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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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A ROCKY LEDGE UNDER FOUR INCHES OF WATER IN A NATURAL SWIMMING HOLE SURROUNDED BY IRREGULAR ROCK WAS OPEN AND OBVIOUS AND PLAINTIFF ASSUMED THE RISK OF STRIKING HER FOOT ON THE ROCK LEDGE (THIRD DEPT).

The Third Department, reversing (modifying) the Court of Claims, determined defendant (a state-owned park with a natural swimming area surrounded by irregular rock) was not liable for plaintiff’s injury caused by striking a rock ledge covered by four inches of water. Defendant demonstrated the water was clear and the rock ledge was open and obvious. Defendant further demonstrated the swimming area had been made as safe as possible. In addition plaintiff assumed the risk of swimming there:

The open and obvious nature of the rock shelf obviated any duty on defendant’s part to warn park users of its presence … . * * *

While it may be true that a rocky underwater surface could be less optimal for swimming than an engineered swimming pool, it nevertheless remains the case that claimant’s striking of her foot on a rock ledge was a reasonably foreseeable risk inherent in swimming in the gorge, and the swimming conditions were as safe as they appeared to be … . McQuillan v State of New York, 2023 NY Slip Op 03734, Third Dept 7-6-23

Practice Point: A rocky ledge under four inches of water in a natural swimming hole surrounded by irregular rock was open and obvious. Plaintiff assumed the risk of striking her foot on the rock ledge.

 

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence:

… [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only that defendant intended to purchase dealer quantities of cocaine from Sanchez and cooked crack cocaine for Sanchez when requested, but wholly fails to connect defendant to Sanchez’s broader cocaine dealing network, as defendant was not linked to any of the stash houses or the other individuals with whom Sanchez was in contact. Although Penal Law § 220.77 (1) does not contain a defined mens rea term, it is not a strict liability crime (see Penal Law § 15.15 [2]), and its plain language requires proof that defendant engaged in conduct constituting the administration, organization or leadership of a controlled substance organization. The proof offered by the People does not set forth a valid line of reasoning to permissibly infer that this specific intent was met here. While defendant’s purchase of dealer quantities of cocaine from Sanchez and an agreement to cook crack cocaine for him might be sufficient to establish his knowledge of a broader cocaine distribution network … , they are not sufficient to infer that defendant intended Sanchez to administer, organize or lead a controlled substance organization, as the knowledge of such an organization is not equivalent to the intent to control one. People v Lundy, 2023 NY Slip Op 03727, Third Dept 7-6-23

Practice Point: Conspiracy is a specific intent crime. Here the fact that defendant intended to purchase dealer quantities of cocaine from a dealer and cooked crack cocaine for the dealer was not legally sufficient evidence of the intent that the dealer administer, organize or lead a drug organization. The conspiracy conviction was vacated.

 

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ALLOWING A POLICE OFFICER TO NARRATE A VIDEO ALLEGEDLY DEPICTING THE DEFENDANT COMMITTING ASSAULT WAS REVERIBLE ERROR; THE FUNCTION OF THE JURY WAS USURPED (SECOND DEPT).

The Second Department, vacating some of defendant’s convictions, determined it was error to allow a police officer to interpret the video alleged to depict defendant committing assault:

… [T]he trial court should have precluded the testimony of a police detective regarding his opinion as to what a video of the assault on the first victim depicted. Such testimony improperly usurped the jury’s function by interpreting, summarizing, and marshaling the evidence, and was improperly admitted into evidence as relevant to the detective’s investigation. Rather than aiding the jury in understanding the investigation, the detective improperly narrated the video and the detective’s interpretation of the video, which was not necessarily supported by the video itself, also improperly “instruct[ed] the jury on the existence of the facts needed to satisfy the elements of the charged offense” … . The error cannot be deemed harmless with regard to the convictions of assault in the first degree and gang assault in the first degree, which stemmed from the assault upon the first victim, and with regard to the conviction of criminal possession of a weapon in the third degree, since the evidence of the defendant’s guilt of those crimes, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant on those charges had it not been for the error … . People v Ramos, 2023 NY Slip Op 03709, Second Dept 7-5-23

Practice Point: It was the jury’s role to interpret a video of the assault. Allowing a police officer to narrate the video usurped the function of the jury.

