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THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined there was legally insufficient evidence that the defendant shared the co-defendant’s intent to kill, and the verdict was against the weight of the evidence. The co-defendant walked up to the defendant on the street and shot him. The defendant was present at the scene and picked the co-defendant up and drove away after the shooting. The defendant was convicted under an accomplice or accessorial liability theory:

A “defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … . Indeed, evidence that a defendant was at the crime scene and even assisted the perpetrator in removing evidence of that crime is insufficient to support a defendant’s conviction where the People fail to offer evidence from which the jury could rationally exclude the possibility that the defendant was without knowledge of the perpetrator’s intent … . “An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose”… . We have no difficulty concluding that there is a valid line of reasoning and permissible inferences by which the jury could have found that defendant intentionally aided the codefendant after the murder, but we cannot conclude that there is legally sufficient evidence to support the inference that defendant shared the codefendant’s intent to kill the victim … . The People offered no motive for the crime … , and the evidence indicating that defendant was staring at the victim 40 minutes before the shooting and that defendant may have dropped off the codefendant at the bar prior to the shooting was plainly insufficient to establish that defendant was aware of and shared the codefendant’s intent to kill the victim … . * * *

Even assuming, arguendo, that the evidence is legally sufficient, viewing the evidence in light of the elements of the crime as charged to the jury … , we further conclude that the verdict is against the weight of the evidence … . A review of the weight of the evidence requires us to first determine whether an acquittal would not have been unreasonable … . If so, we must ” weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . We conclude that an acquittal would not have been unreasonable in this case and, based on the weight of the evidence, we further conclude that the jury was not justified in finding defendant guilty beyond a reasonable doubt. People v Mcdonald, 2019 NY Slip Op 03494, Fourth Dept 5-3-19

 

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LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF BITTEN BY TENANT’S DOG (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the landlord’s motion for summary judgment in this dog-bite case should have been granted. The landlord was aware the tenant had a dog, and could have required the removal of the dog, but was not aware whether the dog had vicious propensities. The court noted that theories of common-law negligence are not applicable:

It is well established that ” [t]o recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises[,] (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog’ ” … . Here, it is undisputed that defendant was aware that a dog was kept on the premises by his tenants and that he could have required them to remove or confine the dog. Nevertheless, defendant met his initial burden on the motion by establishing as a matter of law that he lacked actual or constructive knowledge that his tenants’ dog had any vicious propensities … .

Furthermore, to the extent that plaintiff’s complaint includes a negligence cause of action, we conclude that the court erred in failing to dismiss that cause of action inasmuch as “[c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” … . Toher v Duchnycz, 2019 NY Slip Op 03487, Fourth Dept 5-3-19

 

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PLAINTIFF, WHO FELL THROUGH A HOLE IN A HOUSE UNDER CONSTRUCTION, WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR 240 (1) OR 241 (6), PLAINTIFF WAS MEASURING WINDOWS FOR FUTURE INSTALLATION OF WINDOW TREATMENTS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that plaintiff, who fell through a hole in a house under construction, was not engaged in an activity covered by Labor Law 240 (1) or 241 (6) when he fell. Plaintiff was measuring windows for future installation of window treatments, which is not construction work. There were questions of fact on the negligence and wrongful death causes of action however:

… [T]he work of measuring windows for the future installation of window treatments is not a protected activity under Labor Law § 240 (1). The work did not involve a “significant physical change to the configuration or composition of the building or structure” … , was not “performed in the context of the larger construction project” … , and was not “necessary and incidental to the construction of the home” … . …

The work being performed by decedent was not protected work under Labor Law § 241 (6) inasmuch as decedent ” was not involved with [any] construction’ “… , and the window treatment work was separate and “distinct from the construction work” … . Acox v Jeff Petroski & Sons, Inc., 2019 NY Slip Op 03480, Fourth Dept 5-3-19

 

ALTHOUGH BEING STRUCK BY A MISHIT BALL IS AN INHERENT RISK IN A GOLF GAME WHICH IS SUBJECT TO THE ASSUMPTION OF THE RISK DOCTRINE, THERE WAS EVIDENCE DEFENDANT DELIBERATELY HIT THE BALL IN A MANNER THAT UNREASONABLY INCREASED THE RISK OF STRIKING PLAINTIFF (FOURTH DEPT).

