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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH REQUIRES THAT CERTAIN SEX OFFENDERS RESIDE IN SARA-COMPLIANT HOUSING (AWAY FROM SCHOOL GROUNDS) UPON RELEASE FROM PRISON DOES NOT APPLY TO SEX OFFENDERS WHO HAVE BEEN ADJUDICATED YOUTHFUL OFFENDERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Bannister, determined the conditions imposed by the Sexual Assault Reform Act (SARA) requiring certain sex offenders live in SARA-compliant housing upon release (away from school grounds) does not apply to those sex offenders who are adjudicated youthful offenders:

A “sex offender,” as defined in the Correction Law, “includes any person who is convicted of any of the [enumerated offenses]” … . A “sex offense” is defined as “a conviction of or a conviction of an attempt to commit [an enumerated crime]” … Additionally, the school grounds mandatory condition as set forth in Penal Law § 65.10 (4-a) (a) expressly applies only to those persons convicted of the enumerated offenses.

When a sentencing court adjudicates a defendant a youthful offender, however, the conviction is “deemed vacated and replaced by a youthful offender finding” … . CPL 720.35 (1) states that a youthful offender adjudication “is not a judgment of conviction for a crime or any other offense,” which is in keeping with the “legislative desire not to stigmatize youths [adjudicated youthful offenders] . . . with criminal records triggered by hasty or thoughtless acts” … . Thus, by definition, a youthful offender is not a convicted sex offender and does not fall within the category of persons intended to be restricted under SARA. People ex rel. Suarez v Superintendent, Livingston Corr. Facility, 2021 NY Slip Op 00705, Fourth Dept 2-5-21

 

PLAINTIFF, A BUILDING MAINTENANCE WORKER, FELL FROM AN 8-FOOT UNSECURED LADDER WHEN ATTEMPTING TO REMOVE A BIRD’S NEST FROM A GUTTER; THE ACTIVITY WAS NOT ROUTINE CLEANING AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over an extensive two-justice dissent, determined plaintiff, who maintained a mixed use building, was engaged in a “Labor Law 240 (1)” covered activity when he was attempting to remove a bird’s nest from a gutter. Plaintiff fell from an 8-foot unsecured ladder when he was surprised by a bird flying out of the nest:

… [P]laintiff’s work in removing the bird’s nest from one of the building’s gutters was not routine cleaning. Plaintiff had never before been given such a task during his time working on the premises. Indeed, the reason for removing the nest was, in part, to prevent the further accumulation of bird excrement under the nest. Plaintiff’s supervisor characterized the task of removing the nest as nonroutine cleaning. In addition, removing the bird’s nest from the gutter, which was located above the tenant’s entry door, necessarily involved elevation-related risks that are not generally associated with typical household cleaning … . Although plaintiff’s work did not necessitate the use of specialized equipment or expertise, nor was it performed in conjunction with any construction, renovation or repair project on the building … , those factors are not dispositive in light of the atypical nature of the work and its attendant elevation-related risks and, moreover, the fact that plaintiff’s task involved the removal of extraneous materials that had formed in the gutter not due to its normal operation … . Healy v Est Downtown, LLC, 2021 NY Slip Op 00699, Fourth Dept 2-5-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY TO ENSURE DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL FOR THE SORA HEARING WAS KNOWING, INTELLIGENT AND VOLUNTARY; THE NOTICE OF THE SORA HEARING PROVIDED TO DEFENDANT WAS INADEQUATE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge did not conduct the required inquiry to ensure defendant’s waiver of his right to counsel for the SORA hearing was knowing, intelligent and voluntary. The Fourth Department also noted that notice of the SORA hearing provided to the defendant was inadequate:

…[D]efendant’s purported waiver of the right to counsel is invalid. “It is well settled that defendants have a statutory right to counsel in SORA proceedings” … . In order for a defendant to validly waive his right to counsel, “the court must undertake a ‘searching inquiry . . . aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel’ ” … . Such an inquiry ensures that the defendant’s waiver is ” ‘made competently, intelligently and voluntarily’ ” … .

Here, County Court failed to conduct the necessary searching inquiry and, instead, relied upon defendant’s notation on the form notice he received about his SORA classification proceeding that he did “not wish to have counsel appointed.” …

… [T]he form notice provided to [defendant] about his SORA classification contained numerous deficiencies. The notice did not fully describe the SORA hearing or the consequences that would follow if defendant failed to appear … . It also appears that the court failed to provide defendant with a “copy of the recommendation received from the [Board of Examiners of Sex Offenders] and any statement of the reasons for the recommendation” … . In providing the requisite notice to defendants pursuant to section 168-n (3), courts should be tracking the language used in that statute instead of giving a shortened summary. People v Huntley, 2021 NY Slip Op 00688, Fourth Dept 2-5-21

 

