You are here: / Court of Appeals

Tag Archive for: Court of Appeals

Analytical Criteria for Determining Whether a Defect Is Trivial Explained

The Court of Appeals, in a full-fledged opinion by Judge Fahey, tackled the topic of “trivial defects” in slip and fall cases.  The court looked at three actions where the defect was deemed trivial, and reversed two of them. The court explained the analytical principles:

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” … . The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge …; a rough, irregular surface …; the presence of other defects in the vicinity …; poor lighting …; or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet … .

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with [our precedent]. Hutchinson v Sheridan Hill House Corp., 2015 NY Slip Op 07578, CtApp 10-20-15

 

,

Sexual Conduct That Does Not Rise to the Level of a SORA Sex Offense May Be Considered Under the “Number of Victims” Risk Factor

The Court of Appeals determined that the “number of victims” risk factor (risk factor 3) under the Sex Offender Registration Act (SORA) properly included “sexual conduct” that did not amount to SORA level sex offenses and which involved “webcam chats:”

Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam … . People v Izzo, 2015 NY Slip Op 07576, CtApp 10-20-15

 

,

Lobby of Public Housing Unit Is Not “Open to the Public” Within the Meaning of the Law of Trespass

The Court of Appeals determined the misdemeanor information charging defendant with criminal trespass second degree was sufficient. The defendant was in the lobby of a public housing unit where a “no trespassing” sign was posted. When asked, the defendant said he did not reside in the building and could not identify any resident who had invited him. The court explained the elements of all three degrees of trespass and found that the lobby of a public housing unit is not “open to the public” within the meaning of the law of trespass:

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings … . The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so. People v Barnes, 2015 NY Slip Op 07577, CtApp 10-20-15

 

Allegations Describing a “Gravity Knife” in Misdemeanor Complaint Were Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the misdemeanor complaint sufficiently alleged the defendant possessed a “gravity knife:”

Defendant argues that an accusatory instrument alleging possession of a gravity knife must expressly state that the knife locks by means of a device. We disagree. By stating that a knife, once opened, “locks automatically in place,” an accusatory instrument conveys to a defendant that his knife was observed (1) to lock in an open position, rather than merely having a bias towards remaining open, and (2) to lock by means of a built-in device, rather than manually. A mechanism that locks itself by means of such a device is naturally described as locking “automatically.” Indeed, many New York cases have treated locking “by means of a . . . device” (Penal Law § 265.00 as synonymous with “automatically” locking for these purposes … . Moreover, because of the use of the generic term “device” in the statute, there can be no requirement that an arresting officer specify any particular kind of mechanism on the knife that causes it to lock in place. People v Sans, 2015 NY Slip Op 07529, CtApp 10-15-15

 

,

Failure to Turn Over to the Defendant Grand Jury Minutes Use by the Judge in SORA Risk Calculation Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the failure to turn over to the defendant grand jury minutes used by judge in the Sex Offender Registration Act (SORA) proceedings was a violation of due process. However, in light of the other evidence, the error was harmless. The Court of Appeals explained the application of due process protections to SORA proceedings:

It is well established that sex offenders are entitled to certain due process protections at their risk level classification proceedings (see … Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Doe, for example, recognized that, although “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial . . . the consequences of registration and notification under the Act are sufficiently serious to warrant more than mere summary process” (Doe, 3 F Supp 2d at 470 [internal quotation marks and citation omitted]). Accordingly, that court held that in order to satisfy due process concerns, the offender must be afforded prehearing discovery of the documentary evidence relating to his or her proposed risk level adjudication (see Doe, 3 F Supp 2d at 472).

Likewise, we have observed that “[t]he bedrock of due process is notice and opportunity to be heard” … . * * *

In keeping with our precedent, the Correction Law requires that defendant is entitled to prehearing access to the documents relied upon by the Board in reaching a risk level recommendation (see Correction Law § 168-n [3]…). Although the statute may not expressly state that defendant is likewise entitled to any materials submitted by the District Attorney in meeting its burden of establishing the facts supporting a risk level determination by clear and convincing evidence, the same due process concerns are presented in that context. Moreover, broad disclosure is consistent with Doe’s recognition that an offender should be accorded discovery “of all papers, documents and other material relating to his proposed level and manner of notification” (3 F Supp 2d at 472). People v Baxin, 2015 NY Slip Op 07530, CtApp 10-15-14

 

,

Evidence of a Murder Which Was Not Connected to the Defendant Properly Admitted to Explain Relevant Events—Probative Value Outweighed Prejudicial Effect

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that evidence of a murder which was not connected to the defendant was properly admitted in defendant’s witness-tampering prosecution. Defendant was awaiting trial on a murder charge. Three teenaged girls and a man named Bobby Gibson were eyewitnesses. Defendant allegedly developed relationships with the three girls and paid them money. The girls recanted their identifications of the defendant. Then, on the day before the trial, Bobby Gibson was shot and killed outside the apartment of one of the girls. The girls then went to the police and told the police why they had recanted. The girls were placed in protective custody.  A man who was apparently not connected with the defendant, confessed to killing Bobby Gibson. The Court of Appeals determined evidence of Bobby Gibson’s death was properly admitted in the witness-tampering trial to explain the girls’ actions. The trial judge gave the jury a limiting instruction emphasizing that there was no evidence connecting the defendant to the Gibson murder:

Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” … . “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact” … . However, “[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court’s discretion if its probative value is substantially outweighed by the potential for prejudice” … .

Here, the evidence of Gibson’s murder was relevant for several reasons. It showed the state of mind of the three girls and provided an explanation as to why they abandoned their recantations and told police about their deal with defendant. It also explained why the girls were placed in protective custody prior to the trial. Additionally, it allowed the jury to have all of the relevant facts before it to decide whether to credit defense counsel’s arguments or the three girls’ testimony concerning the charges against defendant.

While possible prejudice could arise from the testimony in that the jury might link defendant to the Gibson murder, that prejudice was minimized by the court’s limiting instruction. The court, in its final charge, made clear that defendant had not been charged with causing the death of Gibson. In addition, the prosecutor had stated plainly in his opening statement and [*2]summation that there was no evidence that defendant was involved. Thus, we conclude that the court’s decision to admit the evidence of Gibson’s murder was not an abuse of discretion. People v Harris, 2015 NY Slip Op 07528, CtApp 10-15-15

 

,

Service by “Nailing” On the Day Before the Last Possible Day and “Mailing” on the Last Possible Day Was Timely

The Court of Appeals, affirming the 4th Department, determined that service by “nailing and mailing” the petition to invalidate a designating petition was timely. The petition was “nailed” on the day before the last possible day for service and was “mailed” on the last possible day for service:

We agree with the courts below that this proceeding was properly commenced in a timely manner. Here, there is no dispute that petitioner complied with the terms of the order to show cause by nailing the papers to the door of [respondent’s] residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23. [Respondent] maintains that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period. However, where the instrument of notice has been delivered by another prescribed method within the statutory period, we have rejected such contentions concerning mailing … . Matter of Angletti v Morreale, 2015 NY Slip Op 06647, CtApp 8-26-15

 

, ,

Non-Resident Shareholders In an S Corporation Who Sold their Stock and Treated the Transaction as a “Deemed Asset Sale” Were Properly Assessed New York Income Tax on the New York-Source Aspects of the Sale

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined non-resident plaintiffs, shareholders in an S corporation who sold their stock and treated the transaction as a “deemed asset sale,” were properly assessed New York income taxes on the New York-source aspects of the sale pursuant to Tax Law 632. The court rejected the argument that the tax assessment violated Article 16 section 3 of the New York Constitution:

Based on the results of [an] audit, defendant New York State Department of Taxation and Finance assessed $167,000 in state income taxes on plaintiffs’ … transaction gains, relying on Tax Law § 632 (a) (2), which was amended in 2010 to provide, in relevant part, that “any gain recognized on [a] deemed asset sale for federal income tax purposes will be treated as New York source income.” Plaintiffs paid the taxes and thereafter demanded refunds, claiming that their corporate-derived income was obtained from the sale of … stock, which is considered intangible personal property and nontaxable.

