You are here: / Fourth Department

Tag Archive for: Fourth Department

,

Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification

The Fourth Department, over a two-justice dissent, determined defendant should have been allowed to present expert evidence about the reliability of eyewitness identifications.  The court explained the analytical criteria:

“Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, courts are encouraged . . . in appropriate cases’ to grant defendants’ motions to admit expert testimony on this subject” … , the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony on eyewitness identification … . “The first stage is deciding whether the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime’ … . If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror’ … . If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary” … .

Here, the People concede that this case hinges upon the accuracy of the eyewitness’s identification of defendant, and we agree with defendant that there was little or no corroborating evidence connecting him to the crime … . People v McCullough, 2015 NY Slip Op 02589, 4th Dept 3-27-15

 

, ,

Town, Not the Town Board, Was the Proper Party/Town Could Not Use Article 78/Declaratory Judgment to Enforce a Contract/Town Entitled to Specific Performance of Contract

The Fourth Department, in the context of an action by the town for specific performance of a contract with a volunteer fire department, determined: (1) the town, not the town board, was the proper party to bring the action; (2) the hybrid Article 78/declaratory judgment action could not be brought by the town to enforce a contract; (3) the action should have been brought as one seeking specific performance; (4) the town was entitled to specific performance of the contract:

…[T]he Town Board lacks capacity to bring this proceeding/action.  As “artificial creatures of statute,” governmental entities such as the Town Board “have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate” … . Here, Town Law § 65 (1) provides in relevant part that “[a]ny action or special proceeding for or against a town, or for its benefit, . . . shall be in the name of the town,” and that “[t]he town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town” … . Under the circumstances of this case, we exercise our power pursuant to CPLR 2001 to correct that irregularity and to amend the caption by substituting the Town for the Town Board, “on behalf of” the Town … . …

… [A]lthough a CPLR article 78 proceeding may be brought against public or private corporations that “take on a quasi-governmental status” …, such “a . . . proceeding is not the proper vehicle to resolve contractual rights’ ” … . Moreover, a declaratory judgment action is also not a proper vehicle to resolve the contractual rights herein because ” a full and adequate remedy is already provided by another well-known form of action’ ” … . Pursuant to CPLR 103 (c), however, “[i]f a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution.” We thus exercise our discretion under CPLR 103 (c) and convert this hybrid CPLR article 78 proceeding/declaratory judgment action to an action for specific performance … .

“Specific performance is a discretionary remedy which is an alternative to the award of damages as a means of enforcing the contract’ . . . The right to specific performance is not automatic . . . The equitable remedy of specific performance is available in the court’s discretion when the remedy at law is inadequate . . . Finally, . . . the party seeking equity must do equity, i.e., he must come into court with clean hands” … . Here, the Town met its burden of proving that it “substantially performed [its] contractual obligations . . . within the time specified in the [2011 Contract, and] that [it] is ready, willing and able to perform those contractual obligations not yet performed and not waived by the [West Brighton Fire Department (WBFD)]” …, and the WBFD failed to raise a triable issue of fact in opposition thereto … . Matter of Town Bd. of Town of Brighton v West Brighton Fire Dept., Inc., 2015 NY Slip Op 02581, Fourth Dept 3-27-15

 

,

Frisk Not Justified Under DeBour Analysis

The Fourth Department determined the police officer did not have reasonable suspicion defendant was committing a crime and had no reasonable basis to suspect he was in danger at the time he frisked the defendant:

It is well established that, in evaluating the legality of police conduct, we “must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter” (…People v De Bour, 40 NY2d 210, 215). In De Bour, the Court of Appeals “set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; [and] level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime” (People v Moore, 6 NY3d 496, 498-499).

Here, contrary to defendant’s contention, we conclude that the information provided in the 911 dispatch coupled with the officers’ observations provided the police with “an objective, credible reason for initially approaching defendant and requesting information from him” … . The officers pulled up next to defendant and, without exiting the vehicle, asked to see defendant’s identification and asked defendant where he was going and where he was coming from, which was a permissible level one intrusion … .

Contrary to the further contention of defendant, we conclude that his failure to answer the officers’ questions about where he was going and where he was coming from, when added to the information acquired from the police dispatch and defendant’s heightened interest in the patrol car, created a “founded suspicion that criminality [was] afoot,” justifying a level two intrusion … . The common-law right of inquiry “authorized the police to ask questions of defendant—and to follow defendant while attempting to engage him—but not to seize him in order to do so” … . The police therefore acted lawfully in following defendant for the purpose of obtaining an answer to their valid questions about his whereabouts. The encounter, however, quickly escalated to a level three intrusion when one of the officers grabbed defendant’s hand and patted the outside of his pants pocket. “[A] stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime” … . ” [W]here no more than a common-law right to inquire exists, a frisk must be based upon a reasonable suspicion that the officers are in physical danger and that defendant poses a threat to their safety’ “* * * …[U]nlike in other cases where we have sanctioned a frisk for weapons, there was no evidence in this case that defendant refused to comply with the officers’ directives or that he made any furtive, suspicious, or threatening movements … . Indeed, under the circumstances of this case, the presence of defendant’s hand in his left pants pocket was particularly innocuous and ” readily susceptible of an innocent interpretation’ ” … . Defendant retrieved his identification from his left pants pocket and returned it to that pocket after complying with the officers’ request to produce identification … .