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THE CONTEMPT FINDING AND THE $535,000 FINE WERE BASED ON AN ORDER WHICH SUPREME COURT DID NOT HAVE THE JURISDICTION TO ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contempt finding and the imposition of a $535,000 fine could not be enforced because it was based on an order which Supreme Court did not have jurisdiction to issue:

… [A]fter the entry of the order on appeal, this Court modified the prior order upon an appeal by defendant … . Defendant had transferred title to the … property to her children while reserving a life interest for herself, and she transferred title to … property to an LLC of which she was the sole owner, but later gifted that LLC to her children … . We stated in our decision that Supreme Court … equitably distributed the … properties “by directing defendant to prepare and execute deeds listing plaintiff as a one-half owner of those properties” … . We held that “[t]he court, however, lacked jurisdiction to do so inasmuch as the children and the LLC were not named as parties to this action” … . We therefore conclude in this appeal that the directive in the prior order requiring defendant to sign those deeds cannot be a basis for a finding of contempt, and we therefore modify the order by vacating the finding of contempt and the imposition of a fine upon that contempt. Jolley v Lando, 2021 NY Slip Op 00679, Fourth Dept 2-5-21

 

IT IS REVERSIBLE ERROR TO ENTERTAIN A MOTION FOR A DIRECTED VERDICT BEFORE THE OPPONENT HAS PRESENTED EVIDENCE AND CLOSED HIS OR HER CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the motion for a directed verdict should not have been granted because defendant had not yet presented any evidence:

“[I]t is reversible error to grant a motion for a directed verdict prior to the close of the party’s case against whom a directed verdict is sought” … . “By its express language, [CPLR 4401] authorizes the grant of a motion for a directed verdict only if the opponent of the motion has presented evidence and closes his or her case. The requirement that each party await the conclusion of the other’s case before moving for judgment [under CPLR 4401] is designed to afford all of them a day in court . . . Accordingly, the timing of a motion prescribed by CPLR 4401 must be strictly enforced and the grant of a dismissal [pursuant to CPLR 4401] prior to the close of the opposing party’s case will be reversed as premature, even if the ultimate success of the opposing party in the action is improbable” … . Here, it is undisputed that plaintiff’s motion was granted before defendant had an opportunity to present any evidence. Thus, it was error for the court to entertain plaintiff’s motion … . Veley v Manchester, 2021 NY Slip Op 00760, Fourth Dept 2-5-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE AN ADEQUATE SPEEDY TRIAL MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The motion alleged defense counsel was ineffective for failing to make an adequate speedy trial motion. The Fourth Department found there was a question of fact about whether 88 days should have been excluded from the speedy trial calculation because the defendant was evading arrest:

… [T]he People contended that the speedy trial motion would have been denied even if properly pleaded because defendant was attempting to avoid apprehension and thus the 88 days preceding the People’s first statement of readiness were excludable pursuant to CPL 30.30 (4) (c) (i). In denying the CPL 440.10 motion without a hearing, the court concluded that the trial court had ruled that the 88 days between the commencement of the action and the People’s initial statement of readiness “was not chargeable to the People[] because defendant evaded arrest.” We note, however, that the only evidence in the record supporting the conclusion that defendant was evading arrest was the prosecutor’s statement at defendant’s arraignment on the indictment that she understood that defendant had “fled the area” and was heading to the New York City area, an assertion that was based solely on the supposition of an unnamed member of the police department’s central investigation division. We thus conclude that defendant’s submissions “support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing” … and that “[t]he People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing” … . People v Reed, 2021 NY Slip Op 00758, Fourth Dept 2-5-21

 

THE DUE PROCESS PRONG OF LONG-ARM JURISDICTION WAS NOT DEMONSTRATED WITH RESPECT THE GERMAN MANUFACTURER; IN ADDITION THE FAILURE TO WARN CAUSE OF ACTION WAS PREEMPTED BY THE FEDERAL MEDICAL DEVICE AMENDMENTS TO THE FDA REGULATIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the due process prong of long-arm jurisdiction was not satisfied and the failure to warn allegation was preempted by Federal Drug Administration (FDA) regulations under the Medical Device Amendments (MDA). The medical device was not described in the decision but it apparently involves treatment of the eye:

Plaintiff has not shown a regular flow of Morcher’s [the German manufacturer’s] goods into New York, advertising directed at New York, the delivery of Morcher’s goods into the stream of commerce with the expectation of purchase in New York, or any other facts that may arguably have established jurisdiction … . …

It is undisputed that the device in question is a class III medical device with respect to which the federal government has established requirements. Thus, we must determine whether plaintiff’s “common-law claims are based upon New York requirements with respect to the device that are ‘different from, or in addition to,’ the federal ones, and that relate to safety and effectiveness” … . If so, those claims are preempted by the MDA … . If, on the other hand, the common-law claims provide a damages remedy and are premised on a violation of the regulations of the Food and Drug Administration (FDA), they ” ‘parallel,’ rather than add to, federal requirements” and are not preempted … . … Plaintiff … fails to identify any federal statute or regulation that requires defendants to provide warnings to consumers or their physicians … . Barone v Bausch & Lomb, Inc., 2021 NY Slip Op 00745, Fourth Dept 2-5-21

