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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

Violation of an Industrial Code Provision Does Not Conclusively Establish Negligence in a Labor Law 241 (6) Action

The Fourth Department noted that the fact that an Industrial Code provision was violated does not establish negligence sufficient to support partial summary judgment: “Despite our conclusion that defendants violated 12 NYCRR 23-9.5 (c), we reject plaintiff’s contention that he is entitled to partial summary judgment on the issue of defendants’ liability with respect to the Labor Law § 241 (6) claim. A violation of an Industrial Code provision ‘does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’…”.   Whether there was a violation of 12 NYCRR 23-9.5 (c) turned on whether plaintiff was a member of an “excavation crew.” If he was not, then his proximity to the equipment which injured him violated the provision. If he was a member of an “excavation crew,” the provision was not violated.  The majority determined plaintiff was not a member of a “crew” because he was the only person there.  The two dissenting judges disagreed and argued plaintiff was a member of an “excavation crew” within the meaning of the provision. Vanderwall v 1255 Portland Ave. LLC, 2015 NY Slip Op 03959, 4th Dept 5-8-15

 

23-Week-old Child Who Was Born Alive and Lived for 2 1/2 Hours After Removal from Life-Support Was a “Person” Within the Meaning of the Manslaughter Statute

The Fourth Department determined the 23-week-old child delivered by cesarean section was a “person” within the meaning of the manslaughter statute.  The child’s mother was severely injured in a head-on collision with defendant’s vehicle and the child was delivered to save the mother’s life. The child was taken off life-support because of the high risk of cognitive and neurological deficits and died 21/2 hours later. The court, in essence, determined the child was a “person” because she was born alive.

The Penal Law provides that a defendant “is guilty of manslaughter in the second degree when . . . [he or she] recklessly causes the death of another person” (§ 125.15 [1]). Furthermore, ” [p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]), and the Penal Law defines homicide as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks” (§ 125.00).

Defendant first contends that the evidence is not legally sufficient because, pursuant to the above statutory scheme, a child who is less than 24 weeks of gestational age is not a person. That contention is without merit. Penal Law § 125.00 uses the disjunctive “or” in defining who may be the victim of a homicide, and it is a well-settled rule of statutory interpretation that “[u]se of the conjunction or’ in a statute usually indicates that the language is to be construed in an alternative sense”… . Therefore, a victim who is born alive may be a person for the purposes of a homicide pursuant to section 125.00, regardless of whether he or she is less than 24 weeks of gestational age. People v Hardy, 2015 NY Slip Op 03961, 4th Dept 5-8-15

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

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Professional Reliability Exception to the Hearsay Rule (Re: Experts) Explained/Appropriate Date to Commence Prejudgment Interest in Breach of Contract Action Explained

The Fourth Department explained when an expert can rely on hearsay and when prejudgment interest should commence in a breach of contract action:

We reject defendant’s further contention that there was no evidentiary foundation for the testimony of plaintiffs’ damages expert, a construction cost estimator. It is well settled that” [o]pinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is also well settled, however, that an expert is permitted to offer opinion testimony based on facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ ” … . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” … . Here, the expert’s damages testimony was based, in part, on measurements contained in a report that was not admitted in evidence, but those measurements were not otherwise disputed or challenged by defendant. Moreover, the expert testified that the information on which he relied was of the type relied on in his profession.

We agree with defendant, however, that the court erred in awarding prejudgment interest from April 18, 1990. The jury did not specify a date on which plaintiffs’ cause of action for breach of contract accrued and where, as here, “the precise date from which to fix interest is ambiguous, the date of commencement of the . . . action’ is an appropriate date to choose” … . We therefore modify the judgment by vacating the amount of prejudgment interest awarded from April 18, 1990 and providing that prejudgment interest is to commence from April 18, 1996, the date on which the action was commenced, to May 2, 2012, the date of the judgment. Caleb v Stevenson Envtl Servs Inc, 2014 NY Slip Op 03057, 4th Dept 5-2-14

 

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Preliminary Injunction Prohibiting the Levying of Deficit Assessments by the Workers’ Compensation Board Properly Granted

The Fourth Department determined Supreme Court properly issued a preliminary injunction. All the criteria—irreparable harm, likelihood of success on the merits, and balancing of the equities—were met. The case involved the Workers’ Compensation Board’s levying of deficit assessments against petitioners pursuant to Workers’ Compensation Law section 50.  Matter of Riccelli Enters Inc v State of NY Workers’ Compensation Bd, 2014 NY Slip Op 03067, 4th Dept 5-2-14

 

Evidence of Headaches Did Not Raise an Issue of Fact Re: “Serious Injury”

The Fourth Department, over a substantial dissent, determined that the evidence of plaintiff’s headaches did not raise a question of fact about whether the headaches constituted “serious injury” within the meaning of Insurance Law 5102 (d):

…[W]e agree with defendant that the court erred in concluding that plaintiff raised an issue of fact based upon her complaints of headaches. Although plaintiff submitted excerpts from her deposition in which she testified that “basically every day I would have some type of headache,” it is well settled that “subjective complaints of pain or headaches are insufficient to establish serious injury’ ” … . Here, the record contains no objective basis for plaintiff’s headache complaints … . Moreover, plaintiff “offered no proof that [her] headaches in any way incapacitated [her] or interfered with [her] ability to work or engage in activities at home” … . Downie v McDonough, 2014 NY Slip Op 03048, 4th Dept 5-2-14

 

Allegation of Interference With Possession of Manufactured Home Stated Cause of Action for Conversion

The Fourth Department determined plaintiff had stated a cause of action for conversion.  Plaintiff alleged he had purchased a manufactured home and defendants prevented him from removing the home from defendant’s park:

“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . We conclude that the complaint alleged sufficient facts to state a cause of action for conversion … . The complaint alleged that plaintiff was the owner of the manufactured home and that defendants interfered with plaintiff’s possession of that property by preventing plaintiff from removing the home from defendants’ park. The court dismissed that cause of action on the ground that there was no showing that defendants took ownership of the unit or obtained any benefit from the unit remaining on the property. We conclude, however, that plaintiff’s allegation that defendants interfered with plaintiff’s right to possess the property is sufficient to state a cause of action for conversion …, which, contrary to the court’s analysis, does not require an allegation, much less a showing, that defendants took ownership of the property or benefitted therefrom. Hillcrest Homes LLC v Albion Mobile Homes Inc, 2014 NY Slip Op 03065, 4th Dept 5-2-14

 

Failure to Instruct the Jury on the Sole Proximate Cause Defense Required Reversal of Plaintiff’s Verdict

The Fourth Department, over a dissent, reversed the judgment for the plaintiff and ordered a new trial finding that the trial judge should have instructed the jury on the sole proximate cause defense.  The plaintiff used a wobbly ladder while painting and fell. The trial judge felt that the sole proximate cause defense (i.e., that the plaintiff’s acts or omissions were the sole proximate cause of the accident) would have been triggered only if the plaintiff ignored an instruction to use a different ladder. The Fourth Department explained that the defense could also be triggered if the plaintiff knew he had other options available but chose to use the wobbly ladder:

…[T]he court held that plaintiff’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive. That was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device. Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it … . * * *

As the Court of Appeals held …, in order for there to be liability under section 240 (1), “the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” … . Piotrowski v McGuire Manor Inc, 2014 NY Slip Op 03045, 4th Dept 5-2-14

 

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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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