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DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this vehicle-pedestrian traffic accident case should not have been granted. Plaintiff demonstrated she suffered a serious injury within the meaning of the Insurance Law (fractures in her foot). And defendant did not demonstrate plaintiff’s negligence was the sole proximate cause of the accident:

Plaintiff commenced this negligence action seeking damages for injuries that she sustained when a vehicle operated by defendant struck her foot while she was walking her bicycle on the street beneath an overpass. We agree with plaintiff, as limited by her brief, that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and denying that part of plaintiff’s cross motion for partial summary judgment on the issue of serious injury.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every reasonable inference  … , we conclude that defendant failed to meet his initial burden on his motion of establishing as a matter of law that plaintiff’s negligence was the sole proximate cause of the accident … . Defendant’s own submissions raise triable issues of fact, including whether he violated his ” common-law duty to see that which he should have seen [as a driver] through the proper use of his senses’ ” … and his statutory duty to “exercise due care to avoid colliding with any bicyclist[ or] pedestrian” (Vehicle and Traffic Law § 1146 [a]).

Finally, it is uncontested that plaintiff established as a matter of law on her cross motion that she sustained fractures in her foot as a result of the accident and, therefore, she is entitled to partial summary judgment on the issue of serious injury (see Insurance Law § 5102 [d]). Luttrell v Vega, 2018 NY Slip Op 04468, Fourth Dept 6-15-18

​NEGLIGENCE (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/EVIDENCE (NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/INSURANCE LAW (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/SERIOUS INJURY (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))

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FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE HIGHEST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the trial court’s error in refusing the instruct the jury on manslaughter second and criminally negligent homicide was harmless error. The defendant was charged with murder and the trial court instructed the jury on manslaughter first degree as a lesser included offense. The jury convicted the defendant of both murder and manslaughter first. Because the jury convicted on the top count, and the jury was instructed on the top lesser included offense, the failure to instruct on the more remote lesser included offenses was deemed harmless error. The manslaughter first conviction was reversed as a lesser concurrent count:

As set forth by the Court of Appeals, “where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]). The premise underlying a determination of harmless error is that, when a jury convicts the defendant of the top (i.e., highest) charged offense and thereby excludes from the case the next lesser (i.e., intermediate) included offense, the verdict dispels any significant probability that the jury, had it been given the option, would have acquitted the defendant of both the highest and intermediate charged offenses and instead convicted the defendant of the even lesser (i.e., remote) included offense that was erroneously not charged … . Thus, cases applying the analysis set forth in Boettcher hold that where the trial court charges the jury with the highest offense of murder in the second degree and the intermediate offense of manslaughter in the first degree, and the jury convicts the defendant of murder in the second degree, the defendant’s challenge on appeal to the court’s denial of a request to charge the remote offenses of manslaughter in the second degree and/or criminally negligent homicide is foreclosed, i.e., any error is harmless … . People v Mcintosh, 2018 NY Slip Op 04455, Fourth Dept 6-15-18

​CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/LESSER INCLUDED OFFENSES (FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, FAILURE TO INSTRUCT THE JURY ON TWO REMOTE LESSER INCLUDED OFFENSES WAS HARMLESS ERROR, JURY WAS INSTRUCTED ON THE FIRST LESSER INCLUDED OFFENSE AND CONVICTED DEFENDANT OF THE TOP COUNT OF THE INDICTMENT (FOURTH DEPT))

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AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the conviction by guilty plea and dismissing the indictment, determined the People did not present sufficient proof at the suppression hearing to allow the suppression court to find there was probable cause for defendant’s arrest. After a traffic stop, defendant was arrested based upon information from the 911 Center and the Cortland Police Department about an active warrant for defendant’s arrest in Cortland. Cocaine seized in a search incident to arrest was the basis for the instant charges against the defendant. The defendant specifically challenged the validity of the communications with the arresting officers concerning the warrant. At the suppression hearing, the People did not present the warrant or any witness with first-hand knowledge about the warrant. The cocaine should have been suppressed:

Despite defendant’s explicit challenge to the reliability of the information justifying his arrest … , the People did not produce the arrest warrant itself prior to the conclusion of the hearing … . Instead, the People relied upon the officer’s testimony concerning his communications with an unidentified person or persons at the 911 Center and his assumptions about how the 911 Center confirmed the existence of an active and valid warrant. That testimony, however, rested “on a pyramid of hearsay, the information having been passed from” the arresting officer to unidentified persons at the 911 Center and the Cortland Police Department and back to the officer… . “In making an arrest, a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody in the execution of the warrant . . . However, if the warrant turns out to be invalid or vacated . . . [,] or nonexistent . . . , any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer’s reliance upon the communication” … . Here, without producing the arrest warrant itself or reliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defendant’s arrest was based on probable cause … . People v Searight, 2018 NY Slip Op 04466, Fourth Dept 6-15-18

