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HERE THE PLEA ALLOCUTION DID NOT INDICATE TWO SEPARATE AND DISTINCT ACTS WERE ENCOMPASSED BY COUNTS 2 AND 3; THEREFORE CONSECUTIVE SENTENCES FOR THOSE COUNTS SHOULD NOT HAVE BEEN IMPOSED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s consecutive sentences, determined there was no evidence the counts to which defendant pled guilty involved two separate and distinct acts:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Thus, in order for a consecutive sentence to be legally imposed, the People have the burden of demonstrating by “identifiable facts . . . that the defendant’s acts underlying the crimes are separate and distinct” … . Where, as here, the defendant is “convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts and circumstances admitted during the plea allocution” in order to meet that burden … .

Here, no facts were adduced at defendant’s plea allocution that would establish two separate and distinct acts causing injury to the victims named in counts 2 and 3, and thus there was no basis for imposing consecutive sentences for those counts … . People v Wright, 2024 NY Slip Op 03613, Fourth Dept 7-3-24

Practice Point: To impose consecutive sentences based upon a guilty plea, the plea allocution must demonstrate the counts encompass separate and distinct acts.​

 

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A TEACHER’S ALLEGED STATEMENT TO THE PLAINTIFF THAT HE WAS AWARE OF THE SEXUAL ABUSE OF THE PLAINTIFF BY ANOTHER TEACHER OCCURRING REPEATEDLY AT SCHOOL WAS DEEMED AN ADMISSION ATTRIBUTABLE TO THE SCHOOL DISTRICT RAISING A QUESTION OF FACT WHETHER THE SEXUAL ABUSE WAS FORESEEABLE BY THE SCHOOL DISTRICT (FOURTH DEPT).

The Fourth Department, over a concurrence disagreeing with the majority ruling that a teacher’s alleged statement was admissible against the school district as an admission, affirmed the denial of the school district’s motion for summary judgment in this Child Victims Act negligent supervision case. Plaintiff, who was a student in the late 60’s, alleged repeated abuse by a teacher in a back room at the school. Another teacher was alleged to have overheard the abuse and allegedly threatened plaintiff with revealing it in an attempt to sexually abuse plaintiff himself. That statement was deemed an admission which raised a question of fact whether the abuse was foreseeable by the school district:

… [P]laintiff testified that the orchestra teacher offered her a ride home from a bus stop after an evening event at the school. Instead of taking her home, however, the orchestra teacher took her to a park where, according to plaintiff, he told her “that he knew what was going on because he could hear through the walls from the orchestra room into that back room [where Fleming’s office was located] and that [plaintiff] didn’t want it to get out — [plaintiff] wouldn’t want it to come out, so [she] should be nice to him.” When plaintiff responded that she did not know what the orchestra teacher was talking about, he attempted to kiss her. * * *

The court determined that the entirety of the statement attributed to the orchestra teacher was admissible as a vicarious party admission of defendant under CPLR 4549 and therefore properly considered when evaluating defendant’s motion for summary judgment, because the orchestra teacher was employed by defendant and “[r]ecognizing and responding to the abuse of students while on school grounds certainly falls within the scope of the duties of a teacher employed by [defendant].” * * *

We conclude that it is within the scope of a teacher’s employment relationship to identify and assist a student who they believe is being sexually abused, and that the orchestra teacher’s statement indicating awareness of the abuse of plaintiff was therefore “on a matter within the scope of [the employment] relationship” … . We further conclude that the orchestra teacher’s statement professing knowledge of the abuse occurred “during the existence of” the employment relationship, within the meaning of CPLR 4549, inasmuch as it is undisputed that he was employed by defendant at the time the statement was made. Therefore, we agree with the court that the statement is admissible pursuant to CPLR 4549. Bl Doe 5, 2024 NY Slip Op 03608, Fourth Dept 7-3-24

Practice Point: In a negligent supervision action against a school district, is a statement allegedly made by a teacher to a student indicating the teacher’s awareness of repeated sexual abuse of the student by another teacher, taking place at school, admissible against the school district as an admission of its awareness of the abuse? Here the court answered “yes” over a concurrence which disagreed.

 

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​ THE DOCTRINE OF MERGER REQUIRED REVERSAL OF THE KIDNAPPING CONVICTION AND THE INCLUSORY-CONCURRENT-COUNT DOCTRINE REQUIRED REVERSAL OF THE FORCIBLE TOUCHING CONVICTION (FOURTH DEPT).

