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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted:

Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw a bulge or the outline of a weapon in defendant’s jacket. Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon. While we are mindful that an officer may rely on his or her knowledge and experience in determining whether reasonable suspicion exists, we respectfully disagree with our dissenting colleagues that the above circumstances were sufficient to establish the requisite reasonable suspicion “in the absence of other objective indicia of criminality” … . Here, before pursuing defendant, the second officer knew only that defendant was walking across the street in a high-crime area, in the general vicinity of a house where an unnamed person of unestablished reliability claimed to have seen guns, and that, when the police approached, defendant walked or ran away while grabbing at his jacket pocket. We cannot conclude, based on the totality of those circumstances, that the police were justified in pursuing defendant… . People v Ingram, 1115, 4th Dept 2-14-14

 

No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

The Fourth Department determined the deputy sheriff did not have probable cause to arrest the defendant without a warrant because the defendant had not committed a crime in the deputy’s presence. Therefore all the charges stemming from the illegal arrest were not supported by legally sufficient evidence:

We conclude that the evidence is legally insufficient to establish that the deputy’s arrest of defendant was lawful inasmuch as the deputy lacked reasonable cause to believe that defendant committed an offense in her presence (see CPL 140.10 [1] [a]). Because the arrest was not authorized at its inception, the evidence is legally insufficient to support the conviction of assault, obstructing governmental administration, and resisting arrest …, and reversal therefore is required. People v LaBoy, 96, 4th Dept 2-14-14

 

Hospital Does Not Have a Duty to Prevent a Patient from Leaving the Hospital Against Medical Advice or to Ensure Patient’s Safe Return Home

The Fourth Department, over a two-justice dissent, concluded a cause of action against defendant hospital brought by a patient who suffered frostbite after leaving the hospital against medical advice should have been dismissed:

…[P]laintiffs alleged that defendant was negligent in failing to prevent plaintiff from leaving the hospital and in failing to ensure plaintiff’s safety when he left the hospital inasmuch as defendant’s staff did not contact plaintiff’s wife or make arrangements for someone to pick him up. We agree with defendant that, pursuant to Kowalski v St. Francis Hosp. & Health Ctrs. (21 NY3d 480, 484-485), which was decided after the court rendered its decision …, it did not have a duty to prevent plaintiff from leaving the hospital against medical advice. We further agree with defendant that it did not have the concomitant duty to ensure plaintiff’s safe return home … . Inguitti v Rochester General Hospital, 1302, 4th Dept 2-14-14

 

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Florida Choice of Law Provision Re: Covenants Not to Compete Unenforceable in New York/the Nonsolicitation Covenant at Issue Was Overbroad and Unenforceable

In a full-fledged opinion by Justice Whalen, the Fourth Department determined that Florida law re: covenants not to compete was “truly obnoxious” to New York law and the nonsolicitation covenant at issue was overbroad and unenforceable:

…[W]e conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “ ‘truly obnoxious’ ” to New York public policy …, inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason ‘’’ .  Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them “only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained”…, Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests (see Florida Statutes § 542.335 [1] [h]). * * *

A non-solicitation covenant is overbroad and therefore unenforceable “if it seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment” … .  Here, the non-solicitation covenant purported to restrict [defendant] from, inter alia, soliciting, diverting, servicing, or accepting, either directly or indirectly, “any insurance or bond business of any kind or character from any person, firm, corporation, or other entity that is a customer or account of the New York offices of the Company during the term of [the] Agreement” for two years following the termination of Johnson’s employment, without regard to whether defendant acquired a relationship with those clients. We conclude that the language of the non-solicitation covenant renders it overbroad and unenforceable … . Brown and Brown Inc… v Johnson…, 1109, 4th Dept 2-7-14

 

Failure to Address Youthful Offender Eligibility Required Remittal

The Fourth Department determined the trial court did not consider whether the defendant should be adjudicated a youthful offender and sent the matter back:

At sentencing, defense counsel made several applications for defendant to be treated as a youthful offender, but the court did not expressly rule on them; instead, the court imposed a sentence that was incompatible with youthful offender treatment.

