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ARBITRATION AWARD TERMINATING SCHOOL PRINCIPAL FOR ALCOHOL ABUSE SHOULD NOT HAVE BEEN VACATED, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department reversed Supreme Court and reinstated the arbitration award which terminated petitioner’s employment as a school principal for alcohol abuse. The school district had entered a “last chance” agreement with petitioner, which, the Fourth Department held, was not rendered unenforceable by the district’s commencement of the disciplinary proceedings. The court explained the criteria applied to review of arbitration awards:

Education Law § 3020-a (5) permits judicial review of a hearing officer’s decision but expressly provides that “the court’s review shall be limited to grounds set forth in” CPLR 7511. “An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the parties are “subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious’ ” … , and “it must be in accord with due process” … . Here, petitioner failed to meet his burden to show that the conduct findings were invalid … . Indeed, the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper … . Matter of Bender (Lancaster Cent. Sch. Dist.), 2019 NY Slip Op 06297, Fourth Dept 8-22-19

 

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FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined County Court properly dismissed the murder/manslaughter indictment because the grand jury was not charged with the defense of property justification defense. After decedent had twice attacked defendant inside the home, the decedent reentered the home from the front yard and was shot by the defendant:

During a recess in the grand jury proceeding, defendant asked the People to deliver to the grand jury foreperson a letter requesting, among other things, that the grand jurors be charged with respect to the justifiable use of physical force in defense of a person pursuant to Penal Law § 35.15 and the justifiable use of physical force in defense of premises and in defense of a person in the course of a burglary pursuant to § 35.20 (3). The People did not deliver the letter to the foreperson.

The People instructed the grand jury on the law with respect to murder in the second degree (Penal Law § 125.25 [1]), manslaughter in the first degree (§ 125.20 [1]), and the justification defense pursuant to Penal Law § 35.15; however, the People did not instruct the grand jury with respect to the justification defense pursuant to § 35.20 (3).

… [W]e conclude that the court properly dismissed the indictment based on the People’s failure to instruct the grand jury on the justification defense pursuant to Penal Law § 35.20 (3) … . A court may dismiss an indictment on the ground that a grand jury proceeding is defective where, inter alia, the proceeding is so irregular “that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]; see CPL 210.20 [1] [c]). With respect to grand jury instructions, CPL 190.25 (6) provides, as relevant here, that, “[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it.” “If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment” … . Under the circumstances of this case, we conclude that an instruction regarding the justification defense pursuant to Penal Law § 35.20 (3) was warranted, and the prosecutor’s failure to provide that instruction impaired the integrity of the grand jury proceeding (see CPL 210.35 [5]). Furthermore, we conclude that the error was not cured by the instruction regarding the justification defense under Penal Law § 35.15 … . People v Ball, 2019 NY Slip Op 06295, Fourth Dept 8-22-19

 

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DEFENDANT WAS NOT IN CUSTODY WHEN HE WAS ASKED POINTED QUESTIONS, NO MIRANDA WARNING REQUIRED; POLICE OFFICER’S SUBJECTIVE BELIEF DEFENDANT WAS NOT FREE TO LEAVE IS IRRELEVANT; RAPE FIRST IS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT (FOURTH DEPT).

The Fourth Department determined: (1) the defendant was not in custody when he was asked pointed questions so the Miranda warnings were not required; (2) a police officer’s subjective belief defendant was not free to leave is not relevant to a Miranda analysis; and (3) rape first degree is an inclusory current count of predatory sexual assault:

… [T]he evidence establishes, inter alia, that defendant was told at the start of the interview that he was not under arrest and would be going home that day … , and the recording of the interview belies defendant’s contention that he was in handcuffs when he was placed in the interview room. Defendant concedes that he indeed was not arrested at the time of the interview, and that he was given a ride home later that day. We reject defendant’s contention that, because a police officer testified that defendant was not free to leave during transport to the police station, the court erred in concluding that defendant was not in custody. A police officer’s subjective belief ” has no bearing on the question whether a suspect was in custody at a particular time . . . [and] the subjective intent of the officer . . . is irrelevant’ where, as here, there is no evidence that such subjective intent was communicated to the defendant” … . Contrary to defendant’s further contention, Miranda warnings were not required before the investigators asked pointed questions. It is well settled that “both the elements of police custody’ and police interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” … , and the element of custody was absent here. People v Baez, 2019 NY Slip Op 06294, Fourth Dept 8-22-19

 

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EVIDENCE SUPPORTED THE FIRST DEGREE MURDER CONVICTION BASED UPON DEFENDANT’S HIRING THE KILLER (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence supported the first degree murder charge, based upon defendant’s hiring the killer. The dissent argued the proof of the contract-killing was insufficient. The second degree murder count should have been dismissed:

