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THE DOCTRINE OF MERGER CAN BE APPLIED TO DISMISS A KIDNAPPING CHARGE EVEN IF THE LESSER OFFENSE IS NOT CHARGED (FOURTH DEPT).

The Fourth Department remitted the matter for consideration of the People’s remaining objection to applying the merger doctrine to the kidnapping charge. County Court had erroneously ruled the merger doctrine could not be applied to dismiss the kidnapping charge unless the lesser offense is also charged:

… [D]efendant contends that the court erred in denying that part of his omnibus motion seeking to dismiss the charge of kidnapping in the second degree pursuant to the merger doctrine. The kidnapping merger doctrine is a judicially-created doctrine intended to prevent overcharging and “to prohibit a conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and independent criminal responsibility for kidnapping may not fairly be attributed to the accused” … . A kidnapping charge “is generally deemed to merge with another offense only where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous” … . Even if that is so, however, there is no merger where “the manner of detention is egregious” … . We agree with defendant that the court erred in concluding that the merger doctrine did not apply because defendant was charged only with kidnapping and, therefore, there was no other crime with which the count could merge.

… [D]efendant correctly contends that he had committed acts that would have supported a conviction for menacing and, therefore, the merger doctrine was applicable whether he was charged with the lesser offense or not … . * * *

Inasmuch as the court did not rule on the People’s alternative argument—i.e., that the merger doctrine did not apply because any alleged menacing of the victim was incidental to the kidnapping—we may not affirm the decision on that ground … . We therefore … reserve decision, and remit the matter to County Court for a ruling on the motion in accordance with this memorandum … . People v Almonte, 2024 NY Slip Op 02426, Fourth Dept 5-3-24

Practice Point: The doctrine of merger can be applied to dismiss a kidnapping charge even if the lesser offense is not charged.

 

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PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

 

THE MARIJUANA FELONY CONVICTION WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS WAS BASED ON A STATUTE WHICH HAS SINCE BEEN REPEALED AND REPLACED WITH A MISDEMEANOR; DEFENDANT WAS ENTITLED TO RESENTENCING AS A FIRST-TIME FELONY OFFENDER (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined defendant, who had been sentenced as a second felony offender, was entitled to resentencing as a first-time felony offender because his 2013 marijuana-felony conviction was based upon a statute which had been repealed and replaced by a misdemeanor:

MRTA [Marihuana Regulation and Taxation Act] provides a procedural mechanism for a person, such as defendant, who has completed serving a sentence for a conviction under Penal Law former article 221 to petition the court of conviction for vacatur of that conviction where … the person would have been guilty of a lesser or potentially less onerous offense under [the new]  article 222 than under former article 221 … . … Defendant successfully moved to vacate his January 2013 felony conviction, and Supreme Court … replaced that conviction with a conviction under Penal Law § 222.30.

… [D]efendant moved pursuant to CPL 440.20 to vacate the sentence imposed for his 2019 conviction. He contended that the vacatur of his prior felony marihuana conviction invalidated the enhanced sentence imposed for his 2019 conviction, which was based on the prior felony conviction. … Supreme Court … granted defendant’s motion to set aside the sentence for his 2019 conviction and resentenced him as a first felony offender to 3½ years in prison and 3½ years of postrelease supervision. * * *

… [W]e conclude that one of the “purposes” … served in substituting the misdemeanor for the felony conviction is to allow for the retroactive amelioration of a predicate felony sentence. People v Parker, 2024 NY Slip Op 02414, Fourth Deptp 5-3-24

Practice Point: Here defendant’s second felony offender status was based on a marijuana statute which has since been repealed and replaced with a misdemeanor. Defendant was entitled to resentencing as a first-time felony offender.

 

HERE THE PEOPLE REQUESTED AN ADJOURNMENT OF THE HUNTLEY HEARING BUT THE RECORD IS SILENT ABOUT THE LENGTH OF THE REQUESTED ADJOURNMENT; THEREFORE THE ENTIRE TIME BETWEEN THE REQUEST AND THE HEARING WAS COUNTED AGAINST THE PEOPLE FOR “SPEEDY TRIAL” PURPOSES (FOURTH DEPT).

The Fourth Department, granting the speedy trial motion and dismissing the indictment, determined that the record did not indicate the length of an adjournment of the Huntley hearing requested by the People and, therefore, the entire time between the request and the hearing was chargeable to the People:

“Normally, the People will be charged only with the actual period of adjournment requested, following their initial statement of readiness; any additional period of delay, for the convenience of the court’s calendar, will be excludable” … . The People, however, “bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay” … . Here, there is no explanation as to the reason for the requested adjournment in the record, and there is no indication on the record of the length of the adjournment the People were requesting. Thus, the entire period is chargeable to the People … . Furthermore, the adjournment is not excludable inasmuch as defendant did not expressly consent to the adjournment … . People v Bish, 2024 NY Slip Op 02409, Fourth Dept 5-3-24

Practice Point: If the People request an adjournment of a hearing but the record is silent about the length of the requested adjournment, the entire time between the request and the hearing may be chargeable to the People.

