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THE PEOPLE DID NOT PRESENT EXTRINSIC EVIDENCE AT THE DARDEN HEARING THAT THE INFORMANT EXISTED, THEREFORE THE SUPPRESSION MOTION WAS GRANTED AND THE INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department determined the evidence submitted by the People at the Darden hearing did not establish the existence of an informant with extrinsic evidence. Therefore the motion to suppress was granted and the indictment dismissed. The People presented only a death certificate purporting to demonstrate the informant was dead. No extrinsic evidence of the existence of the informant was presented:

The People must produce a confidential informant for an ex parte hearing upon defendant’s request where, as here, they rely on the statements of the confidential informant to establish probable cause (… People v Darden, 34 NY2d 177, 181 [1974] … ). …

There are, however, exceptions to the requirement that the People produce a confidential informant for a Darden hearing. If the People succeed in making a threshold showing that the informant “is unavailable and cannot be produced through the exercise of due diligence” … , they are permitted instead to establish the existence of the informant by extrinsic evidence … .

Even assuming, arguendo, that the People succeeded here in making such a threshold showing, we conclude that they nevertheless failed to establish the existence of the informant by extrinsic evidence … . The evidence establishes only that a deposition was executed in the name of the alleged confidential informant, that the police obtained a search warrant using the deposition, and that a death certificate was later issued for a person having the same name as the confidential informant. There is no evidence that the alleged informant actually made the statements attributed to her … . The People could have met their burden by offering the testimony of a police witness, which is evidence that is explicitly contemplated in Darden. Yet, they did not. Without it, there is nothing to refute the possibility that the police fabricated the statements in the informant’s purported deposition in order to conceal the fact that information critical to the probable cause inquiry was instead obtained through illegal police action. People v Givans, 2019 NY Slip Op 02220, Fourth Dept 3-22-19

 

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HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on that aspect of his motion to vacate the judgment of conviction on ineffective assistance of counsel grounds. Defendant alleged defense counsel told the jury that defendant would testify without first consulting with defendant:

We … conclude … that defendant is entitled to a hearing with respect to whether counsel was ineffective in telling the jury that defendant would testify at trial. In support of his motion, defendant submitted his own affidavit stating that his trial counsel never discussed with him whether testifying would be a good or bad idea, and that he never told counsel that he would testify at trial, and that trial counsel nevertheless told the jury that defendant would testify. Defendant’s account is supported by the affirmation of defendant’s appellate counsel, who stated that trial counsel admitted that defendant did not tell him before trial that he would testify. Thus, defendant’s allegations are potentially supported by other evidence, and “it cannot be said that there is no reasonable possibility that [they are] true” … . We therefore conclude that a hearing is required to afford defendant an opportunity to prove that trial counsel did not discuss with him whether he would testify before informing the jury that defendant would do so, and that there was no strategic or tactical explanation for telling the jury that defendant would testify … . People v Pendergraph, 2019 NY Slip Op 02212, Fourth Dept 3-22-19

 

TRAFFIC STOP WAS SUPPORTED BY REASONABLE SUSPICION DESPITE THE DMV COMPUTER IMPOUNDMENT RECORD’S CAUTIONARY STATEMENT THAT THE VEHICLE SHOULD NOT BE CONSIDERED STOLEN (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the traffic stop was supported by reasonable suspicion even though the DMV impoundment record indicated the vehicle was not stolen:

Here, a New York State Trooper properly stopped the vehicle defendant was driving based on his check of Department of Motor Vehicles (DMV) computer records for the vehicle’s license plate number, which revealed that the car had been impounded and thus should have been located in an impound lot … . …

Our dissenting colleagues conclude that the Trooper did not have reasonable suspicion to stop defendant’s vehicle because the Trooper disregarded cautionary language in the DMV impoundment record stating that it “should not be treated as a stolen vehicle hit[, and] [n]o further action should be taken based solely upon this impounded response.” We conclude, however, that the Trooper’s testimony that the cautionary language was “generic,” inasmuch as it even “comes up with stolen vehicles,” and that, based on his experience, he interpreted the impoundment record as requiring him to conduct a further investigation because the vehicle “should not be out on the road,” establishes that the stop was not unreasonable. Rather, we conclude that the impoundment record, coupled with the Trooper’s explanation of its import, provided reasonable suspicion to stop the vehicle. In disregarding the Trooper’s explanation that the cautionary language was “generic,” the dissent would obligate us to find unreasonable any stops where that same message appears, irrespective of the facts surrounding the stop. We reject such a categorical determination. People v Hinshaw, 2019 NY Slip Op 02252, Fourth Dept 3-22-19

 

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PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT).

