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Evidence Sufficient to Support Count Charging Sexual Abuse First Degree, Despite Evidence Defendant Did Not Touch the Victim for the Purpose of Gratifying Sexual Desire

The Fourth Department determined the evidence presented to the grand jury was sufficient to support the count charging sexual abuse in the first degree.  The issue was whether there was sufficient evidence defendant touched the victim for the purpose of gratifying sexual desire.  Based upon what the defendant said at the time, the purpose of his touching the victim was to determine whether she had recently had sex with another.  The court explained the level of proof required at the grand jury stage:

” Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10 [1]). Thus, “[o]n a motion to dismiss an indictment based on legally insufficient evidence, the issue is whether the evidence before the [g]rand [j]ury establishes a prima facie case” … . In deciding a motion to dismiss a count of an indictment for legally insufficient evidence, a “reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crime[],' and whether the [g]rand [j]ury could rationally have drawn the guilty inference' . . . That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the [g]rand [j]ury could rationally have drawn the guilty inference' ” … .

As relevant here, “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion” (Penal Law § 130.65 [1]), and sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (§ 130.00 [3]). Consequently, the People were required to submit sufficient evidence from which the grand jury could have inferred that defendant touched the victim's vagina for the purpose of gratifying his or the victim's sexual desire. It is well settled that, “[b]ecause the question of whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator” … . Here, we conclude that the evidence before the grand jury, viewed in the light most favorable to the People, was sufficient to permit the grand jury to infer that defendant touched the sexual and intimate parts of the victim's body by forcible compulsion for the purpose of gratifying his sexual desire … . To require, as defendant suggests, that the reviewing court accept the explanation that defendant proffered for his conduct, “would skew a reviewing court's inquiry and restrict, if not extinguish, the [g]rand [j]ury's unassailable authority to consider logical inferences that flow from the facts presented to it” … . People v Hoffert, 2015 NY Slip Op 01083, 4th Dept 2-6-15


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Department of Social Services (DSS) Is Not a “Victim” under the Penal Law—Defendant Can Not Be Ordered to Pay Restitution to DSS for Care of Child-Victim of Defendant’s Offense

The Fourth Department determined the Department of Social Services (DSS) was not a “victim” within the meaning of Penal Law 60.27 and therefore the defendant could not be ordered to pay restitution to the DSS for expenses incurred caring for the child-victim of defendant's crime:

It is well established that restitution may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Here, however, the foster care expenses are the result of the placement of the victim in the care and custody of DSS pursuant to a proceeding in Family Court (see Family Ct Act § 1055 [1]), and thus DSS is performing its statutory duty pursuant to Social Services Law § 398 (2) (b). We note that the Legislature has specifically provided that certain governmental agencies and entities are entitled to restitution when performing their statutory duties (see Penal Law § 60.27 [9], [10], [13]). Section 60.27 (9), for example, was enacted to permit restitution to police agencies for unrecovered funds used in undercover drug purchases following the decision in People v Rowe (152 AD2d 907, 909, affd 75 NY2d 948, 949). In Rowe, we determined that, absent legislative intent to include a city police department as a “victim,” such funds could not be recovered by means of a court order of restitution. Similarly, here, in the absence of legislative intent that DSS is a “victim” pursuant to Penal Law § 60.27, we decline to impose an obligation on defendant to pay restitution for the expenditure of public funds for providing foster care for the victim. People v Johnson, 2015 NY Slip Op 01107, 4th Dept 2-6-15


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Underwater Land Is Appurtenant to Adjacent Upland

The Fourth Department determined defendant had no ownership rights in underwater land appurtenant to plaintiffs’ upland property:

…[T]he court properly considered the deeds submitted by plaintiffs in support of their motion. All of those deeds, with the exception of defendant’s own quitclaim deed, are more than 10 years old and therefore are “prima facie evidence of their contents” (CPLR 4522…). With respect to defendant’s quitclaim deed, plaintiffs’ attorney swore to its authenticity …, and defendant herself relies on that deed in opposition to plaintiffs’ motion.