We and our dissenting colleagues agree on many points. All of us agree that there was sufficient evidence that defendant was complicit in his wife’s murder. Further, all of us agree that there is evidence that the principal requested a payment of money from defendant only five days before the murder. Nevertheless, our dissenting colleagues characterize that request as “part of a string of otherwise innocent interactions” between defendant and the principal in the days leading up to the murder. The dissent even offers the possibility that the principal was “seeking a reward” from defendant—not for agreeing to murder defendant’s wife, but for unrelated virtuous conduct. We cannot agree. In our view, the jury could rationally have concluded that the principal’s request for a payment of money five days before the murder was not “innocent” at all, but in fact was part and parcel of the murder plot. People v Clayton, 2019 NY Slip Op 06284, Fourth Dept 8-22-19

 

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SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED IN PORNOGRAPHY WAS LESS THAN TEN (FOURTH DEPT

The Fourth Department reduced defendant’s risk level from two to one, finding there was no proof the children depicted in pornography were less than ten years old:

Defendant was convicted of possessing a sexual performance by a child (Penal Law § 263.16), which requires proof, inter alia, that defendant possessed a play, motion picture, or photograph depicting sexual conduct involving a child who is less than 16 years of age (see §§ 263.00 [1], [4]; 263.16). Consequently, defendant’s plea of guilty to that charge does not constitute clear and convincing evidence that 30 points should be assessed under risk factor 5 … . Additionally, the evidence submitted by the People, including the presentence report, did not constitute clear and convincing evidence that any of the victims was 10 years of age or less  … . The clear and convincing evidence, including the references to the children in the images possessed by defendant in the presentence report as preadolescent or prepubescent, coupled with the report’s definition of such children as being between 10 and 13 years of age, however, supports the imposition of 20 points under risk factor 5 … . People v Spratley, 2019 NY Slip Op 06283, Fourth Dept 8-22-19

 

ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate:

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” … . Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground “demonstrates that it was not so placed . . . as to give proper protection to [him]” … . We therefore conclude that plaintiff’s accident was caused by an elevation-related risk as contemplated in section 240 (1) … .

We reject defendant’s contentions that the sole proximate cause of the accident was plaintiff’s failure to observe the drain hole and position the scaffold in such a manner to avoid it. “[T]here can be no liability under [Labor Law § ] 240 (1) when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … , and “[a] defendant is entitled to summary judgment dismissing a Labor Law § 240 (1) cause of action or claim by establishing that . . . the plaintiff’s conduct was the sole proximate cause of the accident” … . Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident … . Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his “actions . . . render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]”  … . “Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] cannot be solely to blame for it’ ” … . Wolf v Ledcor Constr. Inc., 2019 NY Slip Op 06263, Fourth Dept 8-22-19

 

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IN A TRIAL SUBJECT TO INSURANCE LAW 5102 THE TERM “SERIOUS INJURY” NOT “INJURY” SHOULD BE USED ON THE VERDICT SHEET (FOURTH DEPT).

The Fourth Department noted that the term “serious injury” not “injury” should be used on a verdict sheet in a case involving Insurance Law 5102:

… [W]e … note that the first question on the verdict sheet — i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?” — invites the very problem we addressed in Brown v Ng (163 AD3d 1464, 1465 [4th Dept 2018]), where we noted that an interrogatory asking whether the plaintiff sustained an “injury” fails to address the appropriate legal issue, which is whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The first question on the verdict sheet was unnecessary here inasmuch as the second and third questions asked the jury to determine whether plaintiff sustained a serious injury under the relevant categories that was causally related to the accident. McCulloch v New York Cent. Mut. Ins. Co., 2019 NY Slip Op 06254, Fourth Dept 8-22-19

 

THE WORDING OF THE NOTICE OF APPEAL DID NOT RESTRICT THE APPEAL TO THE DENIAL OF PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT, BUT RATHER INCLUDED THE GRANT OF SUMMARY JUDGMENT TO DEFENDANT; THE DISSENTER DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s grant of summary judgment to defendant, over an extensive dissent, determined the notice of appeal did not restrict the appeal to the denial of plaintiff;s cross motion for summary judgment, but rather encompassed the appeal of the grant of summary judgment dismissing the complaint:

… [W]e reject the assertion of defendant and our dissenting colleague that plaintiff’s notice of appeal limits our review to that part of the order and judgment that denied plaintiff’s cross motion for partial summary judgment. The notice of appeal provides, in relevant part, that plaintiff “hereby appeals . . . from the . . . [o]rder and [j]udgment . . . denying [p]laintiff’s [c]ross[ m]otion for [s]ummary [j]udgment. Plaintiff appeals from each and every part of said [o]rder denying [p]laintiff’s [c]ross[ m]otion.” Contrary to our dissenting colleague’s position, inasmuch as the notice of appeal states that plaintiff sought to appeal from “each and every part” of the order and judgment and does not contain language restricting the appeal to only a specific part thereof, we conclude that the appeal is not limited to review of the denial of plaintiff’s cross motion and that the reference thereto simply constitutes language describing the order and judgment … .