The Fourth Department determined the period of postrelease supervision was not authorized for the indeterminate sentence imposed on the tampering with physical evidence conviction:

Supreme Court imposed a period of postrelease supervision in connection with defendant’s conviction of tampering with physical evidence. That was error inasmuch as a period of postrelease supervision is not authorized in connection with an indeterminate sentence (see Penal Law § 70.45 [1] … ). Although the issue is not raised by either party, we cannot allow an illegal sentence to stand … . We therefore modify the judgment by vacating that period of postrelease supervision … . People v Harvey, 2019 NY Slip Op 02250, Fourth Dept 3-22-19

 

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SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT).

The Fourth Department, over a two-justice concurrence, determined that defendant juvenile offender waived his right to appeal but found that the surcharge, DNA databank fee and crime victim assistance fee should not have been imposed on a juvenile offender. The concurrence argued that the waiver of appeal precluded the challenge to the imposed fees, but the People waived defendant’s appeal-waiver on that narrow issue:

As defendant contends and the People correctly concede, we conclude that the surcharge, DNA databank fee, and crime victim assistance fee imposed by County Court must be vacated because defendant is a juvenile offender … . People v Works, 2019 NY Slip Op 02247, Fourth Dept 3-22-19

 

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DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ decedent’s pharmacy records were not protected by physician-patient privilege and must be disclosed to plaintiff, subject to certain limitations and an in camera review. Plaintiff was injured when her bicycle collided with a vehicle driven by decedent:

We agree with plaintiffs, however, that decedent’s pharmacy records are not protected by the physician-patient privilege (see CPLR 4504 [a] … ) and are “material and necessary” to the prosecution of the action (CPLR 3101 [a] …). Nevertheless, we conclude that plaintiffs’ request for records “before and after” the collision was overly broad, and we therefore limit disclosure of the pharmacy records to the six-month period immediately preceding the collision. Furthermore, those records “should not be released to [plaintiffs] until the court has conducted an in camera review thereof, so that irrelevant information is redacted”… . … [D]efendants are directed to submit to the court, for the six-month period  immediately preceding the accident, pharmacy records identifying the medications prescribed to decedent and the prescribed dosages of those medications, and we remit the matter to Supreme Court for an in camera review of those records. Carr-Hoagland v Patterson, 2019 NY Slip Op 02000, Fourth Dept 3-15-19

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS FARM EQUIPMENT PRODUCTS LIABILITY ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants’ motion for summary judgment in this products liability action should have been granted. Plaintiff “was working inside of a piece of farm equipment known as a grain cart, she lost her footing and her right leg became caught in a rotating auger.” A steel safety guard covering the auger had apparently been removed:

… [T]he Killbros defendants submitted the affidavit of an expert, which was incorporated by reference into Bentley’s moving papers, who opined that plaintiff’s injuries would not have occurred if the steel safety guard had not been removed. …

Defendants established their entitlement to summary judgment dismissing the strict products liability causes of action insofar as they are predicated on a design defect theory by submitting evidence that the product was reasonably safe … . The Killbros defendants’ expert averred that the steel safety guard was manufactured in accordance with industry standards, was designed to last the life of the product, and was “state of the art” inasmuch as it was permanently welded to the interior of the grain cart and could not be removed except by using an acetylene torch or other such heavy-duty tool … . …

