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PLAINTIFF INJURED HIS BACK LIFTING A HEAVY METAL STRUCTURE A FEW INCHES TO ALLOW ROOFING MATERIAL TO BE PUT DOWN UNDERNEATH IT; THE INJURY WAS NOT THE RESULT OF AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action should have been granted. Plaintiff injured his back lifting a metal structure a few inches so roofing material could be applied underneath it. The injury was not related to the failure to provide a safety device to prevent an elevation-related injury:

… “[L]iability may . . . be imposed under [Labor Law § 240 (1)] only where the ‘plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . The statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … . … [T]he protections of Labor Law § 240 (1) ” ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … .

… Although plaintiff’s back injury was “tangentially related to the effects of gravity upon the [structure] he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . … [P]laintiff’s injuries “resulted from a ‘routine workplace risk[]’ of a construction site and not a ‘pronounced risk[] arising from construction work site elevation differentials’ ” … . Branch v 1908 W. Ridge Rd, LLC, 2021 NY Slip Op 06248, Fourth Dept 11-12-21

 

THE DWI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR MANSLAUGHTER WHICH MUST BE DISMISSED AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department noted that DWI is an inclusory concurrent count of vehicular manslaughter:

… [T]he DWI counts of which defendant was convicted are inclusory concurrent counts of vehicular manslaughter in the second degree , reconsideration . Thus, those DWI counts must be dismissed as a matter of law … . People v Conklin, 2021 NY Slip Op 06246, Fourth Dept 11-12-21

 

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THE ADMINISTRATIVE RECORD SUPPORTED THE GRANT OF THE ARIA VARIANCE BY THE ZONING BOARD OF APPEALS; SUPREME COURT SHOULD NOT HAVE SUBSTITUTED ITS JUDGMENT FOR THE BOARD’S (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly granted an area variance and Supreme Court should not have substituted its judgment for the board’s:

The administrative record and the ZBA’s formal return in the CPLR article 78 proceeding establish that the ZBA considered the five statutory factors, including whether the alleged difficulty was self-created … . Thus, we conclude that the ZBA “rendered its determination after considering the appropriate factors and properly weighing the benefit to the [applicants] against the detriment to the health, safety and welfare of the neighborhood or community” if the variance was granted … . We further conclude that the record establishes that the ZBA’s determination had the requisite rational basis … . It was therefore error for the court to substitute its judgment for that of the ZBA, “even if such a contrary determination is itself supported by the record” … . Matter of Gasparino v Town of Brighton Zoning Bd. of Appeals, 2021 NY Slip Op 06239, Fourth Dept 11-12-21

 

MOTHER TIMELY REVOKED HER EXTRA-JUDICIAL SURRENDER OF HER CHILD FOR ADOPTION; FAMILY COURT SHOULD NOT HAE DENIED MOTHER’S MOTION TO DEEM THE SURRENDER A NULLITY AND SHOULD NOT HAVE CONDUCTED A BEST INTERESTS HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother properly revoked her extra-judicial surrender of the child for adoption and Family Court should not have denied mother’s motion to deem the surrender a nullity and should not have conducted a best interests hearing:

… [T]he plain language of Social Services Law § 383-c (6) (a) mandates that a timely revocation shall render the extra-judicial surrender a nullity and that the child shall be returned to the care and custody of the authorized agency, and the statute contains no language providing for a best interests hearing in the event of such a timely revocation … . * * *

… [T]he court here had no statutory basis for refusing to deem the surrender a nullity, denying the birth mother’s motion, and instead conducting a best interests hearing. Matter of Tony S.H. (Katrina F.), 2021 NY Slip Op 06238, Fourth Dept 11-12-21

 

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THE $1000 FINE FOR THE DWI COUNT WAS HARSH AND EXCESSIVE; THE FAILURE TO IMPOSE A FINE FOR AGGRAVATED UNLICENSED OPERATION WAS ILLEGAL; REFUSING TO SUBMIT TO A BREATH TEST IS NOT A COGNIZABLE OFFENSE (FOURTH DEPT).

The Fourth Department determined: (1) the $1000 fine imposed for the driving while intoxicated count (in addition to a period of incarceration) was harsh and excessive; (2) the sentence for aggravated unlicensed operation was illegal; and (3) refusing to submit to a breath test is not a crime:

… [T]he sentence imposed on count two of the indictment is illegal because a fine of between $500 and $5,000 is mandatory upon a conviction of aggravated unlicensed operation of a motor vehicle in the first degree, even where, as here, the court also imposes a sentence of incarceration (see Vehicle and Traffic Law § 511 [3] [b] …). …

… [W]e note that the Appellate Term, Second Department, has repeatedly stated that a defendant’s “refusal to submit to a breath test did not establish a ‘cognizable offense’ ” … . We agree, and we therefore further modify the judgment by reversing that part convicting defendant of count four of the indictment, vacating the plea with respect to that count of the indictment and dismissing that count. People v Bembry, 2021 NY Slip Op 06235, Fourth Dept 11-21-21

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED; GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and unwarned statements made by the defendant under custodial interrogation should have been suppressed. Defendant was interrogated about two missing college students. As the questioning proceeded it became apparent defendant was involved in the matter in some way, and eventually she revealed where the students were:

Defendant orally waived her right to appeal and executed a written waiver of the right to appeal. The language in the written waiver is inaccurate and misleading insofar as it purports to impose “an absolute bar to the taking of a direct appeal” and purports to deprive defendant of her “attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal” … . … A “waiver[] cannot be upheld . . . on the theory that the offending language can be ignored and that [it is] enforceable based on the court’s few correctly spoken terms” … . …

… [D]efendant was placed in a conference room and was questioned by an investigator from approximately 3:15 p.m. until 5:00 p.m. At 5:00 p.m., another investigator accompanied defendant to the bathroom, and the investigator continued questioning defendant. During that conversation, defendant made admissions demonstrating that she was more involved in the case than she had initially revealed, that she knew who was holding the students, and that one of the students had been shot. … At no time was she ever given Miranda warnings. People v Hughes, 2021 NY Slip Op 06231, Fourth Dept 11-12-21

 

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THE LEVEL-THREE RISK ASSESSMENT WAS NOT MANDATORY AND THE EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED; ON REMAND WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the SORA court should not have considered the level three risk assessment mandatory and should have considered the evidence submitted in support of a downward department. On remand, the SORA court was directed to make findings of fact and conclusions of law in writing:

Where a “defendant’s prior felony conviction of a sex crime raised his [or her] presumptive risk level from level two to level three . . . , the [SORA] court is not mandated to apply the override but may, in appropriate circumstances, impose a lower risk level”… .

… Supreme Court, in its oral decision, incorrectly treated defendant’s presumptive level three classification as mandatory, and the court therefore never ruled on his downward departure application. We reject the People’s assertion that the court corrected that error in its subsequent written decision. … [T]he written decision explicitly “incorporates . . . [the] oral decision” and again failed to rule on defendant’s downward departure application. … [T]he “compelling evidence” line in the written decision merely summarized the findings of the Board of Examiners of Sex Offenders and was not  … an independent holding or ruling by the court. People v Douglas, 2021 NY Slip Op 06229, Fourth Dept 11-12-21

 

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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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