​CRIMINAL LAW (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUPPRESS, MOTION TO (AT THE SUPPRESSION HEARING THE PEOPLE DID NOT PROVE THE VALIDITY OF THE COMMUNICATIONS WITH THE ARRESTING OFFICERS ABOUT THE EXISTENCE OF AN ACTIVE WARRANT FOR DEFENDANT’S ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, affirming defendant’s criminal mischief conviction and the restitution order, looked at the evidentiary issues raised on appeal through the lens of the relevant jury instructions. Where there is no objection to the jury instructions, the proof required of the People is that which is laid out in the jury instructions. The indictment alleged that the defendant and several others vandalized cars at a dealership by scratching the cars with keys causing total damage in the amount of $40,000. On appeal defendant argued (1) the charged offense requires damage to property owned by a “person” and the People did not demonstrate that the car dealership was a “person” within the meaning of the statute, (2) the precise amount of damage attributable to the defendant was not proven, and (3) ordering defendant to pay restitution in the full amount of the damages was error. All of defendant’s arguments were rejected:

The court told the jury that defendant must have damaged the property of “another person” — not “another human being” — and it is common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals …. Indeed, the Court of Appeals has written that personhood is “not a question of biological or natural’ correspondence”…, and we can “presume[]” that the jurors had ” sufficient intelligence’ to make [the] elementary logical inferences presupposed by the language of [the court’s] charge” … . In short, defendant’s personhood argument effectively transforms an undefined but commonly understood term into an incorrectly defined term, and we decline to follow him down that path. …

… [T]he jury was instructed — without objection — that “[i]f it is proven . . . that the defendant acted in concert with others, he is thus criminally liable for their conduct. The extent or degree of the defendant’s participation in the crime does not matter” … . Perhaps this instruction was inconsistent with section 20.15 … but it still forecloses defendant’s claim of factual insufficiency as to value. …

… [T]he Court of Appeals previously upheld a restitution award that imposed the full value of the victim’s loss on a single perpetrator, instead of apportioning the loss among the defendant and his accomplices …— as defendant appears to seek here. People v Graves, 2018 NY Slip Op 04503, Fourth Dept 6-15-18

​CRIMINAL LAW (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, (DEFENDANT’S EVIDENTIARY ARGUMENTS ARE VIEWED ON APPEAL THROUGH THE LENS OF THE JURY INSTRUCTIONS TO WHICH NO OBJECTIONS WERE MADE, NO NEED TO PRESENT SPECIFIC PROOF THE CAR DEALERSHIP WHICH WAS VANDALIZED WAS A PERSON (A CORPORATION IN THIS CONTEXT) WITHIN THE MEANING OF THE CRIMINAL MISCHIEF STATUTE, NO NEED TO PROVE THE PRECISE AMOUNT OF DAMAGE CAUSED BY THE DEFENDANT AS OPPOSED TO THE DAMAGE CAUSED BY ALL THE PARTICIPANTS, ORDERING RESTITUTION IN THE FULL AMOUNT OF THE DAMAGES, AS OPPOSED TO APPORTIONING THE DAMAGES AMONG ALL THE PARTICIPANTS, WAS NOT ERROR (FOURTH DEPT))

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EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT).

The First Department determined the Education Law and Public Health Law did not prohibit the release of the identities of persons who participated in a quality assurance review involving plaintiff doctor:

Plaintiffs’ claims in this suit are based on [Peconic Bay Medical Center’s] alleged misrepresentations about the existence of an investigation and the filing of an AAR [adverse action report], and the AAR did not report plaintiff for malpractice but for resigning during an ongoing investigation … . * * *

… [P]laintiffs’ request to compel defendants to un-redact the identities of nonparty participants in the quality assurance review process should be granted. Education Law § 6527(3) and Public Health Law § 2805-m protect documents “prepared by or at the behest of” a quality assurance committee … . However, they do not protect the mere identities of participants. Brook v Peconic Bay Med. Ctr., 2018 NY Slip Op 04432, First Dept 6-14-18

MEDICAL MALPRACTICE (EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/PUBLIC HEALTH LAW  (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/QUALITY ASSURANCE REVIEW (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))/EVIDENCE (MEDICAL MALPRACTICE, EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT))

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PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) action stemming from a fall from an A frame ladder. Plaintiff was engaged in “alteration” within the meaning of the statute. The fact that plaintiff was the sole witness to the action did not preclude summary judgment. The fact that plaintiff may have been comparatively negligent did not preclude summary judgment:

Partial summary judgment on the issue of liability was properly granted in favor of plaintiff in this action where plaintiff was injured when he fell from a six-foot A-frame ladder while performing work on the sprinkler system in defendant’s building … . According to plaintiff, as he was tightening a bolt, the ladder moved and he fell to the floor. Contrary to defendant’s contention, the record shows that the work that plaintiff was engaged in at the time of his accident constituted an alteration within the meaning of section 240(1). Such work included reconfiguring the premises’ sprinkler system to comply with the fire code and entailed, inter alia, cutting and removing pipes, relocating pipes and valves, and installing components … .

