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ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this slip and fall case. Plaintiff tripped over a yellow plastic chain lying on the ground. Because plaintiff need not show freedom from comparative fault, the allegation that the chain was open and obvious did not preclude summary judgment:

… [P]laintiff was not required to demonstrate his own freedom from comparative negligence to be entitled to summary judgment as to defendant’s liability (see Rodriguez v City of New York, ___ NY3d ___, 2018 NY Slip Op 02287 [2018]). For this reason, we also reject defendant’s argument that the chain on which plaintiff tripped was open and obvious, since that issue too is relevant to comparative fault and does not preclude summary resolution of the issue of defendant’s liability … . Derix v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 04507, First Dept 6-19-18

​NEGLIGENCE (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/SLIP AND FALL (ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, ALLEGATION THAT CHAIN OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS RELATES TO PLAINTIFF’S COMPARATIVE NEGLIGENCE WHICH DOES NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR (FIRST 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))

SUPREME COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT).

The First Department determined Supreme Court properly considered a release that defendant had signed after the matter had been reversed on appeal and before the case was heard on remittal:

While Supreme Court is powerless to change a remittitur from this Court, “nevertheless, in order to avoid an obviously unjust result it may mold its procedure and adapt its relief to the exigencies of any new facts or conditions which were not before the [appellate court] when it made its original determination and entered its remittitur”… . Here, the release is a “new fact” that was not considered by this Court, and Supreme Court properly determined that it would be unjust to ignore its existence and proceed with the litigation. Gramercy Park Residence Corp. v Ellman, 2018 NY Slip Op 04424, First Dept 6-14-18

APPEALS SUPREME (COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT))/REMITTITUR (APPEALS, COURT PROPERLY CONSIDERED A RELEASE WHICH DID NOT EXIST AT THE TIME THE CASE WAS REVERSED ON APPEAL AND SENT BACK (FIRST DEPT))

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BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT).

The First Department determined the driver of a bus, Garcia, was not liable for suddenly applying the brakes pursuant to the emergency doctrine. A taxi had suddenly swerved into the bus’s lane:

The motion court properly invoked the emergency doctrine in finding that no issues of fact exist as to defendants’ negligence given plaintiff’s failure in opposition to adduce any evidence tending to show that the bus operator, defendant Garcia, created the emergency or could have avoided a collision with the nonparty livery taxi by taking some action other than applying his brakes … . The sudden unexpected swerving of the livery taxi into the bus’s lane required Garcia to take immediate action … . Garcia’s reaction of pressing the brakes with enough force to prevent an impact between his bus and the taxi and swerving the bus to the right was a reasonable response to the emergency that was not of his own making … . That Garcia was aware that taxis often cut buses off does not require a different result. Jones v New York City Tr. Auth., 2018 NY Slip Op 04281, First Dept 6-12-18

​NEGLIGENCE (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BUSES (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/EMERGENCY DOCTRINE (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/MUNICIPAL LAW (BUSES, (BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))/BRAKES (BUSES, BUS DRIVER REACTED TO AN EMERGENCY, NOT LIABLE FOR SUDDENLY APPLYING THE BRAKES (FIRST DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, MAKESHIFT LADDER SLID OUT FROM UNDER HIM (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged a makeshift ladder slid out from under him. A co-worker’s statement that plaintiff may have missed the last step did not refute plaintiff’s statement that the ladder slid out from under him:

Plaintiff made a prima facie showing of entitlement to partial summary judgment on the issue of liability on his Labor Law § 240(1) claim with his testimony that the makeshift ladder on which he was descending after detaching a crane cable from the top of an eight-foot C-box slid out from under him … .

In opposition, defendants failed to raise a triable issue of fact. The affidavit of plaintiff’s coworker, who stated that “[he] observed [plaintiff] fall from the ladder after he appeared to have missed’ the last step,” does not raise a triable issue as to whether plaintiff was the sole proximate cause of the accident, as it does not refute plaintiff’s assertion that the ladder slid out from beneath him … . Nolan v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 04293, First Dept 6-12-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, MAKESHIFT LADDER SLID OUT FROM UNDER HIM (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, MAKESHIFT LADDER SLID OUT FROM UNDER HIM (FIRST DEPT))

QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT).

