny, which is defined as “steal[ing] property,” qualifies in the abstract as a lesser included offense of robbery in the third degree, which is defined as “forcibly steal[ing] property” … . There is no separate crime of petit larceny “by false pretenses,” and the fact that a nonforcible taking is committed by fraud does not disqualify it as a lesser included offense of robbery.

It is clear that defense counsel’s failure to seek a petit larceny charge was not strategic. The defense strategy was to concede that a nonforcible theft occurred and seek a misdemeanor conviction. There is no merit to the People’s suggestion that counsel may have had a strategic reason for requesting fraudulent accosting but not petit larceny.

We also find that counsel’s failure to request a petit larceny charge was prejudicial. There was plainly a reasonable view of the evidence to support petit larceny. Furthermore, the evidence that the theft was forcible rather than a scam was not so overwhelming as to render a request for petit larceny futile. The victims were tourists who returned to their home country and did not testify, and the sole eyewitness’s ability to establish the element of force was in question. People v Jones, 2018 NY Slip Op 08356, First Dept 12-4-18

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSES, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSES (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ROBBERY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/PETIT LARCENY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))

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DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether defendant building manager was liable for the injuries to plaintiff from a window which fell out and onto his head when he attempted to close it. The doctrine of res ipsa loquitur may apply:

… [P]laintiff used the locker room to change and opened one of the windows half a foot to cool down. When he attempted to close the window, he used a “little bit more force than [he] did when [he] lifted it.” As the window closed, it reverberated a bit and then the whole window structure came out and crashed over plaintiff’s head. …

The defendant met its prima facie burden on lack of constructive notice of a dangerous condition. While it is disputed that defendant never inspected the windows since installation in 2004, it did not have an affirmative duty to conduct reasonable inspections … .

We find that an issue of fact exists as to the applicability of the doctrine of res ipsa loquitur, which allows for an inference of negligence to be drawn on the occurrence of an accident. The doctrine requires that a plaintiff must demonstrate that the “event is the kind which ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and [that] it was not due to any voluntary action or contribution on the part of the plaintiff” … .

Here, “common experience” dictates that a window being shut does not simply fall out absent negligence. In order to establish exclusive control, plaintiff is not required to show that defendant “had sole physical access” to the window… . Further, here remains a question of fact whether plaintiff did something to contribute to the window falling on him. Wilkins v West Harlem Group Assistance, Inc., 2018 NY Slip Op 08247, First Dept 12-4-18

NEGLIGENCE (RES IPSA LOQUITUR, DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/RES IPSA LOQUITUR (DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant Time Warner’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the sidewalk defect was outside 12 inch area around the metal box cover in the sidewalk which the Rules of the City of New York (RCNY) require Time Warner to maintain, there were questions of fact whether Time Warner created the defect or had constructive notice of the defect:

Time Warner … has a common-law duty not to create a hazardous condition on the sidewalk … , and, further, as a special user of the public sidewalk, has a “duty to maintain the area of the special use in a reasonably safe condition”… . Additionally, constructive notice may be imputed where, as here, there is a duty under the administrative code to conduct inspections of the box covers … .

Here, the evidence, including the testimony of Time Warner’s construction manager, shows that Time Warner did not regularly inspect its box covers, as required by the regulation it relied upon … , and that, if the area had been inspected, Time Warner would have repaired the cracked sidewalk condition around the box cover and replaced the sidewalk flag, which extends to the spot where plaintiff tripped. Time Warner also submitted the affidavit of an engineer who measured the distance between plaintiff’s fall and the box cover as more than 12 inches, but did not address whether or not the metal box installed in the sidewalk created the cracked condition around the box cover that extended to the spot where plaintiff fell. Furthermore, the fact that Time Warner did not install the box cover itself has no bearing since the duty to maintain the area of the special use “runs with the land as long as it is maintained for the benefit of a special user” … . Robles v Time Warner Cable Inc., 2018 NY Slip Op 08244, First Dept 12-4-18

NEGLIGENCE (SLIP AND FALL, ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SPECIAL USE (SIDEWALKS, SLIP AND FALL,  ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))

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