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FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED.

The Fourth Department determined the forcible detention of defendant prior to finding heroin in plain view in a vehicle in which defendant was a passenger constituted an illegal arrest. The seized evidence, therefore, should have been suppressed and the indictment dismissed:

We … agree with defendant that he was unlawfully arrested without probable cause prior to the police finding packets of heroin in plain view in the vehicle. Although “[i]t is well established that not every forcible detention constitutes an arrest” … , we conclude that defendant was arrested when an officer, with his weapon drawn, opened the unlocked front seat passenger door of the vehicle, physically removed defendant, had him lie down on the ground, handcuffed and searched him, and placed him in a patrol vehicle … . “Under such circumstances, a reasonable [person] innocent of any crime, would have thought' that he [or she] was under arrest” … . Contrary to the People's contention and the court's determination, the officer's conduct ” went beyond merely ordering defendant from [the vehicle]. [He] took the additional “protective measures” of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause' ” … . Inasmuch as the police lacked probable cause to arrest defendant before the officer returned to the vehicle and discovered the packets of heroin, the court should have suppressed that evidence, as well as the evidence subsequently found on defendant's person, as fruit of the poisonous tree … . People v Finch, 2016 NY Slip Op 02191, 4th Dept 3-25-16

CRIMINAL LAW (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/EVIDENCE (CRIMINAL LAW, FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/SUPPRESSION (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/STREET STOPS (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)

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DEFENDANT’S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined defendant's motion to suppress should have been granted and the indictment must be dismissed. The police approached the defendant and others in a patrol car merely because they had observed the defendant staring at the police from the other side of the road. The police pulled along side defendant and asked “what's up guys?” Defendant walked away and discarded a weapon. The Fourth Department found that the initial approach by the police was not warranted:

We conclude that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one's way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police, i.e., “attendant circumstances . . . sufficient to arouse the officers' interest” … , is insufficient to provide the police with the requisite “objective, credible reason, not necessarily indicative of criminality” to justify a level one encounter … . Here, beyond the fact that defendant had stared at the police in a “higher crime area” while continuing to walk down the sidewalk, the officers testified to no further observations of defendant or the other men that drew their attention … and, to the extent that the court found that defendant displayed any nervous or evasive behavior upon initially seeing the officers, we conclude that such a finding is unsupported by the record. We agree with defendant that the officers lacked other attendant circumstances to arouse their interest inasmuch as the encounter occurred at 6:30 in the evening rather than late at night and there was automobile traffic in the area at that time … . People v Savage, 2016 NY Slip Op 02184, 4th Dept 3-25-16

CRIMINAL LAW (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/SUPPRESSION (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/EVIDENCE (CRIMINAL LAW, DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/STREET STOPS (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)

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THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE.

The Fourth Department, over a two-justice dissent, determined: (1) the defendant's conviction for robbery second degree was against the weight of the evidence because the physical injury element was not proved beyond a reasonable doubt (the injury at issue was a small cut on the victim's finger); and (2) when a conviction is deemed against the weight of the evidence, the only remedy is dismissal of the indictment and not a reduction to a conviction of a lesser included offense. The dissent saw no reason reduction to a conviction of a lesser included offense should not be available as a remedy:

“CPL 470.20 (5) provides that the determination by an intermediate appellate court that a verdict is against the weight of the evidence requires dismissal of the indictment . . . [T]he power to reduce a conviction to a lesser included offense is limited to cases in which it is determined that the evidence is not legally sufficient to establish the defendant's guilt of an offense of which he [or she] was convicted but is legally sufficient to establish his [or her] guilt of a lesser included offense' (CPL 470.15 [2] [a]).” Thus, we conclude that “CPL 420.20 (5) requires dismissal of the indictment if it is determined that the verdict is against the weight of the evidence” (id. at 31). Indeed, the Court of Appeals has explained that “[a]n important judicial bulwark against an improper criminal conviction is not only the restrictive scope of review undertaken during a sufficiency analysis, but the protection provided by weight of the evidence examination in an intermediate appellate court. This special power requires the court to . . . determine whether the verdict was factually correct[,] and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt” … . As we explained in Heatley (116 AD3d at 30), “if the legislature had intended to provide the same relief to modify a judgment in the event that the weight of the evidence failed to support the conviction but supported a lesser included offense, it would have done so.” People v Cooney, 2016 NY Slip Op 02203, 4th Dept 3-25-16

CRIMINAL LAW (APPEALS, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/APPEALS (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/WEIGHT OF THE EVIDENCE REVIEW (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)

THE JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY’S CONSIDERATION, NEW TRIAL ORDERED.

The Fourth Department determined the trial judge took away consideration of elements of the charged offenses from the jury and ordered a new trial. Defendants were charged with assault (on a police officer) and obstructing governmental administration. The charges arose when one of the defendants tried to stop police officers from entering her home and a struggle ensued. The assault charge required proof the police were performing a lawful duty and the arrest was authorized. The obstruction charge required proof the police were performing a governmental function. When defense counsel asked a police officer whether a warrant was necessary to enter defendants' home, the judge wouldn't allow the question and instructed the jury no search warrant was required. “The court thereby improperly removed the abovementioned elements from the jury's consideration …”. People v O'Dell, 2016 NY Slip Op 02262, 4th Dept 3-25-16

CRIMINAL LAW (JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY'S CONSIDERATION, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (CRIMINAL LAW, JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY'S CONSIDERATION, NEW TRIAL ORDERED)

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INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS ISSUE NOT NECESSARY.