… [T]he Killbros defendants are entitled to summary judgment dismissing the cause of action against them alleging negligent design and manufacture. “[I]nasmuch as there is almost no difference between a prima facie case in negligence and one in strict liability,” we conclude that plaintiffs similarly failed to raise an issue of fact with respect to their cause of action for negligent design and manufacture … . Beechler v Kill Bros. Co., 2019 NY Slip Op 01993, Fourth Dept 3-15-19

 

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CAUSE OF THE SLIP AND FALL WAS NOT BASED UPON PURE SPECULATION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. The cause of the fall was not based upon pure speculation. Plaintiff fell stepping out of a bath tub at a hotel:

… [D]efendants submitted plaintiff’s deposition testimony, which, when viewed in the light most favorable to plaintiff and giving her the benefit of every reasonable inference … , establishes that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries. In addition, defendants failed to establish in support of their motion the absence of a dangerous or defective condition, and thus they were not entitled to summary judgment dismissing the complaint on that ground either … . We agree with defendants, however, that the court properly granted their motion to the extent that plaintiff alleged that they were negligent in failing to warn of dangerous and defective conditions. Defendants met their initial burden of establishing that any dangerous or defective condition was open and obvious, and plaintiff failed to raise a triable issue of fact … . DelRosario v Liverpool Lodging, LLC, 2019 NY Slip Op 01986, Fourth Dept 3-15-19

 

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PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT).

The Fourth Department determined petitioner did not have standing to seek a State Environmental Quality Review Act (SEQRA) review of one-day squirrel hunting event put on by a volunteer fire department:

Prior to 2017, the one-day hunting contests at issue had been held annually by respondent as fundraisers, with prizes having been awarded based on the weight of squirrels turned in at the end of each contest. Petitioner resides approximately 50 miles from the area where respondent has held the hunting contests. She alleges an environmental injury-in-fact based on her fondness for squirrels, the impact that the hunting contests may have on the “local ecology,” and the possibility that the contests may result in the killing of squirrels that she sees near her residence. Petitioner contends that she therefore has standing to bring this proceeding/action. We reject that contention.

Standing is “a threshold requirement for a [party] seeking to challenge governmental action” … . The burden of establishing standing to challenge an action pursuant to SEQRA is “on the party seeking review” … . “The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action” … . In addition, to establish standing under SEQRA, a petitioner must establish, inter alia, “an environmental injury that is in some way different from that of the public at large”… .

Here, we conclude that petitioner has not met her burden of establishing an environmental [*2]injury-in-fact. Although petitioner may have alleged some environmental harm, she has alleged, at most, an injury that is “no different in either kind or degree from that suffered by the general public” . Petitioner also has not established that the hunting activities at issue have affected the wildlife where she resides, nor has she established that she has used, or even visited, the area where the hunting contests have been conducted … . Matter of Sheive v Holley Volunteer Fire Co., Inc., 2019 NY Slip Op 01982

 

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SENTENCING COURT DID NOT MAKE THE APPROPRIATE FINDINGS FOR THE IMPOSITION OF ELECTRONIC MONITORING, MATTER SENT BACK, BECAUSE THE LEGALITY OF THE SENTENCE IS IMPLICATED THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department determined Supreme Court did not make the appropriate findings in support of imposing electronic monitoring as a condition probation. The matter was sent back. The court noted that the issue involves the legality of the sentence and therefore need not be preserved for appeal:

A sentencing court imposing probation may require the defendant, pursuant to the statute, to submit to electronic monitoring (see § 65.10 [4]). “Such condition may be imposed only where the court, in its discretion, determines that requiring the defendant to comply with such condition will advance public safety, probationer control or probationer surveillance” (id.). Here, the court failed to make such a determination. To the contrary, it is evident from our review of the sentencing minutes that the court did not consider defendant or his actions to pose a threat to public safety. There may, however, be a legitimate purpose for the electronic monitoring based on probationer control or probationer surveillance. Therefore, we modify the judgment by striking the condition of probation requiring that defendant submit to surveillance via electronic monitoring and pay the fees associated therewith, and we remit the matter to Supreme Court to make a discretionary determination whether to impose electronic monitoring based on appropriate findings. People v Fitch, 2019 NY Slip Op 01973, Fourth Dept 3-15-19

 

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