That plaintiff is the sole witness to the accident does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his credibility … . Furthermore, any failure on plaintiff’s part to ensure that his coworker had properly set up the ladder would, at most, constitute comparative negligence, a defense inapplicable to a Labor Law § 240(1) cause of action … . Concepcion v 333 Seventh LLC, 2018 NY Slip Op 04422, First Dept 6-14-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT))/ALTERATION (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT))/COMPARATIVE NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT))

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PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined it was error to fail to provide notice to the defendant of an identification procedure involving the victim of the burglary, Febus. The error was deemed harmless, however:

Febus testified that approximately one week prior to the burglary, she answered a ringing doorbell to find a stranger who asked for a person who was unknown to her. The individual left before she could respond to his inquiry. She described the individual as an older black man with long hair who was carrying a satchel. Approximately 10 days after the burglary, Febus went to the police station and identified various objects that had been taken from her residence. While she was at the police station, she asked a police officer about the identity of the individual who had broken into her residence, and the officer provided defendant’s name. She then asked the officer if she could see a picture of the individual, and the officer responded that it “was online on the Albany Police Department’s [Facebook page].” Febus testified that she returned home and accessed the Facebook page. Over defendant’s objection, County Court permitted Febus to continue her testimony regarding her prior identification of defendant. In that regard, she testified that when she accessed the police department’s Facebook page, she saw a number of mugshots and immediately identified defendant as the person who had knocked on her door approximately one week prior to the burglary.

We are not presented with the issue of whether maintenance by a police department of a Facebook page or website with mugshot photos of arrested individuals — or referral of individuals to such a website — are, without more, police-initiated identification procedures because, in this case, the police officer also provided Febus with defendant’s name when he told her that she could view a picture of the person who had been arrested for burglarizing her home on the police department’s Facebook page. The fact that she had been provided with defendant’s name could have influenced her identification of defendant when she subsequently viewed the Facebook page. This, in our view, was sufficient police involvement to invoke the notice requirement of CPL 710.30 (1) … . Inasmuch as notice was not provided, County Court erred in permitting Febus to identify defendant as the person who came to her home prior to the burglary. People v Cole, 2018 NY Slip Op 04391, Third Dept 6-14-18

​CRIMINAL LAW (IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/IDENTIFICATION (CRIMINAL LAW, NOTICE, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))/FACEBOOK (CRIMINAL LAW, MUG SHOTS, IDENTIFICATION, PEOPLE SHOULD HAVE PROVIDED NOTICE OF BURGLARY VICTIM’S IDENTIFICATION OF DEFENDANT ON THE POLICE DEPARTMENT’S FACEBOOK PAGE AFTER THE VICTIM HAD BEEN GIVEN THE DEFENDANT’S NAME BY THE POLICE, ERROR HARMLESS HOWEVER (THIRD DEPT))

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FAILURE TO RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two judge dissenting opinion, determined defendant’s objection to a juror who spoke out during the about defense counsel’s repeated use of a racial slur was not preserved for appeal. Defense counsel did not make the specific objection relied upon on appeal and was silent when objections were made by another defense attorney. The court further held that references to gang structure in the prison where the assault occurred were admissible to show the defendant’s motive and intent to join the assault:

To preserve an issue of law for appellate review, “counsel must register an objection and apprise the court of grounds upon which the objection is based at the time’ of the allegedly erroneous ruling or at any subsequent time when the court had an opportunity of effectively changing the same'” … . * * *

We are unpersuaded, first, by defendant’s argument that because his counsel referred to Juror Six as “grossly unqualified,” he preserved his Buford claim that the trial court had to make an inquiry into the juror’s ability to be impartial. What defendant ignores is that counsel’s reference to Juror Six being grossly unqualified was raised solely in relation to his consistent position that the only way to protect defendant’s right to a fair and impartial jury was to grant the specific remedy of a mistrial. Counsel argued vigorously that Juror Six had irreversibly tainted the entire jury——a defect in the process that would require more than the discharge of a single juror … . That being the case, counsel’s failure to join another codefendant’s request for a Buford inquiry after the court denied the mistrial motion makes plain the singular course set by counsel. …

