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AN OFFICER’S OBSERVATION OF DEFENDANT’S CAR FOLLOWING ANOTHER CAR TOO CLOSELY (A TRAFFIC INFRACTION) PROVIDED PROBABLE CAUSE FOR A TRAFFIC STOP, EVEN IF THERE WERE OTHER MOTIVATIONS FOR THE STOP (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to suppress in this traffic stop case should not have been granted. The traffic stop was based upon the deputy sheriff’s observation of defendant’s car less than one car length from the car in front while both cars were going 65 mph, which constitutes a traffic infraction (following too closely). The Fourth Department noted that a traffic infraction provides probable cause for traffic stop, even if the officer has another motive for the stop (apparently the case here):

The deputy, having personally observed defendant violate Vehicle and Traffic Law § 1129 (a), thus had probable cause to stop defendant’s vehicle … .

… [T]o the extent the court’s decision also found the stop unlawful on the basis that it was pretextual, that was error. It is well settled that ” ‘where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] . . . neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant’ ” … . In light of the deputy having personally observed defendant commit a traffic violation, the stop was properly based upon probable cause, and the deputy’s other motivations in stopping the vehicle, if any, were irrelevant to determining whether the stop was lawful … . People v Williams, 2024 NY Slip Op 00581, Fourth Dept 2-2-24

Practice Point: If a police officer observes a driver commit a traffic infraction (here following too closely), the officer has probable cause to stop the car, even if the officer has other motivations for the stop.

 

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THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). ​

The Fourth Department, reversing Family Court in this termination of parental rights proceeding, determined the bias of the judge deprived mother of due process of law. In another decision issued on February 2, 2024, the Fourth Department criticized the same Family Court judge for abandoning her judicial role and acting as an advocate in a child placement proceeding (Matter of Zyion B …, 2024 NY Slip OP 00550):

… [T]he record demonstrates that Family Court “had a predetermined outcome of the case in mind during the hearing” … . During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, “Then I’m going to do it.” At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights … . Those comments were impermissibly coercive (see generally Social Services Law § 383-c [6] [d]). That the court made good on its promise to terminate the mother’s parental rights cannot be tolerated.

The record further demonstrates that the Family Court Judge was annoyed with the mother’s refusal to surrender her parental rights to the child. We are compelled to remind the Family Court Judge “that even difficult or obstreperous litigants are entitled to ‘patient, dignified and courteous’ treatment from the court, and that judges must perform their duties ‘without bias or prejudice’ ” … . Matter of Anthony J. (Siobvan M.), 2024 NY Slip Op 00574, Fourth Dept 2-2-24

Practice Point: Here the judge made it clear she had already decided mother’s parental rights should be terminated at the outset of the hearing. The judge’s bias deprived mother of her right to due process of law.

 

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FAMILY COURT JUDGE CRITICIZED BY THE FOURTH DEPARTMENT FOR ABANDONING HER ROLE AS A JUDGE AND ACTING AS AN ADVOCATE (FOURTH DEPT). ​

Although the appeal was moot, the Fourth Department took the opportunity to criticize the Family Court judge for acting as an advocate in this child placement proceeding:

At the hearing, the Judge “took on the function and appearance of an advocate” by choosing which witnesses to call and “extensively participating in both the direct and cross-examination of . . . witnesses” … , with a clear intention of strengthening the case for removal. For example, she asked a … caseworker whether the mother was “hostile, aggressive, violent or out of control,” and repeated questions to that caseworker using the same or similar phrasing at least 10 times. When the mother’s counsel objected to the Judge’s leading questions of another witness regarding incidents outside the relevant time period, the Judge overruled the objection, stating that “there’s no one else to run the hearing except for me.” She also introduced and admitted several written documents during the mother’s testimony over the objection of the mother’s counsel, and despite the mother’s statement that she could not read and was not familiar with the documents. In short, the Judge “essentially ‘assumed the parties’ traditional role of deciding what evidence to present’ ” while simultaneously acting as the factfinder … and thereby “transgressed the bounds of adjudication and arrogated to [herself] the function of advocate, thus abandoning the impartiality required of [her]” … .

