You are here: / Fourth Department

Tag Archive for: Fourth Department

Collapse of Makeshift Scaffold Entitled Plaintiff to Summary Judgment in Labor Law 240(1) Action—Plaintiff’s Comparative Negligence Is Not a Defense

The Fourth Department determined summary judgment should have been granted to the plaintiff in the Labor Law 240 (1) action. Plaintiff was not provided with a scaffold or safety equipment.  Plaintiff fashioned a makeshift scaffold which collapsed.  The court noted plaintiff’s comparative negligence (in the construction of the scaffold) is not a defense under Labor Law 240 (1):

We conclude that “[t]he fact that the scaffold collapsed is sufficient to establish as a matter of law that the [scaffold] was not so placed . . . as to give proper protection to plaintiff pursuant to the statute” … . Contrary to defendant’s contention, there is no issue of fact whether the safety equipment provided to plaintiff was sufficient to afford him proper protection under Labor Law § 240 (1). The only safety device provided to plaintiff at the work site was a 14-foot-long pick [an aluminum plank]. “There were no harnesses, lanyards, safety lines, or similar safety devices available for use to prevent [plaintiff’s] fall” … . To perform the work of installing siding on the building, plaintiff therefore had to create what the court accurately referred to as a “makeshift” scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building. “[T]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device” … . Bernard v Town of Lysander, 2015 NY Slip Op 00050, 4th Dept 1-2-15

 

, ,

Defendant’s Motion to Vacate a Default Judgment of Divorce Should Have Been Granted Even Though Defendant First Appeared and Then Withdrew

The Fourth Department defendant’s motion to vacate a default judgment of divorce should have been granted, even though the defendant had appeared in the action and then withdrew.  The court noted that a default judgment cannot be appealed and the only remedy is therefore a motion to vacate:

We reject plaintiff’s contention that defendant could not move to vacate the judgment based on excusable default pursuant to CPLR 5015 (a) (1) because he appeared and then withdrew his appearance on the record. Regardless of the fact that defendant appeared initially, the judgment was entered upon defendant’s default. Defendant therefore could not appeal from the judgment of divorce (see CPLR 5511) and, indeed, his only remedy was to move to vacate the judgment of divorce pursuant to CPLR 5015 (a) (1) … .

We conclude that defendant demonstrated both a reasonable excuse for the default and a meritorious defense …, and that he is entitled to vacatur of those parts of the judgment of divorce distributing the parties’ assets …, the only parts of the judgment challenged by defendant on appeal … . Defendant averred that he informed his attorney that he disagreed with the proposed resolution of the parties’ retirement accounts and did not want to finalize the judgment on those terms, but that he was subsequently unable to contact his attorney, and a default judgment of divorce was entered without his knowledge. Furthermore, the judgment of divorce failed to resolve the outstanding issues regarding distribution of the retirement accounts, the home equity loan, and defendant’s enhanced earning capacity, which issues the parties expressly acknowledged remained to be resolved and were dependent upon, at least in part, the forthcoming report. Marshall v Marshall, 2015 NY Slip Op 00059, 4th Dept 1-2-15

 

,

(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant’s objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) …, the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law … . Contrary to the People’s contention, the victim’s identification of defendant’s voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant’s voice that “the identification at issue could not be the product of undue suggestiveness” … . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

 

,

Larceny Jury Instruction Shifted Burden of Proof to Defendant—Reversal Required In Absence of Preservation of the Error

The Fourth Department reversed defendant’s conviction because the jury instruction shifted the burden of proof to the defendant:

