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TRIAL EVIDENCE RENDERED THE SINGLE-COUNT INDICTMENT DUPLICITOUS REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial evidence rendered the single-count indictment duplicitous. Defendant was charged with criminal mischief:

We agree with defendant, however, that the single-count indictment was rendered duplicitous by the trial evidence. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Thus, “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts” … . Here, the indictment charged defendant with damaging “the road surface at the intersection of Woolhouse Road and County Road #32” and thus was not facially defective. At trial, however, the evidence established that defendant committed two distinct offenses by damaging two different portions of the road at that intersection at two different times. Consequently, “[r]eversal is required because the jury may have convicted defendant of an unindicted [act of criminal mischief], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges . . . , as well as the danger that . . . different jurors convicted defendant based on different acts … . People v Kniffin, 2019 NY Slip Op 07176, Fourth Dept 10-4-19

 

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GRANDMOTHER’S APPEAL OF THE DENIAL OF VISITATION HEARD DESPITE THE FACT THAT GRANDMOTHER HAD BEEN GRANTED VISITATION WHILE THE APPEAL WAS PENDING; DISSENT ARGUED THE EXCEPTION TO THE MOOTNESS DOCTRINE SHOULD NOT HAVE BEEN APPLIED (FOURTH DEPT).

The Fourth Department affirmed Family Court’s denial of grandmother’s petition for custody and visitation and heard the appeal despite the fact that grandmother was subsequently granted visitation. The majority applied the exception to the mootness doctrine to hear the appeal. An extensive dissent argued the exception to the mootness doctrine did not apply and the appeal should have been dismissed:

We reject the grandmother’s contention that the court erred in denying her petition for custody and granting custody to the mother. “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the grandmother failed to meet her burden of establishing that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the best interests of the child … . In particular, we conclude that the grandmother failed to establish her claim that the mother suffered from unaddressed, serious mental health issues that would warrant a finding of extraordinary circumstances … .

Contrary to the grandmother’s further contention, we conclude that, as of the time that the order was entered, the record supports the court’s determination that it was in the best interests of the subject child to deny the grandmother visitation “in view of  grandmother’s failure to abide by court orders, the grandmother’s animosity toward the [mother], with whom the child[ now] reside[s], and the fact that the grandmother frequently engaged in acts that undermined the subject child[]’s relationship with” the mother … . It is well settled that “a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … , and we perceive no basis for disturbing the court’s determination here … . Matter of Smith v Ballam, 2019 NY Slip Op 07170, Fourth Dept 10-4-19

 

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ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined that attempted menacing of a police officer is not a cognizable crime because “attempt” is included in the offense. This was a mode of proceedings error that did not have to be preserved:

We agree with defendant … that his conviction of attempted menacing a police officer or peace officer must be reversed because that offense is not a legally cognizable crime. As relevant here, Penal Law § 120.18 provides that “[a] person is guilty of menacing a police officer or peace officer when he or she intentionally places or attempts to place a police officer . . . in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, . . . pistol, . . . or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer.” Thus, according to the definition of menacing a police officer or peace officer set forth in the Penal Law, the attempt to commit the crime is already an element of the offense, and “there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” … . Although defendant failed to raise this issue at trial, preservation is not required inasmuch as this issue constitutes a mode of proceedings error … . People v Dibble, 2019 NY Slip Op 07165, Fourth Dept 10-4-19

 

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OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT WAS NOT RESPONSIBLE FOR REPAIR OF THE DANGEROUS CONDITION; LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant landlord’s motion for summary judgment in this slip and fall case should have been granted. Although there was a dangerous condition, defendant, as an out-of-possession landlord, was not responsible for its repair:

… [D]efendant submitted the lease between defendant and plaintiff’s employer, which provided that the lessee was responsible for all maintenance and repair of the premises except for “Major Improvements,” which the lease defined as “any major repair (repairs that are not of the nature of ordinary maintenance such as local patches, caulking, flashing)” including “replacement of the roof, replacement of load-bearing walls and foundations, [and] repairs to the concrete floor.” We conclude that maintenance of the allegedly bent or defective metal strip was not a “Major Improvement[]” under the lease … .

