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A SIROIS HEARING TO DETERMINE WHETHER WITNESSES ARE UNAVAILABLE TO TESTIFY BECAUSE OF INTIMIDATION IS A MATERIAL STAGE OF A TRIAL; DEFENDANT AND DEFENSE COUNSEL WERE EXCLUDED FROM THE HEARING; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge should not have conducted the Sirois hearing, which is a material stage of a trial, in the absence of defendant and defense counsel. The hearing determined two witnesses were unavailable to testify because of intimidation. Defense counsel was allowed to submit questions to be posed during the hearing:

… [A] new trial is warranted with respect to the criminal possession of a weapon count because he was denied his right to be present at a material stage of the trial (… see generally CPL 260.20). During the suppression hearing, allegations were made that defendant, or people acting at his behest, had threatened two witnesses to the underlying incident about testifying against defendant. The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay … . * * *

The court erred in conducting the Sirois hearing without defendant or defense counsel present. “[A] defendant’s absence at a Sirois hearing has a substantial effect on [their] ability to defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial” … . A “[d]efendant [is] entitled to confront the witness[es] against [them] at [such a] hearing and also to be present so that [the defendant can] advise counsel of any errors or falsities in the witness[es]’ testimony which could have an impact on guilt or innocence” … . People v Steele, 2024 NY Slip Op 01642, Fourth Dept 3-22-24

Practice Point; Here defendant and defense counsel were excluded from the Sirois hearing which determined two prosecution witnesses were unavailable to testify because of intimidation. Because the hearing is a material stage of the trial, defendant must be present. Allowing defense counsel to submit written questions was insufficient. A new trial was required.

 

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A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a prior ruling in a prior action finding that withheld documents were protected from disclosure did not trigger the collateral estoppel doctrine in the instant action because the prior ruling did not indicate the specific privilege invoked for each document:

… [T]he court abused its discretion in summarily denying the motion on the basis that it had previously ruled that the withheld documents were protected from disclosure in a prior action involving the parties. Collateral estoppel bars relitigation of an issue when “the identical issue necessarily [was] decided in the prior action and [is] decisive of the present action, and . . . the party to be precluded from relitigating the issue [had] a full and fair opportunity to contest the prior determination” … . Preclusion of an issue occurs only if that issue was ” ‘actually litigated, squarely addressed and specifically decided’ ” in the prior action … . While in the prior action the court denied a motion to compel the identical documents contained in the privilege log, the court did not specifically address whether the withheld documents were protected and which protection, such as attorney-client privilege, applied to each document. Thus, there is no evidence that the identical issue, decisive in this action, was necessarily decided in the prior action … . Wiltberger v Allen, 2024 NY Slip Op 01635, Fourth Dept 3-22-24

Practice Point: Collateral estoppel applies only when the issues are identical. Here, even though the documents at issue were found to be privileged in the prior action, the precise privilege applied to each document was not described in the prior order. Therefore it is not clear the issues are identical in the instant proceeding, so the application of collateral estoppel to preclude disclosure is not available.

 

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DEFENDANT WAS NOT GIVEN PRIOR NOTICE OF THE JUDGE’S SUA SPONTE DECISION TO ASSESS 25 POINTS FOR A RISK FACTOR WHEN THE SORA BOARD SUGGESTED FIVE AND THE PEOPLE AGREED TO FIVE; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, vacating the SORA risk-level assessment and remitting the matter for a new hearing, determined the defendant did not have notice of the judge’s sua sponte assessment of 25 points for risk factor 2, when both the SORA Board and the People recommended a five point assessment:

… [T]he court assessed 25 points under risk factor 2 even though the Board had recommended that five points be assessed and the People requested five points. Although the court stated during an appearance prior to the SORA hearing that “it does appear that the upward modification [sic] that was requested [in writing] by the People may be warranted in regards to the sexual intercourse factor,” the court misapprehended the nature of the People’s request for an upward departure, which plainly was not based on a disagreement with the Board’s recommendation under risk factor 2. In any event, the court did not grant an upward departure; instead, after determining at the hearing that only five points should be assessed under risk factor 2, the court later assessed 25 points based on an indication in the case summary that defendant stated at sentencing on the qualifying offense that he had consensual sexual intercourse with the victim.