 

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DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. An accomplice, Brenda, testified that another accomplice, Roberto, had pled guilty for his role in the shooting and Roberto’s cooperation agreement was placed in evidence with Brenda on the stand. Brenda also testified that defendant made incriminating statements after the shooting. Although the prosecution had informed defense counsel Roberto would be called as a witness, Roberto was not called. Defendant was therefore deprived of right to confront Roberto. In addition, the accomplice jury instruction was not requested or given and the missing witness jury instruction was not requested or given:

… [D]efense counsel failed to object to evidence elicited by the People pertaining to the guilty plea of Roberto, a nontestifying alleged accomplice, including the introduction into evidence of the cooperation agreement in which Roberto agreed to give “meaningful and truthful information” concerning the shooting. The admission of this evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him … . * * *

… [D]efense counsel failed to request either an accomplice-in-law or accomplice-in-fact jury instruction with respect to Brenda’s testimony. Since accomplice testimony is “marked by obvious self-interest,” a defendant “‘may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense'” … . * * *

… [D]efense counsel failed to timely request a missing witness charge … . People v Alvarenga, 2023 NY Slip Op 03704, Second Dept 7-5-23

Practice Point: Defense counsel was deemed ineffective (1) for failing to assert defendant’s right to confront the witnesses against him when an accomplice testified about a non-testifying participant in the shooting, (2) for failing to request the accomplice jury instruction, and (3) in failing to request the missing witness jury instruction.

 

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IN THIS SIDEWALK/CURB SLIP AND FALL CASE, THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION AND THE ABUTTING PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION OR CAUSE THE CONDITION BY SPECIAL USE (SECOND DEPT).

​The Second Department, reversing Supreme Court in this sidewalk/curb slip and fall case, determined (1) the defendant village did not have written notice of the alleged dangerous condition. and (2), the defendant abutting property owner did create the condition or cause the condition by special use. Therefore the complaint against both defendants should have been dismissed:

… [T]he Village correctly contends that, contrary to the Supreme Court’s conclusion, it was not required to establish both that it lacked prior written notice of the defect and that it had not created the defect … . Rather, upon the Village’s prima facie showing that it lacked prior written notice of the defect, the burden shifted to the plaintiff to demonstrate that an exception to the prior written notice statute applied … . As the plaintiff did not meet this burden, the court should have granted the Village’s motion, in effect, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

… Scipione [defendant abutting property owner] demonstrated, prima facie, that he did not create the defect, that he did not cause the defect to occur because of a special use, and that the relevant section of the Village Charter did not make abutting landowners liable for injuries caused by sidewalk defects … . With respect to the issue of special use, Scipione’s evidence showed that the intended use of the step on which the plaintiff allegedly fell was “the normal intended use of the public way,” and that he did not “derive[ ] a special benefit from that property unrelated to the public use” … . Morales v Village of Ossining, 2023 NY Slip Op 03690, Second Dept 7-5-23

Similar “written notice” issue and result in O’Connor v City of Long Beach, 2023 NY Slip Op 03702, Second Dept 7-5-23

Practice Point: Here the village demonstrated it did not have written notice of the sidewalk/curb defect which caused plaintiffs fall. Therefore the action against the village should have been dismissed.

Practice Point: Here the abutting property owner demonstrated he did not create the sidewalk/curb defect and did not cause the defect by special use. Therefore the action against the property owner should have been dismissed.

 

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant City of New York did not demonstrate when the area where plaintiff slipped and fell was last cleaned or inspected. Therefore the city did not demonstrate a lack of constructive notice of the dangerous condition:

… [T]he defendants failed to establish … that they did not have constructive notice of the alleged hazardous snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants in support of their motion did not show when the staircase was last cleaned or inspected in relation to when the subject accident occurred, but rather merely described their general cleaning and inspection practices for the staircase … . Islam v City of New York, 2023 NY Slip Op 03685. Second Dept 7-5-23

Practice Point: Once again an appellate court reiterates that proof of general cleaning or inspection practices does not prove a lack of constructive notice of the condition which caused a slip and fall.

