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DEFENDANT’S MOTION TO SET ASIDE THE VERDICT, BASED UPON A JUROR’S KNOWLEDGE AND CONDUCT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant’s motion to set aside the verdict, based upon a connection between a juror and defendant’s mother, should not have been denied without a hearing:

… [T]he court erred in summarily denying his motion to set aside the verdict pursuant to CPL 330.30 (2). The sworn allegations in support of defendant’s motion, including those in the affidavit of his mother, indicated that a juror may have had an undisclosed, potentially strained relationship with the mother resulting from attending high school and working together, possibly knew about defendant’s criminal history, and purportedly attempted to speak with the mother’s husband during a lunch break at trial, and that the alleged misconduct was “not known to the defendant prior to rendition of the verdict” … . We conclude that the allegations ” required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant’ ” … . We therefore hold the case, reserve decision and remit the matter to County Court to conduct a hearing on defendant’s CPL 330.30 motion. People v Blunt, 2019 NY Slip Op 05917, Fourth Dept 7-31-19

 

DEFENDANT’S PROBATION SHOULD NOT HAVE BEEN REVOKED ABSENT A HEARING OR AN ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s probation should not have been revoked absent a hearing or an admission:

“A court may not revoke a sentence of probation without finding that the defendant has violated a condition [there]of . . . and affording [him or her] an opportunity to be heard (see CPL 410.70 [1]). The statutory requirements may be satisfied either by conducting a revocation hearing pursuant to CPL 410.70 (3) . . . , or through an admission by the defendant of the violation, coupled with a proper waiver of [his or her] right to a hearing” … . Here, as the People correctly concede, defendant never admitted to violating his probation and the court never conducted a revocation hearing. People v Ayotunji A., 2019 NY Slip Op 05916, Fourth Dept 7-31-19

 

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FIBER OPTIC CABLES AND ENCLOSURES ARE TAXABLE UNDER REAL PROPERTY TAX LAW (RPTL) 102 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the fiber optic cables and equipment at issue constitute taxable property under RPTL 102, in that the statutory exception for radio and television signals was not demonstrated to be applicable:

…  [T]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion.’ Moreover, a statute authorizing a tax exemption will be construed against the taxpayer unless the taxpayer identifies a provision of law plainly creating the exemption . . . Thus, the taxpayer’s interpretation of the statute must not simply be plausible, it must be the only reasonable construction’ ” … . …

… [P]etitioners contend that their fiber optic installations are not taxable property pursuant to RPTL 102 (12) (i) (D) because, inter alia, petitioners use those properties to some unspecified extent to transmit “news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public” … . We reject that contention. In light of petitioners’ failure to establish the percentage of their fiber optic installations that are used for those purposes, we may accept their contention only if we conclude that any such usage of fiber optic installations, no matter how slight, is sufficient to exclude the properties from the tax. That is not ” the only reasonable construction’ ” of the statute … , indeed, it is “simply [not plausible” … . If we accept that interpretation, based on the proliferation of uses of cell phones to stream video, television, and other programming, all fiber optic cables will be excluded from taxation. That, however, conflicts with the Court of Appeals’ determination in T-Mobile Northeast, LLC that such property is taxable (32 NY3d at 608). Moreover, RPTL 102 (12) (i) provides that taxable property includes all “wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities.” Matter of Level 3 Communications, LLC v Erie County, 2019 NY Slip Op 05913, Fourth Dept 7-31-19

 

87 DAY DELAY ATTRIBUTABLE TO THE PEOPLE DESPITE THE ‘READY FOR TRIAL’ ANNOUNCEMENT AND THE ABSENCE OF A SPECIFIC REQUEST FOR AN ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment on speedy trial grounds, determined the 87 day delay during which the People sought a superseding indictment was attributable to the People despite their “ready for trial” announcement and despite the absence of a specific request for an adjournment:

… [The]period of delay was “attributable to [the People’s] inaction and directly implicate[d] their ability to proceed to trial” on a charge of CPCS in the fifth degree, i.e., the crime that the People sought to add by way of a superseding indictment and the sole crime for which defendant was ultimately convicted … . Contrary to the court’s determination, the 87-day period was not attributable to the court given that it was “the People’s inaction [in securing a superseding indictment that] resulted in a delay in the court’s [trial of the action]” … . Contrary to the People’s contention, it is well established that postreadiness delay may be assessed “notwithstanding that the People have answered ready for trial within the statutory time limit” … and notwithstanding the absence of an explicit prosecutorial request for an adjournment … . Although certain periods of time may be excluded from assessment as postreadiness delay where the People successfully invoke one of the exceptions enumerated in CPL 30.30 (4) … , the People have identified no exception that might excuse the 87-day delay at issue here … . People v Johnson, 2019 NY Slip Op 05920, Fourth Dept 7-31-19