Because defendant did not have notice that the court was considering a sua sponte assessment of additional points under risk factor 2, we “reverse the order, vacate defendant’s risk level determination, and remit the matter to [Supreme] Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law § 168-n (3) and defendant’s due process rights” … . People v Acosta, 2024 NY Slip Op 01626, Fourth Dept 3-22-24

Practice Point: The judge in a SORA risk-level hearing cannot, sua sponte, increase the number of points assessed for a risk factor without prior notice to the defendant. Notice that the People will seek an upward departure does not constitute notice of increased points for a specific risk factor.

Similar issue and result where the People did not give notice of their intent to request a 10 point assessment for risk factor 12. People v Lostumbo, 2024 NY Slip Op 01639, Fourth Dept 3-22-24

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NEW FACTS RENDERED THE RECORD INSUFFICIENT FOR APPELLATE REVIEW IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; MATTER REMITTED FOR A “BEST INTERESTS OF THE CHILDREN” HEARING (FOURTH DEPT).

The Fourth Department, sending the matter back for a “best interests of the children” hearing in this termination-of-parental rights proceeding, determined new facts prohibited an adequate review:

… [T]he three oldest children, along with the father, assert that new facts and allegations warrant remittal for a new dispositional hearing to determine the best interests of those children. We may “consider . . . new facts and allegations ‘to the extent [that] they indicate that the record before us is no longer sufficient’ to determine whether termination of . . . parental rights is in [a child’s] best interests” … . * * * … [W]e conclude that the record before us is no longer sufficient to determine whether termination of respondents’ parental rights is in the best interests of those children … . Matter of Noah C. (Greg C.), 2024 NY Slip Op 01430, Fourth Dept 3-15-24

Practice Point: In a Family Court case, new facts which render the record inadequate for appellate review require remittal for a hearing.

 

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UNDER THE CIRCUMSTANCES, THE PETITIONER’S REQUEST TO CONTINUE THE TRIAL WITH ELEVEN JURORS SHOULD HAVE BEEN GRANTED; IN ADDITION IT WAS AN ABUSE OF DISCRETION TO DECLARE A MISTRIAL ON ALL COUNTS WITHOUT INQUIRING WHETHER A VERDICT HAD BEEN REACHED ON ANY OF THE COUNTS; RETRIAL OF THIS MURDER CASE PROHIBITED ON DOUBLE JEOPARDY GROUNDS; WRIT OF PROHIBITION GRANTED (FOURTH DEPT).

The Fourth Department, granting petitioner’s request for a writ of prohibition, determined retrial of this murder case was prohibited on double jeopardy grounds. Apparently one juror (juror number five) had done independent research on the charge of murder in the second degree and jurors had complained about racial tension in the jury room, implicating the same juror. There was an indication that jurors had agreed on verdicts for five of six charges. Petitioner asked to continue the trial with 11 jurors, which requires the judge’s consent. The judge denied the request. Defense counsel asked that the jury be polled on the counts for which verdicts had apparently been reached. The judge refused the request and declared a mistrial:

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. Assuming, arguendo, that juror number five was grossly unqualified to continue serving, we conclude that the court abused its discretion in declaring a mistrial without considering other alternatives. Petitioner expressed his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals “if circumstances arise that warrant such a request” … . Although the court has discretion to deny a request to proceed with 11 jurors—as the court did here—that discretion is limited … . The record here is devoid of evidence that petitioner’s request was not tendered in good faith, that the request was ” ‘a stratagem to procure an otherwise impermissible procedural advantage’ ” … , or that deliberation with 11 jurors could not “produce a fair verdict” … . Under the circumstances presented, as urged by defense counsel, “it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict” … .

Moreover, “it was an abuse of discretion to have declared a mistrial on all of the counts in the indictment without inquiring whether a decision had been reached on any of the charges” … . Although there was not “overwhelming evidence” that a partial verdict had been reached … , the jury’s note asking for guidance on next steps “[i]f we have a decision on five counts but not on one of them” presented more than a mere inference that the jury may have reached a partial verdict, and the subsequent communications with the jury did not indicate otherwise … . Under these circumstances, the court was required to make an inquiry “as to whether a verdict had been reached on any of the counts . . . before declaring a mistrial over the petitioner’s objection” … .