…[E]ven with navigable waterways, “when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description” … . Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed separately, plaintiffs met their initial burden. Although the State initially conveyed uplands and underwater land to Charles Smyth by separate deeds, the underwater land thereafter passed appurtenant to Smyth’s uplands, including by deeds to plaintiffs and several other landowners on North Bay, but not to defendant. Even if the underwater land could be conveyed only separately, it would have passed to Smyth’s heirs and devisees, not directly to defendant. Kernan v Williams, 2015 NY Slip Op 01122, 4th Dept 2-6-15

 

“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained

In affirming the denial of defendant's motion for summary judgment on the Labor Law 240 (1) cause of action, the Fourth Department explained the law relating to “falling objects:”

Labor Law § 240 (1) “applies to both falling worker' and falling object' cases” …, and that section 240 (1) guards “workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured' ” … . To recover under section 240 (1), a worker injured by a falling object must thus establish both (1) that the object was being hoisted or secured, or that it ” required securing for the purposes of the undertaking,' ” and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential … . Floyd v New York State Thruway Auth, 2015 NY Slip Op 01131, 4th Dept 2-6-15


 

Non-Supervising Property Owner Not Liable Under Common Law or Labor Law 200 for Injury Stemming from the Manner In Which the Work Is Done

The Fourth Department noted that no liability attaches to the non-supervising property owner under Labor Law 200 or common law negligence when the worker's injury stems from the manner in which the work was performed and not from the condition of the work site:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” … . Here, defendants met their initial burden by establishing that plaintiff's accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and defendants exercised no supervisory control over the work… . Zimmer v Town of Lancaster Indus Dev Agency, 2015 NY Slip Op 01023, 4th Dept 2-6-15


In Proceedings Seeking the Reduction of Tax Assessments, Court Should Not Have Ordered the Inspection of the Interior of the Homes—The Assessor Did Not Demonstrate Interior Inspections Were Necessary for the Defense and Did Not Demonstrate the Need for the Inspections Outweighed the Homeowners’ Fourth Amendment Privacy Rights

The Fourth Department determined Supreme Court should not have ordered inspections of the interior of homes in proceedings where homeowners challenged the tax assessments of their properties:

“Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief” … . Here, in order for “respondents to establish their entitlement to conduct . . . interior inspection[s] of the petitioner[s'] home[s] for purposes of appraisal, in the absence of the petitioner[s'] consent, . . . respondents bore the burden of demonstrating that [each] particular inspection [was] reasonable' ” …, and ” that interior inspections were necessary to prepare their defense' ” … . We agree with petitioners that respondents failed to make the required showing that interior inspections were reasonable and necessary to prepare their defense … . * * *

In addition to establishing that their request for interior inspections was reasonable and necessary to prepare their defense, respondents were also required to show that their interest in conducting them outweighed petitioners' Fourth Amendment privacy rights … . In determining whether respondents made such a showing, the court was required to “balanc[e] respondents' need for interior inspections [of the homes] against the invasion of petitioners' privacy interests that such inspections would entail” … . Upon our review of the record, we conclude that respondents failed to establish that their interest in interior inspections outweighed petitioners' Fourth Amendment privacy rights … . Matter of Aylward v Assessor, City of Buffalo…, 2015 NY Slip Op 01065, 4th Dept 2-6-15


“Case Management Fee” Imposed Upon Property Owners Who Do Not Correct a Code Violation Within One Year Is an Unconstitutional Penalty Which Requires Due Process Protections

The Fourth Department determined a so-called “case management fee” (CMF) authorized by City of Rochester Municipal Code 90-21 is an unconstitutional penalty imposed without adequate due process.  The code provisions allows the assessment of $100 against a property owner who fails to correct a code violation within one year:

Although “[t]he exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities[,] . . . [that] presumption is rebuttable” …, and we conclude that petitioners have rebutted the presumption of constitutionality.

A determination whether the CMF is a fee or a fine imposed as a penalty is critical to our analysis because “[p]rocedural due process rights do not apply to legislation of general applicability,” and thus the imposition of fees such as licensing fees are “not subject to attack on grounds of procedural due process. Fines [that are imposed as a penalty], however, can implicate procedural due process rights” … . * * *

Having concluded that the CMF is a fine imposed as a penalty on the property owner, we must determine whether the ordinance provides property owners with due process of law. As the Court of Appeals wrote in Morgenthau v Citisource, Inc. (68 NY2d 211), “[w]e have long recognized that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand' . . . [,] and in determining whether [f]ederal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail' ” (id. at 221).