 

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THE PURSUIT OF DEFENDANT WAS NOT JUSTIFIED AND DEFENDANT’S DISCARDING THE HANDGUN WAS IN RESPONSE TO POLICE ILLEGALITY, THE HANDGUN WAS NOT ABANDONED AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating the guilty plea and dismissing the indictment, determined the handgun discarded by the defendant during a police chase should have been suppressed. The police were responding to information that a black male had discharged a weapon. There were several black males in the area and nothing indicated defendant was involved in criminal activity. The defendant did not abandon the weapon because it was discarded in response to police illegality:

… [T]he officer’s action of pursuing defendant in response to his flight was not justified at its inception inasmuch as there were no specific circumstances indicating that defendant may have been engaged in criminal activity so as to give rise to reasonable suspicion … . Although the officer observed defendant walking in the general vicinity of the reported gun shots, that observation does not provide the “requisite reasonable suspicion, in the absence of other objective indicia of criminality’ ” that would justify pursuit, and no such evidence was presented at the suppression hearing … . In the absence of other identifying information, the fact that defendant may have matched the vague, generic description of the suspect as a black male, which could have applied to any number of individuals in the area of the large apartment complex with hundreds of residents, did not sufficiently indicate that defendant may have been engaged in criminal activity … . Thus, the pursuit of defendant was unlawful. * * *

… [D]defendant’s act of discarding the handgun was “spontaneous and precipitated by the unlawful pursuit by the police” and, therefore, the handgun should have been suppressed … . People v Jones, 2019 NY Slip Op 05940, Fourth Dept 7-31-19

 

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THE CLAIM WAS NOT JURISDICTIONALLY DEFECTIVE FOR FAILURE TO SPECIFICALLY ALLEGE LOST WAGES AS PART OF THE DAMAGES IN THIS PERSONAL INJURY ACTION, THE DISSENT DISAGREED AND WOULD HAVE VACATED THE AWARD FOR LOST WAGES (FOURTH DEPT).

The Fourth Department affirmed the award of money damages to claimant for personal injury. The claim did not specifically request lost wages as damages. The majority held the claim was not jurisdictionally deficient and the specific items of damage need not have been spelled out. The dissenter disagreed and argued the award for lost wages should be vacated:

Contrary to defendant’s contention, the court did not lack subject matter jurisdiction with respect to damages for past and future lost wages inasmuch as the facts alleged by claimant “were sufficient to apprise [defendant] of the general nature of the claim and to enable it to investigate the matter” … .

The plain language of the statute requires a claimant to specify “the items of damage or injuries claimed to have been sustained” and, “except in[, inter alia,] action[s] to recover damages for personal injury . . . , the total sum claimed” (Court of Claims Act § 11 [b]). Contrary to the view of our dissenting colleague, a natural reading of the statute requires a claimant to specify the items of damage to property or injuries to a person for which the claimant seeks compensation. Here, claimant sufficiently specified the nature of the claim, the time when and the place where the claim arose, and the injuries claimed to have been sustained, i.e., “injuries to his shoulder, bicep, and elbow” … . Inasmuch as this is an action for damages for personal injury, claimant was not required to specify, in total or itemized by category, his claimed items of damage … . Damages sought by claimant for medical expenses or lost wages are matters for the bill of particulars. Donahue v State of New York, 2019 NY Slip Op 05948, Fourth Dept 7-31-19

 

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DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, reversed defendant’s manslaughter conviction as against the weight of the evidence. The defendant had been alone with the victim, his girlfriend’s 13-month-old son, for a short time on the day the baby vomited and was gasping for breath (May 2). The baby died hours later at the hospital. Blunt force head trauma was deemed the cause of death. The defendant was not arrested until four years later after mother had unsuccessfully attempted to have the defendant admit to harming the child in recorded phone conversations. The medical examiner testified on direct that the baby was injured on May 2. But on cross the medical examiner acknowledged the baby could have been injured on May 1, when defendant had no contact with the baby. Other people had access to the baby on May 1, but they were not interviewed because the medical examiner had told the investigators the injuries occurred on May 2:

The only evidence adduced at trial that was not within the knowledge of the police in 2010, when they decided not to arrest defendant, was the testimony of a woman who dated him from 2008 to 2013, with a one-year break in 2010 when he dated [the baby’s mother]. The witness testified that, in the years following the victim’s death, defendant would sometimes talk about the victim and become emotional but would say that he was not guilty and “didn’t do it.” When questioned by the prosecutor about a written statement she had given to the police, the witness testified that defendant “admitted to doing something to the baby but he never said what or why.” On cross-examination, the witness testified that defendant, whom she had not dated for years, never admitted that he harmed the victim. All in all, the witness’ testimony was of only marginal probative value.

