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HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

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Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

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DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

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While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

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It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION.

The Fourth Department, reversing Supreme Court, over a concurrence and a two-justice dissent, determined the action by the respondent school district (re: terminating certain health insurance available to retirees) was not quasi-legislative. Therefore the four-month statute of limitations for petitioners’ Article 78 contesting the school district’s action did not start to run upon the mailing of the undated notification letter. The respondents, therefore, did not demonstrate the Article 78 proceeding was barred by the statute of limitations:

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A quasi-legislative-type administrative determination is one having an impact far beyond the immediate parties at the administrative stage… . Thus, where a quasi-legislative determination is challenged, “actual notice of the challenged determination is not required in order to start the statute of limitations clock” … . The policy underlying the rule is that actual notice to the general public is not practicable … . Instead, the statute of limitations begins to run once the administrative agency’s quasi-legislative determination of the issue becomes “readily ascertainable” to the complaining party… .

On the other hand, where the public at large is not impacted by a determination, actual notice, commonly in the form of receipt of a letter or other writing containing the final and binding determination, is required to commence the statute of limitations … . * * *

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… [I]nasmuch as respondents, in our view, failed to meet their burden to establish when the four-month statute of limitations commenced, the burden did not shift to petitioners to establish any particular date of individual receipt of the undated letter. In any event, respondents failed to establish any dates of receipt by petitioners in their moving papers. Matter of Knavel v West Seneca Cent. Sch. Dist., 2017 NY Slip Op 03416, 4th Dept 4-28-17

 

ADMINISTRATIVE LAW (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/QUASI-LEGISLATIVE ACTION (ADMINISTRATIVE LAW, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/CIVIL PROCEDURE (ARTICLE 78, STATUTE OF LIMITATIONS, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/ARTICLE 78 (STATUTE OF LIMITATIONS, (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/STATUTE OF LIMITATIONS (ARTICLE 78, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)

DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing defendant’s conviction, determined the stop of defendant’s car was not supported by reasonable suspicion and the weapons seized should have been suppressed. The officer stopped the car after he saw an Hispanic man with tattoos on his neck get into the car. The shooting suspect the police were looking for at the time of the stop was an Hispanic man with tattoos on his neck. However, the clothing worn by the man who got into the car did not come close to matching the clothes the shooting suspect was said to be wearing. It turned out that the shooting suspect was also in the stopped car:

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… [T]he inconsistencies between the suspect’s clothing as described by the complainant and the clothing worn by the man who walked past the officer on North Goodman Street rendered the officer’s suspicion that the man was the suspect less than reasonable… . Contrary to the People’s contention, moreover, we conclude that the man’s conduct in staring straight ahead as he walked among the police cars was “innocuous and readily susceptible of an innocent interpretation” and, as such, did not generate a reasonable suspicion of criminality … .

Given that the stop of defendant’s vehicle was not supported by a reasonable suspicion of criminality, the officer’s observation of the actual suspect in the front seat with a weapon in his waistband was “the unattenuated by-product of the [illegal] stop” …  and, inasmuch as the disposal of the weapons during the ensuing chase was precipitated by that illegality, the weapons should have been suppressed … . In addition, because our determination results in the suppression of all evidence supporting the crimes charged, the indictment must be dismissed … . People v Lopez, 2017 NY Slip Op 03327, 4th Dept 4-28-17

 

CRIMINAL LAW (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS  (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED/SUPPRESS, MOTION TO (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED)

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THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE, AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION.

The Fourth Department reversed defendant’s conviction for two reasons: (1) the trial judge acceded to defendant’s request that the jury not be instructed on a lesser included offense, and (2) the trial judge, in light of defendant’s behavior during the trial, should have ordered a competency examination:

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We agree with defendant, however, that he was denied his right to counsel when County Court permitted him, rather than defense counsel, to decide whether to request a jury charge on a lesser included offense. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . “[D]efense counsel has ultimate decision-making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense” … . Here, defense counsel requested a charge on the lesser included offense of criminal trespass. After defendant stated that he did not want such a charge, the court noted that defendant’s consent was not required. Nevertheless, defense counsel stated that he was not requesting the charge based on defendant’s decision not to follow his advice. Although defense counsel unequivocally and repeatedly stated that the charge was in defendant’s best interest, and indicated that defendant was declining the charge against defense counsel’s advice, the court abided defendant’s choice and thus “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . …

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Although a defendant is presumed to be competent … , whenever a court has a ” reasonable ground for believing that a defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects’ ” … . Here, in light of the nature and frequency of defendant’s outbursts, and the People’s expressed concern about defendant’s competency prior to trial, we conclude that the court abused its discretion in failing to insure that defendant was competent to stand trial … . People v Minckler, 2017 NY Slip Op 03311, 4th Dept 4-28-17

 

CRIMINAL LAW (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/ATTORNEYS (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/LESSER INCLUDED OFFENSE (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSE, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/RIGHT TO COUNSEL (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/COMPETENCY EXAMINATION (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)

JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED.

The Fourth Department, reversing defendant’s conviction, determined the burglary jury instruction was flawed. Defendant allowed her brother into the home where defendant resided and her brother assaulted a resident of the home in the resident’s bedroom. The jury instruction did not make clear the definitions of a building or unit as those terms are used in the burglary statute:

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A person is guilty of burglary in the first degree, in pertinent part, when he or she “knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein” (Penal Law § 140.30 [2]). ” Dwelling’ means a building which is usually occupied by a person lodging therein at night” (§ 140.00 [3]), and “the definition of building’ includes the following: Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building’ ” … .

Here, the court instructed the jurors that a “dwelling is a building which is usually occupied by a person lodging therein at night. A bedroom in a home, where there is more than one tenant, may be considered independent of the rest of the house and may be considered a separate dwelling within a building.” The court, however, failed to include the part of the definition of building that would require the jury to determine whether the house at issue consisted of “two or more units” and whether the bedroom at issue was a unit that was “separately secured or occupied” (Penal Law § 140.00 [2]). Consequently, “given the omission of the definition of [ unit’] and/or [ separately secured or occupied,’] the instruction did not adequately convey the meaning of [ building’] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met” … . People v Pritchard, 2017 NY Slip Op 03287, 4th Dept 4-28-17

 

CRIMINAL LAW (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)/BURGLARY (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)

DEFENDANT’S REFUSAL TO TURN AROUND AND HIS HANDS POSITIONED AT HIS WAISTBAND JUSTIFIED AN OFFICER’S DRAWING HIS WEAPON AND POLICE PURSUIT.

The Fourth Department determined defendant’s refusal to turn around upon request and his hands positioned at his waistband justified a police officer’s drawing his weapon and a pursuit of the defendant when her ran. Suppression of the weapon discarded by the defendant was properly denied:

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… [W]e conclude that defendant’s positioning and his refusal to comply with the officer’s request to return to the vehicle, while not alone indicative of criminal behavior, could be “considered in conjunction with other attendant circumstances” to establish the requisite reasonable suspicion of criminal activity … . In our view, once defendant refused the officer’s request to return to the vehicle and turned toward the officers, the officers could “reasonably suspect[] that defendant was armed and posed a threat to their safety because his actions were directed to the area of his waistband, which was concealed from their view”,,, . The officer who drew his weapon was justified in doing so out of a concern for his own safety … . We thus conclude that defendant’s flight, “in conjunction with the attendant circumstances, gave rise to the requisite reasonable suspicion justifying police pursuit” … . People v Walker, 2017 NY Slip Op 03317, 4th Dept 4-28-17

CRIMINAL LAW (DEFENDANT’S REFUSAL TO TURN AROUND AND HIS HANDS POSITIONED AT HIS WAISTBAND JUSTIFIED AN OFFICER’S DRAWING HIS WEAPON AND POLICE PURSUIT)/STREET STOPS (CRIMINAL LAW, DEFENDANT’S REFUSAL TO TURN AROUND AND HIS HANDS POSITIONED AT HIS WAISTBAND JUSTIFIED AN OFFICER’S DRAWING HIS WEAPON AND POLICE PURSUIT)/SUPPRESS, MOTION TO  (DEFENDANT’S REFUSAL TO TURN AROUND AND HIS HANDS POSITIONED AT HIS WAISTBAND JUSTIFIED AN OFFICER’S DRAWING HIS WEAPON AND POLICE PURSUIT)

DEFENDANT WALKED BY POLICE OFFICER HOLDING HIS WAISTBAND, OFFICER WAS JUSTIFIED IN REQUESTING DEFENDANT TO SHOW HIM HIS HANDS REVEALING A GUN, SUPPRESSION PROPERLY DENIED.