The First Department, modifying Supreme Court, determined there was a question of fact (1) whether one defendant, the general contractor Russco, could be liable under Labor Law 240 (1) for plaintiff’s fall from a ladder based upon contractual safety responsibilities, and (2) whether another defendant, Ruggles, could be liable under Labor Law 240 (1) as a statutory agent of the owner exercising supervision and control over the work:

… [T]he contract … provides that Russco [the general contractor] is responsible for “taking all reasonable safety precautions to prevent injury or death to persons or damage to property” and that such responsibility extends “to the protection of all employees on the Project and all other persons who may be affected by the Work in any way” … . The project is defined in the contract as “construction of all Tenant Improvements for a retail store.” Reading these contractual provisions together creates ambiguity as to whether Russco’s site safety obligations extended to the signage and awning work that plaintiff was performing when his accident occurred. * * *

The Labor Law § 240(1) claim should not be dismissed as against Ruggles. “Labor Law § 240(1) imposes a nondelegable duty upon owners, general contractors, and their agents to provide proper protection to persons working upon elevated structures” … . “To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury'” … . “[O]nce a subcontractor qualifies as a statutory agent, it may not escape liability by the simple expedient of delegating that work to another entity”  … .

Ruggles is a proper Labor Law § 240(1) defendant because it was a statutory agent of Express, the owner of the project. White v 31-01 Steinway, LLC, 2018 NY Slip Op 04279. First Dept 6-12-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT))/SAFETY RESPONSIBILITIES (LABOR LAW-CONSTRUCTION LAW, (QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT))/STATUTORY AGENT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, (QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT))

TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).

The First Department determined the two to three foot fall of a heavy steel plate that was being hoisted was covered by Labor Law 240 (1):

Plaintiff was injured when the nylon sling attaching a one-to-two ton steel plate to an excavator snapped, causing the heavy plate to fall to the ground, bounce, and sever the pole of a nearby street sign. The impact caused the sign to be propelled toward plaintiff, hitting his right forearm and causing him serious personal injuries. …

… [T]he photographs taken immediately before the accident show that the steel plate was about two or three feet above the ground. This elevation differential cannot be viewed as de minimis, given the weight of the steel plate and the amount of force it generated over the course of its relatively short descent … . Makkieh v Judlau Contr. Inc., 2018 NY Slip Op 04112, First Dept 6-7-18

LABOR LAW-CONSTRUCTION LAW (TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT))

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DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should have been granted. Defendant’s attorney erroneously told defendant a certificate of relief from civil liabilities would protect defendant from deportation:

Defendant pleaded guilty to a felony relating to the sale of drugs in return for a promised sentence of five years’ probation with a certificate of relief from civil disabilities. The record establishes that defense counsel advised defendant that even though this type of conviction would be likely to result in deportation, the certificate of relief would protect him from that consequence. Counsel’s advice about the effect of the certificate was clearly erroneous because defendant’s conviction was a deportable offense, from which a certificate of relief provides no shield. The plea and sentencing minutes, including statements made by counsel, corroborate defendant’s claim that he was misadvised about the certificate.

Defendant has demonstrated a reasonable probability that he would not have pleaded guilty and would have gone to trial had he known that the plea would have rendered him deportable despite the certificate… . Statements he made during the plea proceeding and the hearing support his claims that he pled guilty because the plea offer involved no jail time and because he was misled as to the immigration consequences. People v Rosario, 2018 NY Slip Op 04114, First Dept 6-7-18​

CRIMINAL LAW (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/GUILT PLEA (VACATE, MOTION TO, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES  (DEFENDANT WAS ERRONEOUSLY TOLD BY HIS ATTORNEY A CERTIFICATE OF RELIEF FROM CIVIL DISABILITIES WOULD PROTECT DEFENDANT FROM DEPORTATION, MOTION TO VACATE DEFENDANT’S CONVICTION BY GUILTY PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))

FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction, over an extensive dissent, determined it was reversible error to fail to instruct the jury that acquittal of the top count (attempted murder) based on the justification defense would require acquittal on the assault first count:

“While the jury may have acquitted on the top charge without relying on defendant’s justification defense . . . it is nevertheless impossible to discern whether acquittal of the top count . . . was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts” … . People v Breckenridge, 2018 NY Slip Op 04074, First Dept 6-7-18​

CRIMINAL LAW (FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))

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