Further, the record established that defendant relinquished control of the premises. The fact that, under the lease, defendant reserved the right to enter the leased premises for purposes of inspection and performing “Major Improvements,” is ” insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord’ ” … . “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists” … , and plaintiff failed to allege a specific statutory violation pertaining to the metal strip … . Addeo v Clarit Realty, Ltd., 2019 NY Slip Op 07163, Fourth Dept 10-4-19

 

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THE ZONING BOARD OF APPEALS’ RULING THAT A BREAKWALL AND RETAINING WALLS ON LAKEFRONT PROPERTY WERE FENCES WHICH VIOLATED THE CODE WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ANNULLED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that the Zoning Board of Appeals’ (ZBA’s) ruling that the breakwall and retaining walls on lakefront property were fences which violated the code was not supported by substantial evidence. The matter was brought as a hybrid CPLR article 78 proceeding and action under 42 USC §§ 1983, 1985, and 1988:

… [T]he undisputed relevant evidence establishes that the walls do not fall within the plain meaning of fences as defined by Code former § 77-1 inasmuch as they were not erected for the purpose of enclosing or dividing a piece of land …. Instead, the breakwall was constructed to maintain the shoreline of the lake in light of the future construction of a house on petitioner’s property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field, and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. We thus conclude that the ZBA’s determination affirming the order to remedy with respect to the violations of the Code that depend on the walls being considered fences lacks a rational basis and is not supported by substantial evidence. Matter of Fox v Town of Geneva Zoning Bd. of Appeals, 2019 NY Slip Op 07160

 

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THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the offense to which defendant pled guilty, criminal sexual act in the first degree, does not have forcible compulsion as an element and therefore the risk assessment must be reduced by 10 points. However the court noted that an upward department might be appropriate and sent the matter back:

… [T]he court erred in that assessment inasmuch as defendant pleaded guilty to criminal sexual act in the first degree under subdivision (3) of Penal Law § 130.50, which does not require evidence of forcible compulsion … , and there was no other evidence in the record establishing that defendant used forcible compulsion in committing the crime. When those 10 points are subtracted, defendant’s total score makes him a presumptive level two risk.

Nevertheless, we note that an upward departure from the presumptive level may be warranted, i.e., there may be evidence of “an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”… . Here, however, “because defendant was determined to be a level three sex offender, County Court had no reason to consider whether clear and convincing evidence exists to warrant such a departure” … . People v Weber, 2019 NY Slip Op 07197, Fourth Dept 10-4-19

 

DEFENDANT WAS ENTITLED EITHER TO THE VACATION OF HIS GUILTY PLEA OR TO A SENTENCE WHICH CONFORMED WITH THE SENTENCE PROMISE; DEFENDANT’S 440 MOTION WAS NOT BARRED BY PROVISIONS OF CPL 440.10 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to either the vacation of his guilty plea or the imposition of a sentence which conformed to the plea bargain. Defendant had pled guilty to a drug possession charge and was told at the time of the plea he would not serve more than a year and a half in addition to his concurrent Massachusetts sentence. However, the Massachusetts sentence was subsequently reduced because of a cooperation agreement. Defendant’s 440 motion was not barred by CPL 440.10 (2) (c) or (2) (b):

… [D]efendant’s motion is not barred by CPL 440.10 (2) (c) inasmuch as the relevant ground for relief did not arise until several years after the deadline to file a direct appeal from the judgment had expired. Further, contrary to the court’s determination, defendant’s motion is not barred by CPL 440.10 (2) (b) inasmuch as he never filed a direct appeal from the judgment.

On the merits, it is well settled that, “[g]enerally, when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored’ ” … . Here, the “reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … , i.e., “the judge’s specific representation [that defendant’s guilty plea in New York] would thereby extend his [aggregate] incarceratory term by a year and a half only” … . People v Valerio, 2019 NY Slip Op 07192, Fourth Dept 10-3-19

 

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ALTHOUGH DEFENDANT DID NOT VIOLATE THE VEHICLE AND TRAFFIC LAW IN MAKING A LEFT TURN, THE OFFICER REASONABLY BELIEVED THERE WAS A VIOLATION; THE TRAFFIC STOP WAS JUSTIFIED AND THE SUPPRESSION MOTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined: (1) the left turn made by the defendant from the right-most lane did not violate Vehicle and Traffic Law 1160; and (2) the officer who stopped the defendant reasonably believed the turn was a traffic violation. Therefore the traffic stop was justified:

Unlike the language used in other subsections of section 1160, the language of subsection (b) does not specify how close to the center line a vehicle must be when it completes its turn, nor does it designate a specific lane within which the vehicle must complete the turn (compare § 1160 [b] with § 1160 [a], [c], [e]). In light of the more specific language employed elsewhere in the statute, we read the use of the more general phrase “right of the center line” as meaningful and intentional … . Indeed, reading “right of the center line” to mean the lane to the immediate right of the center line, or as close to center as possible, would improperly render the more specific language used elsewhere in the statute superfluous … . …