This ” ‘clash in judicial roles,’ ” in which the Judge acted both as an advocate and as the trier of fact, “[a]t the very least . . . created the appearance of impropriety” … , particularly when the Judge aggressively cross-examined the mother regarding topics that were not relevant to the issue of the child’s removal and seemed designed to embarrass and upset the mother … . One such area of cross-examination concerned the fact that the mother had become pregnant several months before the hearing, but had been forced to terminate the pregnancy when it was determined to be ectopic. The Judge repeatedly questioned the mother regarding how many times the mother had engaged in sexual intercourse with the father of the terminated fetus, even though such information does not appear to have been relevant to the issue of the subject child’s placement inasmuch as, inter alia, there was no indication that the man was ever in the subject child’s presence. The Judge also asked the mother baseless questions about whether that man was a pedophile. Matter of Zyion B. (Fredisha B.), 2024 NY Slip Op 00550, Fourth Dept 2-2-24

Practice Point: Here the Fourth Department criticized the Family Court judge for acting as an advocate in this child placement proceeding.

 

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ALLEGATIONS THAT RESPONDENT INSTALLED SOFTWARE ON PETITIONER’S COMPUTER ALLOWING RESPONDENT TO CONTROL THE COMPUTER REMOTELY, AND ALLEGATIONS RESPONDENT MADE PHONE CALLS TO PETITIONER INTENDED TO BE THREATENING, SUFFICIENTLY ALLEGED THE FAMILY OFFENSES OF HARASSMENT AND STALKING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the petition sufficiently alleged harassment and stalking family offeses based upon allegations respondent, petitioner’s estranged husband, installed software on petitioner’s computer allowing him to control the computer remotely, and made phone calls to petitioner intended to be threatening:

… [P]etitioner alleged that respondent installed spyware on her Apple laptop computer and that petitioner first noticed in mid-April 2021 that her username had been changed to “Creep” and that all documents related to the divorce proceedings between the parties had been deleted. Petitioner further alleged that, after taking the laptop to a computer store to have the laptop reset, she noticed about a week later that the laptop began showing the matrimonial files, which then disappeared again. Petitioner alleged that respondent was again controlling her laptop remotely. Petitioner also alleged a series of other related incidents. For example, she noticed in late April 2021 that her iPhone password had changed; she received a “spoofed” text message in early May 2021 and she discovered about a day later that respondent had accessed her Dropbox account; and she received another alarming or annoying text message in mid-May 2021 that referred to respondent’s pet name for her. Petitioner thus alleged more than an isolated incident and, upon ” ‘[l]iberally construing the allegations of the [second] family offense petition and giving it the benefit of every possible favorable inference,’ ” we conclude that the second petition alleges acts that, if committed by respondent, would constitute the family offense of harassment in the second degree … . Matter of Dhir v Winslow, 2024 NY Slip Op 00531, Fourth Dept 2-2-24

Practice Point: Remotely controlling petitioner’s computer and making phone calls intended to be threatening may constitute the family offenses of harassment and stalking.

 

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THE JUDGE’S FAILURE TO READ THE NOTE FROM THE JURY VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL OF DEFENDANT’S MURDER CONVICTION (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined the judge committed a mode of proceedings error by paraphrasing the note from the jury instead of reading it verbatim:

The jury note … stated … “[w]e, the Jury, request: to hear the read-back of [a restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant. She indicates that she had seen him 2 times while she was working at the counter, and multiple times while she was not at the counter but through the security camera play-back. We wish to hear this portion read back. We also request to hear the portion of the cross-examination where she is asked and answers when she identified [a shooter shown in the surveillance video] as the defendant to the police” … . The court did not read the note aloud verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court addressed the note before counsel and the jury by stating, “the readback that you have requested of [the restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant will now be read back for you along with the second portion of that which reads, ‘We also request to hear that portion of the cross-examination where she is asked and answers when she identified [the shooter] as the defendant to the police.’ We’ll read both those portions.” The court failed to read the second and third sentences contained within the jury note. We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . People v Crawford, 2024 NY Slip Op 00528, Fourth Dept 2-2-24

Practice Point: Here the judge’s failure to read the note from the jury verbatim was deemed a mode of proceedings error requiring reversal of a murder conviction.