Penal Law § 155.15 (1) provides that, “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” …[H]owever, the Court of Appeals in People v Chesler (50 NY2d 203, 209-210) “held that section 155.15 was unconstitutional insofar as it made a good-faith claim of right an affirmative defense because to do so impermissibly shifted the burden onto the defendant to disprove the element of intent.” Rather, “a good faith claim of right is properly a defense–—not an affirmative defense—–and thus, the [P]eople have the burden of disproving such defense beyond a reasonable doubt’ ” … . Here, however, the court instructed the jury that “defendant has the burden of proving that she took, withheld or obtained the property under a claim of right made in good faith by a preponderance of the evidence.” We conclude that the court committed a mode of proceedings error when it shifted the burden onto defendant to disprove the element of intent …, thereby requiring reversal of the judgment and a new trial even in the absence of preservation … . People v Forbes-Haas, 2015 NY Slip Op 00092, 4th Dept 1-2-15

 

,

Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction—Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial

The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge’s failure to exclude spectators who were mouthing word’s during the victim’s testimony was not an abuse of discretion:

“Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable’ right to be tried only on the crimes charged” … . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation… . * * *

“Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction” … . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant’s body that came into contact with her vagina was defendant’s penis. Indeed, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, “No.” Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by count nine, the victim responded, “No.” We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15

 

Statute of Limitations Tolling Provisions Do Not Apply to Endangering the Welfare of a Child

In finding the count charging defendant with endangering the welfare of a child was time-barred, the Fourth Department noted that the tolling provision (starting the statute of limitations when the victim reaches the age of 18) does not apply to that offense:

The statute of limitations for that offense is two years (see CPL 30.10 [2] [c]), and the tolling provision of CPL 30.10 (3) (f) does not apply to that offense … . Although, as noted, defendant’s contention is unpreserved for our review, we exercise our power to address it as a matter of discretion in the interest of justice, and we modify the judgment accordingly … . People v Lomaglio, 2015 NY Slip Op 00181, 4th Dept 1-2-15

 

,

Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court–Case Remitted to Make an Adequate Record for Review

The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender.  The Fourth Department further determined the record was not sufficient for consideration of defendant’s argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them.  People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15

 

, ,

Failure to Make a Motion to Suppress Constituted Ineffective Assistance

The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:

In a supporting deposition, a police officer stated that he stopped defendant’s vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him “if he had anything illegal on him,” and defendant responded that he had “coke” in his pocket. The officer then searched defendant’s pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence … . The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot … . Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot … . We further conclude that defendant’s contention survives his guilty plea inasmuch as defense counsel’s error infected the plea bargaining process … . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15

 

,

Reversible Error to Deny For Cause Challenge to Biased Juror/Defendant’s Counsel Ineffective

The Fourth Department reversed defendant’s conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:

Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have “sympathy” for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she “must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence’ ” … . Inasmuch as the court erred in denying defendant’s challenge for cause, we reverse the judgment and grant a new trial.

We further agree … that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel’s elicitation of testimony that had been precluded by the court’s pretrial ruling and defense counsel’s characterization of defendant as a “drug dealer” on summation … . Although “[i]solated errors in counsel’s representation generally will not rise to the level of ineffectiveness” … , here defense counsel’s failures were “so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby” … . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15

 

Sentencing a Defendant with a Prior Felony Conviction as a First-Time Felon Is Illegal

The Fourth Department determined that sentencing a defendant with a prior felony conviction as a first-time felon is illegal:

…[T]he proper sentencing procedures pursuant to CPL 400.21 were not followed and thus that the sentence may be illegal. County Court sentenced defendant as a first felony offender, but, ” [w]hen it became apparent at sentencing that defendant had a prior felony conviction, the People were required to file a second felony offender statement in accordance with CPL 400.21 and, if appropriate, the court was then required to sentence defendant as a second felony offender’ ” … . “[I]t is illegal to sentence a known predicate felon as a first offender” (id. [internal quotation marks omitted]) and, inasmuch as we cannot allow an illegal sentence to stand, we modify the judgment by vacating the sentence imposed and we remit the matter to County Court for the filing of a predicate felony offender statement and resentencing in accordance with the law … . People v johnson, 2015 NY Slip Op 00062, 4th Dept 1-2-15

 

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