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THE SUPPRESSION COURT PROPERLY FOUND THE POLICE OFFICERS’ TESTIMONY ABOUT THE REASON FOR THE TRAFFIC STOP CREDIBLE; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the suppression court properly deemed the police officers’ testimony about the reasons for the traffic stop credible. After a car chase and a foot chase, a weapon was seized from the vehicle and defendant was charged with criminal possession of a weapon second. The dissenters argued that the testimony of the police officers was not credible and therefore the People did not meet their burden to show the traffic stop was lawful:

… [W]e reject defendant’s … contention and the dissent’s assertion that the officers’ suppression hearing testimony should be discredited, and thus that the traffic stop should be deemed unlawful, because the officers failed to disclose that they… had a pretextual reason for stopping the vehicle based on information from a confidential informant conveyed to them by another officer in an earlier phone call. The officers acknowledged when the suppression hearing was reopened that they had failed to disclose in their reports or during their prior testimony that they had a pretextual reason for stopping the vehicle based on information from a confidential informant that a firearm may have been in the vehicle. Nonetheless, one of the officers offered a credible explanation for that initial nondisclosure and the other explained that, consistent with their prior testimony, the officers had not received a “call for service,” i.e., a citizen complaint via 911, prior to the traffic stop but, rather, had received a phone call from another officer. We conclude on this record that the officers’ testimony “was not so inherently incredible or improbable as to warrant disturbing the . . . court’s determination of credibility” after it was presented with the initial omissions and subsequent explanations … . People v Addison, 2021 NY Slip Op 06225, Fourth Dept 11-12-21

 

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CRIMINAL SEXUAL ACT FIRST DEGREE IS NOT A LESSER INCLUDED OFFENSE OF PREDATORY ASSAULT AGAINST A CHILD; THE PROSECUTOR IMPROPERLY INJECTED THE INTEGRITY OF THE DISTRICT ATTORNEY’S OFFICE INTO THE CASE (FOURTH DEPT).

The Fourth Department, dismissing one count without prejudice, determined criminal sexual act first degree is not a lesser included offense of predatory sexual assault against a child. Therefore the jury should not have been so instructed. The court noted that the prosecutor improperly injected the integrity of the District Attorney’s office into the trial by telling the jury he was at a significant advantage because he had been working on the case for more than a year:

As alleged in count one of the indictment, defendant committed predatory sexual assault against a child because, during a certain period of time, and while “being [18] years old or more, [he] engaged in two or more acts of sexual conduct, which included at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a female . . . , who was less than [13] years old.” Thus, by its explicit language, the count of predatory sexual assault against a child was predicated on defendant’s alleged commission of the class B felony of course of sexual conduct against a child in the first degree (see Penal Law § 130.75 [1] [b]) and, as a result, the People could not establish that the offense of criminal sexual act in the first degree, a different class B felony, was a lesser included offense of predatory sexual assault against a child within the meaning of CPL 1.20 (37). Stated another way, it is not impossible to commit predatory sexual assault against a child, as the offense was charged in the indictment in this case, without concomitantly, by the same conduct, committing criminal sexual act in the first degree. Indeed, as the offense was charged in the indictment here, a defendant could commit predatory sexual assault against a child by engaging in sexual intercourse or aggravated sexual contact with the victim (see Penal Law §§ 130.96, 130.75 [1] [b]), without concomitantly, by the same conduct, committing criminal sexual act in the first degree (see § 130.50 [3]). People v Getman, 2021 NY Slip Op 06224, Fourth Dept 11-12-21

 

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THE STATE PROPERLY APPROVED THE CONSTRUCTION OF ELECTICITY-GENERATING WIND TURBINES IN WESTERN NEW YORK (FOURTH DEPT).

The Fourth Department, affirming the approval of the construction of wind turbines for generating electricity by the NYS Board on Electric Generation Siting and the Environment (Board), determined: (1) the correct local wind-turbine law for the Town of Freedom was considered by the Board; (2) the Board correctly refused to consider a local wind-turbine law for the Town of Farmersville enacted after the evidentiary phase of the project was complete; (3) the Board properly considered the climate-change effects of the project and the effects on wild life and the land; and (4) the coalition contesting the Board ruling did not have standing to represent the First Amendment rights of the Amish community:

