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DEFENDANT’S INSTRUCTING ANOTHER TO KILL HIS WIFE AND HER MOTHER DID NOT COME NEAR ENOUGH TO ACCOMPLISHING MURDER TO SUPPORT THE ATTEMPTED MURDER CONVICTIONS (FOURTH DEPT).

The Fourth Department, reversing the attempted murder convictions, determined the evidence did not demonstrate that the defendant came near enough to accomplishing murder to support the convictions. The defendant, who was in jail, gave detailed instructions to kill his wife and her mother to another inmate, who immediately informed jail authorities:

“Acts of preparation to commit an offense do not constitute an attempt . . . There must be a step in the direct movement towards the commission of the crime after preparations have been made . . . Likewise, acts of conspiring to commit a crime, or of soliciting another to commit a crime do not per se constitute an attempt to commit the contemplated crime” … . Consequently, the People must establish that defendant “engaged in conduct that came dangerously near commission of the completed crime” … . …

The evidence establishes only that defendant planned the crimes, discussed them with the inmate in the next cell and with that inmate’s girlfriend, and exchanged notes about them. Thus, inasmuch as ” several contingencies stood between the agreement in the [jail] and the contemplated [crimes],’ defendant[] did not come very near’ to accomplishment of the intended crime[s]” … . Where, as here, the evidence fails to establish that defendant took any action that brought the crime close to completion, no matter how slight … , the evidence is not legally sufficient to support a conviction of attempt to commit that crime … . People v Lendof-Gonzalez, 2019 NY Slip Op 01904, Fourth Dept 3-15-19

 

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NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant should have been adjudicated a level one, not a level two risk:

Although defendant was diagnosed with PTSD [post traumatic stress disorder] and may have sustained a TBI traumatic brain injury], the record is devoid of evidence that any such mental impairment “is causally related to a[ ] risk of reoffense” … . …

Nor is the continuing nature of the crime sufficient to support the upward departure because, even if additional points were assessed for risk factor 4, i.e., continuing course of sexual misconduct, defendant’s total risk factor score would not result in defendant’s classification as a presumptive level two risk … . Further, there is no basis for an upward departure where, as here, the alleged aggravating factor is adequately taken into account by the risk assessment guidelines … . Finally, although we conclude that defendant’s actions in taking the victim across state lines constitute an aggravating factor that is, “as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines” … , we further conclude that the court improvidently exercised its discretion in granting an upward departure based on that factor under the circumstances of this case. We therefore substitute our own discretion … . People v Logsdon, 2019 NY Slip Op 00998, Fourth Dept 2-8-19

 

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ORDER OF PROTECTION ISSUED IN THE CRIMINAL PROCEEDING PROHIBITING CONTACT BETWEEN FATHER AND DAUGHTER SHOULD BE SUBJECT TO ANY SUBSEQUENT CUSTODY OR VISITATION ORDERS BY FAMILY OR SUPREME COURT (FOURTH DEPT).

The Fourth Department determined the order of protection prohibiting contact between father and daughter should be subject to orders of Family or Supreme Court:

Here, the order of protection issued in this criminal proceeding bars all contact between defendant and his child, and cannot be modified by a subsequent visitation order of Family Court or Supreme Court unless it is first modified or vacated by the criminal court … . We agree with defendant that, under the circumstances of this case, the order of protection should be subject to any subsequent orders of custody and visitation, and we therefore modify the judgment by amending the order of protection in favor of defendant’s biological daughter so that contact will be allowed if ordered by Family or Supreme Court in a custody, visitation or child abuse or neglect proceeding … . People v Smart, 2019 NY Slip Op 01043, Fourth Dept 2-8-19

 

CHILD SUPPORT STANDARDS ACT (CSSA) WAS INCORRECTLY APPLIED TO INCOME ABOVE THE STATUTORY CAP (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the court did not correctly apply the Child Support Standards Act (CSSA):

… [T]he court erred in applying the Child Support Standards Act (CSSA) to the combined parental income in excess of the statutory cap … . It is well settled that “blind application of the statutory formula to [combined parental income] over [the statutory cap], without any express findings or record evidence of the [child’s] actual needs, constitutes an abdication of judicial responsibility and renders meaningless the statutory provision setting a cap on strict application of the formula”… . Here, in awarding child support on income above the statutory cap, the court considered only the father’s financial situation. “[T]he court made no factual findings that the child[ ] [had] financial needs that would not be met unless child support were ordered to be paid out of parental income in excess of [the statutory cap],” and we conclude that, “even if the court had made such a finding, there is no evidence in the record to support it” … . Therefore, in the exercise of our discretion, we fix the father’s basic child support obligation on the basis of the combined parental CSSA income up to the cap amount … . Benedict v Benedict, 2019 NY Slip Op 01042, Fourth Dept 2-8-19