 

FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the for cause challenges to two jurors should have been granted. Both jurors said they would have difficulty considering each crime separately when the crimes occurred close in time. The judge did not elicit any responses from the two jurors after they expressed their concerns:

… [D]efense counsel questioned each juror as to whether he or she would have trouble separating the proof in the case or understanding that the prosecution had to prove each individual incident beyond a reasonable doubt, as well as whether they could set aside any preconceived notions and consider each incident individually. Two prospective jurors indicated that they were not sure if they could consider each incident separately. Specifically, one prospective juror stated, “I don’t know if I could,” while a second prospective juror stated, “I’m not sure. Like I’m not sure who said it, like the timeframe like if it was one after another, another day, day, day, I don’t know if I can separate it. But if it’s like once, you know, a year or three years later this—maybe I would be able to separate it then.” …

In response, the court explained to the entire panel that defendant “is presumed to be innocent of each and every one of those [allegations], and the fact that there was something on one day, something on another day, you’re going to decide each and every one of those on its own merits.” The court also specifically asked the panel if they understood that they had “to decide each one of the cases on their—each one of the charges on their own merit.” The prospective jurors remained silent.  People v Padilla, 2021 NY Slip Op 00732, Fourth Dept 2-5-21

 

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HUMAN RIGHTS LAW CLAIMS DID NOT ALLEGE DISCRIMINATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT APPLY TO TERMINATION OF AT WILL EMPLOYMENT; WORKERS’ COMPENSATION IS THE EXCLUSIVE REMEDY FOR NEGLIGENCE ACTIONS AGAINST AN EMPLOYER; PUNITIVE DAMAGES NOT AVAILABLE FOR THE EMPLOYMENT DISCRIMINATION OR BREACH OF CONTRACT CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that several of plaintiff’s causes of action, as well as claims for punitive damages, should have been dismissed. Plaintiff’s lawsuit stemmed from alleged wrongful conduct in terminating the plaintiff’s employment and evicting him from a work-provided apartment:

… [P]laintiff alleges that he engaged in “protected activity” when his attorney sent a letter to one or more defendants about an altercation between plaintiff and a neighbor. We agree with defendants that … sending the letter did not constitute “protected activity” because the letter did not suggest, much less allege, that anyone had engaged in “unlawful discrimination,” i.e., conduct prohibited by the [Human Rights Law]. …

… [I]t is well established that “[t]ort causes of action alleging intentional infliction of emotional distress . . . ‘cannot be allowed in circumvention of the unavailability of a tort claim for wrongful discharge or the contract rule against liability for discharge of an at-will employee’ ” … . …

With respect to the fifth and eighth causes of action (negligent infliction of emotional distress and negligent hiring, training, and supervision, respectively), it is well established that workers’ compensation benefits are the “exclusive remedy for . . . injuries allegedly caused by the negligence of [a person’s] employer and fellow employee” … . …

Punitive damages are not available for the employment discrimination claims in the complaint … . … [T]he breach of contract claim … does not qualify for punitive damages because plaintiff does not allege that [the] alleged breach of contract was ” ‘aimed at the public generally’ ” … . Miller v National Prop. Mgt. Assoc., Inc., 2021 NY Slip Op 00729, Fourth Dept 2-5-21

 

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DEFENDANT WAS NOT INFORMED OF THE DIRECT CONSEQUENCES OF HIS GUILTY PLEA PRIOR TO ENTERING THE PLEA; THEREFORE THE PLEA WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was not provided with sufficient information about the direct consequences of his guilty prior to entering the plea:

… Supreme Court failed to inform [defendant] that a fine would be imposed and failed to advise him that, following his indeterminate term of imprisonment, he would be subject to a mandatory three-year period of conditional discharge, during which he would be required to install and maintain an ignition interlock device in his vehicle … . …

“The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine”… , and the failure to advise a defendant at the time of his or her guilty plea of a direct consequence of that plea “requires that [the] plea be vacated” … . Here, defendant was advised of the fine and mandatory conditional discharge for the first time immediately prior to sentencing, when the prosecutor stated that defendant would be required to pay “all mandatory fines [and] surcharges” and that the period of incarceration “would be followed by a conditional discharge for the ignition interlock to be enforced.” We note that preservation of defendant’s contention was not required under the circumstances of this case inasmuch as “defendant did not have sufficient knowledge of the terms of the plea at the plea allocution and, when later advised, did not have sufficient opportunity to move to withdraw [his] plea” … . People v Tung Nguyen, 2021 NY Slip Op 00724, Fourth Dept 2-5-21

 

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