The Fourth Department, over a dissent, determined the arresting officer had a founded suspicion of criminal activity justifying his request that defendant show him his hands. Defendant had walked by the officer holding his waistband. When the defendant complied with the officer’s request and raised his hands the officer saw a gun:

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… [W]e conclude that the location of this encounter in a high-crime area, the officer’s training and his experience in investigating weapons possession crimes at this location, together with defendant’s grabbing of his waistband with his hand concealed under his shirt, provided the requisite founded suspicion for the officer to command defendant to show his hands. Under the totality of the circumstances, we conclude that it is of no consequence that the officer did not observe a gun before commanding defendant to show his hands. Indeed, defendant’s hand was concealed under his shirt while simultaneously grabbing his waistband. The Court of Appeals has noted that “a handgun is often carried in the waistband” … , and that it would be “absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” … .

We recognize that a founded suspicion may not rest upon innocuous behavior that is susceptible of an innocent as well as a culpable interpretation … . Viewed in isolation by an untrained observer, defendant’s actions might not appear to be suspicious but, “when viewed collectively and in the light of the officer’s expertise,” we conclude that the officer had a founded suspicion of criminal activity warranting a level two inquiry … . People v Simmons, 2017 NY Slip Op 03280, 4th Dept 4-28-17

 

CRIMINAL LAW (DEFENDANT WALKED BY POLICE OFFICER HOLDING HIS WAISTBAND, OFFICER WAS JUSTIFIED IN REQUESTING DEFENDANT TO SHOW HIM HIS HANDS REVEALING A GUN, SUPPRESSION PROPERLY DENIED)/STREET STOPS (CRIMINAL LAW, DEFENDANT WALKED BY POLICE OFFICER HOLDING HIS WAISTBAND, OFFICER WAS JUSTIFIED IN REQUESTING DEFENDANT TO SHOW HIM HIS HANDS REVEALING A GUN, SUPPRESSION PROPERLY DENIED)/SUPPRESS, MOTION TO  (CRIMINAL LAW, DEFENDANT WALKED BY POLICE OFFICER HOLDING HIS WAISTBAND, OFFICER WAS JUSTIFIED IN REQUESTING DEFENDANT TO SHOW HIM HIS HANDS REVEALING A GUN, SUPPRESSION PROPERLY DENIED)

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RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

The Fourth Department, in a substantive decision dealing with several liability and damages issues not summarized here, determined the trial court properly granted plaintiff’s motion for a directed verdict finding the liability waiver invalid and the doctrine of primary assumption of risk inapplicable. The Fourth Department concluded the doctrine of implied assumption of risk was applicable, however. The Fourth Department further held that the law of the case doctrine did not preclude the court from directing a verdict in plaintiff’s favor after denying plaintiff’s motion for summary judgment on the same issues. Plaintiff’s son was in an auto race at defendant race track. Plaintiff was in the pit area when defendant driver (Holland) backed his car into plaintiff:

Contrary to defendants’ contention, the court properly granted plaintiff’s motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was “no rational process” by which the jury could have found in favor of defendants on those issues … . With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a “user” to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 … , and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was “meant to further the speedway venture” … . …

With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing … , and thus that the doctrine is inapplicable to this case … .

We reject defendants’ further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff’s favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. ” A denial of a motion for summary judgment is not necessarily . . . the law of the case that there is an issue of fact in the case that will be established at the trial’ “… . …

We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff “disregard[ed] a known risk by voluntarily being in a dangerous area” … . Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal … . Knight v Holland, 2017 NY Slip Op 02525, 4th Dept 3-31-17

 

NO SHOWING RUG OVER WHICH PLAINTIFF TRIPPED WAS NOT FLUSH TO THE FLOOR, HEIGHT DIFFERENTIAL WAS TRIVIAL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.

The Fourth Department, over a dissent, reversing Supreme Court, determined plaintiff’s slip and fall complaint should have been dismissed. Plaintiff alleged he tripped on the corner of a rug. The Fourth Department found, as a matter of law, the rug was in place and plaintiff’s foot went under it. The height of the rug was a trivial, nonactionable defect:

… [W]e conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor “is too trivial to be actionable” … . “[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Defendant’s submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was “bright enough to see.” Plaintiff was entering defendant’s restaurant behind his son, and there were no other customers in the vicinity. The photograph submitted by defendant depicting the rug does not reveal any defect or irregularity with the rug, and the videotape of the incident shows that the area where plaintiff fell was unobstructed, no other patrons had an issue traversing through the doors and over the rug, and there was no appreciable ripple or other height differential present in the rug to cause a tripping hazard. Thus, after examining the photograph and the video depicting the placement of the rug in the vestibule, and ” in view of the time, place, and circumstances of plaintiff’s injury,’ ” we conclude that defendant established as a matter of law that any defect in the rug was too trivial to be actionable … . Langgood v Carrols, LLC, 2017 NY Slip Op 02528, 4th Dept 3-31-17

 

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