 

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JUDGE SHOULD NOT HAVE GRANTED RELIEF WHICH WAS NOT REQUESTED IN THE MOTION PAPERS, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON SOME ISSUES IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined questions of fact precluded summary judgment on some issues in this slip and fall case. The decision addresses too many issues to fairly summarize here. The court noted that Supreme Court should not have granted relief (dismissal of cross-claims) not requested in the motion papers. Plaintiff slipped and fell on ice in a delivery area behind defendant Cafe in a plaza owned by defendant Pixley. There was some evidence the Cafe exercised control over at least part of the delivery area (snow removal):

… [W]e conclude that the court erred in granting that part of the Café’s motion for summary judgment dismissing the complaint against it insofar as the complaint alleges that the Café had constructive notice of the icy condition; the court also erred in denying that part of Pixley’s motion for summary judgment dismissing the complaint against it insofar as the complaint alleges that Pixley had actual notice of the icy condition. Johnson v Pixley Dev. Corp., 2019 NY Slip Op 01040, Fourth Dept 2-8-19

 

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THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE APPROXIMATE TIME AND PLACE OF THE OFFENSES, THIS IS A MODE OF PROCEEDINGS ERROR, PLEA TO THE SUPERIOR COURT INFORMATION VACATED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, reversing County Court, determined the waiver of indictment was jurisdictionally defective in that there was no indication of the time and date of the alleged offenses (rape). Although defendant had waived his right to appeal, the Fourth Department vacated his guilty plea:

… [T]he written waiver does not contain any data whatsoever regarding the “date and approximate time and place of each offense to be charged in the superior court information,” as explicitly required by CPL 195.20. Notwithstanding that defect, County Court determined that the written waiver “fully complie[d] with the provisions of Sections 195.10 and 195.20 of the Criminal Procedure Law” and approved it accordingly (see CPL 195.30 [requiring judicial approval of indictment waiver upon determination that it complies with CPL 195.10 and 195.20]).

The ensuing SCI [superior court information] charged defendant with two counts of second-degree rape under Penal Law § 130.30 (1). Count one alleged that defendant, “between approximately September 1, 2013 and September 9, 2013, in the City of Batavia, County of Genesee, State of New York, being eighteen years old or more, engaged in sexual intercourse with another person less than fifteen years old.” Count two alleged that defendant, “on a second occasion between approximately September 1, 2013 and September 9, 2013, in the City of Batavia, County of Genesee, State of New York, being eighteen years old or more, engaged in sexual intercourse with another person less than fifteen years old.” * * *

Because “an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court” … , the Court of Appeals has repeatedly stressed that the “[f]ailure to adhere to the statutory procedure for waiving indictment” is a “jurisdictional[ defect] affecting the organization of the court or the mode of proceedings prescribed by law’ ” … . People v Colon-colon, 2019 NY Slip Op 01039, Fourth Dept 2-8-19

 

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COUNTERCLAIM ALLEGING PLAINTIFFS’ BREACH OF A HOME IMPROVEMENT CONTRACT WAS NOT VIABLE BECAUSE DEFENDANT CONTRACTORS DID NOT COMPLY WITH THE MECHANIC’S LIEN NOTICE REQUIREMENT OF GENERAL BUSINESS LAW 771, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THEIR LIEN LAW CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants-contractors’ breach of contract counterclaim should have been dismissed because defendants did not provide the mechanic’s lien notice required by General Business Law 771 and summary judgment on plaintiffs’ Lien Law cause of action should have been granted. The action concerned home improvement work done by defendants. The notice failure did not preclude defendants’ recovery pursuant to quantum meruit:

… [P]laintiffs established that the contract at issue failed to comply with General Business Law § 771 inasmuch as it did not “contain the following notice to the owner in clear and conspicuous bold face type: Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic’s lien’ ” … [The] failure “to enter into a signed written home improvement contract in conformity with General Business Law § 771 bars recovery based upon breach of contract” … . …

Plaintiffs met their initial burden [on their Line Law cause of action] … by establishing that … defendants possessed trust funds within the meaning of the Lien Law and failed to keep the records required by that statute. Lien Law § 75 (4) provides that the “[f]ailure of the trustee to keep the books or records required by th[at] section shall be presumptive evidence that the trustee has applied or consented to the application of trust funds actually received by him [or her] . . . for purposes other than a purpose of the trust as specified in section seventy-one of this chapter”  The evidence submitted by … defendants in opposition to the motion … supported the conclusion that they neglected to comply with the … .requirements of Lien Law § 75 … . Weiss v Zellar Homes, Ltd., 2019 NY Slip Op 01024, Fourth Dept 2-8-19