Our determination that the reference to the cross motion in the notice of appeal is descriptive and does not constitute evidence that plaintiff excluded from her appeal that part of the order and judgment granting defendant’s motion is further supported by the fact that, in her cross motion, plaintiff expressly sought as part of the requested relief “[a]n [o]rder denying defendant’s [m]otion for [s]ummary [j]udgment in its entirety.” Cline v Code 2019 NY Slip Op 06251, Fourth Dept 8-22-19

 

SENTENCE AFTER TRIAL, WHICH WAS SIX TIMES LONGER THAN THE SENTENCE OFFERED FOR A PLEA, DEEMED UNDULY HARSH AND SEVERE (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence after trial, in part because it was so much greater than the sentence offered in exchange for a plea:

… [T]he aggregate sentence of 60 years, which is statutorily reduced to 50 years (see Penal Law § 70.30 [1] [c], [e] [vi]), is unduly harsh and severe. Defendant has no prior felony convictions. In addition, the People offered, and the court committed to, a plea deal pursuant to which defendant would plead guilty to one count of criminal sexual act in the first degree and be sentenced to a determinate term of 10 years’ incarceration with 20 years’ postrelease supervision, which was thereafter reduced to a determinate term of nine years’ incarceration with 20 years’ postrelease supervision. The court nevertheless sentenced defendant upon his conviction to determinate terms of 15 years of incarceration with 20 years’ postrelease supervision for the three counts of criminal sexual act in the first degree and the count of rape in the first degree, all to run consecutively. That aggregates to a sentence that is more than six times longer than that of the most recent plea offer, and we conclude that it is unduly harsh and severe … . People v Boyd, 2019 NY Slip Op 06311, Fourth Dept 8-22-19

 

TOWN COURT PROPERLY ORDERED THE EUTHANASIA OF RESPONDENT’S DOG AFTER THE DOG ATTACKED AND REPEATEDLY BIT A THREE-YEAR-OLD CHILD; THE DISSENTER ARGUED PETITIONERS DID NOT ESTABLISH THAT THEIR CHILD SUFFERED SERIOUS INJURY WITHIN THE MEANING OF THE AGRICULTURE AND MARKETS LAW (FOURTH DEPT).

The Fourth Department determined Town Court properly ordered the euthanasia of respondent’s dog, Wally, after the dog broke free, ran into petitioner’s yard, and repeatedly bit a three-year-old girl. The dissenter argued the proof did not demonstrate the child suffered serious injury within the meaning of the Agriculture and Markets Law:

Respondent does not dispute that petitioners established by clear and convincing evidence that her dog is a “dangerous dog” (Agriculture and Markets Law §§ 108 [24] [a] [i]; 123 [2]). A justice may direct humane euthanasia of a dangerous dog if, inter alia, the dog, without justification, attacks a person, “causing serious physical injury” (§ 123 [3] [a] …). The Agriculture and Markets Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (§ 108 [29]). The only issue here is whether the child sustained a “serious or protracted disfigurement” … . Inasmuch as those terms are used in the Penal Law definition of serious physical injury (see Penal Law § 10.00 [10]), reliance upon criminal cases involving what constitutes a serious or protracted disfigurement is appropriate. As petitioners correctly note, however, the Penal Law definition of a serious injury as, inter alia, a serious and protracted disfigurement … does not apply here.

Contrary to respondent’s contention, the evidence establishes that the child sustained a serious injury inasmuch as the dog attack caused serious or protracted disfigurement … . A “disfigurement” is “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner” … . “A person is seriously’ disfigured when a reasonable observer would find her altered appearance distressing or objectionable” … . The standard is an objective one and depends on various factors, including the nature and the location of the injury … . We conclude that the injuries sustained by the child here, particularly the bite wound to the buttocks that required surgery and approximately 30 stitches, constitute serious disfigurement … . Although the analysis could end there, we conclude that those injuries also constitute a protracted disfigurement … . Matter of Workman v Dumouchel, 2019 NY Slip Op 06248, Fourth Dept 8-22-19

 

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