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PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT.

The First Department affirmed the denial of the psychiatric center’s (petitioner’s) application for continued retention of respondent pursuant to Mental Hygiene Law 9.33. The need for continued supervision was not demonstrated by conclusory allegations that respondent posed a threat of harm or by unsupported allegations of sexual misconduct:

Although respondent’s treating psychiatrist stated in conclusory fashion that the requirements for continued involuntary retention were met, the court reasonably rejected these conclusions on the ground that they were not strongly supported by the evidence … . The psychiatrist indicated that respondent recognized his mental illness, that he had been compliant with his medication regimen, and that his treatment in the facility for more than two years had alleviated the manic symptoms he had initially presented upon admission. The psychiatrist acknowledged that respondent’s medications and therapy programs would remain readily available to him on an outpatient basis, and the psychiatrist provided no reason to doubt respondent’s claim that he would continue taking his medication once released … .

Respondent has a history of sexual preoccupation, sexual misconduct, and sexual impulsivity. However, the court gave little weight to the allegations of recent misconduct in the absence of any eyewitness testimony and in light of respondent’s denials, and there is no basis for disturbing the court’s weighing of the evidence. The remaining hearsay statements that respondent had acted inappropriately were unaccompanied by any detail, including when the incidents allegedly occurred. Matter of Gary F. 2016 NY Slip Op 06655, 1st Dept 10-11-16

 

MENTAL HYGIENE LAW (PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)/EVIDENCE (MENTAL HYGIENE LAW, PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)

ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1).

The First Department, reversing Supreme Court, determined plaintiff’s injury was not the result of the force of gravity and was therefore not covered under Labor Law 240(1):

Plaintiff … was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber “rabbit” device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff’s injury within the ambit of section 240(1) because it did not involve “the direct consequence of the application of the force of gravity to an object” … . The mixture in the pipe did not move through the exercise of the force of gravity, but was rather intentionally propelled through the pipe through the use of high pressure … . Joseph v City of New York, 2016 NY Slip Op 06649, 1st Dept 10-11-16

LABOR LAW-CONSTRUCTION LAW (ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))/GRAVITY (LABOR LAW, ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))

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NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY.

The First Department, in a full-fledged opinion by Justice Gische, determined a broad choice of law provision in a contract required the application of New York’s borrowing statute (CPLR 202). Plaintiff is a corporation incorporated under the law of the Province of Ontario Canada. The statute of limitations for breach of contract under Ontario law is two years. New York’s statute of limitations is six years. Because, under the facts, New York’s borrowing statute applies and therefore the Ontario statute of limitations controls, the action is untimely:

The borrowing statute is itself a part of New York’s procedural law and is a statute of limitations in its own right, existing as a separate procedural rule within the rules of our domestic civil practice, addressing limitations of time … . Thus, applying the borrowing statute is perfectly consistent with a broad choice-of-law contract clause that requires New York procedural rules to apply to the parties’ disputes. 2138747 Ontario, Inc. v Samsung C&T Corp., 2016 NY Slip Op 06671, 1st Dept 10-11-16

CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CONTRACT LAW (CHOICE OF LAW, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CORPORATION LAW (CHOICE OF LAW CONTRACTUAL PROVISION, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/STATUTE OF LIMITATIONS (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/BORROWING STATUTE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CHOICE OF LAW (CONTRACT, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)

BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION.

The First Department determined the jury’s finding of fault for failure to warn in this asbestos case was supported by the evidence. Defendant used asbestos in the manufacture of its boilers where plaintiff’s decedent worked. However, the First Department reduced the trial court’s nearly $10,000,000 award for past pain and suffering to $4, 500,000:

The jury’s verdict is based on sufficient evidence and is not against the weight of the evidence … . The evidence adduced at trial demonstrates that, while defendant did not manufacture asbestos, for decades it heavily promoted the use of the type of asbestos insulation to which the decedent was exposed. Further, defendant often sold asbestos products along with its boilers and advertised asbestos as the preferred insulation product to use for its boilers. The evidence also shows that defendant was aware of the dangers of asbestos exposure well before the decedent’s first exposure in the late 1970s, and that the decedent was never advised by defendant or his employers about those dangers. Accordingly, there is no reason to disturb the jury’s determination that defendant had a legal obligation to warn workers such as the decedent of the hazards of asbestos exposure, and that defendant’s failure to warn proximately caused the decedent’s mesothelioma … . Peraica v A.O. Smith Water Prods. Co., 2016 NY Slip Op 06537, 1st Dept 10-6-16

PRODUCTS LIABILITY (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/ASBESTOS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)/BOILERS (BOILER MANUFACTURER LIABLE FOR FAILURE TO WARN EMPLOYEES OF THE HAZARDS OF WORKING WITH ASBESTOS; DAMAGES FOR PAST PAIN AND SUFFERING REDUCED FROM NEARLY $10 TO $4.5 MILLION)

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NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS.

The First Department, in a full-fledged opinion by Justice Richter, determined the New York City Department of Health exceeded the scope of its regulatory authority when it adopted regulations mandating influenza vaccinations for children attending certain child care, pre-kindergarten and kindergarten programs. The regulations allowed programs to opt-out of the vaccination requirement by paying a fine. The opt-out provision was deemed unrelated to public health, and therefore beyond the Department of Health’s regulatory authority:

… [W]e conclude that by adopting the challenged amendments, the Board of Health “cross[ed] the line into legislative territory” … . [T]he Board of Health did not merely balance costs and benefits, but instead improperly made value judgments by creating a regulatory scheme with exceptions not grounded in promoting public health. … [T]he challenged amendments do not prohibit a child who was not vaccinated against the flu from attending child care or school, but provide only that the facility “may” refuse entry to the unvaccinated child … . Instead, the provider or school can, in effect, opt-out of the vaccination requirement and allow an unvaccinated child to attend, upon payment of a monetary fine … .

This opt-out provision stands in stark contrast to section 2164(7)(a) of the State’s Public Health Law, which, logically, forbids children from remaining in school without proof of the immunizations required under that statute. The challenged amendments, on the other hand, allow a child care provider or school to make an economic choice to pay a fine rather than expel a student and lose a year’s worth of tuition. Creating a policy whereby unvaccinated children are allowed to stay in child care or school flies in the face of respondents’ claim that the challenged amendments are meant to promote the public health by reducing transmission of the flu virus. Not surprisingly, respondents are unable to point to any health-related reason supporting the opt-out provision. Garcia v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06559, 1st Dept 10-6-16

MUNICIPAL LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/ADMINISTRATIVE LAW (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)/INFLUENZA VACCINATIONS (NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS)

SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED.

The First Department, over an extensive two-justice dissent, determined the trial court properly denied defendant’s motion to dismiss on speedy-trial grounds stemming from the six-year delay between the shooting and trial. The defendant and another man, Armstead, were charged in the shooting death of a bystander while intending to shoot another. The People wanted to convict Armstead before trying defendant in the hope Armstead would testify against defendant. Three trials of Armstead ended in at least a partial mistrial. Before the fourth trial, Armstead pled guilty to manslaughter. Over the course of the six years, delays were incurred, inter alia, because counsel were unavailable and because of damage caused by Hurricane Sandy:

The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.

The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution’s attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.

The … chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant’s counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant’s consent are not chargeable to the People … , and they should not be chargeable here. Despite the dissent’s conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over defendant … . People v Wiggins, 2016 NY Slip Op 06538, 1st Dept 10-6-16

 

CRIMINAL LAW (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)/SPEEDY TRIAL (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)

CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES.

The First Department determined plaintiff, an owner of condominium unit, had the right to inspect and make paper and electronic copies of condominium records. The court further ruled that members of the condominium board could not be held personally liable for actions which amounted only to nonfeasance:

Condominium unit owners’ inspection rights are not governed by Business Corporation Law § 624, as condominium associations, unlike cooperative apartment corporations, are generally unincorporated. Rather, Real Property Law § 339-w governs the statutory inspection rights of condominium unit owners, and grants unit owners the right to examine “records . . . of the receipts and expenditures arising from the operation of the property,” as well as “the vouchers authorizing [such] payments,” during “convenient hours of weekdays.” Real Property Law § 339-w further provides: “A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” * * *

… [A]lthough defendants are correct that the board does not have an obligation to mail or email to plaintiff copies of monthly financial reports, building invoices, redacted legal invoices, or board meeting minutes, plaintiff’s right to examine these records at the managing agent’s office, during convenient weekday hours, includes the right to create paper copies or electronic copies at her own expense during her inspection.  * * *

Here, plaintiff merely alleges that the board did not honor her inspection rights and failed to respond adequately to her complaints of noise emanating from an adjacent apartment. These allegations amount only to mere nonfeasance for which the board members cannot be held individually liable. Plaintiff’s conclusory allegation that the board ignored her noise complaints to retaliate against her for other disputes does not suffice to transform the claim into one for affirmative tortious misconduct. We note, however, that the claims will proceed against the board members in their official capacities. Pomerance v McGrath, 2016 NY Slip Op 06462, 1st Dept 10-4-16

 

REAL PROPERTY LAW (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)/CONDOMINIUMS (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)

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STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR.

The First Department determined the storm in progress rule relieved defendants of responsibility for tracked in water during a snow storm. With respect to a second accident alleged in the complaint (slipping on urine on the building floor) the court held that evidence of the daily maintenance routine, coupled with plaintiff’s testimony she did not see urine on the floor on the afternoon of the accident (which occurred at 6:30 or 7 pm), demonstrated the defendants did not have constructive notice of the condition:

Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended … .

With respect to plaintiff’s second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform… . Rosario v Prana Nine Props., LLC, 2016 NY Slip Op 06431, 1st Dept 10-4-16

NEGLIGENCE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/EVIDENCE (SLIP AND FALL, STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/SLIP AND FALL (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/STORM IN PROGRESS RULE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER)/ROUTINE MAINTENANCE SCHEDULE (EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK.

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall of 13 to 14 feet from the back of a flatbed truck. Plaintiff was standing on top of steel beams, securing the beams with a cable (to be hoisted by crane off the truck), when he fell. The dissent argued plaintiff did not demonstrate he could have been provided with any kind of safety equipment which would have prevented the fall. Plaintiff was wearing a safety harness, but the harness was not tied off:

The motion court correctly determined that defendants, other than Metropolitan Steel, were liable under Labor Law § 240(1) for plaintiff’s injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer. … [D]efendants’ contention that the accident is outside the scope of Labor Law § 240(1) is without merit, because plaintiff’s fall from a height of 13 or 14 feet above the ground “constitutes precisely the type of elevation-related risk envisioned by the statute” … . The fact that plaintiff did not ask for a specific safety device prior to the accident is not dispositive and is not a prerequisite for recovery under Labor Law § 240(1) … . Plaintiff has met his burden of showing that his fall resulted from the lack of a safety device and is, therefore, entitled to summary judgment on liability (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579 [1st Dept 2012] [the plaintiff entitled to summary judgment where evidence showed that the plaintiff, who fell while unloading scaffolding material from the flatbed of a truck, was provided with a safety harness, but there was no place where the harness could be secured]). Myiow v City of New York, 2016 NY Slip Op 06461, 1st Dept 10-4-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)/FLATBED TRUCK (LABOR LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)

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STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

The First Department, reversing defendants’ convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

… [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim’s statements implicating defendants, since they were his “mere expression of belief and suspici[ons]” that defendants were involved in his shooting rather than “statements of facts to which a living witness would have been permitted to testify, if placed upon the stand” … . Although the dying declarant may accuse his or her killer in conclusory language, “[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts” … .

… Contrary to the People’s argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

The admission of the statements, which was over defendants’ timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

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