The Fourth Department noted: (1) the statutory speedy trial issue is foreclosed by defendant’s guilty plea; (2) the statutory speedy trial issue is foreclosed by the waiver of appeal; (3) the statement-suppression issue is foreclosed by the waiver of appeal; and (4) because defendant pled guilty before Supreme Court decided the constitutional speedy trial issue that issue was abandoned. People v Hardy, 2019 NY Slip Op 04555, Fourth Dept 6-7-19
The Fourth Department determined the test for double jeopardy under the state constitution is the same as under the federal constitution:
“Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same offence’ ” … . The United States Supreme Court employs a “same-elements” test, also known as the Blockburger test (Blockburger v United States, 284 US 299 [1932]), that “inquires whether each offense contains an element not contained in the other; if not, they are the same offence’ and double jeopardy bars additional punishment and successive prosecution” … . Here, the elements of DWI (see Vehicle and Traffic Law § 1192 [2], [3]) and leaving the scene of a property damage incident without reporting (see § 600 [1] [a]) are not the same; among other things, a person does not need to be intoxicated to be found guilty of leaving the scene of a property damage incident without reporting, and does not need to cause property damage to be found guilty of DWI. …
… [T]he Court of Appeals has held that “[t]he Double Jeopardy Clauses in the State and Federal Constitutions are nearly identically worded, and we have never suggested that state constitutional double jeopardy protection differs from its federal counterpart” … , the Court of Appeals set forth the Blockburger test, not the same conduct test, when analyzing a defendant’s claim that the double jeopardy clauses of both the Federal and State Constitutions barred a subsequent prosecution. We therefore conclude that the constitutional double jeopardy analysis is the same under federal and state law, and that there is no constitutional double jeopardy violation here … . Matter of McNerlin v Argento, 2019 NY Slip Op 04554, Fourth Dept 6-7-19
The Fourth Department noted that appellate review of a court’s determination of the sufficiency of the evidence presented to the grand jury is not reviewing upon appeal of a conviction based upon legally sufficient trial evidence:
Defendant’s contention regarding the legal sufficiency of the evidence with respect to the operability of the stun gun is not preserved for our review inasmuch as her motion for a trial order of dismissal was not ” specifically directed’ at [that] alleged” deficiency in the proof … . In any event, the evidence, which included the testimony of a firearms examiner who tested the device at issue, viewed in the light most favorable to the People … , is legally sufficient to support the conviction. …
County Court’s determination with respect to the legal sufficiency of the evidence before the grand jury is “not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6] …). People v Washington, 2019 NY Slip Op 04553, Fourth Dept 6-7-19
The Fourth Department determined County Court properly determined the defendant pressured a witness to refuse to testify at trial. Therefore the witness’s grand jury testimony was properly admitted in evidence:
Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant “wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify” … . …
The People presented evidence that the missing witness was ready and willing to testify while defendant was in jail during the grand jury proceedings but became reluctant after defendant was released and the trial date drew closer. Days prior to the trial, the witness’s mother observed the witness leave with defendant and their child for several hours. When the witness returned to the mother’s home, the witness “started talking about the subpoena that she had received. Started saying things like they can’t do anything to me if I don’t show up. The subpoena wasn’t served properly. There’s nothing that they can do if I don’t show up to court. Things of that nature.” The mother reported to the prosecutor that she had never heard the witness use legal terminology like that before. …
Defendant’s relative also observed the witness in defendant’s home during the time in which law enforcement officers were attempting to locate her on a material witness warrant. Further, although the prosecution never informed the witness of the updated trial schedule following the witness’s failure to appear, the witness appeared at court two days after the Sirois hearing “at the perfect moment to save defendant from the impending admission of her damning grand jury testimony” … . People v Haile, 2019 NY Slip Op 04547, Fourth Dept 6-7-19
The Fourth Department determined defendant, although handcuffed and seated on the backseat of a police car, was not in custody such that his answers to questions, including whether he had anything to drink, should be suppressed. The officer observed defendant commit several traffic infractions, then the defendant got out of the car, staggering. The defendant would not stop and go back to his car when the officer told him to. When the officer caught up to him he smelled alcohol. The officer then handcuffed the defendant and had him sit on the backseat of the police car with his feet outside the car on the ground:
Contrary to defendant’s contention, we conclude that his answers to the sergeant’s questions were not the product of a custodial interrogation requiring Miranda warnings. ” It is well established that not every forcible detention constitutes an arrest’ ” … and, under the circumstances noted above, we agree with the court that the sergeant’s use of handcuffs did not transform the detention into a de facto arrest. Rather, the sergeant’s use of the handcuffs to effect the detention was warranted in light of the threat that defendant might take additional evasive action … .