 

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AN ACTION AGAINST A CORPORATION AND AN ACTION AGAINST INDIVIDUAL PRINCIPALS OF THE CORPORATION DO NOT HAVE AN “IDENTITY OF PARTIES” WHICH WOULD ALLOW DISMISSAL OF ONE OF THE COMPLAINTS; TEXT MESSAGES DO NOT SUPPORT DISMISSAL OF A COMPLAINT BASED ON “DOCUMENTARY EVIDENCE;” THE COMPLAINT STATED A CAUSE OF ACTION FOR CONVERSION; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined certain causes of action should not have been dismissed. Dismissal of two causes action on the ground there existed identical causes of action in another lawsuit was error because the parties in the two lawsuits were not the same. It was error to dismiss a cause of action based on documentary evidence because text messages do not fit the definition of “documentary evidence.” It was also error to dismiss the action for conversion for failure to state a cause of action:

It is well settled that ” ‘[i]ndividual principals of a corporation are legally distinguishable from the corporation itself’ and a court may not ‘find an identity of parties by, in effect, piercing the corporate veil without a request that this be done and, even more importantly, any demonstration . . . that such a result is warranted’ ” … . * * *

… [T]he court erred in using text message excerpts to justify dismissal of the fourth cause of action or, indeed, any cause of action. Documents such as text messages “do not meet the requirements for documentary evidence” to support a CPLR 3211 (a) (4) motion … . To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” … . Here, the text messages do not even identify the person who is communicating with plaintiff. The names and numbers are redacted. Moreover, the text messages do not “conclusively establish[ ] a defense as a matter of law” with respect to the fourth cause of action … . * * *

The second cause of action alleges that defendants converted plaintiff’s personal property, including dental equipment, to their own use. “Two key elements of conversion are (1) plaintiff’s possessory right or interest in the property . . . and (2) [a] defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights” … . … [W]e conclude that the pleading includes sufficient allegations to support a cause of action for conversion. Plaintiff alleged that each defendant exerted dominion and control over property to which she had a possessory right or interest … . Nosegbe v Charles, 2024 NY Slip Op 02406, Fourth Dept 5-3-24

Practice Point: An action against a corporation and an action against individual principals of that corporation do not have “an identity of parties” which would subject one of the actions to dismissal.

Practice Point: Text messages are not “documentary evidence” which can be the basis for dismissal of a complaint.

 

MOTHER’S LEAVING THE CHILD WITH THE PETITIONERS, THE CHILD’S BROTHER AND SISTER-IN-LAW, FOR A LITTLE MORE THAN A MONTH DID NOT MEET THE “EXTRAORDINARY CIRCUMSTANCES” STANDARD FOR THE AWARD OF JOINT CUSTODY TO MOTHER AND PETITIONERS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the award of joint custody of the child shared by mother and the child’s brother and sister-in-law (petitioners). The extraordinary circumstances required to award custody to nonparents were not demonstrated. Mother had left the child with the petitioners for a little more than a month before seeking the child’s return:

… [T]he court’s determination to award petitioners joint custody of the child along with herself and the father lacks a sound and substantial basis in the record inasmuch as petitioners failed to establish the existence of extraordinary circumstances. ” ‘[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . “A finding of extraordinary circumstances is rare, and the circumstances must be such that they ‘drastically affect the welfare of the child’ ” … . Such circumstances are not established by a mere showing that the nonparent “could do a better job of raising the child” … . Where a nonparent fails to establish extraordinary circumstances, “the inquiry ends” … .

… We conclude that petitioners failed to meet their burden of establishing that the mother “relinquished her superior right to custody” … . … [T]he mother’s decision to leave the child with petitioners for a little over a month before seeking his return did not amount to the type of prolonged separation that would evidence the mother’s abandonment of the child or her intent to do so … . Matter of Adams v John, 2024 NY Slip Op 02404, Fourth Dept 5-3-24

Practice Point: Here the child’s brother and sister-in-law were awarded joint custody of the child with mother after mother left the child with the petitioners for a little more than a month. The “extraordinary circumstances” standard for the award of custody to nonparents was not met.

 

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IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the judge should not have granted summary judgment in the absence of a motion and a hearing. The underlying issue is whether the subject real property should be partitioned or sold at auction:

… [D]efendant and decedent made an oral motion for … a hearing on whether the property could be partitioned. Rather than decide that motion, the court directed the parties to exchange expert reports and set the matter down for a conference, at which time a hearing would be scheduled if the parties could not come to an agreement regarding partition. However, when the parties appeared for the scheduled conference, the court did not set a date for the hearing, but, instead, held the conference, and subsequently, in effect, granted summary judgment to plaintiffs. Because “there was no motion for summary judgment pending before the court at that time, . . . it was error for the court to grant such relief” … . Although a court “has the power to award summary judgment to a nonmoving party, predicated upon a motion for the relief by another party, it may not sua sponte award summary judgment if no party has moved for summary judgment . . . , unless it appears from a reading of the parties’ papers that they were deliberately charting a course for summary judgment by laying bare their proof” … . Here, contrary to plaintiffs’ contention, it does not appear that the parties were deliberately charting a course for summary judgment. Indeed, the only motion pending before the court was the oral motion of defendant and decedent for … a hearing. Therefore, we reverse … and remit the matter for a hearing on whether the property may be partitioned without undue prejudice and for an accounting. The accounting shall be held “before interlocutory judgment is rendered” (RPAPL 911 …). Smith v Smith, 2024 NY Slip Op 02478, Fourth Dept 5-3-24

Practice Point: Generally a judge cannot grant summary judgment absent a motion.