Given the equivocal medical evidence with respect to the time frame within which the fatal injuries could have been inflicted, the weakness of the circumstantial evidence, and the lack of direct evidence that defendant caused the victim’s injuries, we conclude that the People failed to prove defendant’s guilt beyond a reasonable doubt … . People v Gonzalez, 2019 NY Slip Op 05947, Fourth Dept 7-31-19

 

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PLAINTIFF BUS DRIVER WAS SPRAYED WITH DIESEL FUEL AS SHE ATTEMPTED TO FILL THE TANK OF THE BUS SHE WAS DRIVING; THE MANUFACTURER OF THE GAS PUMP NOZZLE AND THE GAS STATION DEMONSTRATED THE NOZZLE AND THE GAS PUMP WERE WORKING PROPERLY; THERE WAS EVIDENCE OF A RELEVANT DESIGN FLAW IN THE FUEL SYSTEM OF THE BUS; THE NOZZLE MANUFACTURER’S AND THE GAS STATION’S MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined that the products liability cause of action against the manufacturer of a gas pump fuel nozzle (Husky), and the premises liability cause of action against the gas station (Kwik Fill) should have been dismissed. The plaintiff was sprayed with diesel fuel as she attempted to fill the tank in the bus (manufactured by Coach) she was driving. There was evidence that the design of the fuel system of the bus may have been the cause:

In opposition to Husky’s motion, the Coach defendants submitted the affidavit of an expert and the deposition testimony of the vice president of engineering of defendant Motor Coach Industries, Ltd. The expert opined that the accident was caused by a nozzle malfunction. He did not, however, identify any particular defect in the nozzle, which he did not inspect. We thus conclude that the expert’s opinion is based on mere speculation and is insufficient to raise an issue of fact … . …

It is undisputed that the Kwik Fill defendants hired an outside vendor that regularly inspected and serviced their fuel pumps, and, in support of their motion, the Kwik Fill defendants submitted evidence establishing that the vendor determined that the fuel pumps were working properly before and after the accident, thus establishing that the Kwik Fill defendants maintained their property in a reasonably safe condition … . Menear v Kwik Fill, 2019 NY Slip Op 05845, Fourth Dept 7-31-19

 

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FOR CAUSE CHALLENGE TO A JUROR WHO FELT POLICE OFFICERS WOULD NOT LIE SHOULD HAVE BEEN GRANTED; STATEMENTS MADE UNDER CUSTODIAL INTERROGATION IN DEFENDANT’S HOME SHOULD HAVE BEEN SUPPRESSED; STATEMENTS MADE AFTER DEFENDANT INVOKED HIS RIGHT TO COUNSEL SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and granting a new trial, determined that a defense for-cause challenge to a juror should have been granted, unwarned statements made by the defendant in his home were in response to custodial interrogation, and the statements made at the police station were made after defendant had invoked his right to counsel:

… [B]y repeatedly insisting that police officers were unlikely to lie under oath because doing so would endanger their pensions, the prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards” and to follow the court’s instructions concerning, at a minimum, issues of witness credibility … . The court was therefore “required to elicit some unequivocal assurance from the . . . prospective juror[] that [she was] able to reach a verdict based entirely upon the court’s instructions on the law” … . No such assurances were obtained from the prospective juror, …

… [I]t is undisputed that defendant was ordered out of his bedroom by police officers in the middle of the night, directed to remain in a vestibule outside his apartment, and thereafter subjected to pointed, accusatory questions for about an hour. Under those circumstances, we agree with defendant that a reasonable person, innocent of any crime, would not have felt free to leave, and that he was thus in custody during the questioning … . …

… [D]efendant unequivocally invoked his right to counsel by stating “I think I will take the lawyer” or “I think I need a lawyer” … . Thus, we agree with defendant that his statements following his unequivocal invocation of his right to counsel at the police station should have been suppressed as well … . People v Hernandez, 2019 NY Slip Op 05844, Fourth Dept 7-31-19

 

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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