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … .  “[W]e cannot deem the court’s failure to rule on the. . . [applications] as . . . denial[s] thereof” … .  Furthermore, even if the court had denied the applications, there is no information in the record from which we could ascertain whether the court properly did so in the exercise of its discretion, or whether it improperly acceded to the prosecutor’s plea conditions.  People v Potter, 1199, 4th Dept 2-7-14

 

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Failure to Turn Over Brady Material Until the Day of Trial Required Reversal

The Fourth Department determined the prosecution’s failure to turn over Brady material (911 tape recording) until the day of trial required reversal:

“To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for [an item of discovery], the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, the 911 recording is exculpatory because it includes the voice of an unidentified person referring to a white male suspect, and defendant herein is a black male.  Although defendant received the 911 recording as part of the Rosario material provided to him on the first day of trial, he was not “given a meaningful opportunity to use the exculpatory evidence”… . People v Carver, 1311, 4th Dept 2-7-14

 

Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers

The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition:

County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]) on the grounds that material evidence adduced at his trial was false and was known by the prosecutor to be false prior to the entry of judgment and that the judgment was obtained in violation of his due process rights (see CPL 440.10 [1] [c], [h]).  Defendant submitted two affidavits from a prosecution witness that “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claims (CPL 440.30 [4] [b]).  The People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court “was not statutorily authorized to deny defendant’s motion without a hearing”… . People v Parsons, 48, 4th Dept 2-7-14

 

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Verdict Properly Set Aside Based Upon Trial Court’s Own Denial of Defendant’s Request for an Adjournment to Retain New Counsel/Criteria for Trial Court’s Setting Aside a Verdict Explained

The Fourth Department, after explaining the criteria for setting aside a verdict, ruled the trial court had properly set aside the verdict in this case due to the trial court’s own erroneous denial of defendant’s request for an adjournment to seek new counsel:

“Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on ‘[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court’ ” … . “The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact . . . , to reverse or modify a judgment when the verdict is against the weight of the evidence . . . , and to reverse ‘[a]s a matter of discretion in the interest of justice’ ”… . * * *

In our view, the court’s refusal to grant defendant’s request for an adjournment was “an abuse of discretion as a matter of law” and effectively denied defendant the fundamental right to be represented by counsel of his own choosing …   On the date scheduled for suppression hearings, defense counsel, who had been retained by defendant’s family while defendant was incarcerated, withdrew defendant’s requests for suppression and sought an expedited trial without defendant’s knowledge or consent.  At the next court appearance, defendant requested an adjournment of the expedited trial to afford him time in which to retain another attorney.  The court, in denying that request, did not afford defendant “[a] reasonable time and a fair opportunity to secure counsel of his own choice”…, particularly in view of the fact that the trial was expedited without defendant’s knowledge or consent… .  Inasmuch as we conclude that defendant was denied the fundamental right to be represented by counsel of his own choosing, reversal of the judgment of conviction on that ground would be required as a matter of law upon an appeal therefrom (see CPL 330.30 [1]), and the court therefore properly set aside the verdict. People v Rohadfox, 1367, 4th Dept 2-7-14

 

Unlawful Imprisonment Charge Merged With Assault Charge

The Fourth Department determined the doctrine of judicial merger required dismissal of the unlawful imprisonment charge because it merged with the charged assault:

“Under the doctrine of judicial merger, an unlawful imprisonment or kidnapping that is incidental to and inseparable from the commission of another crime merges with such other crime” … .  In determining whether the merger doctrine applies herein, “our guiding principle is whether [defendant’s] restraint [of the victim] was so much the part of another substantive crime [, i.e., the crime of assault,] that the substantive crime could not have been committed without such acts [constituting the crime of unlawful imprisonment] and that independent criminal responsibility may not fairly be attributed to them” … .  Here, the brief “abduction” of the victim, i.e., the moment when defendant grabbed the victim and pulled him outside the dwelling at issue, was “merely ‘preliminary, preparatory, or concurrent action’ in relation to the ultimate crime [of assault]” …, and we thus conclude that the unlawful imprisonment count merged with the assault count… . People v James, 1314, 4th Dept 2-7-14

 

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Criteria for Review of a Zoning Amendment Explained

In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment:

It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as here, the amendment is in accordance with the City’s comprehensive plan … .  Further, “[c]ompliance with the statutory requirement is measured . . . in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden” … .  “ ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control’ ” … . “Thus, where the plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld” … .  Restuccio…v City of Oswego…, 1284, 4th Dept 2-7-14

 

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