After defendant rejected the refund demands, plaintiffs filed the instant declaratory judgment action against defendant and the Commissioner of the New York State Department of Taxation and Finance, challenging the tax as unconstitutional … . * * *

…. [T]here is no question that New York State’s Tax Law, including Tax Law § 632 (a) (2), as amended in 2010, contemplates the taxes that defendants assessed on the New York-source portion of plaintiffs’ deemed asset sale gains. * * *

Nothing changes the fact that plaintiffs sold something of value and reaped the benefits from that sale. Article 16, § 3 in no way supports plaintiffs’ attempts to avoid paying state taxes on those gains. Burton v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05624, CtApp 7-1-15

 

, ,

Retroactive Application of Tax Law 632 Amendments, Which Clarified that Installment Payments Re: a Deemed Asset Sale Will Be Treated as New York-Source Income, Did Not Violate Plaintiffs’ Due Process Rights

The Court of Appeals, in a full-fledged opinion by Judge Stein, in an action raising many of the same income-tax-law issues raised in Burton v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05624, CtApp 7-1-15 (summarized directly above), determined plaintiffs’ due process rights were not violated by the retroactive application of Tax Law 632. The case concerned the taxation of installment payments re: a deemed asset sale of stock in an S corporation. The 2010 amendments of Tax Law 632 clarified that the installments will be treated as New York-source income and made the amendments retroactive for 3 1/2 years. The Court of Appeals determined: (1) plaintiffs’ interpretation of the prior law was not reasonable and therefore plaintiffs did not establish reliance on the prior law; (2) the length of the retroactive period was not excessive; and (3),  the amendment (correcting an error and preventing revenue loss) served a valid public purpose. The court explained the nature of the amendments and the analytical criteria for determining the validity of retroactive application:

Prior to its amendment, Tax Law § 632 mandated only that, as relevant here:

“In determining New York source income of a nonresident shareholder of an S corporation . . . there shall be included only the portion derived from or connected with New York sources of such shareholder’s pro rata share of items of S corporation income, loss and deduction entering into his federal adjusted gross income . . .”

The 2010 amendments clarified, among other things, that if the S corporation distributed an installment obligation under 26 USC § 453 (h) (1) (A) or made a deemed asset sale election under 26 USC § 338 (h) (10), “any gain recognized on the receipt of payments from the installment obligation . . . [or] on the deemed asset sale for federal income tax purposes will be treated as New York source income” (L 2010, ch 57, Part C § 2). The amendments were made retroactive to all taxable years beginning on or after January 1, 2007 — which represent those years for which the statute of limitations for seeking a refund or assessing additional tax was still open (L 2010, ch 57, Part C, § 4, amended L 2010, ch 312, Part B, § 1) — thus, effectively creating a 3½ year period of retroactivity. * * *

While “retroactive legislation does have to meet a burden not faced by legislation that has only future effects[,] . . . that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose” … . In analyzing whether a statute is harsh and oppressive — and, thus, arbitrary and irrational — this Court uses a balancing-of-equities test … :

“The important factors in determining whether a retroactive tax transgresses the constitutional limitation are (1) ‘the taxpayer’s forewarning of a change in the legislation and the reasonableness of . . . reliance on the old law,’ (2) ‘the length of the retroactive period,’ and (3) ‘the public purpose for retroactive application'” … . Caprio v New York State Dept. of Taxation & Fin., 2015 NY Slip Op 05625, CtApp 7-1-15

 

,

Defense Counsel’s Failure to Object to the Prosecutor’s Mischaracterization of the Strength and Meaning of DNA Evidence Constituted Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, reversed the Appellate Divsion and determined defendant was not afforded effective assistance of counsel. In her summation, the prosecutor mischaracterized the strength and meaning of the DNA evidence. Defense counsel had effectively, through cross-examination, called into question the strength and meaning of the DNA evidence. But defense counsel did not object to the prosecutor’s unsubstantiated claims in her summation. The court concluded the failure to object could not be justified as a viable defense strategy and required reversal:

The People’s case was circumstantial because there were no eyewitnesses to the crime and no forensic evidence that clearly established defendant’s guilt. Other than testimony that placed defendant and others in the victim’s company around the time of her death, and defendant’s statement that he engaged in consensual sex with the victim, the People had no evidence that linked her to defendant. To meet the People’s burden of proof, the prosecutor relied heavily on the results of DNA testing to connect defendant to the murder. However, the DNA analysis was also circumstantial because it did not “match” defendant’s DNA to the DNA collected at the crime scene. Instead, the test only indicated that defendant could not be excluded from the pool of male DNA contributors, and the expert testimony provided no statistical comparison to measure the significance of those results.

Notwithstanding the known limitations of this DNA evidence and the indeterminate conclusions about the test results drawn by the People’s own experts, the prosecutor in summation misrepresented the DNA analysis, including arguing the evidence established that defendant’s DNA was at the crime scene and on a critical piece of evidence linked to the victim’s murder. In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results, defense counsel’s failure to object rendered him ineffective. People v Wright, 2015 NY Slip Op 05621, CtApp 7-1-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy