The Fourth Department determined County Court erred when it denied defendant’s application for resentencing under the Drug Law Reform Act on the ground defendant was a reincarcerated parole violator. Nor did it matter that defendant was released from parole supervision after he made the application. People v Saffold, 666, 4th Dept, 6-7-13
The Fourth Department determined the People did not meet their “burden of going forward” at the suppression hearing and suppressed the evidence seized from the defendant. After an anonymous call describing a person who looked nothing at all like the defendant, the police approached, detained and searched the defendant:
The officer who approached defendant testified at the suppression hearing that he asked defendant to step away from a group of individuals with whom defendant was socializing. The officer escorted defendant to the curb while physically holding defendant’s waistband, and he instructed defendant to face the street and to place his hands on the roof of a civilian vehicle. The officer testified that at that time defendant was not free to leave. Having detained defendant in that manner, the officer then explained to defendant the reason for the police presence. The officer asked defendant if he had any contraband and if defendant would consent to a search of his person. Defendant consented to the search, during which the police obtained the physical evidence sought to be suppressed. In light of the fact that defendant was illegally detained, i.e., without a reasonable suspicion that he was committing or had committed a crime (see CPL 140.50 [1]), his consent to the search immediately thereafter cannot be considered voluntary ….
Although “ ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” …. We agree with defendant that the People failed to meet that burden. People v Noah, 414, 4th Dept, 6-7-13
The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged:
…[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and thus violated his right to be tried for only those crimes charged in the indictment, as limited by the bill of particulars …. …[W]e address defendant’s contention despite his failure to preserve it for our review … . The fifth count of the indictment alleged that defendant committed the crime of criminal impersonation when he pretended to be a police officer and, “in the course of such pretense, committed or attempted to commit the felony of [r]ape in the first degree.” The court’s instructions, however, permitted the jury to convict defendant upon finding that he committed any felony in the course of pretending to be a police officer, thus allowing the jury to convict defendant upon a theory not charged in the indictment. People v Williams, 340, 4th Dept, 6-7-13
The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence. Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him—an offer she subsequently told defendant was “off:” The Fourth Department held the People had not proven the defendant did not have a good faith belief that he had a claim of right to the jeep:
It is well established that “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the people have the burden of disproving such defense beyond a reasonable doubt’ ” … .A defendant is not required to “establish that he previously owned or possessed the property at issue in order to assert the claim of right defense” …. The test is whether a defendant had a “subjective[,] good faith” belief that he or she had a claim of right to the relevant property, not whether defendant’s belief was reasonable … . Based on the testimony of defendant’s former girlfriend, which is the only evidence that relates to the claim of right issue, we conclude that it was unreasonable for the jury to conclude that the People established beyond a reasonable doubt that defendant did not have a subjective, good faith basis for believing that the Jeep was his, and thus the verdict with respect to the grand larceny in the fourth degree count is against the weight of the evidence …. People v Rios, 223, 4th Dept, 6-7-13
The Fourth Department affirmed Surrogate’s Court’s determination that the decedent was not subjected to undue influence in making a will. The Court explained the legal principles at work as follows:
It is well settled that a will contestant seeking to prove undue influence must show the “exercise [of] a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity [that] could not be resisted, constrained the testator to do that which was against [his or] h[er] free will” …. “Undue influence must be proved by evidence of a substantial nature . . . , e.g., by evidence identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” …. “Mere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … . Matter of Lee, 235, 4th Dept, 6-7-13
In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote:
Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change in custody’ ”…, we conclude that, contrary to the grandmother’s contention, visitation with the mother at the correctional facility is in the child’s best interests.
There is a presumption that visitation with the noncustodial parent is in thechild’s best interests…, and a “parent’s incarceration, by itself, does not vitiate” that presumption….“Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be” suspended …. We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child’s best interests… . Matter of Cormier v Clarke…, 409, 4th Dept, 6-7-13
In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness:
Petitioners sought a declaration of the rights of the parties with respect to a 2002 consent order, and also sought further declarations that petitioners had the right to obtain waivers of the right to notification of the approximate dates upon which petitioners would apply products to the property of other customers. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment . .. as to the rights and other legal relations of the parties to a justiciable controversy.” “A declaratory judgment action thus ‘requires an actual controversy between genuine disputants with a stake in the outcome,’ and may not be used as ‘a vehicle for an advisory opinion’ ” … . Here, the court, with the consent of the DEC, dismissed all charges related to alleged violations of the 2002 consent order, and thus no active controversy remained with respect to it. * * *
The test for ripeness is well settled, to wit, a determination must be final before it is subject to judicial review (see CPLR 7801 [1]). “In order to determine whether an agency determination is final, a two-part test is applied. ‘First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and[,] second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” … . Matter of Green Thumb Lawn Care, Inc v Iwanowicz…, 372, 4th Dept, 6-7-13
Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case:
Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s vehicle rear-ended defendant’s stopped vehicle, we conclude that plaintiff submitted evidence of an adequate nonnegligent explanation for the collision… .
While other cases have held that a party’s testimony that he or she did not “see” the other vehicle’s brake lights illuminated before rear-ending that vehicle does not alone establish the requisite nonnegligent explanation for the collision…, those cases are distinguishable from this case. Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch [the driver of the vehicle in front of defendant] and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his deposition that defendant apologized to plaintiff for the accident, explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party …, establishes a sufficient nonnegligent explanation for the collision. Borowski v Ptak …, 1315, 4th Dept, 6-7-13
TRAFFIC ACCIDENTS
In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint. The Court ordered an in camera inspection of the records to weed out irrelevant information. Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13
The Fourth Department reversed Supreme Court and ordered insertion of a feeding tube under general anesthesia for petitioner, Joseph P. The Fourth Department noted there was evidence Joseph P. was “alert, awake, and communicative, … enjoys social interaction and activities” and, with a feeding tube, has “an excellent prognosis with many years of life.” The Fourth Department wrote:
It is undisputed that the “threshold requirement” under [Surrogate’s Court Procedure Act] section 1750-b for allowing Joseph P.’s guardians to make the decision to withhold life-sustaining treatment has been met … . Joseph P.’s attending physician also fulfilled the requirements of section 1750-b (4) (a) of “confirm[ing] to a reasonable degree of medical certainty” that Joseph P. “lacks capacity to make health care decisions,” and of consulting with another physician “to further confirm” that lack of capacity …. There is also no dispute that Joseph P. has “a medical condition other than . .. mental retardation which requires life-sustaining treatment, is irreversible and . . . will continue indefinitely” (SCPA 1750-b [4] [b] [i] [C]), and that, without such treatment, he “will die within a relatively short time period” (SCPA 1750-b [1]). The sole issue before us is whether, in view of Joseph P.’s medical condition and the expected outcome of the life-sustaining treatment, i.e., the surgical insertion of the feeding tube artificially providing nutrition or hydration, imposes an “extraordinary burden” on him (SCPA 1750-b [4] [b] [iii] [B]).
Upon our review of the record, we conclude that respondent failed to establish by the requisite clear and convincing evidence that providing nutrition and hydration to Joseph P. by means of medical treatment would impose an extraordinary burden on him (see SCPA 1750-b [1]; [4] [b] [iii] [B…). Matter of Joseph P. …, CA 13-00798, 4th Dept, 5-24-13
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