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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Where Arrest Was Not Authorized, Conviction for Resisting Arrest Was Against the Weight of the Evidence

The People conceded defendant’s actions (apparently simply standing with a group) did not constitute disorderly conduct. Therefore, the Fourth Department determined, defendant’s arrest for disorderly conduct was unauthorized and his conviction of resisting arrest was against the weight of the evidence:

As the People correctly concede, the evidence fails to establish beyond a reasonable doubt that the arrest of defendant for disorderly conduct was authorized. The Court of Appeals has “made clear that evidence of actual or threatened public harm (inconvenience, annoyance or alarm’) is a necessary element of a valid disorderly conduct charge” …, and there is no evidence of such actual or threatened harm here. Inasmuch as it “is not disorderly conduct . . . for a small group of people, even people of bad reputation, to stand peaceably on a street corner” …, the arrest of defendant for engaging in that conduct was not authorized. “There being no probable cause that authorized defendant’s arrest, [he] cannot be guilty of resisting arrest” … . Thus, we conclude that the jury “failed to give the evidence the weight it should be accorded” … . People v Howard, 2015 NY Slip Op 07100, 4th Dept 10-2-15

 

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Absence of Corroboration of Confession to Attempted Robbery Required Dismissal of Attempted Robbery Count—However Dismissal of the First Degree Murder and Felony Murder Counts, Both of Which Were Based Upon the Attempted Robbery, Was Not Required—The Death Itself Provided the Requisite Corroboration

The Fourth Department, in a detailed decision addressing several substantive issues not summarized here, found there was no proof of the attempted robbery count except defendant’s confession. The absence of corroboration required reversal of the attempted robbery count. However, with respect to the first degree murder and felony murder counts (for which attempted robbery was the underlying felony) the death itself provided sufficient corroboration:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50…). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies … . “The effect of the confession corroboration statute is to require proof of the corpus delicti” … . With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone’s criminality, i.e., a death that did not occur by suicide, disease or accident … . The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration … .

The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed … . People v Harper, 2015 NY Slip Op 07064, 4th Dept 10-2-15

 

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Courts’ Limited Review Powers Re: Administrative Rulings Clearly Illustrated

The Fourth Department, in a dispute about whether fiber optic cables were taxable by the city and the school district under the Real Property Tax Law, determined Supreme Court was powerless to rule on the matter on grounds not used by the administrative agencies which initially heard it. The Fourth Department succinctly explained the relevant review powers:

We agree with petitioners that the court erred in dismissing the petition on grounds different from those on which respondents relied in denying the applications. It is well settled that “[a] reviewing court, in dealing with a determination . . . which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Thus, the court was without power to uphold the administrative determinations on a different basis, no matter how sound that basis may be.

Contrary to petitioners’ further contention, however, we may not grant the ultimate affirmative relief requested in the petition, i.e., removal of the subject properties from the tax rolls and a refund of the taxes paid. The Court of Appeals has noted that courts “regularly defer to the governmental agency charged with the responsibility for administration of [a] statute’ in those cases where interpretation or application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom,’ and the agency’s interpretation is not irrational or unreasonable’ ” … . We conclude that “this case involves a question concerning the specific application of a broad statutory term, . . . and therefore is one in which the agency which administers the statute must determine it initially” … , because in such a situation, ” the reviewing court’s function is limited’ ” … . Matter of Level 3 Communications, LLC v Erie County, 2015 NY Slip Op 07104, 4th Dept 10-2-15

 

Use of an Address to Which the Respondent Was in the Process of Moving Did Not Constitute a False Statement within the Meaning of the Election Law

In an action seeking to invalidate a nominating petition, the Fourth Department determined the respondent (a candidate for Common Council Member in Utica) did not provide a false address when she witnessed signatures on her nominating petition. Respondent was in the process of moving to the address used on the petition. Although she had spent time at the new address, the certificate of occupancy for the property had not yet been issued and she, therefore, could not yet formally reside there. The Fourth Department explained the law relevant to the use of an address where one intends to reside:

We explained in Matter of McManus v Relin (286 AD2d 855, lv denied 96 NY2d 718) that where, as here, “[t]he witness was in the process of moving from one apartment to another during the period in which signatures were being obtained and he provided his new address as a current address on . . . designating petitions signed before he actually moved,” the witness complied with Election Law § 6-132 (2). Although respondent had not yet moved to the address at the time she witnessed the signatures, the record establishes that the address was intended to be “that place where [she] maintains a fixed, permanent and principal home” (§ 1-104 [22]). “The determination of an individual’s residence is dependent upon an individual’s expressed intent and conduct …, and we conclude that the record establishes that respondent’s conduct reflects her intent that the address is her residence …, despite her inability to move in for reasons beyond her control. Thus, the witness statement using that address does not, under the circumstances of this case, constitute “a material false statement” (§ 6-132 [2]), and there is no indication of fraud … . Where an alleged impropriety “does not involve the substantive requirements of witness eligibility[,]’ [i.e., that respondent is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition] and there is no implication of fraud, resort to strict construction should be avoided if it would lead to injustice in the electoral process or the public perception of it’ ” … . We therefore conclude, contrary to petitioner’s contention, that strict construction of Election Law § 6-132 (2) is not necessary with respect to respondent’s specification of the address on the witness statement. Matter of Vescera v Karp, 2015 NY Slip Op 06755, 4th Dept 9-8-15

 

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Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible

In affirming defendant’s conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. “Vicarious consent” to the recording was given by the victim’s mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:

We reject defendant’s further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation… , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations … . We note in any event that the victim’s mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 … . Also contrary to defendant’s contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim’s consent …, and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” … . We reject defendant’s further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15

 

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“Nailing” of Petition on Next to Last Day for Service, and Mailing on the Last Day, Was Sufficient—Respondent, Who Initially Declined Designation as a Candidate, Could Not Subsequently Accept Designation as a Substitute Candidate

The Fourth Department, over a two-justice dissent, determined that the petition seeking invalidation of respondent’s designating petition was timely served by “nail and mail” because the nailing occurred on the day before the last possible date for service and the mailing occurred on the last possible day for service. The fact the petition could not have been “received” by mail by that date was not determinative. On the merits, the court determined respondent could not be the substitute candidate for a vacancy he himself had created by initially declining the designation. With respect to the service issue, the court wrote:

… [T]he petitioner must effectuate ” actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced’ ” … . In other words, the respondents must “receive delivery” of the order to show cause and the verified petition “within the [statute of limitations] period” … . That requirement operates irrespective of the court’s specific service directions under section 16-116 … .

Contrary to the view of our dissenting colleagues, we conclude that petitioner effectuated “actual delivery” of the commencement papers when they were affixed to respondent’s front door. It is well established that because “the [commencement] papers were timely affixed to the front door, the fact that the papers mailed were not received on [or before the statute of limitations date] was not a jurisdictional defect” … . Matter of Angletti v Morreale, 2015 NY Slip Op 06616, 4th Dept 8-19-15

 

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Escaped Calf Furnished the Condition or Occasion for Plaintiff’s Decedent’s Presence in the Road When She Was Struck, But Was Not the Proximate Cause of Plaintiff’s Decedent’s Being in the Road

The Fourth Department, over a dissent, determined that defendant’s motion for summary judgment should have been granted. A calf escaped from defendant farm. Plaintiff’s decedent stopped her car and got out to aid the calf.  Both plaintiff’s decedent and the calf were struck by a car when they were in the road, although there was no evidence decedent stopped her car because the calf blocked the road. The Fourth Department held that the escape of the calf did not “cause” the decedent to be in the road. Rather the escape of the calf furnished the condition or occasion for decedent to be in the road:

Although “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept” …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … . Here, in support of its motion, Drumm Farm established that any negligence on its part in allowing the calf to escape merely “created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand” there … . “In short, the [alleged] negligence of [Drumm Farm] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated” … . Importantly, plaintiff does not contend, and did not submit any evidence that would establish, that the calf’s presence in the road blocked decedent’s ability to travel in the southbound lane or otherwise forced decedent to stop her vehicle. Thus, Drumm Farm established as a matter of law that its “alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident” … , and plaintiff failed to raise a triable issue of fact in opposition … . Hain v Jamison, 2015 NY Slip Op 06074, 4th Dept 7-10-15

 

