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THE PORTION OF THE CORRECTION LAW WHICH REQUIRED DEFENDANT BE DESIGNATED A “SEXUALLY VIOLENT OFFENDER,” BASED UPON AN OHIO TELEPHONE-SOLICITATION OFFENSE WHICH DID NOT INVOLVE VIOLENCE, IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a dissent, determined the portion of “Correction Law § 168-a (3) (b), which defines a ‘sexually violent offense’ as a ‘conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred'” is unconstitutional as applied to defendant. Defendant pled guilty to an Ohio offense which prohibits “soliciting” a person 13 to 15 years old by telephone. Violence is not an element of the Ohio offense:

… [W]e conclude that defendant established that he is an “individual[ ] . . . for whom the [sexually violent] offender designation ‘is unmerited’ ” … because the out-of-state conviction was “not sexual[ly violent] in nature and his conduct provides no basis to predict risk of future sexual[ly violent] harm” … . * * *

… [W]e conclude that, as applied to him, the designation of defendant as a sexually violent offender pursuant to the second disjunctive clause of Correction Law § 168-a (3) (b) “unconstitutionally impacts defendant’s liberty interest in a criminal designation that rationally fits his conduct and public safety risk” … . People v Brightman, 2024 NY Slip Op 04654, Fourth Dept 9-27-24

Practice Point: Here the Correction Law required that defendant be designated a “sexually violent offender” based on an Ohio conviction for telephone solicitation of a person between 13 and 15 which did not involve violence. That portion of the Correction Law was deemed unconstitutional as applied to the defendant.

 

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DEFENDANT PLED GUILTY TO THE SEXUAL ABUSE OF HIS GIRLFRIEND’S DAUGHTER; THE GIRLFRIEND ALLEGED SHE WAS UNABLE TO WORK BECAUSE OF THE RESULTING STRESS AND SOUGHT RESTITUTION FOR UNPAID RENT AND HOUSEHOLD EXPENSES; THE CLAIM FOR LOST WAGES WAS NOT DIRECTLY CAUSED BY DEFENDANT’S OFFENSES (FOURTH DEPT).

The Fourth Department modified the judgment by eliminating the restitution aspect of the sentence. The ordered restitution was not directly caused by defendant’s offenses. Defendant pled guilty to sexual abuse of his girlfriend’s daughter:

The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend’s statements, defendant’s offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel’s objection that the claimed expenses were not directly caused by defendant’s offenses, imposed the requested restitution. That was error.

“Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to ‘make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby’ ” … . Restitution and reparation may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Conversely, the statute “does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant’s crime” … .

Here, we conclude that the claimed expenses do not constitute “actual out-of-pocket loss caused” by defendant’s offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend’s unpaid rent and utility bill are costs “not directly caused by . . . defendant’s crime[s]” … . Contrary to the People’s assertion, the girlfriend’s request did not constitute a claim for lost wages directly caused by defendant’s offenses … . People v Figueroa, 2024 NY Slip Op 04691, Fourth Dept 9-27-24

Practice Point: Restitution applies only to expenses or losses “directly caused by defendant’s offenses.” Here defendant pled guilty to sexual abuse of his girlfriend’s daughter. The girlfriend alleged she could not work because of the resulting stress and was unable to pay her rent. That loss was not “directly caused by defendant’s offenses” and, therefore, restitution was not available for the girlfriend’s lost wages.

 

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THE SENTENCING JUDGE MUST “PRONOUNCE SENTENCE ON EACH COUNT;” MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department affirmed defendant’s conviction but noted that the judge should have “pronounced sentence on each count” and remitted the matter for resentencing:

… [T]he court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20 …).  Although the uniform sentence and commitment form states that defendant was sentenced on each count to concurrent terms of incarceration of five years with three years of postrelease supervision, the court in fact did not “impose a sentence for each count of which defendant was convicted” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.  People v Gause, 2024 NY Slip Op 04686, Fourth Dept 9-27-24

Practice Point: Sentence must be “pronounced on each count.”

 

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IN THIS SLIP AND FALL CASE, THERE IS A QUESTION OF FACT WHETHER THE MUNICIPALITY OWED A DUTY TO PLAINTIFF BASED UPON THE MUNICIPALITY’S LAUNCHING AN INSTRUMENT OF HARM; IT WAS ALLEGED THAT SALT APPLIED TO MELT ICE CREATED A POOL OF WATER WHICH FROZE AND CAUSED PLAINTIFF’S FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the municipality, which had contracted with the school district to provide salting services, owed plaintiff a duty based upon the municipality’s launching an instrument of harm. It was alleged the defendant municipality’s use of salt to melt ice resulted in a frozen pool of water where plaintiff slipped and fell:

… [P]laintiffs submitted the affidavit of an expert, who opined that defendants’ use of sodium chloride (rock salt) created a dangerous condition and launched a force of harm because the rock salt would have caused water to flow and pool near the area where plaintiff fell. The expert further opined that, due to the temperatures on the date of the incident, the pooled water near the area of plaintiff’s fall would have refrozen quickly, thereby creating the alleged dangerous condition … . Plaintiffs also submitted the deposition testimony of defendants’ employee, who confirmed that during wintertime, when the temperature can fluctuate above and below freezing, water could accumulate in the parking lot where plaintiff fell, and that the accumulated water could then freeze when the temperature went below freezing … . We conclude that plaintiffs’ submissions raised a triable issue of fact whether defendants assumed a duty of care to plaintiff by launching the force or instrument of harm. Kirschler v Village of N. Collins, 2024 NY Slip Op 03977, Fourth Dept 7-26-24

Practice Point: Here the municipality entered a contract with the school district to salt the parking lot and other areas. There was a question of fact whether the application of salt launched an instrument of harm (forming a pool of water which froze causing plaintiff’s fall) thereby creating a duty owed plaintiff.

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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THE SPECIAL PROSECUTOR APPOINTED TO HANDLE DEFENDANT’S CASE DID NOT MEET THE QUALIFICATIONS IN THE COUNTY LAW; CONVICTIONS REVERSED AND INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department reversed the convictions and dismissed the indictment because the special prosecutor appointed to handle the case did not meet the statutory qualifications:

“County Law § 701 (1) allows a court to appoint a special district attorney in situations where the district attorney is ‘disqualified from acting in a particular case to discharge his or her duties at a term of any court’ ” … . The Court of Appeals, “[a]cknowledging that a court’s authority under County Law § 701 ‘to displace a duly elected [d]istrict [a]ttorney’ raises separation of power concerns, [has] cautioned that ‘[t]his exceptional superseder authority should not be expansively interpreted’ ” … . As relevant here, section 701 (1) (a) explicitly limits the superseding authority of a court to “appoint[ing] some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney.” Where, as here, a court exceeds its authority by appointing a special district attorney who does not meet those statutory requirements, “[t]he indictment must be dismissed to preserve the integrity of a statute designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility” … . People v Callara, 2024 NY Slip Op 03969, Fourth Dept 7-26-24

Practice Point: If the special prosecutor appointed to handle defendant’s case does not meet the qualifications in the County Law, the convictions will be reversed and the indictment dismissed.

 

THE PURPOSE OF PETITIONER’S REQUEST FOR CONTACT INFORMATION ABOUT EACH COUNTY EMPLOYEE WAS TO CONVINCE THE EMPLOYEES TO OPT OUT OF JOINING A UNION; NO GOVERNMENTAL PURPOSE WOULD BE SERVED BY PUBLIC DISCLOSURE OF THE INFORMATION; THE FOIL PRIVACY EXEMPTION APPLIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the privacy provisions in the Public Officers Law shielded the county from the petitioner’s request for information about each employee. “With respect to each employee, petitioner sought the employee’s first name, middle name, last name, gender, public office address, job title, hire date, agency or department, work email address “or naming convention and domain,” work telephone number, and bargaining unit. In addition, petitioner sought “to receive the responsive information electronically in machine-readable format.” The Fourth Department found that the request was made to facilitate petitioner’s campaign to prevent county employees from joining a union:

It is evident here that petitioner’s intent, which “drives [our] analysis” … , in requesting the employees’ names, contact information, and union status, is to contact union members to urge them to opt out of union membership. Indeed, petitioner states in its brief on appeal that it “contacts public employees for the purposes of its educational mission through . . . a project” that it calls ” ‘Opt-Out Today.’ ” There is no indication that petitioner “intends to use the names to, for example, expose governmental abuses or evaluate governmental activities” … . Nor, as petitioner asserts, does the “natural and obvious meaning” we assign to the term “solicitation” conflict “with the legislative intent and . . . general purpose and manifest policy underlying FOIL” … . “If anything, it is precisely because no governmental purpose is served by public disclosure of this information that section 87 (2) (b)’s privacy exemption falls squarely within FOIL’s statutory scheme” … . Matter of Freedom Found. v Jefferson County, 2024 NY Slip Op 03944, Fourth Dept 7-26-24

Practice Point: Here the disclosure of contact information for county employees did not serve a governmental purpose and was prohibited by FOIL’s privacy exemption.

 

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DEFENDANT WAS ACQUITTED OF MENACING AT THE FIRST TRIAL BUT THE EVIDENCE SUPPORTING THE MENACING CHARGES WAS ALLOWED IN THE SECOND TRIAL; THE COLLATERAL ESTOPPEL DOCTRINE PRECLUDED PRESENTATION OF THAT EVIDENCE IN THE SECOND TRIAL; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s acquittal of menacing in his first trial precluded evidence defendant displayed a firearm during a confrontation in the second trial:

At his second trial, the People were permitted to introduce in their case-in-chief, over defendant’s objection, the testimony of an eyewitness that, during a confrontation in a park that occurred prior to the shooting, defendant had pulled out a gun and waved it at the victim, and had cocked the gun and pointed it at the eyewitness. We agree with defendant that, under the circumstances here, the People were collaterally estopped by the earlier verdict from presenting evidence at defendant’s second trial concerning the alleged display of a gun during the earlier confrontation at the park … .