We therefore conclude that, “[b]ecause the officer lacked reasonable suspicion that defendant was committing a crime and had no reasonable basis to suspect that he was in danger of physical injury, . . . the ensuing pat frisk of defendant was unlawful” … . People v Burnett, 2015 NY Slip Op 02613, 4th Dept 3-27-15

 

Questions of Fact Whether Name Added to Bank Account Created a Convenience Account or a Joint Tenancy with Right of Survivorship

The Fourth Department determined there was a question of fact whether plaintiff’s adding another’s (John’s) name to a bank account was done for convenience or to provide John with a right to the funds:

There is no dispute that the account in which the funds had been deposited was designated a joint account. The sole question is whether that account was a convenience account, in which case the money deposited therein would be considered “the sole property of [plaintiff]” and could not be used to satisfy a judgment against John (… see Banking Law § 678). Otherwise, if the account was a joint tenancy account with a right of survivorship or a tenancy in common account, John would be deemed to have “an ownership interest in one half of the moneys deposited therein” … . Defendant contends that, by placing John’s name on the bank account as a joint tenant, the account is presumed to be a joint tenancy account with a right of survivorship (see Banking Law § 675). We reject that contention. “Although the bank account is designated as joint,’ the account documents do not contain the necessary survivorship language, and thus the statutory presumption of a right of survivorship does not apply” … .

We agree with defendant that plaintiff failed to establish as a matter of law that she intended to create a convenience account (see Banking Law § 678), as opposed to either a joint tenancy account with right of survivorship (see § 675), or a tenancy in common account (see EPTL 6-2.2 [a]). …  Plaintiff stated that she added John’s name to the account because she was “fearful for [her] own safety” and “feared the risk of additional violence against [her].” Plaintiff wanted to make sure that, if anything happened to her, “the funds [would] be available for the welfare of [her] granddaughter.” Those statements seemingly establish that plaintiff “did not have a present intention to transfer an interest in the [money] to [John], despite having placed his name on the [account]” … . Moreover, John made no deposits or withdrawals to the account, which also supports plaintiff’s position that the account was opened as a matter of convenience only … .

Nevertheless, we conclude that plaintiff’s statements raise a triable issue of fact whether she intended John to have a right of survivorship in the joint tenancy account. …[W]hile the signature card’s reference to a document stating that rights of survivorship are created when obtaining a joint bank account is insufficient to invoke the statutory presumption of Banking Law § 675 … , it is a factor that may be considered when determining whether the bank account is a joint tenancy account with survivorship rights … . Sweetman v Suhr, 2015 NY Slip Op 02583, 4th Dept 3-27-15

 

Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

,

Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates

The Fourth Department determined plaintiff, a varsity hockey player, had assumed the risk of having his bare foot stepped on in the locker room by a player who was still wearing his hockey skates:

“The assumption of 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’ ” … . By engaging in such an activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally” … .

Initially, we reject plaintiff’s contention that assumption of the risk does not apply because he was no longer playing hockey at the time of his injury. It is undisputed that the accident “occurred in a designated athletic or recreational venue” and that the activity at issue “was sponsored or otherwise supported by the [school district] defendant[s]” … “[T]he assumption [of risk] doctrine applies to any facet of the activity inherent in it” … . * * *

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . “[A]wareness of risk is not to be determined in a vacuum [but] . . . is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . “[I]t is not necessary to the application of assumption of 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” … . Litz v Clinton Cent. Sch. Dist., 2015 NY Slip Op 02239, 4th Dept 3-20-15

 

,

Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection

The Fourth Department determined the defendant’s conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:

…[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. “A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge’ . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim” … . Furthermore, “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (People v Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS” because only the term of incarceration of 20 years was stated on the record … . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not “advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” … . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15

 

Court’s Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal

The Fourth Department determined the court’s failure to elicit an unequivocal declaration jurors could set aside their bias and render an impartial verdict required reversal:

It is well established that “[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . While no “particular expurgatory oath or talismanic’ words [are required,] . . . [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict” … . During voir dire, the statements of three prospective jurors with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict …, and those prospective jurors failed to provide “unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence” … . Contrary to the court’s conclusion, we conclude that the nodding by these three prospective jurors as part of a group of prospective jurors who were “all nodding affirmatively in regard to the statement [of another prospective juror]” was “insufficient to constitute such an unequivocal declaration”… . People v Strassner, 2015 NY Slip Op 02342, 4th Dept 3-20-15

 

,

Application for Variance Properly Denied—Courts’ Review Powers Re: Actions of Zoning Board Explained

The Fourth Department determined the zoning board properly denied the petitioner’s application for a variance and explained the courts’ review powers in this context:

It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board … . Consequently, when reviewing the denial of an application for an area variance, “[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’ . . . [, and the b]oard’s determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence’ ” … . A reviewing court may not substitute its judgment for that of a local zoning board …, “even if there is substantial evidence supporting a contrary determination” … .

Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners’ hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy