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THE DRUGS IN DEFENDANT’S CAR MAY NOT HAVE BEEN IN “PLAIN VIEW” IF THE POLICE HAD NOT ILLEGALLY DETAINED DEFENDANT OUTSIDE THE CAR BEFORE LOOKING INSIDE THE CAR; SUPPRESSION GRANTED AND INDICTMENT DISMISSED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, over a three-judge dissent, determined defendant’s motion to suppress evidence seized from his car should have been granted. The proof at the suppression hearing demonstrated the police observed innocent behavior in a parking lot which which was interpreted to be a drug transaction. As an officer approached, defendant got out of his car and walked toward the officer. The officer frisked the defendant and had him stand at the back of the car. The officer then looked in the car and saw cocaine on the seat. The car was then searched. The Fourth Department, over a two-judge dissent, held that the cocaine was in plain view and would have been seen had the officer simply walked up to the car without detaining the defendant. But the Court of Appeals held that the “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation was made. Here the police had illegally detained defendant before the observation:

The Appellate Division reasoned that, even if [Officer] Young had not detained defendant, he could have observed the contraband in plain view simply by walking up to the driver’s seat and looking into the vehicle … . However, this conclusion is unsupported because, had the officers not unlawfully detained defendant behind the car, defendant could have walked back, opened the car door and sat on the driver’s seat—actions that, contrary to the dissent’s unsupported assertions … , would have blocked Young’s view of the contraband….  Therefore, the prosecution failed to meet its burden to establish at the suppression hearing that the unlawful detention of defendant was not the reason that Young had an “unobstructed view of the driver’s seat” … . People v Messano, 2024 NY Slip Op 00097, CtApp 1-11-24

Practice Point: The “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation is made—not the case here.

 

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PLAINTIFF’S “INADEQUATE FALL-PROTECTION” CAUSES OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; THEREFORE PLAINTIFF’S AFFIDAVIT FROM A NURSE WAS NOT SUFFICIENT TO OVERCOME DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WHICH WAS SUPPORTED BY AN AFFIDAVIT FROM A PHYSICIAN (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the two “inadequate fall-prevention” causes of action in the complaint sounded in medical malpractice, not negligence. Therefore the affidavit from a nurse was not sufficient to support the malpractice causes of action:

Defendants established their prima facie entitlement to summary judgment with respect to the specific allegations sounding in medical malpractice, by and through an expert’s affidavit from a physician opining that decedent was provided with fall prevention interventions throughout her admission that met or exceeded the standard of care, and that, following each fall, decedent was rendered the appropriate medical care and treatment. Moreover, this physician opined that the treatment plan developed for decedent and the care rendered to her were within the standard of care and were not a substantial factor in causing the alleged injuries … . In opposition, plaintiff tendered an expert affidavit from a nurse. However, inasmuch as certain allegations sound in medical malpractice and pertain to medical determinations and what a physician should or should not have done, plaintiff’s nurse rendered opinions that “went beyond her professional and educational experience and cannot be considered competent medical opinion” … . Currie v Oneida Health Sys., Inc., 2023 NY Slip Op 06780, Second Dept 12-28-23

Practice Point: Re: the medical malpractice causes of action, the affidavit from a physician in support of defendants’ motion for summary judgment prevailed over plaintiff’s affidavit from a nurse who, based on her experience and education, could not offer a competent medical opinion.

 

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IN THIS SLIP AND FALL CASE, EVIDENCE THE AREA WHERE PLAINTIFF FELL WAS INSPECTED “MORE THAN AN HOUR” BEFORE AND EVIDENCE OTHERS WERE IN THE AREA AT THE TIME OF THE FALL DID NOT ELIMINATE QUESTIONS OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not demonstrate it did not have constructive notice of the wet substance on the floor alleged to have cause plaintiff’s slip and fall. Evidence that the corridor in question was inspected “more than an hour” before the slip and fall and evidence others were in the corridor when plaintiff fell did not eliminate questions fact about whether the hospital had constructive notice of the condition:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the alleged slippery condition. The defendant’s evidence that the corridor was inspected more than an hour before the accident was insufficient to establish that the condition did not exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy the condition. The plaintiff’s deposition testimony, submitted by the defendant in support of its motion, established that there were at least three nurses and a doctor present in the corridor at the time of her fall … . Contrary to the defendant’s contention, the plaintiff’s deposition testimony that she did not notice anything on the floor before she fell was insufficient to establish that the condition would not have been discoverable upon a reasonable inspection … . Croake v Flushing Hosp. & Med. Ctr., 2023 NY Slip Op 06723, Second Dept 12-27-23

Practice Point: In a slip and fall, evidence the area of the fall was inspected “more than an hour” before the fall does not demonstrate the defendant did not have constructive notice of the condition.

