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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the street patdown search of defendant was not justified and the cocaine found in the search should have been suppressed. Defendant was a passenger in a car which was legally stopped by the police. Defendant was asked to step out of the car, which was deemed a proper request. Defendant initially refused to get out of the car and demanded an explanation for the request. At that point defendant was seized, pulled from the car, placed face down, hand-cuffed and the patdown search was conducted:

Based upon the evidence at the suppression hearing, we conclude that “the officers did not have any knowledge of some fact or circumstance that support[ed] a reasonable suspicion that the [defendant was] armed or pose[d] a threat to [their] safety’ ” … . Defendant’s evident nervousness as the officers approached the vehicle was not an indication of criminality or a threat to officer safety … . Nor was the patdown justified by the fact that the vehicle was in a high crime area … , particularly when the stop occurred on a busy street during rush hour … . Moreover, “there was no suggestion that a weapon was present or that violence was imminent” … . Finally, neither defendant’s initial refusal to exit the vehicle nor his demand for an explanation why he was being asked to exit the vehicle gave rise to a reasonable suspicion that he posed a threat to the officers’ safety … . People v Ford, 2016 NY Slip Op 08631, 4th Dept 12-23-16

CRIMINAL LAW (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SEARCH AND SEIZURE (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/SUFPRESSION (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)/PATDOWN SEARCH (PATDOWN SEARCH NOT JUSTIFIED BY A LEGITITMATE CONCERN FOR OFFICER SAFETY, COCAINE SHOULD HAVE BEEN SUPPRESSED)

PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING.

The Fourth Department determined the doctrine of primary assumption of the risk precluded recovery by a professional wrestler for injuries resulting from a planned jump from the ropes into the ring:

It is well settled that the primary “assumption of [the] risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . The participant assumes the risks that are inherent in the “sporting or amusement activit[y]” (id.), which “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . Consequently, a participant in such activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation’ ” … . “[F]or purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” … . Finally, “[t]he primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions . . . It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” … .

Here, the court properly concluded that the risk of severe neck and back injuries is inherent in the planned and staged activity engaged in by plaintiff, i.e., jumping from a four-foot high rope onto a wrestling ring, landing on one’s back, and then being pushed out of the ring by another performer. Thus, “it is indisputable that . . . plaintiff assumed the risk of landing incorrectly when tumbling in the manner he had been trained to do during his [five-year career as a professional wrestling performer]. The fact that the [rope was slightly looser], a circumstance of which . . . plaintiff was plainly aware, does not raise an issue of fact” … . Therefore, “by participating in the [exhibition], plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct . . . [and] consent[ed] to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in” that exhibition … , including the risk of the injuries he sustained. Kingston v Cardinal O’Hara High School, 2016 NY Slip Op 07798, 4th Dept 11-18-16

 

NEGLIGENCE (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)/ASSUMPTION OF THE RISK (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)

ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. There was evidence a step leading to defendants’ premises was dangerous because there were no markings or differences in color between the step and the sidewalk:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . In view of the pertinent “factors that may render a physically small defect actionable” … , we conclude that … (defendants) failed to sustain their burden of establishing as a matter of law the absence of any defect with the step … . In any event, we conclude that, in opposition to the motion and cross motion, plaintiff raised a triable issue of fact concerning the existence of a defect by submitting evidence that there were no markings on the step or differences in color between the step and the sidewalk … . Furthermore, the step was located in or very near a doorway, “where a person’s attention would be drawn to the door, not to the [step]” … .

We further conclude that the court erred in determining that plaintiff’s inattention to the step upon exiting the premises was the sole proximate cause of her injuries as a matter of law inasmuch as defendants “failed to establish that plaintiff’s fall was unrelated to the alleged defect” … . Thus, “while plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, any such comparative negligence would not serve to negate the liability of the . . . landowner[,] who has a duty to keep the premises safe’ ” … . Grefrath v DeFelice, 2016 NY Slip Op 07786, 4th Dept 11-18-16

 

NEGLIGENCE (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/SLIP AND FALL (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/STEPS (SLIP AND FALL, ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)

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RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT.

The Fourth Department, reversing (modifying) Supreme Court, determined that the “reckless disregard” standard applied to the defendant police officer’s driving and dismissed plaintiff bicyclist’s complaint. Apparently, the officer was moving his car into an intersection, trying to get the attention of another driver to whom he wished to speak. Plaintiff bicyclist, who had the green light, collided with the officer’s car:

… [W]e note that there is no dispute that defendant officer was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 101). We reject plaintiff’s contention that, in determining whether defendant officer’s operation of the police vehicle qualifies as an “emergency operation” within the meaning of Vehicle and Traffic Law § 114-b, we should adopt the definition of “pursuit” contained in the operations manual of defendant City of Syracuse Police Department … . Likewise, it is irrelevant whether defendant officer believed he was involved in an emergency operation … . Contrary to plaintiff’s further contentions, we conclude that defendant officer’s actions constituted an “emergency operation” as contemplated by Vehicle and Traffic Law § 114-b … ; the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence (see § 1104 [e]…); and defendants established as a matter of law that defendant officer’s conduct did not constitute the type of recklessness necessary for liability to attach … . Lacey v City of Syracuse, 2016 NY Slip Op 07794, 4th Dept 11-18-16

MUNICIPAL LAW (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/NEGLIGENCE (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/EMERGENCY VEHICLES (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/POLICE OFFICERS (RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)

LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED.

