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THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

​The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the People did not demonstrate the legality of the street stop at the suppression hearing. The police had a warrant to search defendant’s apartment and anyone in it. Before the warrant was executed, the defendant left the apartment and the SWAT team stopped him. The People relied on the allegation that defendant was violating the Vehicle and Traffic Law at the time of the stop by walking in the middle of the street. The Fourth Department found the evidence of a Vehicle and Traffic Law violation was insufficient. Therefore the People failed to demonstrate the legality of the police conduct:

… [W]here the issue presented is whether the People have demonstrated “the minimum showing necessary” to establish the legality of police conduct, “a question of law is presented for [our] review” … . Here, the court refused to suppress the physical evidence on the ground that the officers’ observation of defendant walking in the roadway provided probable cause for them to believe that defendant had violated the Vehicle and Traffic Law, which justified the initial stop and the subsequent pursuit of defendant. Vehicle and Traffic Law § 1156 (a) requires that, “[w]here sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.” Here, when asked at the suppression hearing if he had seen defendant “doing anything illegal,” the testifying police officer responded, “[o]ther than walking down the center of the road, no.” Even assuming, arguendo, that we can infer the presence of a sidewalk based on the officer’s response, we conclude that the People failed to establish that a sidewalk was available and that it could “be used with safety” …, especially when considering that defendant was stopped in January in central New York. Nor did the People establish that defendant, by walking “down the center of the road,” violated section 1156 (b), which requires a pedestrian, where sidewalks are not provided, to “walk only on the left side of the roadway or its shoulder facing traffic” inasmuch as a pedestrian is only required to do so “when practicable.” Thus, we agree with defendant that, under the circumstances of this case, the People failed to meet their burden of establishing the legality of the police conduct. People v Montgomery, 2023 NY Slip Op 03606, Fourth Dept 6-30-23

Practice Point: At a suppression hearing the People have the initial burden of demonstrating the legality of the police conduct. That issue is a question of law which can be reviewed by an appellate court. Here the stop was based on the allegation defendant violated the Vehicle and Traffic Law by walking in the middle of the street. The People made no attempt to show there were sidewalks or, if there were sidewalks, that they were passable in January. The Vehicle and Traffic Law violation was not supported by sufficient proof. The People therefore did not prove the legality of the police conduct and the suppression motion should have been granted.

 

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ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police had reasonable suspicion defendant was about to commit a crime when he grabbed at his waistband and ran. The police saw the defendant stop his car in the street and aggressively approach another car on foot. When the police told him to stop, he ran. The majority agreed with the dissent that defendant’s grabbing at his waistband did not provide reasonable suspicion he had a weapon. Rather the police saw enough to have reasonable suspicion the defendant was about to commit a crime when he aggressively approached the other car:

We agree with defendant that his arm movements directed at his waistband and his flight would not, without more, justify police pursuit. As the court determined, however, it was reasonable for the officers to suspect that defendant was about to commit a crime because he approached the woman in an aggressive manner with clenched fists while yelling at her. The officers thus properly ordered defendant to stop and could have lawfully frisked him had he not run away. Because the stop was supported by reasonable suspicion, we conclude that the subsequent pursuit was also supported by reasonable suspicion, especially considering that, immediately following the stop, defendant turned his back to the officers, grabbed at his waistband, and then fled on foot, leaving his vehicle in the middle of the street with its driver’s door open.

From the dissent:

… [D[efendant’s digging at his waistband, flight, and leaving his car in the street “do not provide additional specific circumstances indicating that defendant was engaged in criminal activity” … . While defendant’s actions, “viewed as a whole, [may have been] suspicious, . . . there is nothing in this record to establish that the officers had a reasonable suspicion” that defendant had committed, was committing, or was about to commit a crime … . People v Cleveland, 2023 NY Slip Op 03597, Fourth Dept 6-30-23

Practice Point: Both the majority and the dissent agreed that defendant’s grabbing at his waistband and running did not provide the police with reasonable suspicion. The majority found that defendant’s stopping his car in the street and aggressively approaching a woman in another car with clenched fists provided the police with reasonable suspicion and justified pursuit. The dissent disagreed.

 

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PRECEDENT DID NOT REQUIRE THE TRIAL JUDGE TO ADMIT, UNDER SANDOVAL, EVIDENCE OF A PRIOR CONVICTION SIMILAR TO THE OFFENSE ON TRIAL; RATHER THAT PRECEDENT ONLY HELD EVIDENCE OF A PRIOR CONVICTION SHOULD NOT BE EXCLUDED SOLELY BASED ON SIMILARITY; THE PREJUDICE VERSUS PROBATIVE-VALUE ANALYSIS SHOULD STILL BE APPLIED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge was not bound by Fourth Department precedent to admit, under Sandoval, evidence of a prior possession of a weapon conviction in this criminal possession of a weapon prosecution. The Fourth Department has held that evidence of a prior conviction should not be excluded solely based on similarity with the offense on trial. But here the Fourth Department made clear that the prejudice versus probative-value analysis should still be applied where the crimes are similar:

… [T]he court cited this Court’s decision in People v Stanley (155 AD3d 1684 [4th Dept 2017] …) and advised defense counsel that she “may want to discuss [her arguments] with the Fourth Department,” explaining that Stanley was “their ruling, not my ruling” and that it was “bound by [the Fourth Department’s] rulings.” …

Stanley, however, stands for the proposition that “[c]ross-examination of a defendant concerning a prior crime is not prohibited solely because of the similarity between that crime and the crime charged” … . That means that a Sandoval application by the People should not be automatically denied merely because a prior conviction is similar in nature to the present offense, and certainly does not mean that a court must automatically grant the People’s application. There was nothing in Stanley that “bound” the court in this case and, to the contrary, the court was required to make its own discretionary balancing of the probative value of defendant’s prior conviction against its potential for undue prejudice … . People v Colon, 2023 NY Slip Op 03583, Fourth Dept 6-30-23

Practice Point: Precedent holding that, under Sandoval, evidence of a prior conviction should not be excluded solely because it is similar to the crime on trial does not mean that similar crimes should automatically be admitted. The prejudice versus probative-value analysis should be still be applied to similar crimes.

 

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THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid:

… [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . …

Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy’s mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if she could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction” … . People v Shea’Honnie D., 2023 NY Slip Op 03137, Fourth Dept 6-9-23

Practice Point: A waiver of appeal is not absolute and the judge’s characterizing a waiver as absolute invalidates it.

 

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IN A SIDEWALK SLIP AND FALL CASE AGAINST A MUNICIPALITY, VERBAL NOTICE OF THE DEFECT, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sidewalk slip and fall case, determined the defendant city demonstrated it did not have written notice of the sidewalk defect and rejected the allegation that the city had verbal notice that may have been reduced to writing:

… [P]laintiff and the cross-claim defendants never contested the City’s “proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary” because the City had actual notice … . However, “it is well settled that verbal or telephonic communications to a municipal body, even if reduced to writing, do not satisfy a prior written notice requirement” … . Runge v City of N. Tonawanda, 2023 NY Slip Op 03123, Fourth Dept 6-9-23

Practice Point: In a sidewalk slip and fall case against a municipality, verbal notice of the defect, even if reduced to writing, does not satisfy the written notice requirement.

 

​ A SUBCONTRACTOR’S DAMAGES FOR CONSTRUCTION DELAY CANNOT BE PROVEN BY COMPARING ACTUAL COSTS TO THE BID PRICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the subcontractor (Frey) did not submit sufficient proof of damages caused by construction delays:

… [W]here a subcontractor is claiming delay damages, the subcontractor “must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually sustained” … . “[I]t has repeatedly been held improper to prove excess labor costs by comparing the total labor costs for the project with the bid estimate for the labor, because of[, among other things,] the inherent unreliability of the price elements of a bid” … . LPCiminelli, Inc. v JPW Structural Contr., Inc., 2023 NY Slip Op 03112, Fourth Dept 6-9-23

Practice Point: A subcontractor’s damages for construction delay cannot be proven by comparing actual costs to the bid price.