We further conclude that seating defendant on the back seat of the police vehicle did not transform the sergeant’s questioning into a custodial interrogation. The sergeant lawfully, although forcibly, detained defendant for investigatory purposes based on his observation of defendant committing several traffic infractions … . Given defendant’s visible intoxication, staggering gait, and prior evasive actions, a ” less intrusive means of fulfilling the police investigation’ ” than seating defendant partially in the police vehicle ” was not readily apparent’ ” … . Here, the sergeant’s “action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . In addition, the sergeant’s questions were investigatory rather than custodial in nature … . People v Mcdonald, 2019 NY Slip Op 04546, Fourth Dept 6-7-19
SUPPRESS SUPPRESSION
The Fourth Department annulled the determination allowing an easement to install a sewer line along a nature trail. The Fourth Department held that the Town Board did not take the required “hard look” (required by the State Environmental Quality Review Act [SEQRA]) at the effect of the sewer line on certain endangered and rare animal and plant species, as well as the effects on surface water:
… [T]he New York State Department of Environmental Conservation (DEC) made respondent aware that its database indicated the presence of certain endangered, threatened, or rare animal and plant species on the project site. Those species included the northern long-eared bat, the imperial moth, and the northern bog violet. In addition, the database indicated the presence of inland salt marsh. The DEC recommended that respondent conduct a survey of the professional literature and determine whether the project site contains habitats favorable to such species and, if so, that respondent conduct a field survey to determine whether the species are present. The DEC instructed that, if respondent determined that such species are present, modifications should be considered to minimize impact. There is no indication that respondent conducted such a survey. [With the exception of the Indiana bat. the species’] presence was merely noted…, along with the bare conclusion that there would be no significant impact on those species. …
[R]espondent merely set forth general practices for avoiding significant adverse impacts on surface water and stream corridors without providing a reasoned elaboration that, by implementing such practices in this particular project, respondent would successfully avoid any significant adverse impacts on surface water. Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, 2019 NY Slip Op 04621, Fourth Dept 6-7-19
The Fourth Department determined the blocking of the car in which defendant was a passenger by parking at the entrance to the driveway was only a permissible level two intrusion:
The charges against defendant arose after the police, who were investigating a recent stabbing, encountered defendant in a vehicle matching the description and anticipated location of the stabbing suspect’s vehicle given in a police dispatch.
We conclude that the police conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant’s arrest … . Contrary to defendant’s contention, the police action in pulling up behind the subject vehicle, which had parked in defendant’s driveway after passing the officers’ patrol car, constituted only a level two intrusion … despite the fact that a police vehicle blocked the subject vehicle’s egress from the driveway … . The police at that point had the requisite founded suspicion to justify the level two intrusion.
The police escalated the encounter to a level three intrusion when they approached defendant, who had begun to exit the vehicle, and ordered him to remain in the vehicle … . Evaluating the totality of the circumstances … , we conclude that the police conduct was justified by the officers’ reasonable suspicion that defendant was the suspect described in the dispatch … . The officers found defendant less than two miles away from the scene of the stabbing, which had occurred approximately 20 minutes earlier. Defendant’s gender, race, height, and weight matched the description of the stabbing suspect. Furthermore, witnesses at the scene of the stabbing informed the police that the suspect left the scene in a small silver vehicle driven by a black female and that the vehicle may have been headed toward a residence on Mark Avenue. Defendant was a passenger in a silver vehicle driven by a black female, and the driveway in which the driver parked the vehicle was 50 to 75 yards from Mark Avenue. People v Pettiford, 2019 NY Slip Op 04620, Fourth Dept 6-7-19
SUPPRESSION, SUPPRESS, DE BOUR
The Fourth Department, reversing Supreme Court, determined that defendant insurance agent did not owe a duty to decedent’s daughter, Tomaino, or the estate, with respect to the insurance on decedent’s home. Decedent was the only person named on the house insurance policy. Decedent died in 2010. Tomaino continued to pay the premium to defendant after her mother’s death. When the place was destroyed by fire in 2014 decedent was the only named insured. Allstate disclaimed coverage. Tomaino alleged defendant owed her and the estate a duty to notify the insurer of decedent’s death and to make sure additional insured were named in the policy. The Fourth Department that no such duty was owed, even if defendant was aware of the death of Tomaino’s mother.