Defendant’s alternative argument, that he preserved the issue for appellate review by way of his codefendant’s objection, is similarly unpersuasive. The Court has, in a different context, rejected the proposition that an issue is preserved for appellate review, notwithstanding a defendant’s failure to expressly present the matter to the trial court, merely because another party or codefendant protested or objected. * * *

… [T]he testimony elicited by the People about the Bloods was probative of defendant’s motive and intent to join the assault on complainant, and provided necessary background information on the nature of the relationship between the codefendants, thus placing the charged conduct in context … . The testimony was intended to explain why defendant and one of the codefendants were quick to join in the fight, as well as the gang-related meaning of the words complainant alleged that the codefendant used during and after the attack. In fact, very little of the investigator’s testimony focused on sensational details about the Bloods. The testimony described how members are identified and briefly discussed how carrying out an act of violence on behalf of a member might allow another member to rise in the gang’s hierarchy. People v Bailey, 2018 NY Slip Op 04383, CtApp 6-14-18

CRIMINAL LAW (APPEALS, EVIDENCE, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/APPEALS (CRIMINAL LAW, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/EVIDENCE (CRIMNAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/GANGS (CRIMINAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))

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DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a concurring opinion, determined that defendant was properly convicted of depraved indifference assault in connection with the long-term abuse and serious injury inflicted on his live-in girlfriend. The court noted that there is no conflict between the intention to inflict serious injury and a finding of depraved indifference in assault cases (grave risk of death). The court further noted that the circumstances giving rise to depraved indifference assault need not fit into the narrow exceptions carved out for depraved indifference murder:

Here, the trial court instructed the jury … that they could find defendant acted with depraved indifference to human life if, “having a conscious objective not to kill but to harm, he engages in . . . a brutal, prolonged and potentially fatal course of conduct against a particularly vulnerable victim.” The failure of either party to object to the charge meant that “the law as stated in that charge became the law applicable to the determination of the rights of the parties . . . and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged”… . Thus, “the legal sufficiency of defendant’s conviction must be viewed in light of the court’s charge as given without exception” … .

Viewed as such, the jury could reasonably conclude that the victim’s injuries were so severely debilitating that the repeated trauma rendered her particularly vulnerable. In fact, the victim could barely move and speak before she lapsed into a coma. The People also presented sufficient evidence from which the jury could infer that the victim’s injuries persisted for a prolonged period of time. * * *

… [D]defendant is incorrect that depraved indifference assault must fit into one of the narrow exceptions for bringing depraved indifference murder charges in one-on-one killings. * * * … [D]epraved indifference assault should not be constrained to the exceptions to the rule against charging depraved indifference murder in one-on-one killings. People v Wilson, 2018 NY Slip Op 04380, CtApp 6-14-18

CRIMINAL LAW (EVIDENCE, DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/EVIDENCE (CRIMINAL LAW, DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/DEPRAVED INDIFFERENCE ASSAULT (DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/ASSAULT (DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))

,

STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP).

The Court of Appeals, over an extensive three-judge dissenting opinion, determined that the alleged declarations of three witnesses who testified at the hearing on defendant’s motion to vacate his conviction did not meet the criteria for declarations against penal interest. Therefore the statements were not admissible and the motion to vacate was properly denied. The decision is fact-specific and cannot be fairly summarized here. The defendant was convicted of kidnapping Allen, who has not been seen since she disappeared in 1994:

At the hearing defendant called as witnesses all three declarants of the hearsay statements proffered as admissions against penal interests, as well as additional witnesses who testified to inculpatory statements alleged to have been made by each of the declarants. The declarants denied making the admissions and any complicity in Allen’s kidnapping. Nevertheless, enabled by the speculative nature of the disparate admissions containing few details, defendant pursued more than one theory of complicity at the hearing — attempting to establish that, either singly or in combination, the declarants were involved in the kidnapping or the murder or the disposal of Allen’s body … . * * *

In order to be admissible under that exception, “the following elements must be present: first, the declarant must be unavailable as a witness at [the hearing]; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability” … . …

.. [T]the record supports County Court’s determination that the independent corroboration necessary for admissibility of the declarations against penal interest was not sufficient. The requisite independent evidence circumvents fabrication and augments the trustworthiness of the declaration. “By imposing such a requirement, a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions” … . As we have explained, this determination of the reliability of proffered declarations against penal interest “involves a delicate balance of diverse factors and is entrusted to the sound discretion of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability. The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . People v Thibodeau, 2018 NY Slip Op 04378, CtApp 6-14-18

CRIMINAL LAW (EVIDENCE, DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/EVIDENCE (CRIMINAL LAW, DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/HEARSAY (CRIMINAL LAW,  DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/DECLARATIONS AGAINST PENAL INTEREST (STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/VACATE CONVICTION, MOTION TO (STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))

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