On this record, “[n]either physical impossibility to proceed nor manifest necessity to declare a mistrial as to the entire indictment has been demonstrated” … because the court failed “to obtain enough information” whether a mistrial was actually necessary as to all counts … . Matter of Shipmon v Moran, 2024 NY Slip Op 01424, Fourth Dept 3-15-24

Practice Point: Under these facts, it was an abuse of discretion to deny petitioner’s request to continue the trial with 11 jurors. Retrial prohibited on double jeopardy grounds.

Practice Point: Under these facts, it was an abuse of discretion to fail to inquire whether the jury had reached a verdict on any counts. Retrial prohibited on double jeopardy grounds.

 

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DEFENDANT WAS NOT INFORMED OF ALL THE DIRECT CONSEQUENCES OF THE GUILTY PLEA, INCLUDING THE FINE; GUILTY PLEA VACATED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s conviction to driving while ability impaired by drugs, determined the sentencing judge did not inform defendant of the direct consequences of the guilty  plea:

“It is well settled that, in order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea” … . “The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine” … , and the failure to advise a defendant at the time of the guilty plea of all of the potential direct consequence of that plea “requires that [the] plea be vacated” … . Here, the court advised defendant that, upon a violation of interim probation, he could be sentenced “to anything allowable by law which . . . is up to two and a third to seven years in the department of corrections,” but failed to advise him of any other potential direct consequences of the plea, including a fine (see Vehicle and Traffic Law § 1193 [1] [c] [ii]). We note that defendant’s challenge to the voluntariness of his plea is not encompassed in an appeal waiver … , and that preservation of defendant’s contention was not required under the circumstances of this case inasmuch as “defendant did not have sufficient knowledge of the terms of the plea at the plea allocution and, when later advised, did not have sufficient opportunity to move to withdraw [his] plea” … . People v Abraham, 2024 NY Slip Op 01419, Fourth Dept 3-15-24

Practice Point: If a judge fails to inform a defendant of the direct consequences of a guilty plea, including the fine, the plea must be vacated.

 

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REFUSING TO SUBMIT TO A BREATH TEST IS NOT A CRIMINAL OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on one count of the indictment, noted that “refusal to submit to a breath test” is not a criminal offense:

Defendant appeals from a judgment convicting him, upon a jury verdict, of … refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a breath test mandated by Vehicle and Traffic Law § 1194 (1) (b) “is not a cognizable offense for which a person may be charged or convicted in a criminal court” … . Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count … . People v Khadka, 2024 NY Slip Op 01402, Fourth Dept 3-15-24

Practice Point: Here in this DWI case, the defendant was convicted of refusing to submit to a breath test, which is not a criminal offense. Conviction reversed.

 

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TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT (PLUMBING PIPES) IS NOT SUBJECT TO THE SAME STATUTE OF LIMITATIONS ANALYSIS AS TRESPASS BY THE ARTIFICIAL DIVERSION OF WATER; TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT IS A CONTINUING TRESPASS UNTIL THE EXPIRATION OF THE TIME PERIOD FOR ADVERSE POSSESSION OR AN EASEMENT BY PRESCRIPTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the trespass cause of action should not have been dismissed as time-barred. A trespass claim based upon a permanent physical encroachment (here plumbing pipes connected to a septic system) is a continuing trespass which gives rise to successive trespass causes of action until the expiration of the time period for an easement by prescription or adverse possession:

… [P]laintiff’s claim for trespass seeking monetary damages should not be analyzed for statute of limitations purposes in the same way as a claim for the artificial diversion of water onto an adjoining property … , inasmuch as plaintiff’s trespass claim is based upon a permanent physical encroachment, i.e., the underground plumbing that defendants installed on plaintiff’s property. “[The] encroaching structure is a continuing trespass [that] gives rise to successive causes of action, except where barred by acquisition of title or an easement by operation of law” … . ” ‘Thus, for purposes of the statute of limitations, suits will only be time-barred by the expiration of such time as would create an easement by prescription or change of title by operation of law,’ [namely], by adverse possession” … . Inasmuch as the complaint, which was filed on July 23, 2021, alleges that defendants’ “plumbing material” was unlawfully installed on plaintiff’s property in 2014, plaintiff’s claim for damages here is not barred by the statute of limitations (see RPAPL 501 [2]). Kramer v Kleiber, 2024 NY Slip Op 01387, Fourth Dept 3-15-24