 

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A FACTUAL NEXUS BETWEEN THE ENDANGERING THE WELFARE OF A CHILD CONVICTION AND THE ALLEGATIONS IN THE NEGLECT PETITION WAS NOT DEMONSTRATED; FAMILY COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT ON THE NEGLECT ALLEGATIONS BASED ON THE CRIMINAL CONVICTION (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the record was not sufficient to support summary judgment on the neglect allegations based upon respondent’s plea to endangering the welfare of a child:

… [A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . “It is well settled that [t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . * * *

“[I]t is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the neglect petition” … . Matter of Clarissa F. (Rex O.), 2023 NY Slip Op 06680, Fourth Dept 12-22-23

Practice Point: Here a factual nexus between the endangering the welfare of a child conviction and the allegations of neglect was not demonstrated. Summary judgment on the neglect allegations based solely on the criminal conviction should not have been granted.

 

THE STRICT LIABILITY THEORY APPLIES HERE WHERE PLAINTIFF WAS KICKED BY DEFENDANT’S HORSE; QUESTIONS OF FACT ABOUT WHICH HORSE KICKED PLAINTIFF AND PLAINTIFF’S AWARENESS OF THE RISK PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined questions of fact precluded summary judgment in this action stemming from defendant being kicked by plaintiff’s horse. There were questions of fact about which of plaintiff’s horses kicked the plaintiff and whether plaintiff was aware of the risk of approaching the horse. Plaintiff was familiar with the horses and defendant had called plaintiff because two of the horses were fighting. The court rejected the argument that negligence, as opposed to strict liability, was the applicable theory:

Agriculture and Markets Law § 108 (7) classifies horses as domestic animals, and ” ‘[w]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule’ . . . of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities” … (quoting Bard v Jahnke, 6 NY3d 592, 599 [2006] …) . Contrary to plaintiff’s contention, the exception to that rule set forth in Hastings v Sauve (21 NY3d 122, 125-126 [2013]) does not apply here, inasmuch as the horse did not stray from defendant’s property .. . Contrary to plaintiff’s further contention, he may not maintain a negligence claim against defendant under the reasoning of Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541 [2020]). In that case, the Court of Appeals held that the Bard rule, set forth above, does not apply to a veterinary clinic … . The Court reasoned that the Bard “line of precedent concerning animal owners [was not] directly implicated” in Hewitt … . By contrast, inasmuch as defendant was the owner of the horse that injured plaintiff, the Bard rule of strict liability applies here. Shuttleworth v Cory, 2023 NY Slip Op 06635, Fourth Dept 12-22-23

Practice Point: Strict liability, not negligence, controls in this horse-kick case. The recent Court of Appeals applications of a negligence theory to injury caused by animals do not apply here.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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HERE THE WRITTEN LOGGING CONTRACT WAS COMPLETE AND UNAMBIGUOUS; EVIDENCE OF AN ALLEGED ADDITIONAL ORAL AGREEMENT WAS PRECLUDED BY THE PAROL EVIDENCE RULE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contract at issue was complete and any evidence of an alleged oral agreement was precluded by the parol evidence rule:

 “The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions” … . …

Defendants met their initial burden of establishing that the timber sale contract is a complete written instrument, and plaintiffs failed to raise a triable issue of fact in opposition … . The contract sets forth the parties, the address of the property, the contract period, the payment terms, and a description of the items sold … . There is no reference to any other document or map … . Inasmuch as the contract constituted a complete, integrated agreement, plaintiffs may not rely on an alleged oral agreement to permit logging on the southernmost section of the property, permit logging on the middle section of the property only upon additional payment, and prohibit logging on the northernmost section of the property, to vary the terms of the contract. Indeed, one would expect the contract to embody any such restrictions on logging, and “[s]uch a collateral agreement cannot be separately enforced” … . Lentner v Upstate Forestry & Dev., LLC, 2023 NY Slip Op 06626, Fourth Dept 12-22-23

Practice Point: Where a written contract is complete and unambiguous on its face, evidence of an additional oral agreement is precluded by the parol evidence rule.

 

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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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