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BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.

The First Department, reversing the denial of defendant’s motion to suppress his statements, over a two justice dissent, determined the detective’s mention of a drug offense for which defendant was represented by counsel during questioning on a homicide required suppression of the interrogation:

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Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received … . People v Silvagnoli, 2017 NY Slip Op 04392, 1st Dept 6-6-17

 

CRIMINAL LAW (SUPPRESSION OF STATEMENT, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/EVIDENCE (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/ATTORNEYS (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)

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ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY.

The First Department, reversing (modifying) Supreme Court, determined plaintiff could not assert attorney-client privilege to protect information on a company-owned laptop, but could assert the attorney work product privilege subject to court review of the log:

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Application of the factors set forth in In re Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr, SD NY 2005]) indicates that plaintiff lacked any reasonable expectation of privacy in his personal use of the laptop computer supplied to him by defendant Zara USA, Inc. (Zara), his employer, and thus lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege … . Among other factors, Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge… , restricted use of company-owned electronic resources, including computers, to “business purposes” and proscribed offensive uses. The handbook specified that “[a]ny data collected, downloaded and/or created” on its electronic resources was “the exclusive property of Zara,” emphasized that “[e]mployees should expect that all information created, transmitted, downloaded, received or stored in Zara’s electronic communications resources may be accessed by Zara at any time, without prior notice,” and added that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”

Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff’s laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any “actual disclosure to a third party, [plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections” … . Miller v Zara USA, Inc., 2017 NY Slip Op 04407, 1st Dept 6-6-17

 

ATTORNEYS (PRIVILEGE, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/PRIVILEGE (ATTORNEYS, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY-CLIENT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY WORK PRODUCT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)

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INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY.

The First Department, reversing Supreme Court, noted that the motion for a stay of arbitration brought by the insurer (petitioner) in this underinsured motorist benefits action, although untimely under the CPLR, should not have been dismissed on that ground. Respondent had waived arbitration by instigating litigation so the time restrictions on a motion to stay did not apply (even though the insurer had participated in the arbitration):

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Petitioner seeks to permanently stay an underinsured motorist benefits arbitration proceeding brought by respondent in New York.

The motion court erred in dismissing the motion to stay as untimely. The time restrictions set forth at CPLR 7503(c) do not apply where, as here, respondent waived her right to arbitrate by initiating litigation on the same claims … . “[O]nce waived, the right to arbitrate cannot be regained, even by the respondent’s failure to [timely] seek a stay of arbitration” … .

That petitioner participated, under objection, in the arbitration is immaterial. Even if the arbitration had been completed and an award issued, the award would be subject to vacatur on the ground that the arbitrator lacked authority to conduct the arbitration … . Matter of Allstate Ins. Co. v Howell, 2017 NY Slip Op 04406, 1st Dept 6-6-17

 

ARBITRATION (INSURANCE LAW, INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY)/INSURANCE LAW (ARBITRATION, INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY)

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AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED.

The First Department determined plaintiff’s motion to amend the notice of claim in this slip and fall case was properly denied. The original notice of claim and the complaint alleged the protruding manhole cover over which plaintiff tripped was the result of improper maintenance. The proposed amendment sought to allege the defendant city created the dangerous condition:

The allegations of negligent maintenance in the notice of claim did not provide notice of plaintiff’s new theory of affirmative negligence … . Thus, General Municipal Law § 50-e(6), which “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” … , does not apply. Further, General Municipal Law § 50-e(5) does not authorize amendment of the notice of claim to assert a new theory of liability where, as here, the limitations period has expired … .

Even assuming that the “special use” theory is not a new theory of liability, leave to amend to add it would be futile, since the City’s ownership of the manhole cover does not constitute a “special use” of the sidewalk … . Aleksandrova v City of New York, 2017 NY Slip Op 04379, 1st Dept 6-1-17

 

NEGLIGENCE (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/MUNICIPAL LAW (NOTICE OF CLAIM, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/NOTICE OF CLAIM, (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SLIP AND FALL (MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED)

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REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT.

The First Department, over a two-justice dissent, determined the prosecutor’s mention of the details of a prior violent crime of which defendant was convicted, evidence the defendant had been in prison, ineffective redaction of references to the prior crime in the medical records, restrictions on the defense expert’s testimony concerning the expert’s reasons for doubting defendant committed the prior crime, and defense counsel’s mention of the prior crime in voir dire, did not warrant reversal. Defendant was convicted of robbing a women of $40 at knife point. Defendant claimed he was not responsible by reason of mental illness. There was evidence he suffered from schizophrenia and he claimed voices told him to commit robbery to get money to buy cigarettes:

The court properly exercised its discretion in admitting evidence that defendant had been released from prison a few months before the robbery, and denying counsel’s request to redact that information from defendant’s medical records. In support of the defense of lack of criminal responsibility by reason of mental disease or defect, the defense psychiatric expert testified that defendant had been stable throughout his years in custody, when he received proper treatment for his schizophrenia. However, after he was released, he no longer received treatment, he became unstable, he began hearing voices, and he committed the robbery a few months later. Evidence of defendant’s confinement in prison was “inextricably interwoven” with the expert’s testimony and conclusion … . The court minimized the possible prejudice by excluding evidence of defendant’s underlying conviction and only admitted references to his imprisonment.

The court properly rejected defendant’s suggested use of terms such as “institution” or “facility,” rather than “prison,” because such terms might have confused the jury, or led it to speculate on the circumstances surrounding his confinement. Moreover, the court instructed the jury that the evidence was admitted solely for the purpose of evaluating the expert’s opinion. Thus, the probative value of the evidence outweighed any prejudicial effect, which was avoided by the court’s thorough limiting instructions … .

The dissent claims that the trial court infringed on defendant’s ability to present a defense when the court prevented defendant’s expert from expanding on his answers provided during cross-examination about defendant’s prior violent act. Defendant did not preserve his claim regarding the alleged limitations on his expert’s testimony, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. People v Sanabria, 2017 NY Slip Op 04359, 1st Dept 6-1-17

CRIMINAL LAW (EVIDENCE, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)

SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the alleged sidewalk defect in this slip and fall case was trivial and not actionable as a matter of law:

Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed … . Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff’s testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff’s testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect … . McCullough v Riverbay Corp., 2017 NY Slip Op 04231, 1st Dept 5-30-17

NEGLIGENCE (SIDEWALKS, SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SLIP AND FALL (SIDEWALKS, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)

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PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE, COMPLAINT PROPERLY DISMISSED.

The First Department determined plaintiff’s action against the city in this slip and fall case was properly dismissed. Plaintiff did not allege the city had prior written notice of the sign post stump in the sidewalk, and the 15-day grace period for the notice which the city did receive had not expired at the time of plaintiff’s fall:

Plaintiff alleges that, as she was exiting a bus, she tripped and fell over the stump of a pole sign protruding about three to four inches from the sidewalk near the bus stop. The City met its prima facie burden by showing that plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2) … .

The City also submitted evidence showing the absence of prior written notice; that the sign was in good condition two years before the accident; that the City received a citizen complaint through 311 less than 15 days before plaintiff’s accident; and that it repaired the condition a few days after her accident. The complaint received before the accident, even if it were in writing, could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice … .

… Plaintiff failed to demonstrate either that she pled prior written notice or that the 311 complaint received by the City within the 15-day grace period constitutes such notice. Plaintiff’s contention that the City affirmatively created the condition by removing the sign from the sleeve is unsupported by any evidence. Brown v City of New York, 2017 NY Slip Op 04221, 1st Dept 5-30-17

MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/SIDEWALKS (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/WRITTEN NOTICE REQUIREMENT (MUNICIPAL LAW, SLIP AND FALL, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)

TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED.

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. The ladder plaintiff was using to take measurements in preparation for work broke. Taking measurements is an activity covered by the Labor Law:

The motion court correctly determined that plaintiffs were entitled to partial summary judgment against defendant owners on the issue of section 240(1) liability because the ladder that plaintiff … was using to take measurements in preparation for work to be performed on the roof of defendant owners’ building broke, causing him to fall to the ground … . Contrary to defendant owners’ contention, the work that plaintiff was engaged in was a protected activity within the meaning of Labor Law § 240(1) … . Ortiz-Cruz v Evers, 2017 NY Slip Op 04228, 1st Dept 5-30-17

LABOR LAW-CONSTRUCTION LAW (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/MEASURING (LABOR LAW-CONSTRUCTION LAW, (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)

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THE ABSENCE FROM THE JURY CHARGE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE (ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT) REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE.

