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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution:

… [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered … . We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it … . People v Ross, 2023 NY Slip Op 01381, Fourth Dept 3-17-23

Practice Point: Here is was deemed reversible error to instruct the jury on construction possession of a weapon because there was no evidence defendant exercised control over the area where the weapon was found.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither officer had any training in making visual speed estimates:

It is undisputed that the officers did not use radar at any point, nor did they pace the vehicle—i.e., follow it at a consistent distance—to confirm their visual estimates before initiating the stop. When questioned regarding their training to visually estimate a vehicle’s speed without pacing, one officer stated that he did not recall receiving such training, and the other testified that he did not believe such training existed. On further questioning, one of the officers testified that he had experience visually estimating speed due to the amount of time he spent on the road as a patrol officer, but failed to provide a reasoned explanation of how the time he spent driving on city streets enabled him to acquire the ability to visually estimate speed.

… [T]he People failed to establish the officers’ training and qualifications to support their visual estimates of the speed of the vehicle in which defendant was a passenger … . … [I]nasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping the vehicle in which defendant was a passenger in the first instance, we conclude that the court erred in refusing to suppress the physical evidence seized as a result of the traffic stop. People v Suttles, 2023 NY Slip Op 01380, Fourth Dept 3-17-23

Practice Point: Here the traffic stop was based on the officers’ visual estimate of speed (40 to 45 mph in a 30 mph zone). At the suppression hearing no evidence of the officers’ training or qualifications re: a visual speed estimate was presented. The People, therefore, did not prove the legality of the traffic stop.

 

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THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal:

At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant’s motion. We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . People v Desmond, 2023 NY Slip Op 00791, Fourth Dept 2-10-23

Practice Point: The trial judge’s failure to rule on a motion for a trial order of dismissal is not a denial which an appellate court can consider; here the matter was remitted for a ruling.

 

THE MAJORITY IN THIS DOG-BITE CASE DETERMINED DEFENDANT DID NOT DEMONSTRATE A LACK OF KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES; TWO DISSENTERS ARGUED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE THE DOG HAD NEVER EXHIBITED VICIOUS BEHAVIOR BEFORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion for summary judgment in this dog-bite case should not have been granted. The dissenters argued defendant demonstrated she did not have knowledge of the dog’s vicious propensities:

… [D]efendant submitted plaintiff’s deposition testimony that, while plaintiff was at defendant’s door, the dog came running and was barking, pushed the door open, and lunged at plaintiff, biting him in the right thigh. After plaintiff was on the ground, having been knocked to the bottom of the front steps, the dog bit the back of plaintiff’s left leg and then his calf. Plaintiff further testified that, immediately after the incident, defendant told plaintiff, who was wearing a winter coat at the time of the attack, that “the dog doesn’t like people who wear coats.” Plaintiff also testified that defendant told him that “the dog was protective.” Defendant further submitted the deposition testimony of defendant Jennifer McMahon, who lived in the home and was familiar with the dog, that the dog was “protective” of the persons who lived in the home and that, when a stranger was present in the house, the dog would get in front of a member of the household to protect him or her. That evidence, combined with the evidence of the unprovoked and vicious nature of the attack and the severity of the injuries sustained by plaintiff, is “sufficient to raise triable issues of fact as to whether the dog[] had vicious propensities and whether. . . defendant[] knew or should have known of them” … .

From the dissent:

… [D]efendant’s submissions in support of the motion, including the deposition testimony of defendant and the tenant, establish that the dog was a gentle, well-behaved family dog, who was not aggressive, menacing, or intimidating, was not a guard dog, and had never growled at, nipped, or bitten anyone before … . Neither defendant nor the tenant had ever observed the dog exhibit any aggressive behavior in the past. In sum, defendant established that the dog had not previously behaved in a threatening or menacing manner … .

The majority nonetheless cites evidence in defendant’s submissions that defendant and the tenant characterized the dog as protective and having a dislike of people wearing coats, but conspicuously absent from the majority’s analysis is any explanation of how these characteristics reflect a ” ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ ” … . Zicari v Buckley, 2023 NY Slip Op 00788, Fourth Dept 2-10-23

Practice Point: The majority in this dog-bite case held that the defendant did not demonstrate she had no knowledge of the dog’s vicious propensities. The two dissenters disagreed.

 

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PLAINTIFF STEPPED OFF A CURB AND FELL INTO A FOUR-FOOT DEEP STORM DRAIN; THE GRATE WHICH USUALLY COVERED THE DRAIN WAS FOUND AT THE BOTTOM; THE DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff stepped off a curb into a four-foot deep storm drain. The grate which usually covers the drain was found at the bottom of the drain. The municipality did not show the missing grate was not obvious or visible and did not prove when the area had last been inspected:

… [P]laintiff’s testimony that he did not notice the uncovered storm drain before he stepped off the curb onto the street “does not establish defendants’ entitlement to judgment as a matter of law on the issue whether that condition was visible and apparent” … . Indeed, plaintiff testified that he was looking for any oncoming traffic on the street before falling into the uncovered storm drain, which he observed immediately after he fell … . We further conclude that the photographs included in defendants’ moving papers, which were taken within days of the accident and, according to plaintiff’s testimony, constitute fair and accurate representations of the uncovered storm drain at the time of the accident … ), raise a triable issue of fact whether the allegedly dangerous condition was visible and apparent … .

Moreover, while defendants submitted evidence that its employees generally maintained storm drains, including by cleaning them out and reporting missing grates, their submissions failed to establish when the storm drain into which plaintiff fell was last cleaned out or inspected … . Lobianco v City of Niagara Falls, 2023 NY Slip Op 00787, Fourth Dept 2-10-23

Practice Point: The defendant municipality did not show the missing storm drain grate was not obvious or visible and did not show when the storm drain had last been inspected. Therefore the municipality did not show it did not have constructive notice of the condition and its summary judgment motion should not have been granted.

 

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EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was entitled to have the jury instructed on the justification defense despite his claim the stabbing injuries were an accident. Defendant alleged the complainant attacked him with a knife and, in self-defense, he grabbed her arm and pinned it behind her back, causing the injuries. The court noted that the trial judge stuck with his opinion the justification defense is not available when it is alleged the injury was accidental or unintentional after he was presented with case law to the contrary:

It has long been settled law that “[a] defendant is entitled to a justification charge if there is some reasonable view of the evidence to support it, even if the defendant alleges that the victim’s injuries were accidentally inflicted” … . That is so because “the defense of justification applies fully to a defendant’s risk-creating conduct, even though it had unintended consequences” … . Here, defendant’s statements during his interview with a police investigator, an audio recording of which was introduced in evidence by the People, indicated that the stabbing injuries sustained by the complainant were the unintended result of defendant’s defensive maneuvers. In particular, defendant asserted that the complainant, while intoxicated, confronted him with a knife and swung it at him, thereby prompting him to act defensively by twisting the complainant’s arm behind her back with the knife still in her hand and pinning it against her. Contrary to the court’s determination, defendant’s statements “do[ ] not defeat his entitlement to a justification charge” … . People v Rayford, 2023 NY Slip Op 00786, Fourth Dept 2-10-23

Practice Point: A defendant’s claim that the injuries were accidentally or unintentionally inflicted does not necessarily preclude a jury instruction on the justification defense.

 

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DEFENDANT WAS IMPROPERLY SUBSTITUTED AS A JOHN DOE IN THIS FORECLOSURE ACTION AND BECAUSE HE WAS SUED AS AN HEIR TO THE MORTGAGEE, AND NOT AS A REPRESENTATIVE OF THE MORTGAGEE’S ESTATE, THE ACTION WAS TIME BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this foreclosure action, determined defendant was not properly substituted in the amended complaint for a John Doe in the original complaint and, because defendant was sued in his capacity as the heir of the decedent, and not as a representative of the decedent’s estate, the action was time-barred:

Plaintiff commenced this mortgage foreclosure action … against … the mortgagee, David B. Bailey (decedent), and certain “John Does” and “Jane Does” defined in the complaint as “the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint.” Plaintiff subsequently discovered that decedent had died in 2018 and made an ex parte application seeking … to substitute Arthur Bailey, in his capacity as heir to decedent’s estate (defendant), as a John Doe defendant and for leave to file an amended complaint. …

We agree with defendant that his motion should be granted insofar as it seeks dismissal of the amended complaint against him. Defendant correctly contends that he was improperly substituted as John Doe #1 pursuant to CPLR 1024. Inasmuch as the original complaint “fail[ed] to mention decedent’s death” and defendant is being sued in the amended complaint in his capacity as an heir to decedent’s estate, defendant does not fit within the categories of John and Jane Does set forth in the original complaint and thus cannot be substituted therefor … . Further, although here plaintiff also filed and served an amended complaint on defendant solely in his capacity as heir to decedent’s estate and not as a representative thereof (… see generally EPTL 3-3.6 [a], [b] …), … the relevant statute of limitations expired prior to the order granting plaintiff’s ex parte application for leave to file the amended complaint (see generally CPLR 213 [4]). Citibank, N.A. v Bailey, 2023 NY Slip Op 00777, Fourth Dept 2-10-23

Practice Point: If a defendant does not fit any of the “John Doe” categories described in the original complaint, he cannot be added as a John Doe in an amended complaint.