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Parking Lot Not “Suitable” for Recreational Use Pursuant to General Obligations Law 9-103—Statutory Assumption of Risk Re: Riding a Bicycle in the Parking Lot Not Available

The Fourth Department determined Supreme Court properly denied defendant’s motion for leave to amend its answer to allege a “recreational use” affirmative defense. Plaintiff’s son was injured when his bicycle struck a depressed area in defendant’s parking lot. Defendant sought to allege plaintiff’s son assumed the risk of injury because the parking lot was covered by the recreational use statute, General Obligations Law 9-103. The Fourth Department, finding that the parking lot was not “suitable” for recreational use, explained the relevant analytical criteria:

We conclude that the court properly determined that defendant’s proposed amendment patently lacks merit inasmuch as the recreational use statute does not apply to the facts of this case as a matter of law. It is undisputed that plaintiff’s son was engaged in one of the recreational activities enumerated in section 9-103, i.e., bicycle riding, when he was injured. To establish applicability of the statute, however, defendant was also required to show that its property “was suitable for the recreational activity in which plaintiff[‘s son] was participating when the accident occurred” … . “Whether a parcel of land is suitable and the immunity [of the recreational use statute] available is a question of statutory interpretation, and is, therefore, a question of law for the Court” … . Suitability is established by showing that the subject property is ” (1) physically conducive to the activity at issue, and (2) of a type that is appropriate for public use in pursuing that activity as recreation’ ” … . “A substantial indicator that the property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past; such past use by participants in the [activity] manifests the fact that the property is physically conducive to it” … . Here, defendant failed to submit any evidence that the property had been used in the past by “recreationists” for bicycle riding. Moreover, under the circumstances of this case, we conclude that the subject property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Indeed, the Court of Appeals has made clear that recreational use immunity should apply only to property that “the Legislature would have envisioned as being opened up to the public for recreational activities” … . Here, defendant failed to establish that its employee parking lot comes within the purview of that standard. Sasso v WCA Hosp., 2015 NY Slip Op 06066, 4th Dept 7-10-15

 

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Trial Judge’s Acceptance of Petitioner’s Expert’s Valuation of the Property Was Against the Weight of the Evidence—the Actual Purchase Price in a Recent Sale and the Actual Rent Should Have Been Part of the Analysis

The Fourth Department, over a dissent, determined that the trial judge’s findings re: the assessed value of a retail property (for property tax purposes) were against the weight of the evidence. Specifically, the trial judge accepted the petitioner’s (Rite Aid’s) expert’s valuation which failed to take into account the actual price paid in a recent arm’s-length sale of the property, comparable sales, the actual rent (negotiated at arm’s length) and comparable rentals:

… [A]n appellate court is empowered to make new findings of value where the trial court ” has failed to give to conflicting evidence the relative weight which it should have’ ” …, giving due deference to the trial court’s power to resolve credibility issues by choosing among conflicting expert opinions … .

It is well settled that real “[p]roperty is assessed for tax purposes according to its condition [and ownership] on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future” … . Although several methods of valuing real property are acceptable, “the market value method of valuation is preferred as the most reliable measure of a property’s full value for assessment purposes” …, because “[t]he best evidence of value, of course, is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … . A recent sale has been characterized as evidence of the “highest rank” in determining market value … . The scope of a “market” need not be limited to the locale of the subject property and, depending on the nature of the use, it may encompass national and/or international buyers and sellers … . * * *

… [W]e conclude that the failure of petitioner’s expert to use the recent sale of the subject property as well as readily available comparable sales of national chain drugstore properties in the applicable submarket as evidence of value demonstrates the invalidity of the expert’s conclusion with respect to the sales comparison valuation … . We further conclude that the use of sales not comparable to the subject and outside of the applicable market should have been rejected by the court as unreliable … . Moreover, the failure of petitioner’s expert to use the actual rent, negotiated at arm’s length and without duress or collusion, as well as the failure to use similar rental comparables from the applicable market as evidence of value, demonstrates the invalidity of the expert’s conclusions using the income capitalization method … . Matter of Rite Aid Corp. v Haywood, 2015 NY Slip Op 06049, 4th Dept 7-10-15

Similar issues and result in Matter of Rite Aid Corp. v Huseby, 2015 NY Slip Op 06051, 4th Dept 7-10-15

 

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