The First Department reversed defendant’s attempted robbery conviction, despite the lack of preservation of the error, because the jury charge did not make it clear that defendant must possess a dangerous instrument. The store clerk testified defendant had a knife and threatened him with it. However the exchange where the knife was allegedly brandished was not captured on the imperfect video and no knife was subsequently found by the police:

Defendant does not dispute that he failed to preserve his objection to the jury charge on attempted robbery. Accordingly, he asks us to exercise our interests-of-justice jurisdiction to reach the issue. There is precedent for exercising such jurisdiction in cases where a jury instruction was “manifestly incorrect” … . Defendant urges us to follow that precedent, arguing that the jury charge misstated the elements of the crime of first degree robbery. Defendant is correct in this regard. On its face, Penal Law § 160.15(3), under which defendant was charged, would appear to require conviction even if a person threatened to use a dangerous instrument that he did not in fact possess. However, the requirement for actual possession is an essential element that has been judicially engrafted onto the statute … . The People argue that the court technically issued a correct charge, because the CJI pattern jury instruction for “Attempt to Commit a Crime” provides for the court to merely “read [the] statutory definition of [the completed] crime and any defined terms as set forth in CJI for that crime” (CJI 2d [NY] Penal Law § 110.00). Because the statutory definition of robbery in the first degree does not, as stated above, require actual possession, they argue, the court’s instruction cannot be criticized. We reject this reasoning, because it reads out of the CJI instruction the words “as set forth in CJI for that crime” (id.). The current version of the CJI charge for Penal Law § 160.15(3) expressly refers to the possession requirement by stating, in pertinent part:

“In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case beyond a reasonable doubt, both of the following two elements: 1. That on or about (date), in the county of (county), the defendant, (defendant’s name), forcibly stole property from (specify); and 2. That in the course of the commission of the crime [or of immediate flight therefrom], the defendant [or another participant in the crime] possessed a dangerous instrument and used or threatened the immediate use of that dangerous instrument” (CJI 2d [NY] Penal Law § 160.15 [3]) (emphasis added). People v Saigo, 2017 NY Slip Op 04237, 1st Dept 5-30-17

 

CRIMINAL LAW (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/APPEALS (CRIMINAL LAW, ERRONEOUS JURY CHARGE, INTERESTS OF JUSTICE REVERSAL, THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/JURY INSTRUCTIONS (CRIMINAL LAW, (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/ROBBERY (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)

WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.

The First Department noted that the People’s motion to set aside defendant’s sentence based upon an illegal sentence was properly brought and granted. Where the criteria are met, sentencing a defendant as a predicate felon is mandatory. Defendant should have been so sentenced but was not:

Where a defendant is in fact a predicate offender, sentencing the defendant as a nonpredicate results in an illegal sentence. The provisions of CPL 400.15, governing second violent felony offender adjudications, are mandatory, and neither the People nor a court may ignore or waive a defendant’s predicate status … . The claim that defendant describes as a collateral estoppel argument is without merit. The defective resentencing of defendant as a nonpredicate had no collateral estoppel effect with regard to the People’s timely CPL 440.40 motion, which was a permissible alternative to an appeal. “When the People seek to challenge a sentence as illegal, they may appeal . . ., or, within one year of the judgment, they may make a motion to set aside the sentence” … . The very purpose of a (defendant’s) CPL 440.20 motion or a (People’s) 440.40 motion is to correct a substantively illegal sentence without the necessity of an appeal; obviously, the court deciding such a motion is not bound by a sentencing court’s express or implied finding that the challenged sentence was legal. People v Heisler, 2017 NY Slip Op 04220, 1st Dept 5-30-17

CRIMINAL LAW (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCING (PREDICATE FELON, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/PREDICATE FELON (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCE, MOTION TO SET ASIDE WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)

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