… [T]he Board must determine … whether a proposed electric generating facility “is a beneficial addition to or substitution for the electric generation capacity of the state” and whether “the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable” (Public Service Law § 168 [3] [a], [c]), and the Board must consider … “the impact on community character” and any additional “social, economic, visual or other aesthetic, environmental and other conditions” deemed pertinent by the Board … . “[T]he Board was created to provide for an expeditious review process and ‘to balance, in a single proceeding, the people’s need for electricity and their environmental concerns’ ” … . Furthermore, it is settled that “[t]his [C]ourt’s scope of review is limited to whether the decision and opinion of the [B]oard, inter alia, are . . . supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion . . . , are made in accordance with proper procedure . . . and are not arbitrary, capricious or an abuse of discretion” … . “The task of weighing conflicting evidence . . . is properly left to the . . . Board” … . Matter of Coalition of Concerned Citizens v New York State Bd. On Elec. Generation Siting & The Envt. & Alle-Catt Wind Energy, LLC, 2021 NY Slip Op 06221, Fourth Dept 11-12-21

 

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THE PAT DOWN SEARCH OF DEFENDANT TRAFFIC OFFENDER WAS NOT SUPPORTED BY REASONABLE SUSPICION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the pat down search of defendant traffic offender was not supported by reasonable suspicion:

… [A] pat down search of a traffic offender is not authorized unless, when the vehicle is stopped, there is reasonable suspicion that the defendant is armed or poses a threat to the officer’s safety … . The requisite reasonable suspicion is simply lacking here; defendant made no evasive moves, he was not aggressive with the officer, he did not reach into his clothing or into dark hiding spots in the car, there were no telltale bulges in his clothes, he made no statements about weapons or other dangerous items, and the officer had no prior knowledge of any defendant-specific concerns … . Contrary to the motion court’s view, “non-compliant and erratic behavior” does not automatically give rise to reasonable suspicion of a threat to officer safety … . Although defendant’s flat affect and partial disrobement during the traffic stop was odd, nothing about his specific odd behavior during the episode gave rise to reasonable suspicion that he was armed or posed a threat to the officer’s safety … . If anything, the officer’s ability to peer unobstructed into defendant’s open pants should have assuaged, rather than heightened, any concerns that defendant was concealing a weapon. The crack cocaine should therefore have been suppressed as the fruit of the unlawful frisk … . People v Santy, 2021 NY Slip Op 05439, Fourth Dept 10-8-21

 

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DEFENDANT’S GUILTY PLEA WAS COERCED BY THE JUDGE’S THREAT TO IMPOSE A HEAVIER SENTENCE IF CONVICTED AFTER TRIAL; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was induced to enter the plea by a threat to impose a heavier sentence after trial. The defendant did not preserve the issue for appeal by a motion to withdraw the plea or vacate the judgment, but the appeal was heard in the interest of justice:

… [D]efendant contends that his plea was rendered involuntary due to statements made by County Court during the plea colloquy indicating that the court would impose the maximum sentence and direct that it run consecutively to a previously imposed sentence if he were convicted at trial. * * *

… [I]t is well settled that a defendant “may not be induced to plead guilty by the threat of a heavier sentence” if he or she decides to proceed to trial … . … [T]he court’s comments about sentencing were not merely a description of the range of the potential sentences; instead, they conveyed to defendant the court’s intent to impose the maximum punishment at sentencing if he proceeded to trial and lost. That constitutes coercion, rendering the plea involuntary … . People v Thigpen-Williams, 2021 NY Slip Op 05429, Fourth Dept 10-8-21

 

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THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE AMOUNT OF RESTITUTION, MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined County Court should have held a hearing on the amount of restitution and remitted the matter:

Penal Law § 60.27 (2) provides in relevant part that, when a court requires restitution to be made, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” … . Here, contrary to the assertion of the People, defendant made a timely request for a restitution hearing inasmuch as he requested a hearing before the court made its determination on restitution. The court never ordered a specific amount of restitution at sentencing, and the People did not prepare the order of restitution setting forth the amount requested until the following week. Defendant raised issues with the amount and requested a hearing. Upon defendant’s request, the court was required to conduct a hearing “irrespective of the level of evidence in the record” to support the amount of restitution … . People v Osborn, 2021 NY Slip Op 05426, Fourth Deptp 10-8-21

 

UNAMBIGUOUS LANGUAGE IN A DEED MUST BE ENFORCED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined unambiguous language in a deed is not subject to interpretation:

The construction of deeds generally “presents a question of law for the court to decide” … , and deeds must be “construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (Real Property Law § 240 [3]). “The ‘intent’ to which [section 240 (3)] refers is the objective intent of the parties as manifested by the language of the deed” … . “[A] court will only look outside the four corners of the deed to establish the intent of the parties when . . . that instrument is found to be ambiguous” … .