The Fourth Department determined defendant golfer’s motion for summary judgment was properly denied. There was evidence defendant teed off when plaintiff was within the range of defendant’s normal drives. Plaintiff was struck in the head by the ball. This was not a case of a mishit ball which would trigger the assumption of the risk doctrine:

… “[A]lthough the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game” … . Thus, while a golfer owes a duty to use due care in striking a golf ball … , “the mere fact that a golf ball did not travel in the intended direction does not establish a viable negligence claim” … . “To provide an actionable theory of liability, a person injured by a mishit golf ball must affirmatively show that the golfer failed to exercise due care by adducing proof, for example, that the golfer aimed so inaccurately as to unreasonably increase the risk of harm’ ” … . …

 … [D]efendant’s submissions raise an issue of fact whether he unreasonably increased the risk of striking plaintiff with his golf ball by teeing off when plaintiff, who was visible in the fairway on the same hole, was still positioned well within the typical range of defendant’s drive … . Krych v Bredenberg, 2019 NY Slip Op 03479, Fourth Dept 5-3-19

 

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POLICE EFFECTIVELY SEIZED DEFENDANT BY BLOCKING DEFENDANT’S VEHICLE WITH TWO POLICE CARS, BECAUSE THE SEIZURE TOOK PLACE IN THE ABSENCE OF REASONABLE SUSPICION A PARTICULAR PERSON WAS INVOLVED IN A CRIME THE TANGIBLE EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and suppressing the tangible evidence, determined the police effectively seized defendant by blocking in defendant’s vehicle with two police cars without sufficient cause:

The conviction arises from a police encounter during which an officer approached the parked vehicle in which defendant was a passenger and observed that defendant was in possession of a handgun. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure of the vehicle, and thus Supreme Court erred in refusing to suppress both the tangible property seized, i.e., the weapon, and statements defendant made to the police at the time of his arrest. Here, police officers effectively seized the vehicle in which defendant was riding when their two patrol cars entered the parking lot in such a manner as to prevent the vehicle from being driven away … . The police had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted them to approach the vehicle and make a common-law inquiry of its occupants. They did not, however, have “reasonable suspicion that [a] particular individual was involved in a felony or misdemeanor” to justify the seizure that occurred here …, and thus the weapon and defendant’s statements should have been suppressed. People v Suttles, 2019 NY Slip Op 03158, Fourth Dept 4-26-19

 

THE ATTORNEY GENERAL DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT IN THIS CRIMINAL CASE BECAUSE NO REQUEST WAS MADE BY THE SUPERINTENDENT OF THE STATE POLICE (FOURTH DEPT).

The Fourth Department reversed defendant’s weapons possession and sale convictions because the state Attorney General did not have the authority to prosecute the case. The Attorney General’s authority to prosecute a criminal case is triggered when a request is made by the head of an appropriate agency, here the Superintendent of the State Police. No such request was in the stipulated record on appeal:

It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute … . As relevant here, Executive Law § 63 (3) grants the Attorney General prosecutorial authority “[u]pon request of . . . the head of any . . . department, authority, division, or agency of the state” (emphasis added). Although the People assert that the Attorney General had authority to prosecute this matter under section 63 (3) based on a request made by the State Police, such a request would confer that authority only if made by the head of the division, i.e., the Superintendent of State Police … . Moreover, “the State bears the burden of showing that the [division or] agency head has asked for the prosecutorial participation of the Attorney General’s office” … . People v Wassell, 2019 NY Slip Op 03187, Fourth Dept 4-26-19

 

COUNTY COURT COULD NOT LEGALLY FULFILL THE SENTENCING PROMISE THAT INDUCED DEFENDANT’S GUILTY PLEA, PLEA VACATED AND THE MATTER REMITTED FOR THE IMPOSITION OF A SENTENCE WHICH COMPORTS WITH DEFENDANT’S EXPECTATIONS (FOURTH DEPT).

The Fourth Department determined defendant’s guilty plea was induced by a sentencing promise County Court could not fulfill. The plea was vacated and the matter was remitted for imposition of a sentence that comports with defendant’s expectations:

Penal Law § 70.30 (3) provides that “the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence.” Penal Law § 70.30 (3) further provides that “[i]n the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court . . . , the credit shall also be applied against the minimum period.” That credit, however, “shall not include any time that is credited against the term . . . of any previously imposed sentence . . . to which the person is subject” … . Thus, “a person is prohibited from receiving jail time credit against a subsequent sentence when such credit has already been applied to time served on a previous sentence’ ” … . Inasmuch as defendant was serving a sentence on a prior conviction throughout the instant proceedings, the court could not legally fulfill its promise to credit defendant’s jail time against his sentence in this matter.