The doctrine of collateral estoppel “operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” … . “[W]here the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place” … . Only those facts that were “necessarily decided” by a prior acquittal will have collateral estoppel effect in a subsequent prosecution … . Although it may “normally be impossible to ascertain the exact import of a verdict,” we are charged with giving “a practical, rational reading to the record of the first trial” to determine “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” … .

Here, the two menacing counts alleged that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying what appeared to be a firearm, on the basis of his alleged actions at the park shortly before the murder. The eyewitness’s testimony at the first trial was the only evidence supporting the menacing counts. People v Moore, 2024 NY Slip Op 03941, Fourth Dept 7-26-24

Practice Point: Evidence supporting charges of which defendant was acquitted in the first trial cannot be presented in the second trial.

 

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A COUNTY RECYCLING TRUCK IS NOT ENGAGED IN ROAD WORK AND THEREFORE IS NOT EXEMPT FROM THE RULES OF THE ROAD UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing County Court in this traffic accident case, determined a county recycling truck was not engaged in the type of road work which is exempted from the rules of the road under the Vehicle and Traffic Law. The related affirmative defense should have been dismissed:

Vehicle and Traffic Law § 1103 (b) provides that the rules of the road do not apply to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . “[T]he law was intended to exempt from the rules of the road all teams and vehicles that ‘build highways, repair or maintain them, paint the pavement markings, remove the snow, sand the pavement and do similar work’ . . . Thus, the exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work)—not on the nature of the vehicle performing the work” … .

Inasmuch as municipal refuse collection does not involve building, repairing, or maintaining highways, painting pavement markings, removing snow, sanding the pavement, or doing other similar work (see id.) and is “a task which one would anticipate could be accomplished while obeying the rules of the road”…, we conclude that Vehicle and Traffic Law § 1103 does not apply to the facts presented here … . In reaching that conclusion, we note that the 2016 amendment to Vehicle and Traffic Law § 117-a (L 2016, ch 293, § 1)—which broadened the definition of “hazard vehicle” to include sani-vans and waste collection vehicles—did not broaden the scope of work that would constitute “engag[ing] in work on a highway” … .

Vehicle and Traffic Law § 1103 (b) further provides that section 1202 (a)—which regulates stopping, standing, and parking—does not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” … . That provision, however, does not shield defendants from the allegations of negligence raised by plaintiff, i.e., violations of the right-of-way provisions of Article 26 of the Vehicle and Traffic Law, including, inter alia, sections 1140, 1142 (a), and 1146 (b). Rouse v City of Syracuse Dept. of Pub. Works, 2024 NY Slip Op 03938, Fourth Dept 7-26-24

Practice Point: A county recycling truck is not engaged in road work and therefore is not exempt from the rules of the road under the Vehicle and Traffic Law.

 

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THE CONTRACT AT ISSUE WAS NOT FOR THE “SALE OF GOODS” AND THEREFORE WAS NOT SUBJECT TO THE REQUIREMENTS OF THE UNIFORM COMMERCIAL CODE (UCC) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the contract at issue was not for the “sale of goods” and therefore was not subject to the requirements of the Uniform Commercial Code (UCC):

Plaintiff and defendant signed a one-page “independent contractor and consultant” contract pursuant to which plaintiff agreed to sell certain minimum amounts of concrete on behalf of defendant (minimum) in return for monthly payments. During the term of the contract, defendant ceased making its monthly payments to plaintiff and terminated the contract, claiming that plaintiff had sold less than 10% of the minimum and failed to provide defendant with an adequate assurance that it could sell the remaining quantity by the end of the contract term. * * *

The dispositive issue before this Court is whether defendant was justified in demanding “adequate assurance of due performance” from plaintiff pursuant to UCC 2-609 (1). If article 2 of the UCC applies and if “adequate assurance is not forthcoming, repudiation is deemed confirmed, and the nonbreaching party is allowed to take reasonable actions as though a repudiation had occurred” … . Article 2 of the UCC applies only to agreements that are “predominantly . . . for the sale of goods, as opposed to the furnishing of services” … . “In determining whether a contract is for the sale of property or services the main objective sought to be accomplished by the contracting parties must be looked for” … .

Here, plaintiff met its initial burden on the motion of establishing that the contract was not predominately for the sale of goods. Pursuant to the contract, plaintiff agreed to provide services to defendant, i.e., to sell the concrete. The contract did not require plaintiff to purchase any products from defendant. Plaintiff therefore demonstrated that the UCC did not apply here, that defendant did not have the right to demand adequate assurance of performance … . Dreamco Dev. Corp. v Cranesville Block Co., Inc., 2024 NY Slip Op 03937, Fourth Dept 7-26-24

Practice Point: The first question to ask in a breach of contract action is whether the contract is for the “sale of goods.” If not, the UCC does not apply.

 

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