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Police Did Not Demonstrate They Had a “Founded Suspicion Criminality Was Afoot” Before Asking For and Receiving Defendant’s Permission to Search His Car

The Fourth Department determined the police failed to demonstrate they had a “founded suspicion that criminality was afoot” when they asked defendant for permission to search his car.  The marijuana and firearm found in the search should have been suppressed:

The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot … . It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion … . Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court’s finding that the officers smelled marihuana as soon as they approached the vehicle.  People v Wideman, 2014 NY Slip Op 06698, 4th Dept 10-3-14

 

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“Error In Judgment” Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence

In reversing Supreme Court, the Fourth Department determined the “error in judgment” jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:

We conclude that the court erred in granting that part of plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa’s alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa’s testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge … . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff’s postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff … . Furthermore, we conclude that “the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence” … . Beebe v St Joseph’s Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14

 

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Criteria for Setting Aside a Defense Verdict Not Met

The Fourth Department determined a verdict for the defense in a medical malpractice action should not have been set aside as against the weight of the evidence.  The court explained the criteria in the context of conflicting expert testimony:

“A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” … . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” …, and the trial court “should not set aside [a] verdict unless it is palpably irrational or wrong” … . * * *

“Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” …, and, unlike the trial court, we perceive no reason to disregard the testimony of defendants’ expert … . Lesio v Attardi, 2014 NY Slip Op 06705, 4th Dept 10-3-14

 

Petitioner Did Not Have Standing to Contest Negative SEQRA Finding/”Alienation of Parkland” and “Public Trust” Arguments Rejected

The Fourth Department determined petitioner did not have standing to contest the negative finding pursuant to State Environmental Quality Review Act (SEQRA)  The finding concerned a storage facility to be built for the Maid of the Mist excursion boats on state-park land along the Niagara River.  The petitioner, Niagara Preservation Coalition, Inc., was formed to challenge the project.  In the course of the decision, the Fourth Department rejected the “alienation of parkland” and “public trust” arguments:

We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, ” interest’ and injury’ are not synonymous . . . A general—or even special— interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case” … . “Appreciation for historical and architectural [artifacts] does not rise to the level of injury different from that of the public at large for standing purposes” … . Here, petitioner failed to establish an injury distinct from members of the public who use the gorge trail to access the ruins of the former hydroelectric plant … , and thus it lacks standing to contest the SEQRA determination. * * *

Even assuming, arguendo, that petitioner has standing to allege alienation of parkland …, as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents …were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park. It is well established “that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes” … . It is undisputed, however, that there is no case law in New York applying the “public trust” principle to state parks. The cases apply only to municipal parks … . Even assuming, arguendo, that [state] parks …are governed by the ” public trust doctrine’ ” … , which respondents dispute …, “what [petitioner] show[s here] is a dispute with public authorities about what is desirable for the park[,] . . . not a demonstration of illegality” … . Matter of Niagara Preserv Coalition Inc v New York Power Auth, 2014 NY Slip Op 06694, 4th Dept 10-3-14

 

Sentence Greater than that Promised in a Plea Bargain Did Not Constitute Punishment for Exercising the Right to Go to Trial

The Fourth Department rejected defendant’s argument that his sentence was increased as punishment for going to trial:

” [T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant’s exercise of the right to a trial’ ” …, or that the court ” placed undue weight upon defendant’s ill-advised decision to reject [a] favorable plea bargain and proceed to trial’ ” … . People v Odums, 2014 NY Slip OP 06692, 4th Dept 10-3-14

 

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Parole Officer Was Not Acting “Merely as a Conduit” for the Police In Conducting a Search—The Search Was Related to the Parole Officer’s Duties

In rejecting the defendant’s argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer’s duties, the Fourth Department explained the relevant law:

A parolee’s right to be free from unreasonable searches and seizures is not violated if a parole officer’s search of the parolee’s person or property “is rationally and reasonably related to the performance of his duty as a parole officer” … . A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … . Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … .

Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer’s duties, and that suppression was therefore not warranted … . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14

 

Cleaning Clogged Drain Was Routine Maintenance, Not Covered by Labor Law 240(1)

The Fourth Department determined plaintiff was engaged in routine maintenance, not repair, and therefore his injury from a fall from a ladder was not covered under Labor Law 240(1):

Addressing … the Labor Law § 240 (1) cause of action, we conclude that plaintiff was not “repairing” the corrosion chamber at the time he was injured, and thus that he was not engaged in a protected activity under section 240 (1). Rather, defendants established as a matter of law that plaintiff was involved in “routine maintenance in a non-construction, non-renovation context” … . The court therefore properly granted that part of defendants’ motion with respect to that cause of action and denied plaintiffs’ cross motion. Neither the corrosion chamber nor the components of the “drainage system,” i.e., the floor drain and plastic piping, were in need of “repair.” Rather, the drain was clogged, at least in part as a result of the normal operation of the chamber. Plaintiff testified at his deposition that the clog consisted of “paper and what looked to be like pieces of wooden dowel from like Q-tips that they use,” i.e., parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substance. Although plaintiff and his supervisor testified that dirty conditions in the chamber could potentially compromise test results, there is no evidence that the chamber was ” inoperable or malfunctioning prior to the commencement of the work’ ” … . Further, there is no evidence that plaintiff had to use specialized tools or any tools at all to take apart the plastic piping. Indeed, defendants’ expert averred that the PVC piping had no mechanical fasteners and was “merely a friction fit, therefore, it would be a routine task to remove.” Plaintiff then used an air hose, metal wire, and a water hose to remove the clog, all of which were readily accessible to and used by him in the course of his employment. Leathers v Zaepfel Dev Co Inc, 2014 NY Slip Op 06691, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

Labor Law 200 Cause of Action Requires Supervisory Control Over How Plaintiff Carries Out the Injury-Producing Work

The Fourth Department, in affirming the dismissal of the common-law negligence and Labor Law 200 causes of action, explained the operative criteria:

Labor Law § 200 codifies “the common-law duty of a landowner to provide workers with a reasonably safe place to work” … , and it therefore encompasses the duty underlying plaintiff’s negligence cause of action. A precondition to the duty under Labor Law § 200 ” is that the party charged with that responsibility have the authority to control the activity bringing about the injury’ ” … . Thus, liability under Labor Law § 200 cannot be imposed on a defendant if “there is no evidence that [the] defendant exercised supervisory control or had any input into how” the plaintiff carried out the injury-producing work … .

Here, all three moving defendants met their initial burdens of establishing as a matter of law that they did not have supervisory control over plaintiff’s work and did not have input into how he performed his work. Jones v County of Erie, 2014 NY Slip Op 06726, 4th Dept 10-3-14

 

Question Posed by the Prosecutor to Prospective Black Jurors About Whether They Felt Police Officers Unfairly Target Members of the Minority Community Required Reversal

The Fourth Department reversed defendant’s conviction, finding that the prosecutor’s explanation for excluding black jurors was not race-neutral.  The prosecutor asked the jurors whether they felt that police officers unfairly target members of the minority community:

Pursuant to Batson and its progeny, “the party claiming discriminatory use of peremptories must first make out a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more [prospective] jurors for an impermissible reason . . . Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory—–step two … The third step of the Batson inquiry requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented” … . * * *

With respect to step two of the analysis, we conclude that the People failed to meet their burden of setting forth a “race-neutral reason” for striking the challenged prospective jurors … . “A race-neutral reason naturally means an explanation based on something other than the race of the [prospective] juror’ ” …, and must be “related to the particular case to be tried” … . Although the burden on the nonmoving party at this stage of the analysis is relatively minimal, “[a] prosecutor’s explanation may not be sustained where discriminatory intent is inherent in the explanation” … .

Here, the People excluded the two prospective jurors at issue solely based upon their answers to a race-based question, i.e., whether they believed that police officers “unfairly target members of the minority community” … . Notably, that question was unrelated to the facts of this case, which does not involve any allegation of racial profiling . We are unpersuaded by the People’s assertion that the question was “designed to ensure that the jurors would not automatically accept or reject police testimony.”  People v Mallory, 2014 NY Slip Op 06728, 4th Dept 10-3-14

 

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