It is well established that “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . “Where, as here, the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations” … . People v Mccullen, 2019 NY Slip Op 03180, Fourth Dept 4-26-19

 

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FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, because there will be a new trial, the Fourth Department indicated the court erred in finding defendant’s cell phone was lawfully seized from defendant’s vehicle incident to arrest to protect evidence in defendant’s grabbable area from destruction or concealment. The Fourth Department noted it could not consider the People’s argument the cell phone was lawfully seized pursuant to the automobile exception to the warrant requirement because Supreme Court didn’t rule on that issue. The Fourth Department directed Supreme Court to make a ruling. The Fourth Department further directed Supreme Court to rule on whether an unavailable witness’s hearsay statement should be admitted pursuant to defendant’s rights to put on a defense and due process. Defendant had raised that issue but Supreme Court did not rule on it. With respect to the for cause juror challenges, the court wrote:

“It is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial’ “… . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or talismanic’ words . . . , [a prospective] juror[] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [him or her] from reaching an impartial verdict” … . People v Clark, 2019 NY Slip Op 03231, Fourth Dept 4-26-19

 

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ALTHOUGH THE PRIVATE CITIZEN WAS ACTING AS AN AGENT FOR THE POLICE WHEN SHE RECORDED DEFENDANT’S ADMISSION TO MURDER, DEFENDANT WAS NOT ENTITLED TO A 710.30 NOTICE BECAUSE THE STATEMENT WAS VOLUNTARILY MADE AND NOT SUBJECT TO SUPPRESSION, TWO -JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the failure to provide a CPL 710.30 notice of a statement made by defendant to a private citizen was a mere irregularity, not reversible error, because the statement was not involuntarily made, and therefore was not subject to suppression. The two dissenters argued that it was possible the defendant was induced to make the statement by the promise of sexual relations with the private citizen. Because there was a colorable basis for suppression, the dissenters argued, the defendant was entitled to notice and a hearing. In the recorded statement the defendant admitted to committing murder and explained the details. The decision is extensive and addresses several other substantive issues: (1) Defendant was not entitled to Miranda warnings because he was not subjected to custodial interrogation in that he was incarcerated on another matter when he was questioned and no added constraints were imposed; (2) The prosecutor provided race-neutral explanations for challenges to jurors—one juror’s father and brother had criminal convictions—another juror acknowledged reading books by a writer with anti-police and anti-establishment views; (3) The testimony by a medical examiner who did not conduct the autopsy did not violate defendant’s right of confrontation; and (4) The defendant’s request for an accomplice jury instruction was properly denied because there was no question whether the witness participated in the offense. With respect to the statement recorded by a private citizen for which no 710.30 notice was provided, the court wrote:

… [W]e agree with our dissenting colleagues that the citizen in this case was acting as a police agent at the time she recorded the statements inasmuch as she was acting “at the instigation of the police . . . to further a police objective” … .

We respectfully disagree with our dissenting colleagues, however, on the issue whether the failure to provide the CPL 710.30 notice warrants preclusion of those statements. We conclude that it does not. Where, as here, there is “no colorable basis for suppression of the statement, the failure to give notice [constitutes] a mere irregularity not warranting preclusion” … . In our view, there is no colorable basis for suppression of defendant’s statements to the private citizen. There is no dispute that defendant voluntarily went to the citizen’s home and that he was interested in pursuing a romantic relationship with her. During the entire conversation, wherein defendant admitted committing the homicide, the private citizen made no explicit or implicit promises that she would engage in sexual relations with defendant. Rather, it was defendant who offered to tell her anything she wanted to know after she expressed that she was afraid of him, and then provided her with all of the details concerning the homicide. We thus conclude that the private citizen did not make any statement or engage in any conduct that “create[d] a substantial risk that . . . defendant might falsely incriminate himself”… . ​People v Albert, 2019 NY Slip Op 03227, Fourth Dept 4-26-19

 

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DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT).

The Fourth Department, in an extensive, fact-specific decision, over a dissent, affirmed defendant’s predatory sexual assault against a child and rape first degree convictions. The child was four when the alleged incident occurred and 11 at the time of the third trial. There was a hung jury in the first trial and the conviction after the second trial was reversed based upon the judge’s handling of a jury note. The principal physical evidence was sperm found on the child’s underwear. No semen was found on the underwear or on the child. There was no injury to the child’s genitals. The defense theory was that the sperm was transferred to the child’s underwear during a wash. The People’s expert testified such a transfer was possible. The appeal came down to a weight of the evidence analysis. The dissent argued the proof did not rise to the level of beyond a reasonable doubt, noting the absence of semen, the lack of injury, the victim’s poor memory and implausible description of the rape, the victim’s affirmative response to the prosecutor’s mistaken question about a second rape (the prosecutor mistakenly thought the two counts of rape in the indictment alleged two separate incidents), and the fact that defendant had no criminal record and no other allegation of inappropriate sexual conduct had ever been made against him. People v Garrow, 2019 NY Slip Op 03238, Fourth Dept 4-26-19

 

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