 

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DEFENDANT WAS ENTITLED TO A JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT CASE, EVEN THOUGH THE DEFENDANT DENIED ASSAULTING THE VICTIM AT TRIAL (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a new trial on the assault count because the jury was not instructed on the justification defense. The court noted that the instruction was required even though the defendant denied the assault:

Here, defendant testified at trial that the altercation was an unprovoked attack by a number of correction officers in retaliation for earlier grievances he had lodged against prison staff. Defendant testified that he felt “trapped” by the attack and started biting another correction officer in self-defense. Correction officers who witnessed the altercation testified that the two officers involved in the altercation were engaged in a prolonged “struggle” with defendant, during which the three men “wrestl[ed] pretty hard.” Although defendant denied causing the injuries of the subject correction officer, that officer testified that defendant did cause his injuries.

Contrary to the People’s contention, defendant was entitled to a justification charge, even though at trial he denied assaulting the subject correction officer, and argued that the People failed to prove that he possessed the pen used to injure the subject correction officer. “[A] defendant’s entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant’s outright denial that he was involved in the crime” … . Rather, “[a] jury may believe portions of both the defense and prosecution evidence . . . and still find . . . that defendant acted justifiably” … . People v Brown, 2019 NY Slip Op 01023, Fourth Dept 2-8-19

 

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PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AND THE POWER PLANT BECAME OPERATIONAL AT THE OUTSET OF THE MOTION PRACTICE SEEKING TO VACATE CERTAIN PERMITS WHICH ALLOWED THE PLANT TO RESUME OPERATIONS, THE APPEAL WAS DEEMED MOOT AND THE PETITION WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined that Sierra Club’s petition seeking to vacate permits issued to allow respondents to operate a natural gas and biomass power plant, which was formerly coal-powered, was properly dismissed as moot. Petitioner’s did not seek a temporary restraining order or other measures to preserve the status quo. The plant became operational while the motion seeking temporary injunctive relief was pending:

We agree with respondents that the appeal should be dismissed as moot … . Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from ” rendering a decision that would effectively determine an actual controversy’ ” … . In addition to the progress of the construction, other factors relevant to evaluating claims of mootness are whether the party challenging the construction sought injunctive relief, whether the “work was undertaken without authority or in bad faith” …, and whether “substantially completed work” can be undone without undue hardship… . The primary factor in the mootness analysis is “a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Generally, a petitioner seeking to halt a construction project must “move for injunctive relief at each stage of the proceeding” … .

The plant has been operating lawfully since March 2017. The failure to preserve the status quo is entirely the fault of petitioners, who waited until the last possible day to commence this proceeding, failed to request a TRO, failed to pursue an injunction with any urgency, waited until the last possible day to take an appeal, spent nine months perfecting the appeal, and failed to seek injunctive relief from this Court until approximately one year after the entry of the judgment, in a transparent attempt to avoid dismissal of this appeal. Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 01022, Fourth Dept 2-8-19

 

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ALLEGATIONS OF COMPENSABLE DAMAGES INSUFFICIENT, MOTION TO DISMISS FRAUD COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to dismiss fraud causes of action should have been granted because the allegation of compensable damages was deficient. “Plaintiff, a debt buying company, commenced this action alleging … [defendants] fraudulently induced it to purchase additional debt portfolios pursuant to its agreements with a third party by misrepresenting the terms of the financing arrangement secured by defendants to facilitate the purchase of such portfolios;”

“To allege a cause of action based on fraud, plaintiff must assert a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury’ ” … . ” The true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the out-of-pocket’ rule” … . “Under this rule, the loss is computed by ascertaining the difference between the value of the bargain which . . . plaintiff was induced by fraud to make and the amount or value of the consideration exacted as the price of the bargain’ ” … .

Here, we conclude that, even as supplemented by the affidavit of plaintiff’s president … , “plaintiff’s pleading is fatally deficient because [it] did not assert compensable damages resulting from defendants’ alleged fraud” … . With respect to the purchase of the subject portfolios, plaintiff received an interest therein worth more than the amount of its alleged investment … . Further, contrary to plaintiff’s contention, the allegation that it lost the enhanced collections on the portfolios that defendants purportedly told it that it could receive under the terms of the financing arrangement is a “quintessential lost opportunity, which is not a recoverable out-of-pocket loss”… . “Damages are to be calculated to compensate plaintiff[] for what [was] lost because of the fraud, not to compensate . . . for what . . . might have [been] gained . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud” … . Southwestern Invs. Group, LLC v JH Portfolio Debt Equities, LLC, 2019 NY Slip Op 01035, Fourth Dept 2-8-19

 

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