 

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AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3):

… [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). Although plaintiff’s attorney stated at the time of the oral stipulation that she “would prefer just to do the oral stipulation,” the statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” … . We have repeatedly held that oral stipulations do not comply with the statute … . …

… Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff.[90 NY2d 135-136] … . Cole v Hoover, 2023 NY Slip Op 03103, Fourth Dept 6-9-23

Practice Point: An oral stipulation is invalid pursuant to Domestic Relations Law 236(B)(3) and cannot be ratified. There is now an even split among the appellate division departments on this issue.

 

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THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN THIS EMERGENCY-VEHICLE TRAFFIC ACCIDENT CASE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others in this emergency-vehicle traffic accident case. Defendant police officer was responding to a call concerning a burglar alarm and was driving without emergency lights at 70 mph on a sparsely populated rural two-lane road with a 55 mph speed-limit when plaintiff attempted a left turn and the collision occurred:

… [D]fendant submitted the deposition testimony of plaintiff, who testified that as plaintiff approached the intersection from the two-lane, hilly, wet road, he did not see any other vehicles when he activated his left turn signal. Plaintiff testified that he began his left turn and was already in the process thereof when he first noticed defendant’s vehicle approaching his vehicle. Contrary to the dissent’s position, plaintiff maintains that defendant failed to yield to plaintiff’s right-of-way and did not concede the issue. Plaintiff further testified that defendant’s vehicle was coming toward his vehicle at a “high rate of speed” and did not have on any headlights, siren or flashing lights. While there was evidence that defendant attempted to brake before colliding with plaintiff’s vehicle, there was undisputed evidence that defendant’s vehicle was traveling 70 miles per hour in a 55 mile per hour zone just prior to the collision and that defendant was still traveling 47 miles per hour at the time of impact with plaintiff’s vehicle. Defendant submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a “possible burglar alarm.” Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to “an alarm” at an address. 

From the dissent:

… [T]he evidence submitted by defendant established that he was traveling no more than 70 miles per hour when responding to the emergency, and that the posted speed limit in the area is 55 miles per hour. Data retrieved from the “black box” in the police vehicle showed that defendant started slowing down five seconds before the collision, decreasing his speed to 47 miles per hour by the time of impact. It is well settled that speeding by a police officer while operating an emergency vehicle during an emergency operation “certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)” … and the record here reveals no other conduct allegedly engaged in by defendant that made it ” ‘highly probable that harm would follow’ ” … . Gernatt v Gregoire, 2023 NY Slip Op 03094, Fourth Dept 6-9-23

Practice Point: Even though plaintiff was convicted of failing to yield the right-of-way, the majority held there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others. The officer was driving 70 mph on a sparsely populated rural road with a 55 mph speed limit, without emergency lights, when plaintiff attempted a left turn. The two-justice dissent argued the officer’s speeding was not enough to raise a question of fact.

 

THE TAKING BY EMINENT DOMAIN OF PETITIONER’S DECOMMISSIONED ELECTRIC GENERATING STATION AND WATER INTAKE STRUCTURES ON THE NIAGARA RIVER SERVED A PUBLIC PURPOSE; THE DISSENT ARGUED THE TOWN SHOULD NOT BE ALLOWED TO TAKE PROPERTY AND THEN USE IT FOR EXACTLY THE SAME PURPOSE FOR WHICH THE PETITIONER IS NOW USING IT, I.E., ALLOWING BUSINESSES ACCESS TO INEXPENSIVE RAW WATER (FOURTH DEPT).

The Fourth Department, over a dissent, confirmed the taking by eminent domain of petitioner’s property, a decommissioned coal-fired electric generating station and water intake structures on the Niagara River. Petitioner had been allowing businesses to use the water intake structures for access to inexpensive raw water. The dissent argued the town should not be able to take property and then use the property in exactly the same way petitioner is using it now:

We reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4]). “What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage” … . Here, the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town … . 

From the dissent:

In my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it. Matter of Huntley Power, LLC v Town of Tonawanda, 2023 NY Slip Op 03089, Fourth Dept 6-9-23

Practice Point: The taking by eminent domain of the water intake structures for a decommissioned electric generating station on the Niagara River served a public purpose, i.e., providing businesses with access to inexpensive raw water. The dissent argued petitioner is using the property for exactly that purpose now, rendering the taking invalid.

 

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