The Fourth Department reversed Family Court's finding respondent had willfully violated a court order because of an insufficient waiver of the right to counsel. The court noted that a prior decision requiring preservation of the right-to-counsel issue should no longer be followed:

Although the Support Magistrate properly advised respondent that he had the right to counsel (see Family Ct Act § 262 [a] [vi]), we agree with respondent that the Support Magistrate failed to make a ” searching inquiry' ” to ensure that his waiver of the right to counsel was a knowing, voluntary and intelligent choice, and thus that he was denied his right to counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing. To the extent that our decision in Matter of Huard v Lugo (81 AD3d 1265… requires preservation of a contention that the Support Magistrate erred in allowing the respondent to proceed pro se at a fact-finding hearing, that decision is no longer to be followed. Matter of Girard v Neville, 2016 NY Slip Op 01947, 4th Dept 3-18-16

FAMILY LAW (INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/APPEALS (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)

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EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN A SEQRA REVIEW; PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND A NEGATIVE DECLARATION AFTER PERMITS WERE ISSUED.

The Fourth Department determined two village officials did not have a conflict of interest which would preclude their participation in a State Environmental Quality Review Act (SEQRA) review of a development project. The two had expressed opposition to the project before and after their elections, but expression of opinion does not create a conflict of interest. The Fourth Department upheld the annulment of resolutions which stated the proposed project would adversely affect the environment. The planning board had previously found no adverse impact (a negative declaration) and had issued permits. The board did not have the authority to rescind the negative declaration at that point:

… [T]he Board lacked authority to rescind its negative declaration under the circumstances of this case. Here, the Board was authorized to rescind its negative declaration “prior to its decision to undertake, fund, or approve an action,” and the Board made its decision to approve the action, i.e., the Project, when it issued the requisite special permits … . Matter of Pittsford Canalside Props., LLC v Village of Pittsford, 2016 NY Slip Op 01929, 4th Dept 3-18-16

ENVIRONMENTAL LAW (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/ENVIRONMENTAL LAW (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's assault and manslaughter convictions and ordered a new trial, finding the jury should have been charged on the “deadly force” justification defense. There was evidence defendant acted to defend her brother who was struck with a champagne bottle. The assault with the bottle could constitute deadly force, justifying the use of deadly force in defense:

… [T]he court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her … . We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a “significant factual relationship” between the two counts … , particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). We therefore reverse the judgment and grant a new trial on both … . People v James, 2016 NY Slip Op 01946, 4th Dept 3-18-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (ASSAULT WITH A CHAMPAGNE BOTTLE CONSTITUTED USE OF DEADLY FORCE, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE OF STOLEN PROPERTY INSUFFICIENT.

The Fourth Department, in the interest of justice, reduced defendant's grand larceny to petit larceny because of insufficient proof of the value of the stolen property:

The value of stolen property is “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime” (Penal Law § 155.20 [1]). It is well settled that “a victim must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . Furthermore, “[c]onclusory statements and rough estimates of value are not sufficient” to establish the value of the property … . “Although a victim is competent to supply evidence of original cost' . . . , evidence of the original purchase price, without more, will not satisfy the People's burden' ” … .

Here, the victim testified that several specific items were taken, but the only evidence of the value of those items was the victim's testimony regarding the purchase price of some of them, and her hearsay testimony regarding a purported expert's appraisal of some of the property, which was based solely on her description of certain jewelry to the purported expert. Based on the evidence of value in the record, we cannot conclude “that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold” of $3,000 … . People v Slack, 2016 NY Slip Op 01930, 4th Dept 3-18-16

CRIMINAL LAW (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/EVIDENCE (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/GRAND LARCENY (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)

PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE AD DAMNUM CLAUSE OF THE COMPLAINT.

The Fourth Department determined plaintiff in a breach of contract action should have been allowed to amend its ad damnum clause:

… Supreme Court abused its discretion in denying its motion to amend the ad damnum clause from $77,585.50 to $111,331.13, and we therefore modify the order by granting the motion. It is axiomatic that ” [l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit' ” … . * * *

… “[I]n the absence of prejudice . . . , a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted” … . Putrelo Constr. Co. v Town of Marcy, 2016 NY Slip Op 01949, 4th Dept 3-18-16

CIVIL PROCEDURE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)/AD DAMNUM CLAUSE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)

QUESTION OF FACT WHETHER SKIER ASSUMED THE RISK OF STRIKING A SNOWMAKING MACHINE.

The Fourth Department determined plaintiff had raised a question of fact whether he assumed the risk of a skiing injury. Plaintiff fell and slid headfirst into an unpadded portion of a pole on a snowmaking machine. The court rejected defendant’ argument that the General Obligations Law, not the common law controlled:

 

Although there was padding on the upper portion of the pole, plaintiff collided with the lower, unpadded portion of the pole. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. We agree with plaintiff that Supreme Court properly denied the motion. We note at the outset that General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” and, contrary to defendant’s contention, the precise circumstances of plaintiff’s accident are not covered by article 18 of the General Obligations Law. Thus, the common law applies where, as here, plaintiff is alleging the negligent placement and inadequate padding of defendant’s snowmaking machines, a condition not “specifically addressed by the statute” … .

It is well settled under the common law that “[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility” … . Here, although defendant met its initial burden by establishing that the accident was caused by the inherent risks in the sport of downhill skiing, plaintiff raised a triable issue of fact by submitting the affidavit of his expert … . Plaintiff’s expert asserted therein that the snowmaking machine was on the ski trail and was insufficiently padded, thus raising an issue of fact whether defendant “failed to maintain its property in a reasonably safe condition” … . Dailey v Labrador Dev. Corp., 2016 NY Slip Op 01072, 4th Dept 2-11-16

 

INSURANCE LAW (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTED AN INSURANCE MALPRACTICE ACTION)/MALPRACTICE, INSURANCE (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTING AN INSURANCE MALPRACTICE ACTION EXISTED)

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