… [S]uppression [of the seized weapon] is not required here because the stop was the result of the officer’s objectively reasonable belief that he observed a traffic violation … . In light of ” the reality that an officer may suddenly confront a situation in the field as to which the application of a statute is unclear—however clear it may later become[,]’ ” an officer’s misreading of a statute that is susceptible of multiple interpretations and has not been definitively construed by New York appellate courts may amount to a reasonable mistake of law justifying a traffic stop … . Notwithstanding our interpretation of Vehicle and Traffic Law § 1160 (b) above, the “right of the center line” language is, in our view, susceptible of multiple interpretations, including the interpretation taken by the officer here, and the ambiguity has not previously been definitively construed. People v Turner, 2019 NY Slip Op 07190, Fourth Dept 10-3-19

 

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RAPE THIRD IS NOT AN INCLUSORY CONCURRENT COUNT OF RAPE FIRST; THE VERDICT SHEET INCLUDED AN IMPERMISSIBLE ANNOTATION, MATTER REMITTED TO DETERMINE WHETHER DEFENSE COUNSEL CONSENTED TO THE ANNOTATION (FOURTH DEPT).

The Fourth Department determined: (1) rape third is not an inclusory concurrent count of rape first; and (2) the verdict sheet included an impermissible annotation. The matter was remitted to determine whether defense counsel consented to the annotation:

… [T]he verdict sheet, which states in relevant part “Fourth Count: Rape in the Third Degree (lack of consent/totality of circumstances),” contains an impermissible annotation. Specifically, the “totality of circumstances” language is impermissible because it is not “statutory language” (CPL 310.20 [2]; see Penal Law § 130.25 [3]). Rather, it is language from the pattern jury instructions (see CJI 2d[NY] Penal Law § 130.25 [3]). Supreme Court was therefore required to obtain defense counsel’s consent prior to submitting the annotated verdict sheet to the jury … . Although “consent to the submission of an annotated verdict sheet may be implied where defense counsel fail[s] to object to the verdict sheet after having an opportunity to review it’ “… , here, the record does not reflect whether defense counsel had that opportunity. We therefore hold the case, reserve decision and remit the matter to Supreme Court to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet … . People v Wilson, 2019 NY Slip Op 06900, Fourth Dept 9-27-19

 

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THE WARRANTLESS SEARCH OF DEFENDANT’S VEHICLE WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION OR AS A LIMITED SAFETY SEARCH, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress a handgun found in his vehicle and a post-seizure statement was properly granted:

… [O]fficers responded to the complainant’s home after receiving a call that he had been threatened by defendant. The complainant told an officer that defendant threatened to shoot him and that he believed the threat was serious because defendant had been in possession of a black handgun prior to the instant incident. Defendant, who was seated in his truck, which was parked in front of the complainant’s home, acknowledged that he had previously said he would shoot the complainant if the complainant entered defendant’s property. Based on that information and defendant’s admissions that he owned a rifle, which was at his home, and that he had a Virginia pistol permit but no New York pistol permit, the officers searched defendant’s person but recovered no weapons. The officers then searched the area near the driver’s seat of defendant’s truck, from which they recovered a loaded handgun. …

The automobile exception to the warrant requirement permits a police officer to ” search a vehicle without a warrant when [the officer has] probable cause to believe that evidence or contraband will be found there’ ” … . [T]he police did not have probable cause to search defendant’s vehicle after they searched him and determined that there was no immediate threat to their safety … , inasmuch as defendant was not alleged to have brandished a gun at the scene, there was inconclusive evidence that he actually threatened the complainant at the scene, defendant did not engage in any suspicious or furtive movements, and the officers did not observe any weapons or related contraband in the vehicle or on defendant’s person … . …

… [T]he officers’ search of defendant’s vehicle was not justifiable as a limited safety search. Probable cause is not required for a limited search of a vehicle ” where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion’ ” … . However, the Court of Appeals has “emphasized . . . that a reasonable suspicion alone will not suffice” and that “the likelihood of a weapon in the [vehicle] must be substantial and the danger to the officer’s safety actual and specific” … . People v Pastore, 2019 NY Slip Op 06930, Fourth Dept 9-27-19

 

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