 

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DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined the judge should not have found the police entry into defendant’s residence (the Payton issue) was justified by the parole warrant without a hearing to determine validity of the parole warrant:

” … A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein . . . provided that, as here, the officers ‘reasonably believe[d] the defendant to be present’ in the premises … . … Inasmuch as defendant challenged the factual basis for and the continued validity of the parole violation warrant at the time of his arrest, which he alleged was executed solely by police officers unaccompanied by parole officers, that was error.

Pursuant to 9 NYCRR 8004.2 (a), a parole violation warrant cannot be issued without “probable cause to believe that [the parolee] has violated one or more of the conditions of their release.” “Probable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is more probable than not that the subject releasee has committed the acts in question” (9 NYCRR 8004.2 [b]). If a parole officer believes that there is probable cause that the parolee has violated a condition of release “in an important respect,” that parole officer is required to report that to the parole board “or a designated officer,” such as a senior parole officer (9 NYCRR 8004.2 [a]), at which time “a notice of violation may be approved” (9 NYCRR 8004.2 [c]) and a warrant for “retaking and temporary detention may [be] issue[d]” by, among others, a designated officer (9 NYCRR 8004.2 [d]). Notably, a parole violation warrant may be administratively canceled “[a]t any time” after it is issued (9 NYCRR 8004.11 [a]).

Here, inasmuch as defendant sufficiently raised the Payton issue in his omnibus motion, and the People’s opposition papers did not resolve the issue as a matter of law, the court should have afforded defendant the opportunity to put the People to their proof regarding the alleged probable cause for the warrant, i.e., absconding, and whether the warrant was still active at the time defendant was arrested … . People v McCracken, 2023 NY Slip Op 03614, Fourth Dept 6-30-23

Practice Point: Here the entry into defendant’s home was justified by a parole warrant. Because the defendant challenged the validity of the parole warrant, and the People did not demonstrate its validity in their papers, defendant was entitled to a judicial determination after a hearing.

 

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THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

​The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the People did not demonstrate the legality of the street stop at the suppression hearing. The police had a warrant to search defendant’s apartment and anyone in it. Before the warrant was executed, the defendant left the apartment and the SWAT team stopped him. The People relied on the allegation that defendant was violating the Vehicle and Traffic Law at the time of the stop by walking in the middle of the street. The Fourth Department found the evidence of a Vehicle and Traffic Law violation was insufficient. Therefore the People failed to demonstrate the legality of the police conduct:

… [W]here the issue presented is whether the People have demonstrated “the minimum showing necessary” to establish the legality of police conduct, “a question of law is presented for [our] review” … . Here, the court refused to suppress the physical evidence on the ground that the officers’ observation of defendant walking in the roadway provided probable cause for them to believe that defendant had violated the Vehicle and Traffic Law, which justified the initial stop and the subsequent pursuit of defendant. Vehicle and Traffic Law § 1156 (a) requires that, “[w]here sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.” Here, when asked at the suppression hearing if he had seen defendant “doing anything illegal,” the testifying police officer responded, “[o]ther than walking down the center of the road, no.” Even assuming, arguendo, that we can infer the presence of a sidewalk based on the officer’s response, we conclude that the People failed to establish that a sidewalk was available and that it could “be used with safety” …, especially when considering that defendant was stopped in January in central New York. Nor did the People establish that defendant, by walking “down the center of the road,” violated section 1156 (b), which requires a pedestrian, where sidewalks are not provided, to “walk only on the left side of the roadway or its shoulder facing traffic” inasmuch as a pedestrian is only required to do so “when practicable.” Thus, we agree with defendant that, under the circumstances of this case, the People failed to meet their burden of establishing the legality of the police conduct. People v Montgomery, 2023 NY Slip Op 03606, Fourth Dept 6-30-23

Practice Point: At a suppression hearing the People have the initial burden of demonstrating the legality of the police conduct. That issue is a question of law which can be reviewed by an appellate court. Here the stop was based on the allegation defendant violated the Vehicle and Traffic Law by walking in the middle of the street. The People made no attempt to show there were sidewalks or, if there were sidewalks, that they were passable in January. The Vehicle and Traffic Law violation was not supported by sufficient proof. The People therefore did not prove the legality of the police conduct and the suppression motion should have been granted.

 

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