Practice Point: Trespass by artificial diversion of water is not subject to the same statute of limitations analysis as trespass by a permanent physical encroachment (plumbing pipes in this case). Trespass by permanent physical encroachment is a continuing trespass until the expiration of the time period required for adverse possession or an easement by prescription.

 

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PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION BASED UPON THE ALLEGED NOXIOUS ODORS FROM DEFENDANT’S LANDFILL SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff real estate developer causes of action against defendant landfill operation for private nuisance, public nuisance and negligence, based upon noxious odors from the landfill, should have been dismissed: Plaintiff alleged the odors made it difficult to sell homes and reduced the value of properties in the vicinity of the landfill:

… [A] private nuisance is one that “threatens one person or . . . relatively few” … . … [P]laintiff’s allegations indicate that the noxious odors affected a large number of community residents and, therefore, we conclude that plaintiff’s cause of action for private nuisance must be dismissed … . …

… [A] public nuisance consists of “a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … .

Here, plaintiff alleged that it suffered a special injury because it “suffered lost profit[s] and other substantial economic loss,” including “irreparable damage to its reputation in the community as a residential home builder.” … [P]laintiff did not allege facts sufficient to support a public nuisance cause of action. It failed to allege that it sustained any harm or damages that were “different in kind, not merely in degree,” from the community at large … .

* * * [P]laintiff “ha[s] not alleged any tangible property damage or physical injury resulting from exposure to the odors” and, “likewise, the economic loss resulting from the diminution of plaintiff[‘s] property values is not, standing alone, sufficient to sustain a negligence claim under New York law” … . William Metrose Ltd. Builder/Developer v Waste Mgt. of N.Y., LLC, 2024 NY Slip Op 01458, Fourth Dept 3-15-24

Practice Point: Here noxious odors from a landfill did not support causes of action for private nuisance, public nuisance or negligence, criteria explained.

 

IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF FOR INTERIOR PAINTING WOULD ACCUMULATE AND CAUSE DIZZINESS RESULTING IN PLAINTIFF’S FALL FROM THE LIFT; PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff was spray painting the interior of a factory using a boom lift when he became dizzy and fell from the lift. Plaintiff diesel fumes from the lift accumulated above him, causing the dizziness:

… [I]t is undisputed that plaintiff fell from the lift while it was raised six to eight feet in the air. In support of his motion, plaintiff submitted evidence establishing that his injuries were causally related to the fall from the lift and that plaintiff was using a boom lift that discharged fumes into the factory. Plaintiff also submitted the affidavit of an expert who opined that defendants violated Labor Law § 240 (1) by failing to ensure that the boom lift was ” ‘so constructed, placed and operated as to give proper protection’ ” to plaintiff and by allowing plaintiff to place the boom lift in a position where diesel fumes were likely to accumulate above him and cause dizziness. We conclude that plaintiff thus met his prima facie burden on his motion by establishing that his fall was a “normal and foreseeable” consequence of the placement of the lift, which exhausted noxious fumes too close to plaintiff … .

In response, defendants failed to raise a triable issue of fact whether the hazard of fumes is “of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability” … . Defendants also failed to raise an issue of fact whether plaintiff deliberately unclipped his safety harness, and we note that the issue presents, at best, a question of comparative negligence, which is not a defense to liability under Labor Law § 240 (1) … . Wolfanger v Once Again Nut Butter Collective Inc., 2024 NY Slip Op 01452, Fourh Dept 3-15-24

Practice Point: Plaintiff was using a boom lift for interior painting and alleged that diesel fumes from the lift made him dizzy, causing him to fall. That scenario was not so attenuated from the statutory violation as to constitute a superseding cause of plaintiff’s injury. Plaintiff’s Labor Law 240(1) cause of action should not have been dismissed.

 

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