The Fourth Department determined the loan secured by a mortgage was not usurious. The $170,000 loan included $43,000 designated as interest. Whether the interest was usurious should have been determined based upon the term of loan, not when the foreclosure action was commenced:

In determining whether the interest charged exceeded the usury limit, courts must apply the traditional method for calculating the effective interest rate as set forth in Band Realty Co. v North Brewster, Inc. (37 NY2d 460, 462 …). According to that method, “[s]o long as all payments on account of interest did not aggregate a sum greater than the aggregate of interest that could lawfully have been earned had the debt continued to the earliest maturity date, there would be no usury” … . In applying the traditional formula, “[t]he discount, divided by the number of years in the term of the mortgage, should be added to the amount of interest due in one year, and this sum is compared to the difference between the principal and the discount in order to determine the true interest rate” … .

Applying that formula to the case at bar, which involves a five-year mortgage of $170,000 with a $43,000 “discount” with no additional interest, we add $8,600, which is one-fifth of the discount, to the interest over the first year (0%), arriving at a sum of $8,600. Comparing the $8,600 figure to the difference between the principal and the discount retained by plaintiff, i.e., $127,000, the interest rate was 6.77% per annum. That interest rate is well below the civil usury rate of 16% per annum … . Canal v Munassar, 2016 NY Slip Op 07793, 4th Dept 11-18-16

FORECLOSURE (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/MORTGAGES (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)/USURY (LOAN WHICH INCLUDED A SET AMOUNT DESIGNATED AS INTEREST WAS NOT USURIOUS, CRITERIA EXPLAINED)

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FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER.

The Fourth Department determined the Family Court judge should have recused herself from a dispositional hearing in a permanent neglect proceeding. Father had made a death threat against the judge following the finding of permanent neglect:

It is well settled that, “[a]bsent a legal disqualification under Judiciary Law § 14, a . . . Judge is the sole arbiter of recusal” … , and the decision whether to recuse is committed to his or her discretion … . Under these circumstances, and particularly in view of the order of protection, we conclude that the court abused its discretion in refusing to recuse itself … . Matter of Trinity E. (Robert E.), 2016 NY Slip Op 07804, 4th Dept 11-18-16

FAMILY LAW (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/JUDGES (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/RECUSAL (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)

ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED.

The Fourth Department determined asking defendant (who was on a bicycle and properly stopped) why he was so nervous and whether he was carrying drugs was invasive questioning unsupported by an indication of criminal activity. Suppression of defendant’s statements and seized evidence should have been granted:

… [F]ollowing the permissible stop of defendant on his bicycle, the officers improperly escalated the encounter to a level two common-law inquiry by asking defendant why he was so nervous and whether he was carrying drugs. The officers’ inquiries, which involved “invasive questioning” that was “focuse[d] on the possible criminality” of defendant … , were not supported by the requisite founded suspicion of criminality … . The testimony at the suppression hearing establishes that the officers observed nothing indicative of criminality, and we conclude that defendant’s nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot … . Because defendant’s inculpatory oral response to the impermissible accusatory questioning resulted in the seizure of the drugs from defendant’s pocket and a postarrest written statement from defendant, the drugs and the oral and written statements must be suppressed … . People v Freeman, 2016 NY Slip Op 07784, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED)

ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED.

The Fourth Department determined the police officer’s asking defendant (a passenger in a car pulled over for a traffic infraction) why he was nervous was a nonincriminating question. Therefore defendant’s statement he had “a little bit of weed” and the results of a search were not subject to suppression:

We conclude that, after the stop, the officer was permitted to approach defendant as a passenger in the vehicle and ask nonincriminating questions … . Contrary to defendant’s contention, the officer’s question in response to defendant’s manifest nervousness did not “exceed[ ] a request for information and the question[ ] was neither invasive nor focused on possible criminality” … . Indeed, defendant’s admission that he possessed marihuana in response to the officer’s inquiry “went far beyond what the officer’s words could reasonably expect to evoke” … . People v Williams, 2016 NY Slip Op 07776, 4th Dept 11-18-16

CRIMINAL LAW (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)/SUPPRESSION (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED A NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)/STREET STOPS (ASKING DEFENDANT WHY HE WAS NERVOUS DEEMED AN NONINCRIMINATING QUESTION, SUPPRESSION PROPERLY DENIED)

NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE (WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT).

The Fourth Department determined that not asking a grand jury to consider a charge is not the same as withdrawing a charge from the grand jury (which would require a judge’s permission to re-present):

… [T]he Court of Appeals has made clear that, ” [b]efore a grand jury may be said to have acted upon a charge, there must be some indication that it knew about it’ ” (Wilkins, 68 NY2d at 274). Moreover, “[t]here is no evidence in this record that would raise the primary concern of . . . Wilkins, namely that the People withdrew [the criminal sale charges] in order to present [them] to a more compliant grand jury” … . The People’s decision not to present the criminal sale charges for the consideration of the first grand jury is not ” fundamentally inconsistent with the objectives underlying CPL 190.75′ ” … , and we therefore conclude that this case does not present those ” limited circumstances’ ” to which the holding of Wilkins applies (id.). People v Lopez, 2016 NY Slip Op 07772, 4th Dept 11-18-16

CRIMINAL LAW (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)/GRAND JURIES (NOT ASKING A GRAND JURY TO CONSIDER A CHARGE FOR WHICH SOME EVIDENCE WAS PRESENTED DID NOT AMOUNT TO WITHDRAWAL OF THE CHARGE, WHICH WOULD REQUIRE JUDICIAL PERMISSION TO RE-PRESENT)

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