While we agree with the court that the private interest at stake, i.e., $100, “is relatively insubstantial,” we conclude that there is a significant risk of erroneous deprivation of that interest through the procedures established by the ordinance. * * *

Although ” [d]ue process does not, of course, require that the defendant in every civil case actually have a hearing on the merits' ” …, we conclude that due process requires some type of hearing at which the City should be required to establish that property owners did not abate the violation within the one-year period. Matter of D'Alessandro v Kirkmire, 2015 NY Slip Op 01018, 4th Dept 2-6-15


Question of Fact Whether Fight Which Broke Out at a Youth Hockey Game Was Foreseeable

The Fourth Department, over a dissent, determined there was question of fact whether a fight at a youth hockey game, in which plaintiffs were injured, was foreseeable from the perspective of the Rome Youth Hockey Association (RYHA) which leased part of the facility where the fight broke out:

…[T]here is an issue of fact whether the duty of RYHA to plaintiffs included the duty to protect plaintiffs from Ricci's conduct … . “Foreseeability . . . determines the scope of [a] duty once it is determined to exist” … and, given the hostile environment in the arena before the fight, there is an issue of fact whether RYHA knew or should have known of the likelihood of the fight … . Here, the tensions in the stands built throughout the game such that we conclude that a trier of fact should determine whether RYHA had a duty to intercede and protect plaintiff … . Pink v Ricci, 2015 NY Slip Op 01077, 4th Dept 2-6-15


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Criteria for Deceptive Business Practices Explained

The Fourth Department determined that the defendant's (One Source's) violation of General Business Law 349 had been proven. Defendant had misled car-purchasers by informing them they were required to purchase an extended service contract or warranty as a condition of a loan.  Only at the closing of loan were the purchasers informed they could waive the warranty.  The court explained the elements of a section 349 violation:

Pursuant to section 349, deceptive business acts or practices are unlawful, and a ” [petitioner] under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the [consumer] suffered injury as a result of the deceptive act' ” … . With respect to the second element, an act or practice that is deceptive or misleading in a material way is defined as a representation or omission “likely to mislead a reasonable consumer acting reasonably under the circumstances” … . Contrary to respondents' contention, we conclude that petitioner established that second element, i.e., that One Source's actions were likely to mislead a reasonable consumer. One Source's actions were misleading in a material way in light of the fact that the consumers at issue were dependent on One Source to find them the financing to purchase their vehicles, and they were willing to pay for a warranty in order to obtain their loans. People v One Source Networking Inc, 2015 NY Slip Op 01068, 4th Dept 2-4-15


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Regulation Mandating a 25-Year Look-Back for Relicensing (Driver’s License) Is a Valid Exercise of the Department of Motor Vehicles’ Authority/Regulation Was Correctly Applied to Deny Petitioner’s Application for Relicensing

The Fourth Department determined the 25-year look-back for relicensing in the Department of Motor Vehicles regulations was a valid exercise of the department’s authority.  Under the regulation, the department was required to deny petitioner’s application for relicensing based upon his record:

We conclude that 15 NYCRR 136.5 [the 25-year look-back] is not legislative in nature, inasmuch as the Legislature delegated its authority to administer the relicensing process to the Commissioner of the Department of Motor Vehicles (see Vehicle and Traffic Law §§ 215 [a]; 510 [5], [6]…). Therefore, in promulgating 15 NYCRR part 136, the Commissioner has not “act[ed] inconsistently with the Legislature, or usurp[ed] its prerogatives” … . * * *

Here, within the 25 years preceding petitioner’s most recent revocable offense (see 15 NYCRR 136.5 [a] [4]), i.e., driving while intoxicated, petitioner has two other alcohol-related driving convictions, i.e., driving while intoxicated and driving while ability impaired, both under Vehicle and Traffic Law § 1192 (see 15 NYCRR 136.5 [a] [1] [i]). Furthermore, respondent properly concluded that petitioner committed a serious driving offense within the meaning of the regulation because the regulation defines a serious driving offense as occurring where a driver has accumulated “20 or more points from any violations” (15 NYCRR 136.5 [a] [2] [iv]), and petitioner had accumulated 21 points from other traffic violations. Respondent was therefore required to deny petitioner’s application for relicensing. Matter of Shearer v Fiala, 2015 NY Slip Op 00051, 4th Dept 1-2-15

 

 

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