The Fourth Department, reversing the kidnapping and forcible touching convictions determined the doctrine of merger precluded the kidnapping conviction and the forcible touching count was in inclusory concurrent count re: stalking:

Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted kidnapping in the second degree as a sexually motivated felony … , stalking in the first degree … , and forcible touching … .

Defendant approached the victim while she was walking alone on a street. After a brief verbal encounter, defendant began to follow the victim, grabbing her buttocks and then restraining her before ultimately releasing her and walking away. * * *

The merger doctrine is “a means of effectuating the Legislature’s intent [to effectuate a statutory scheme presenting a range of offenses and penalties measured by the gravity of a defendant’s conduct] by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping,” such as “conduct that, in fairness, should result in a single conviction” … . The “guiding principle” of the merger doctrine inquiry is whether the acts of restraint or abduction were ” ‘so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” … . Where the alleged “abduction and underlying crime are discrete, for example, there is no merger,” but “where there is minimal asportation immediately preceding [the underlying crime], the abduction should not be considered kidnapping” … . Here, defendant’s restraint of the victim was “simultaneous [with] and inseparable from” defendant’s stalking and forcible touching of the victim … , such that “independent criminal responsibility may not fairly be attributed” to the attempted kidnapping … .

Finally, we conclude that, as charged … , it was impossible for defendant to commit stalking in the first degree without, by the same conduct, committing forcible touching, thereby rendering forcible touching an inclusory concurrent count of stalking in the first degree … . People v Woods, 2024 NY Slip Op 03606, fourth Dept 7-3-24

Practice Point: Here is an illustration of the merger doctrine applied to reverse a kidnapping conviction and the inclusory-concurrent-count doctrine applied to reverse a forcible touching conviction.

 

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BECAUSE DEFENDANT’S 20-YEAR-OLD OUT-OF-STATE CONVICTION DID NOT INVOLVE A SEXUALLY VIOLENT OFFENSE, THE CORRECTION LAW WHICH REQUIRES THAT HE BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IS UNCONSTITUTIONAL AS APPLIED TO HIM (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant should not have been designated a sexually violent offender based upon a 20-year-old out-of-state conviction of an offense which would not qualify as a sexually violent offense in New York:

There is no dispute that the crime of which defendant was convicted, sexual assault in violation of 18 Pa Cons Stat § 3124.1, does not include all of the essential elements of a sexually violent offense in New York enumerated in Correction Law § 168-a (3) (a), and therefore is not a sexually violent offense under the first disjunctive clause of Correction Law § 168-a (3) (b). Instead, after defendant moved to New York approximately 20 years after the sexual assault conviction was entered and the Board of Examiners of Sex Offenders determined that he was required to register as a sex offender in New York …, the People contended that County Court should designate him a sexually violent offender under the second disjunctive clause of Correction Law § 168-a (3) (b). That clause defines a sexually violent offense as including 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.” The court designated defendant a sexually violent offender under the foreign registration clause.

… [W]e agree with defendant that the foreign registration clause of Correction Law § 168-a (3) (b) is unconstitutional, as applied to him, under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. People v Zellefrow, 2024 NY Slip Op 03605, Fourth Dept 7-3-24

Practice Point: The Correction Law which requires a person convicted of a registrable offense in another state to be designated a sexually violent offender upon moving to New York is unconstitutional as applied to the defendant here, whose out-of-state conviction did not involve a sexually violent offense under New York law.​

 

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THE JUDGMENTS ISSUED BY THE NATION COURT FOR A VIOLATION OF A CAYUGA NATION ORDINANCE CONSTITUTED FINES; A FOREIGN COUNTRY’S JUDGMENTS FOR FINES ARE NOT RECOGNIZED OR ENFORCEABLE IN NEW YORK STATE COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judgments granted by the Nation Court for violation of a Cayuga Nation ordinance constituted fines. Under the CPLR, a foreign -country judgment for a fine is not recognized or enforceable in New York State:

“Under CPLR article 53, a judgment issued by a foreign country is recognized and enforceable in New York State if it is ‘final, conclusive and enforceable where rendered’ ” … . Article 53, however, “does not apply to a foreign country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent the judgment is . . . a fine or penalty” … . “A party seeking recognition of a foreign country judgment has the burden of establishing that [article 53] applies to the foreign country judgment” .. .

Here, there is no dispute that each of the foreign country judgments at issue in these appeals is a fine. The foreign country judgments were granted by the Nation Court against respondents after the Nation Court found respondents in contempt of an order permanently enjoining respondents from operating Pipekeepers and in violation of a Cayuga Nation ordinance and assessed fines based on those findings. Thus, inasmuch as petitioner failed to meet its burdens of establishing that article 53 applied to the foreign country judgments … , the burdens never shifted to respondents to establish a mandatory or discretionary ground for non-recognition of the judgments under CPLR 5304 … . Matter of Cayuga Nation v Parker, 2024 NY Slip Op 03603, Fourth Dept 7-3-24

Practice Point: Judgments issued by the Nation Court for violations of a Cayuga Nation ordinance are considered foreign-county judgments by the CPLR. Foreign-country judgments for fines, like those issued here, are not recognized or enforceable in New York State courts.

 

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CIVIL CONTEMPT AIMS TO COMPENSATE THE OTHER PARTY FOR ANY LOSS ASSOCIATED WITH THE CONTEMPT (FAILURE TO COMPLY WITH A COURT ORDER); CRIMINAL CONTEMPT AIMS TO PUNISH; THEREFORE A $250 A DAY FINE, ALTHOUGH APPROPRIATE FOR CRIMINAL CONTEMPT, WAS NOT APPROPRIATE FOR THE CIVL CONTEMPT AT ISSUE HERE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined fining defendants $250 a day for civil contempt was not appropriate. Civil contempt, unlike criminal contempt, is designed to compensate the other party for any loss, not to punish. The matter was remitted for a determination of any losses to plaintiffs associated with defendants’ contempt. Defendants had ignored a court order requiring that the contested reservation fee (over $700,000) be placed in escrow to prevent defendants from dissipating it:

“Unlike criminal contempt sanctions which are intended to punish, civil contempt fines are intended to compensate victims for their actual losses” … . Plaintiff did not establish an actual loss or injury as a result of the contempt … , and therefore Judiciary Law § 773 authorized the court to impose “a fine . . . not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto.” Under these circumstances, the fine of $250 per day until the contempt was purged is not authorized by the statute and improperly sought to punish defendants for their continuing contempt, rather than to compensate plaintiff for an amount of damages suffered … . Rpower, LLC, 2024 NY Slip Op 03598, Fourth Dept 7-3-24

Practice Point: Civil contempt aims to address the contempt of the opposing party by compensating for the loss caused by the contempt. Criminal contempt, on the other hand, is designed to punish a party for failing to obey a court order. A fine is therefore appropriate for criminal contempt, but not for civil contempt.

 

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ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​

The Fourth Department, affirming defendant’s conviction, in a full-fledged opinion by Justice Greenwood, over a strong dissent, determined the one-witness identification of the defendant was not against the weight of the evidence. After identifying the defendant in a photo array the victim asked to see another photo array. In the second array she again picked out the defendant, but apparently she didn’t think she was identifying the same person. But she had in fact identified the same person from an older photograph:

In determining whether a verdict is against the weight of the evidence, we must first determine whether, “based on all the credible evidence[,] a different finding would not have been unreasonable” … . If so, “then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . Weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgment for that of the jury … . Rather, in reviewing the evidence, we “must give ‘[g]reat deference’ to the jury’s verdict . . . precisely because ‘[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative’ ” … . Stated another way, it is the “fact-finder[ ]” that has the “opportunity to view the witnesses, hear the testimony and observe demeanor” … , and “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” … .

Contrary to the conclusion of the dissent, the facts of this case do not warrant the substitution of our credibility determinations for those made by the jury …  We conclude that the second victim’s identification of defendant was not “incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” … . The issues of her identification of defendant and her credibility “were properly considered by the jury and there is no basis for disturbing its determinations” … . We note that the second victim “never wavered in her testimony regarding the events or her identification of defendant” … .People v Clark, 2024 NY Slip Op 03586, Fourth Dept 7-3-24

Practice Point: The criteria for a “weight of the evidence” appellate review is clearly illustrated here.

 

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HACKED WEB CAM VIDEO EVIDENCE ALLEGED TO DEPICT ABUSE OF A CHILD IN MOTHER’S HOME WAS DEEMED BY THE MAJORITY TO HAVE BEEN SUFFICIENTLY AUTHENTICATED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, over a strong and comprehensive dissent, determined the video evidence allegedly showing abuse of her daughter was properly authenticated. The video was obtained in an unrelated investigation of a suspect who hacked into a security web camera which was linked to mother’s house:

The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the “actions, dialogue, and behavior shown in the videos show no indication of any tampering.” In other words, there were “distinctive identifying characteristics” in the videos themselves … . There was also the “significant fact” that the mother did not dispute that … . Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs of alteration or tampering with the videos. Matter of Mekayla S., 2024 NY Slip Op 03584, Third Dept 7-3-24

Practice Point; Here hacked web cam video footage was alleged to have been properly authenticated by the identification of persons depicted in screen shots from the video and the lay out and contents of the room depicted in the video. There was a strong dissent.

Same issue and result in the abuse proceeding against mother’s boyfriend, this time with two different dissenting justices, agreeing with and adopting the rationale of the dissenting justice in the proceeding against mother. Matter of Gabriel H., 2024 NY Slip Op 03588, Fourth Dept 7-3-24

 

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THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s burglary conviction on ineffective assistance grounds, determined defense counsel should have insisted on a jury instruction which reflected the crime charged in the indictment. The indictment alleged defendant entered the victim’s apartment with the intent to hold a knife to the victim’s throat. The jury was instructed that it need only find defendant unlawfully entered and remained in the victim’s apartment with the intent “to commit a crime” with no mention of holding a knife to the victim’s throat. At trial whether defendant possessed a knife was contested and defendant was acquitted of criminal possession of a weapon and menacing:

In its charge to the jury, County Court made no mention of the People’s theory of the crime as limited by the indictment. The court charged, with respect to the intent element, that the People must prove beyond a reasonable doubt that defendant entered or remained in the building “with the intent to commit a crime inside the building,” without specifying the intended crime. Defense counsel did not seek a tailored instruction limited to the theory in the indictment.

“There is no requirement that the People allege or establish what particular crime was intended,” to secure a conviction for burglary … . However, “[i]f the People . . . expressly limit[ ] their theory of the ‘intent to commit a crime therein’ element to a particular crime, then they . . . have . . . to prove that the defendant intended to commit that crime” … .

Here, defense counsel failed to seek an appropriately tailored instruction to the jury on burglary in the second degree or object to the burglary charge given. Defense counsel thereby permitted the jury to convict defendant upon a theory of the intent element that was not set forth in the indictment … . People v Mcclendon, 2024 NY Slip Op 03260, Fourth Dept 6-14-24

Practice Point: If the burglary count in the indictment charges that defendant unlawfully entered the victim’s apartment to “hold a knife to the victim’s throat,” the jury instruction should match the language in the indictment. Here the jury was instructed it need only find that defendant entered the apartment “to commit a crime” with no mention of a knife. Whether there was a knife was contested at trial and defendant was acquitted of criminal possession of a weapon and menacing. Under those facts, defense counsel was ineffective for failing to request a jury instruction which matched the knife-related crime charged in the indictment.

 

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OVER A TWO-JUSTICE DISSENT, THE MATTER WAS SENT BACK FOR A RULING ON WHETHER THE PEOPLE COMPLIED WITH THEIR DISCOVERY OBLIGATIONS RE: LAW ENFORCEMENT DISCIPLINARY RECORDS (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling on whether the People complied with their discovery obligations, over a two-justice dissent, noted that the People cannot use a “screening panel” to review law enforcement disciplinary records:

Defendant … contends that the court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30). In particular, he contends that the People’s failure to disclose existing disciplinary records of potential law enforcement witnesses for use as impeachment materials … rendered any certificate of compliance (COC) filed pursuant to CPL 245.50 improper and thereby rendered any declaration of trial readiness made pursuant to CPL 30.30 illusory and insufficient to stop the running of the speedy trial clock. As the Court of Appeals recently stated in People v Bay, “the key question in determining if a proper COC has been filed is whether the prosecution has ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” … . Due diligence “is a familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives” (id. [internal quotation marks omitted]). “[W]hether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” … . “[C]ourts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery” … . Although the statute does not require a ” ‘perfect prosecutor,’ ” the Court emphasized that the prosecutor’s good faith, while required, “is not sufficient standing alone and cannot cure a lack of diligence” … . People v Sumler, 2024 NY Slip Op 03307, Fourth Dept 6-14-24

Practice Point: A “screening panel” cannot be used to determined what law enforcement disciplinary records must be supplied to the defense in discovery.

Practice Point: The People’s failure to comply with discovery obligations may render the certificate of compliance improper and the ready-for-trial announcement illusory, warranting dismissal on speedy trial grounds.

 

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