 

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THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder convictions, determined the recorded conversation between the 15-year-old defendant and his father in the interview room at the police station was protected by parent-child privilege and should have been suppressed. The defendant had requested a lawyer and the police had left the interview room at the time the conversation was recorded:

We conclude that a parent-child privilege did arise under the circumstances of this case … . The application of the privilege is not dependent on a finding of police misconduct … . … [W]e recognize, as other courts have, that a young defendant will naturally look to a parent “as a primary source of help and advice” …  The statements defendant now seeks to suppress were made in an attempt to utilize his father as such a source of assistance. “It would not be consistent with basic fairness to exact as a price for that assistance, his acquiescence to the overhearing presence of government agents” … . People v Kemp, 2023 NY Slip Op 00776, Fourth Dept 2-10-23

Practice Point: Here the Fourth Department recognized a parent-child privilege and suppressed a recorded conversation between the 15-year-old defendant and his father which took place in the police interview room. The defendant had just requested a lawyer and the police had left the room. But the recording equipment was still operating.

 

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THE PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT WHEN DEFENDANT HAD THE RIGHT OF WAY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; PLAINTIFF’S AFFIDAVIT ALLEGING DEFENDANT ATTEMPTED TO GO AROUND ANOTHER VEHICLE WAS BASED ON SPECULATION WHICH IS NOT SUFFICIENT TO DEFEAT SUMMARY JUDGMENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this intersection traffic accident case should have been granted. Plaintiff made a left turn in front of defendant who had the right of way:

… [D]efendant met his initial burden of establishing that he was not negligent because he had the right-of-way while traveling along Route 5, was operating his vehicle in a lawful and prudent manner, and was traveling at a lawful rate of speed, and that there was nothing he could have done to avoid the accident, which occurred when plaintiff suddenly turned left into defendant’s lane of travel … . We further conclude that plaintiff failed to raise an issue of fact in opposition to the motion … . Contrary to plaintiff’s assertion, the deposition testimony did not raise an issue of fact whether defendant was negligently passing another vehicle on the right in violation of Vehicle and Traffic Law § 1123 at the time of the collision. Although there is conflicting deposition testimony concerning the precise lane in which defendant was traveling at the time of the collision, there is no dispute that defendant never changed lanes while driving along Route 5 at the time of the collision. Thus, plaintiff’s assertion that defendant unsafely attempted to go around another vehicle at the time of the accident ” ‘is based on speculation and is insufficient to defeat a motion for summary judgment’ ” … . Gomez v Buczynski, 2023 NY Slip Op 00771, Fourth Dept 2-10-23

Practice Point: The traffic accident was caused by plaintiff’s making a left turn in front of defendant’s oncoming car when defendant had the right of way. Plaintiff’s affidavit alleging defendant was attempting to go around another car at the time of the accident was based on speculation which was not sufficient to defeat defendant’s motion for summary judgment.

 

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THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the motion to suppress evidence seized from a vehicle was properly denied. After observing what appeared to be a drug transaction the defective called for assistance. As one of the deputies approached defendant’s vehicle, defendant got out and walked toward the deputy. The deputy frisked the defendant, found nothing and told defendant to wait behind his vehicle. The deputy then walked to defendant’s vehicle where he saw a rolled up dollar bill and white powder on the driver’s seat. The dissent argued the deputy did not have reasonable suspicion of a crime when defendant was frisked and his observation of the drugs in the car was a product of the illegal detention of defendant:

The court properly determined that, based on the totality of the observations by the detective, which he communicated with the deputy … , the deputy had a reasonable suspicion that defendant was involved in a drug transaction … . In any event, “the seizure of [the items inside the vehicle] was not the result of the allegedly illegal detention of defendant, who was outside the parked vehicle when the police officer approached and detained him” … . Even if the deputy had not detained defendant, he could have simply walked up to the vehicle, looked in the window, and observed the drugs in plain view on the driver’s seat. Contrary to defendant’s further contention, the deputy’s observations of the rolled-up dollar bill and white powdery substance provided probable cause to arrest defendant for possession of drugs … . People v Messano, 2023 NY Slip Op 00769, Fourth Dept 2-10-23

Practice Point: Here the defendant was frisked and detained as he walked toward the deputy from his car. The deputy then looked inside defendant’s car a saw drugs. The majority held that even if defendant was illegally detained outside the car, the deputy’s observation of the drugs justified the search. The two-justice dissent argued the observation of the drugs was the product of the illegal detention.

 

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