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CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES.

The Fourth Department, in a full-fledged opinion by Justice Curran, in a matter of first impression, determined the Citizen Review Board of Syracuse (CRB) had the capacity to sue and had standing to bring Article 78/declaratory judgment proceedings against the Syracuse Police Department seeking compliance with the citizen review procedures:

Here, the CRB’s enabling legislation provides that it was formed to “establish an open citizen-controlled process for reviewing grievances involving members of the Syracuse Police Department” and that “citizen complaints regarding members of the Syracuse Police Department shall be heard and reviewed fairly and impartially by the review board.” Further, the CRB is required by the ordinance to report and publish the number of cases in which sanctions were imposed. Inasmuch as the CRB cannot perform its legislative mandate without the Chief of Police’s compliance with the corresponding legislative mandate that he “advise the [CRB] in writing as to what type of actions or sanctions were imposed, and the reasons if none were imposed,” we conclude that the CRB has sustained a sufficiently particularized injury that falls squarely within the zone of interests set forth in the ordinance … . Matter of Citizen Review Bd. of The City of Syracuse v Syracuse Police Dept., 2017 NY Slip Op 02181, 4th Dept 3-24-17

MUNICIPAL LAW (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)/POLICE (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)/CITIZEN REVIEW BOARD (CITIZEN REVIEW BOARD HAS THE CAPACITY TO SUE AND STANDING TO BRING AN ARTICLE 78-DECLARATORY JUDGMENT ACTION SEEKING THE POLICE DEPARTMENT’S COMPLIANCE WITH POLICE-ACTION-REVIEW PROCEDURES)

FALL FROM FIRST FLOOR TO BASEMENT FLOOR IS COVERED UNDER LABOR LAW 240(1), THE UNGUARDED OPENING VIOLATED A PROVISION OF THE INDUSTRIAL CODE.

The Fourth Department, overruling precedent, determined a fall from the first floor through an unguarded opening to the basement floor was a covered event under Labor Law 240 (1) and the unguarded opening violated a provision of the Industrial Code.  The decision covers a number of other substantive issues (not summarized here) including statutory agent liability, Labor Law 200 and common law negligence liability, and indemnfication:

We agree with plaintiffs that the court erred in denying that part of their motion seeking partial summary judgment on liability on their Labor Law § 240 (1) claim and in granting, instead, those parts of the motion of Gates and cross motion of Nolan seeking dismissal of that claim against them. We therefore further modify the order by denying those parts of the motion and cross motion, reinstating that claim, and granting that part of plaintiffs’ motion. As a preliminary matter, we note that the court relied on our decision in Riley v Stickl Constr. Co. (242 AD2d 936) for its determination that a fall from the first floor through an unguarded opening to the basement is not a fall from an elevated worksite within the meaning of section 240 (1). To the extent that Riley stands for the proposition that a worker falling from the first floor to the basement is not protected by section 240 (1), that decision is no longer to be followed. Instead, we conclude that, because there was a “difference between the elevation level of the required work and a lower level” … , and “[b]ecause plaintiff fell through an opening in the floor, [plaintiffs are] entitled to judgment on liability under Labor Law § 240 (1)”… .

We further conclude that the court erred in denying that part of plaintiffs’ motion seeking summary judgment on the limited issue whether 12 NYCRR 23-1.7 (b) (1) was violated, and we therefore further modify the order accordingly. That regulation, which is sufficiently specific to support a cause of action under Labor Law § 241 (6) … , requires protection from hazardous openings. It is undisputed that the protective railings and the plywood cover had been removed from the stairwell opening and that plaintiff fell through the opening to the floor below. McKay v Weeden, 2017 NY Slip Op 02327, 4th Dept 3-24-17

LABOR LAW-CONSTRUCTION LAW (FALL FROM FIRST FLOOR TO BASEMENT FLOOR IS COVERED UNDER LABOR LAW 240(1), THE UNGUARDED OPENING VIOLATED A PROVISION OF THE INDUSTRIAL CODE)

QUESTIONS OF FACT WHETHER PLAINTIFF’S INJURIES WERE CAUSED BY THE PLACEMENT OF THE SCAFFOLD OR THE ABSENCE OF RAILINGS.

The Fourth Department, reversing Supreme Court, determined there were questions of fact whether plaintiff’s fall was caused by the placement of the scaffold or the absence of railings on the scaffold:

We conclude that plaintiff failed to establish his entitlement to judgment as a matter of law under that statute. Specifically, we conclude that there is an issue of fact whether the scaffold failed to provide proper protection because it was not properly placed, thereby precipitating plaintiff’s fall, or ” whether plaintiff simply lost his balance and fell’ ” when his head struck the beam … . Plaintiff likewise failed to establish as a matter of law that the lack of safety railings on the scaffold, as required by 12 NYCRR 23-5.18 (b) … , is a sufficient basis for a determination of liability under section 240 (1) that the scaffold failed to provide plaintiff proper protection. Rather, we conclude that there is an issue of fact whether the presence of rails would have prevented his fall … . Kopasz v City of Buffalo, 2017 NY Slip Op 02305, 4th Dept 3-24-17

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER PLAINTIFF’S INJURIES WERE CAUSED BY THE PLACEMENT OF THE SCAFFOLD OR THE ABSENCE OF RAILINGS)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER PLAINTIFF’S INJURIES WERE CAUSED BY THE PLACEMENT OF THE SCAFFOLD OR THE ABSENCE OF RAILINGS)

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SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED.

The Fourth Department determined the language in the SORA guideline which allows a juvenile delinquency adjudication to be used to calculate points in the criminal history category should not be followed because it conflicts with provisions of the Family Court Act:

The risk assessment guidelines issued by the Board provide that a juvenile delinquency adjudication is considered a crime for purposes of assessing points under the criminal history section of the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 6 [2006]). Family Court Act § 381.2 (1) provides, however, that neither the fact that a person was before Family Court for a juvenile delinquency hearing, nor any confession, admission or statement made by such a person is admissible as evidence against him or her in any other court. Section 380.1 (1) further provides that “[n]o adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication.” Given this conflict between the Guidelines and the plain language of the Family Court Act, we agree with the [2nd] Department[ ] … and conclude that the Board “exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” … . People v Brown, 2017 NY Slip Op 02323, 4th Dept 3-24-17

CRIMINAL LAW (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/FAMILY LAW (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/JUVENILE DELINQUENCY (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED) 

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DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE.

The Fourth Department determined the evidence was insufficient for conviction of the tampering with evidence charge. Defendant threw bags of cocaine on the floor. There was insufficient evidence that the act of throwing the drugs on the floor was intended to conceal the evidence:

… [T]he evidence is legally insufficient to support the conviction of tampering with physical evidence. Insofar as relevant here, a person is guilty of that crime when, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he [or she] suppresses it by any act of concealment” … . The People’s theory was that defendant tampered with physical evidence by throwing bags of cocaine onto the floor of a store with the intent of concealing the drugs from the pursuing police officers and thereby preventing the use of the drugs in a prospective official proceeding. The evidence at trial established that officers observed defendant throw bags of suspected crack cocaine onto the floor when he passed through the front entrance of the store. Although the offense of tampering with physical evidence does not require the actual suppression of physical evidence, there must be an act of concealment while intending to suppress the evidence … . We conclude that the evidence is legally insufficient to establish that defendant accomplished an act of concealment inasmuch as he dropped the items onto the floor in plain sight of the officers … . People v Parker, 2017 NY Slip Op 02208, 4th Dept 3-24-17

CRIMINAL LAW (DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)/EVIDENCE (CRIMINAL LAW, TAMPERING WITH EVIDENCE, DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)/TAMPERING WITH EVIDENCE (DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)

FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL.

The Fourth Department, over an extensive dissent, determined the trial court erred when it did not read the contents of a jury note into the record. The note said the jury “was not sure what to do:”

The record establishes that a jury note marked as court exhibit 8 stated that “[w]e have made decision on the Third Count we are having hard time with 1 and 2 just giving you are [sic] status.” Soon thereafter, a jury note marked as court exhibit 9 stated that “[w]e have arrived on decision on 2 and 3, but we have a lot of work to do on #1. I don[‘]t see it being quick. Not sure what to do. We ars [sic] starting to make way.” * * *

Our dissenting colleague concludes that the jury’s statement, “[n]ot sure what to do,” was a ministerial inquiry concerning the logistics of the jury’s deliberations, i.e., the jury was asking whether it should continue deliberating that evening considering the late hour. We agree that the note could be interpreted that way, but we conclude that it also could be interpreted as it was interpreted by the court, i.e., the jury was having difficulty reaching a unanimous verdict and was making a substantive inquiry for guidance concerning further deliberations. In response to the note, the court issued an Allen-type charge. Quite simply, even if we consider all the surrounding circumstances, the jury note was ambiguous, and we must resolve that ambiguity in defendant’s favor .. . People v Morrison, 2017 NY Slip Op 02324, 4th Dept 3-24-17

 

CRIMINAL LAW (FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)/JURY NOTE (CRIMINAL LAW, FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)

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DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s trial for criminal possession of a weapon should have been severed from the trial of his codefendants for the same offense. At trial the codefendants alleged it was defendant who possessed the weapon:

We conclude that the codefendants’ respective attorneys “took an aggressive adversarial stance against [defendant at trial], in effect becoming a second [and a third] prosecutor” … . We further conclude that the ” essence or core of the defenses [were] in conflict, such that the jury, in order to believe the core of one defense, . . . necessarily [had to] disbelieve the core of the other’ ” … . Thus, in retrospect … , there was “a significant danger . . . that the conflict alone would lead the jury to infer defendant’s guilt,” and therefore severance was required … . People v Mcguire, 2017 NY Slip Op 02206, 4th Dept 3-24-17

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)/SEVERANCE (CRIMINAL LAW, DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)

DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL.