Practice Point: If the parties lay bare all their proof indicating they have charted a course for summary judgment (not the case here), the court may award summary judgment absent a motion.

 

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TRIAL TESTIMONY RENDERED SEVERAL COUNTS IN THIS SEXUAL ABUSE CASE DUPLICITOUS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts in this sexual abuse case, determined the trial testimony rendered the counts duplicitous:

… [T]he trial testimony rendered counts 4, 5, 7, and 8 duplicitous. ” ‘Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict’ ” … . A duplicitous count “may undermine the requirement of jury unanimity,” inasmuch as some jurors may find that defendant committed one criminal act under the count, while other jurors may find that defendant committed some other criminal act under the same count … .

At trial, the victim was unable to identify the number of times defendant touched her during the relevant time period. She testified that he touched her breasts “[a]t least two” times. The victim also testified that defendant put his fingers inside her vagina “[p]robably at least three” times and licked her vagina “[a]t least three times.” She further testified that when he touched her vagina, he would also touch her breasts, but she could not “remember the specifics” of each occurrence. Under the circumstances presented here, we conclude, with respect to counts 4, 5, 7, and 8, that “it is impossible to determine whether the jury reached a unanimous verdict on those counts . . . [and] impossible to determine whether defendant was convicted of an act for which he was not indicted” … . People v Hunt, 2024 NY Slip Op 02471, Fourth Dept 5-3-24

Practice Point: If the trial testimony makes it possible for the jury to convict based upon an allegation that was not part of the indictment, the conviction will be reversed.

 

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COUNTY-SHERIFF DISCIPLINARY RECORDS CREATED BEFORE THE 2020 REPEAL OF THE STATUTE WHICH EXEMPTED THEM FROM DISCLOSURE PURSUANT A FOIL REQUEST ARE NOW SUBJECT TO DISCLOSURE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the FOIL request for county-sheriff disciplinary records which were created before Civil Rights Law 50-a was repealed in 2020 must be disclosed. Civil Rights Law 50-a had exempted disciplinary records from disclosure:

Former section 50-a operated as an exception to the general rule that permitted public access through FOIL to certain government records, i.e., it exempted from disclosure “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency” … . When section 50-a was repealed on June 12, 2020, that exception was removed. ” ‘A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events’ ” … . Likewise, it is not a retroactive application of the repeal of section 50-a to conclude that past police disciplinary records are no longer subject to that exception and are now subject to FOIL; it is merely a recognition that police departments faced with FOIL requests cannot rely on an exception that no longer exists to evade their prospective duty of disclosure … . Matter of Abbatoy v Baxter, 2024 NY Slip Op 02393, Fourth Dept 5-3-24

Practice Point: Here the statute protecting county-sheriff disciplinary records from disclosure pursuant to a FOIL request was repealed in 2020. Disciplinary records created prior to the repeal are now subject to disclosure.

 

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TERMINATION OF FATHER’S PARENTAL RIGHTS AFFIRMED; TWO DISSENTERS ARGUED THERE WAS NO ADMISSIBLE PROOF FATHER FAILED TO PLAN FOR THE CHILDREN’S FUTURE FOR ONE FULL YEAR (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, affirmed the termination of father’s parental rights. The dissenters argued there was no admissible proof that father failed to plan for the children’s future for one full year:

From the dissent:

We agree with the majority that petitioner met its burden of establishing that respondent father failed to plan for the children’s future from April 2021—when the father began hearing voices but failed to disclose it—through December 2021. However, inasmuch as petitioner failed to meet its burden of establishing by clear and convincing evidence that the father failed to plan for the children’s future for one full year …, we respectfully dissent.

To that end, the only evidence of a failure to plan for the children’s future from December 2020 to April 2021 was petitioner’s exhibit 5, a medical record that referenced the father’s admission to continued use of synthetic marihuana. However, that exhibit was withdrawn by petitioner as not properly authenticated and was thereafter never entered into evidence or placed into the record. Inasmuch as the record lacks other admissible evidence that the father failed to plan for the children’s future from December 2020 to April 2021, Family Court’s improper reliance upon facts outside the record is not harmless … , and petitioner failed to meet its burden by clear and convincing evidence … . Therefore, we would reverse the order and dismiss the petition against the father. Matter of Tori-Lynn L. (Troy L.), 2024 NY Slip Op 02440, Fourth Dept 5-3-24

Practice Point: One element of the proof necessary to terminate parental rights is the parent’s failure to plan for the children’s future for one full year.

 

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