In this case, pursuant to the unambiguous language of the corrected deed and the contract of sale referenced therein, Flower [defendant]  transferred “all” of his oil, gas, and mineral rights in the premises … .It is a fundamental principle of deed construction that “[w]hen words have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning” … . We conclude that, in determining that Flower intended to transfer … only his right to receive royalties while retaining his right to receive free gas, the court improperly restricted the meaning of the plain language of the corrected deed, particularly the word “all.” BPGS Land Holdings, LLC v Flower, 2021 NY Slip Op 05413, Fourth Dept 10-8-21

 

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AN AFFIDAVIT WITH A PARTY STATEMENT AND A NON-PARTY AFFIDAVIT WHICH WERE NOT DISCLOSED SHOULD HAVE BEEN CONSIDERED IN OPPOSTION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE (FOURTH DEPT)

The Fourth Department, reversing Supreme Court and reinstating the complaint in this dog-bite case, determined an affidavit which should have been disclosed because it contained the statement of a party was admissible in opposition to defendant’s motion for summary judgment (the Davis affidavit). In addition, the affidavit of a non-party witness should have been considered by the court (the Cheetham affidavit). Even if the discovery demands are read to include the non-party affidavit, the affidavit was privileged as material prepared for litigation and therefore not discoverable. Supreme Court had precluded both affidavits on the ground they had not been disclosed:

… [W]e agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) “enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable” … . We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis’s affidavit from consideration in opposition to the motion … . Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis’s production … . Inasmuch as plaintiff is not precluded from relying on Davis’s affidavit to oppose summary judgment, Davis is not precluded from testifying at trial … .

We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham’s statement was discoverable, we note that defendant’s discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant’s discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham’s statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2 …). Defendant would be unable to show any substantial need for Cheetham’s statement inasmuch as Cheetham was deposed and therefore provided the substantial equivalent of the material contained in the statement … . Vikki-lynn A. v Zewin, 2021 NY Slip Op 05412, Fourth Dept 10-8-21

 

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DEFENDANT IN THIS CHILD PORNOGRAPHY CASE DEMONSTRATED MITIGATING FACTORS WARRANTING A DOWNWARD DEPARTURE TO SORA RISK LEVEL ONE (FOURTH DEPT).

The Fourth Department determined defendant in this child pornography case established mitigating circumstances that warranted a downward departure of the risk level to level one:

We agree with defendant … that he established by a preponderance of the evidence that there are other mitigating factors that were “not otherwise adequately taken into account by the guidelines” … . Defendant established that he suffered from a rare, congenital disease that resulted in significant disfigurement and medical issues, requiring numerous surgeries throughout his life. Defendant was bullied as a child, primarily due to his disfigurement and, as a result, was socially isolated, having no significant peer relationships. Defendant has only one prior crime on his record, a misdemeanor for which he was referred to Mental Health Court, and, in the case at hand, the court sentenced him to probation pursuant to the People’s recommendation, thus indicating that defendant does not pose a significant threat to the community. We also note that defendant will be under supervision by the Probation Department for 10 years.

As a result of the depression and related mental health issues that flowed from such a difficult childhood, defendant turned to alcohol and drugs, some of which had been properly prescribed to him following many of his surgeries. Defendant’s use of child pornography generally occurred while he was under the influence of drugs. Inasmuch as defendant was sentenced to a 10-year term of probation, which would ensure that he continued to participate in all of his treatment programs, we conclude that, in light of the totality of the circumstances, a downward departure to risk level one is warranted in the exercise of our discretion … . People v Morana, 2021 NY Slip Op 05188, Fourth Dept 10-1-21

 

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THE CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF OR DEFENDANT WAS RESPONSIBLE FOR PAYING PROPERTY TAXES; THEREFORE THE DEFENDANT’S COUNTERCLAIM, WHICH WAS BASED UPON AN INTERPRETATION OF THE CONTRACT, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the defendant’s third counterclaim seeking reimbursement for property taxes should not have been dismissed because the terms of the related contract were ambiguous. As part of a purchase agreement which never closed, the defendant was allowed to remain in the property in return for paying the property tax for six months. If the defendant remained in the property after six months defendant was to pay $800/month rent. Defendant remained in the property after six months but no one paid the taxes. Eventually defendant paid the accumulated property tax to avoid a tax auction:

Inasmuch as “a contract generally incorporates the state of the law in existence at the time of its formation” ,,, , defendant, as the titled owner, would have been responsible for the property taxes, absent a contractual provision to the contrary. Here, however, the contract was not truly silent on the issue of property taxes. It specifically provided that defendant would pay property taxes in one situation but then failed to address who would pay the property taxes in another situation … . Based on the maxim expressio unius est exclusio alterius, which applies to contracts as well as statutes … , “[w]here a [document] describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inasmuch as the determination of the intent of the parties depends on a choice among reasonable inferences, we conclude that resolution of the third counterclaim should be left to a trier of fact. Dunn Auto Parts, Inc. v Wells, 2021 NY Slip Op 05185, Fourth Dept 10-1-21

 

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