The Fourth Department determined the superior court information (SCI) must be dismissed because it did not charge the same offenses which were charged in the written waiver of indictment (different dates):

Here, the felony complaint charged defendant with the commission of robbery in the first degree “on or about the 2nd day of 2011,” i.e., January 2, 2011. The written waiver of indictment, however, specified that defendant waived his right to indictment with respect to the commission of robbery in the first degree on February 2, 2012, and the SCI itself charged defendant with the commission of robbery in the first degree on February 2, 2011. Inasmuch as robbery is a single-act offense … , the January 2, 2011 robbery charged in the felony complaint was a ” different crime entirely’ ” from both the February 2, 2012 robbery set forth in the waiver of indictment and the February 2, 2011 robbery charged in the SCI … . Indeed, “the [dates] set forth in the [three] instruments,” i.e., the felony complaint, the waiver of indictment, and the SCI, “exclude any possibility that they were based on the same criminal conduct” … . The SCI therefore violates CPL 195.20 and must be dismissed as jurisdictionally defective … .

The SCI is also jurisdictionally defective inasmuch as it violates CPL 200.15, which provides in relevant part that a “superior court information . . . shall not include an offense not named in the written waiver of indictment.” That “express prohibition” was violated here … , inasmuch as the SCI included an offense, i.e., a robbery in the first degree committed on February 2, 2011 that was not set forth in the written waiver of indictment, which identified only a robbery in the first degree committed on February 2, 2012. People v Walker, 2017 NY Slip Op 02200, 4th Dept 3-24-17

 

CRIMINAL LAW (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)/SUPERIOR COURT INFORMATION (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)/INDICTMENT, WAIVER OF (DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL)

AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED.

The Fourth Department, reversing defendant’s convictions, determined the indictments were improperly amended after trial:

We agree with defendant … that the court erred in granting the People’s motion to amend the indictments at the close of proof. The fact that defendant consented to the amendments is of no moment because he has ” a fundamental and nonwaivable right to be tried only on the crimes charged’ ” … . “An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it” … . Unlike the crimes charged in the amended indictments, the crimes of course of sexual conduct against a child in the first degree and predatory sexual assault against a child based upon allegations that defendant committed a course of sexual conduct against a child in the first degree as charged in the initial indictments do not criminalize a specific act, and thus do not require jury unanimity with respect to a specific act … . For that reason, we conclude that the amendments of the indictments “resulted in an impermissible substantive change in the indictment[s] by adding new counts that changed the theory of the prosecution” … . We therefore reverse the judgments insofar as they convicted defendant on those counts, and dismiss those counts of the amended indictments without prejudice to the People to re-present any appropriate charges under those counts to another grand jury. People v Vickers, 2017 NY Slip Op 02183, 4th Dept 3-24-17

CRIMINAL LAW (AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED)/INDICTMENT, AMENDMENT OF (AMENDMENT OF INDICTMENTS CHARGING A COURSE OF SEXUAL CONDUCT TO CHARGES WHICH REQUIRE A UNANIMOUS VERDICT WITH RESPECT TO A PARTICULAR ACT DEPRIVED DEFENDANT OF HIS RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED)

IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.

The Fourth Department determined a reconstruction hearing should be held to determine whether defendant was competent to stand trial in 2008 when he entered a guilty plea. If a reconstruction hearing cannot be held, the plea should be vacated. At the time of the plea two examining psychiatrists came to opposite conclusions about defendant’s competency. Yet the guilty plea was accepted without holding a competency hearing:

“Article 730 of the Criminal Procedure Law sets out the procedures courts of this State must follow in order to prevent the criminal trial of [an incompetent] defendant” … . The CPL expressly provides that, “[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, . . . the court must conduct a hearing to determine the issue of capacity” … . “That section is mandatory and not discretionary” … , and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent … . People v Pett, 2017 NY Slip Op 02178, 4th Dept 3-24-17

CRIMINAL LAW (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/VACATE CONVICTION, MOTION TO (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/COMPETENCY (CRIMINAL LAW, (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)

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