 

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IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s possession-of-a-weapon conviction, determined the People did not meet their burden of going forward at the suppression hearing because the police officer’s (Desposito’s) testimony was not credible. The court went on to say that, even if Desposito’s testimony were true, the evidence did not provide reasonable suspicion for the street stop. Defendant was walking on the sidewalk. Desposito was in a moving car. Desposito claimed he saw the outline of a gun under defendant’s sweat pants and told defendant to stop. Defendant ran, was captured, and a gun was found. Because Desposito was in a moving car and his view of defendant was obscured by parked cars and another pedestrian, the court found his testimony insufficient to meet the “going forward” burden of proof:

… [T]he People failed to establish the legality of the police conduct in the first instance, as Desposito’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Desposito’s testimony that he was able to observe an “L-shaped object” beneath the defendant’s sweatpants as the police vehicle drove past the defendant strains credulity and defies common sense … . …

… [E]ven if Desposito’s testimony is credited as true, his observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Leon, 2023 NY Slip Op 06754, Second Dept 12-27-23

Practice Point: If a police officer’s suppression-hearing testimony attempting to demonstrate reasonable suspicion for a street stop is incredible as a matter of law, the People fail to meet their “burden of going forward” and the motion to suppress must be granted.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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HERE THE WRITTEN LOGGING CONTRACT WAS COMPLETE AND UNAMBIGUOUS; EVIDENCE OF AN ALLEGED ADDITIONAL ORAL AGREEMENT WAS PRECLUDED BY THE PAROL EVIDENCE RULE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contract at issue was complete and any evidence of an alleged oral agreement was precluded by the parol evidence rule:

 “The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions” … . …

Defendants met their initial burden of establishing that the timber sale contract is a complete written instrument, and plaintiffs failed to raise a triable issue of fact in opposition … . The contract sets forth the parties, the address of the property, the contract period, the payment terms, and a description of the items sold … . There is no reference to any other document or map … . Inasmuch as the contract constituted a complete, integrated agreement, plaintiffs may not rely on an alleged oral agreement to permit logging on the southernmost section of the property, permit logging on the middle section of the property only upon additional payment, and prohibit logging on the northernmost section of the property, to vary the terms of the contract. Indeed, one would expect the contract to embody any such restrictions on logging, and “[s]uch a collateral agreement cannot be separately enforced” … . Lentner v Upstate Forestry & Dev., LLC, 2023 NY Slip Op 06626, Fourth Dept 12-22-23

Practice Point: Where a written contract is complete and unambiguous on its face, evidence of an additional oral agreement is precluded by the parol evidence rule.

 

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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).

The Third Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was legally insufficient. The Third Department noted the issue was preserved by a written motion to dismiss submitted at the close of the People’s case and ruled upon after the close of defendant’s case. The Third Department also compared the criteria for a motion to dismiss for legal insufficiency and a determination a conviction is against the weight of the evidence. The trial evidence demonstrated only that defendant was inattentive when he rounded a turn and struck the back of the victim’s car as it was waiting to make a turn while travelling about 45 mph. That was not enough to demonstrate criminal negligence:

Defendant preserved the claim of legal insufficiency when County Court reserved upon a written motion to dismiss presented at the close of the People’s case and ultimately denied the motion at the close of defendant’s case … .

A review of legal sufficiency requires this Court to “view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . Whereas, a review of whether a verdict is against the weight of the evidence requires the court to “view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” … . * * *

“The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . Here, the People argue that a failure to brake — for what is alleged to be a period of 10 to 18 seconds — constitutes criminal negligence. But even taking the facts in the light most favorable to the People, a failure to brake, without more, does not constitute criminal negligence … . People v Munise, 2023 NY Slip Op 06562, Third Dept 12-21-23

Practice Point: Here the victim died after a rear-end collision. Proof that defendant failed to see the victim’s car and failed to timely brake does not support a criminally negligence homicide conviction.

Practice Point: Making a motion to dismiss at the close of the People’s case which is ruled on after the defendant’s case preserves the legal insufficiency argument for appeal.

Practice Point: The decision includes a comparison of the “legal insufficiency” and “against the weight of the evidence” analytical criteria.

 

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DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

The Third Department, reversing County Court, over a two-justice dissent, determined defendant was entitled to resentencing in this manslaughter case under the Domestic Violence Survivors Justice Act (DVSJA). The dissenters agreed that defendant met the DVSJA criteria for a reduced sentence, but argued the sentence that was imposed was not unduly harsh:

… [W]e disagree with County Court’s determination that defendant’s abuse was anything less than “substantial,” as defendant’s own account of the specific acts of violence, which is largely corroborated by various witnesses in the record, and the injuries suffered as well as the psychological abuse that came alongside such violence was sufficient to fall under the ambit of the DVSJA. Although the court accurately concluded that the relationship between defendant and the victim was mutually abusive, that does not foreclose a determination that defendant was a victim of abuse … . Moreover, such conduct is readily explained in Lesswing’s [the forensic psychologist’s] report as typical of those persons suffering from battered person syndrome, particularly in the case of defendant who had a lengthy history of exposure to domestic violence over the course of her life … . People v Brenda WW., 2023 NY Slip Op 06564, Third Dept 12-21-23

Practice Point: Here in this manslaughter case  the defendant met the criteria for a reduced sentence under the Domestic Violence Survivors Justice Act (DVSJA). Two dissenters agreed that defendant met the criteria but argued the imposed sentence was not unduly harsh.

 

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THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.

 

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