Defendant met his initial burden of establishing as a matter of law that he owed no duty to plaintiff, Tomaino, or decedent’s estate inasmuch as he demonstrated that none was a client. Indeed, defendant’s submissions established that decedent, alone, was his client and that, after her death, no one represented the estate until September 2014, approximately eight months after the fire and four years after her death. …
,,, [E]ven assuming, arguendo, that Tomaino was a client of defendant, we conclude that defendant established his entitlement to summary judgment as a matter of law. Defendant established that he had no common-law duty to advise, guide, or direct her to obtain insurance coverage for additional insureds in light of decedent’s death … , and he further established that he did not ” assume or acquire duties in addition to those fixed at common law’ ” … . Here, defendant demonstrated that there were no payments made to him beyond the alleged premium payments, that there was no interaction with Tomaino regarding questions of coverage, and that no special relationship was formed between himself and Tomaino …. Indeed, defendant submitted the deposition testimony of Tomaino, in which she testified that there was no discussion with defendant about any need for changes to the policy and that she was not asked for a copy of any death certificate, thus establishing the absence of any interaction regarding questions of coverage. Additionally, even assuming, arguendo, that Tomaino was a client of defendant and that she informed him of decedent’s death and made premium payments to him in 2012 and 2013, we conclude that such events are insufficient to raise a triable issue of fact whether defendant owed a duty to her to notify Allstate of decedent’s death and to ensure that the property was properly insured … . Gatto v Allstate Indem. Co., 2019 NY Slip Op 04618, Fourth Dept 6-7-19
The Fourth Department determined defendant property owners’ motion for summary judgment in this wrongful death case was properly granted. Plaintiff’s decedent was 96 years old and resided in defendants’ senior citizen facility. Plaintiff’s decedent was found dead in a pond on the property. The medical examiner concluded plaintiff’s decedent may has slipped on the sloping bank of the pond and slid into the water where he died of drowning:
… [A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … .
Here, defendants met their initial burden on the motion by establishing that the pond, including its sloping bank, was an open and obvious condition inherent or incidental to the nature of the property and that it was known to decedent prior to the accident …. “A slippery condition on a [pond’s bank] is necessarily incidental to its nature and location near a body of water” … . …
… [T]he engineering expert’s affidavit that plaintiff submitted fails to indicate that it was based on any studies, regulations, codes, or statutes, “nor is the expert’s conclusion that the [retention pond] was defective and unsafe . . . supported by foundational facts, such as a deviation from industry standards or statistics showing the frequency of injuries caused by” the lack of safety measures proposed by the expert … . Preston v Castle Pointe, LLC, 2019 NY Slip Op 04617, Fourth Dept 6-7-19
The Fourth Department, reversing (modifying) Supreme Court, determined “reckless disregard” standard for the operation of a police car in an emergency situation applied to the facts, and further found that the officer’s conduct did not rise to the level of “reckless disregard:”
We agree with defendants that the court erred in determining that the defendant officer’s conduct was not measured by the “reckless disregard” standard of care under Vehicle and Traffic Law § 1104 (e) … . That standard of care “applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” … and, if applicable, the driver is “shielded from liability unless [he or she] is shown to have acted with reckless disregard’ of the safety of others” … . Here, there is no dispute that the defendant officer was operating an “authorized emergency vehicle” and was “involved in an emergency operation” at the time of the accident (§ 1104 [a]). Furthermore, defendants’ submissions in support of their motion established as a matter of law that the defendant officer was performing exempted conduct when he “proceed[ed] past a steady red signal . . . , but only after slowing down as may be necessary for safe operation” … . …
Here, the defendant officer’s uncontroverted testimony established that he was responding to a disturbance call that was “[p]riority 1,” i.e., the highest priority level, and that he took several precautions before proceeding into the intersection against the red light. Specifically, he slowed his vehicle to an almost complete stop, looked to his right and left, and then slowly proceeded into the intersection at a speed of about five miles per hour. When plaintiffs’ vehicle came into the defendant officer’s peripheral vision, he “slammed” his brake and attempted to avoid colliding with plaintiffs’ vehicle. Where, as here, a defendant officer takes precautionary measures before engaging in exempted conduct under Vehicle and Traffic Law § 1104 (b), the police officer does not act with reckless disregard for the safety of others … . Levere v City of Syracuse, 2019 NY Slip Op 04613, Fourth Dept 6-7-19
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