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DEFENDANT WAS CONVICTED OF DIRECTING THE CODEFENDANT TO KILL; THE CODEFENDANT WAS ACQUITTED OF MURDER; THE VERDICTS WERE REPUGNANT; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE REPUGNANT VERDICTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s attorney was ineffective for failing to object to the repugnant verdict. Defendant was convicted of directing the codefendant to shoot and kill the victim. The codefendant was acquitted of the murder charge:

We agree with defendant … that he was denied meaningful representation at trial inasmuch as there is no reasonable and legitimate trial strategy for defense counsel’s failure to object to the repugnant verdicts  … . …

… “[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime as charged, for which the guilty verdict was rendered” … . “The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions” … . The repugnancy doctrine also applies when one codefendant is convicted of a crime while another is acquitted of the same crime … . …

By acquitting the codefendant, the jury negated an essential element of the crime for which defendant was charged, i.e., that the codefendant committed the offense at defendant’s direction … . People v Jennings, 2021 NY Slip Op 00944, Fourth Dept 2-11-21

 

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AN OFFICER MAY FOLLOW A SUSPECT IN A POLICE VEHICLE; THE OFFICER DID NOT GET OUT OF HIS VEHICLE AND CHASE THE DEFENDANT UNTIL HE SAW THE DEFENDANT DISCARD A WEAPON; THE SEIZURE OF THE WEAPON WAS NOT THE RESULT OF UNLAWFUL POLICE CONDUCT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant did not discard a weapon in response to unlawful police conduct. Therefore the weapon should not have been suppressed. In response to a 911 call a police officer in a car was observing the defendant. The officer pursued the defendant only after he saw the defendant discard a weapon:

As the … officer approached the scene, he observed defendant in a black coat walking westbound on the sidewalk. Upon seeing the third officer in his vehicle, defendant ran down a driveway. The … officer pulled into the driveway of that residence and, while still in the vehicle, observed defendant toss what appeared to be a long-barreled handgun over the fence while he ran. It was at that point that the third officer exited his vehicle and chased defendant, ultimately apprehending him. A loaded .22-caliber firearm was found on the ground in the backyard adjacent to the driveway.

… “[A]]n officer may use his or her vehicle to unobtrusively follow and observe an individual without elevating the encounter to a level three pursuit” … . A police-civilian encounter will escalate to a level three encounter, i.e., a forcible stop or seizure, “whenever an individual’s freedom of movement is significantly impeded . . . Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact” … .

Here, the … officer had activated his emergency lights en route to the scene and before he encountered defendant. Upon observing defendant walking on the sidewalk, the third officer stopped his vehicle in a driveway. At no point did the third officer engage in any particularized act toward defendant or restrict his freedom of movement … . People v Moore, 2021 NY Slip Op 00927, Fourth Dept 2-11-21

 

SYNTHETIC MARIJUANA IS NOT “DANGEROUS CONTRABAND” WITHIN THE MEANING OF THE “PROMOTING PRISON CONTRABAND” STATUTES (FOURTH DEPT).

The Fourth Department, reducing defendant’s conviction of promoting prison contraband first degree to second degree, determined that synthetic marijuana did not meet the definition of “”dangerous contraband:”

The Court of Appeals has “conclude[d] that the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . “Generally, dangerous contraband refers to weapons . . . Items that facilitate escape are also dangerous contraband” (id. [internal quotation marks omitted]). Conversely, small amounts of marihuana, “unlike other contraband such as weapons, are not inherently dangerous and the dangerousness is not apparent from the nature of the item” … . Additionally, we note that the substance at issue here is a synthetic drug that mimics the effects of THC, the active ingredient in marihuana, and “the conclusion that . . . small amounts of marihuana . . . are not dangerous contraband is informed by the Legislature’s more lenient treatment of marihuana offenses, as opposed to those involving other drugs” … . People v Mclamore, 2021 NY Slip Op 00926, Fourth Dept 2-11-21

 

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THE FAILURE TO INFORM DEFENDANT AT THE TIME OF THE PLEA THAT HIS SENTENCE WOULD INCLUDE A SPECIFIC PERIOD OF POSTRELEASE SUPERVSION REQUIRED VACATION OF THE PLEA; BECAUSE THE DEFENDANT DID NOT RECEIVE TIMELY NOTICE OF THE POSTRELEASE SUPERVISION, PRESERVATION OF THE ERROR WAS NOT NECESSARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been informed that postrelease supervision (PRS) would be part of his sentence. Under the circumstances preservation of the error for appeal was not necessary:

Pursuant to the plea agreement, defendant entered his plea in exchange for a promise of youthful offender adjudication and a sentence of probation. Following the entry of the plea, the court informed defendant that, if he violated the terms of the plea agreement, the court would “not keep the promise [it] made regarding [his] sentence” and that it could “impose a much more significant or higher sentence.” The court did not specify what that higher sentence could entail, nor did it mention the possibility of postrelease supervision (PRS).

Prior to sentencing, defendant violated the terms of the plea agreement when he failed to cooperate with the probation department and was arrested on new felony charges. The court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]) and determined that there was a valid basis on which to enhance the sentence. The prosecutor then requested that the court sentence defendant as an adult and impose a sentence of 15 years of incarceration with five years of PRS. The court imposed a determinate sentence of 7½ years of incarceration plus five years of PRS.

The court was required “to advise defendant that his enhanced sentence would include PRS, and was also required to specify the length of the term of PRS to be imposed” … . Although defendant did not object to the imposition of PRS or move to withdraw his plea or to vacate the judgment of conviction, this case falls under an exception to the preservation rule inasmuch as “[t]he prosecutor’s mention of PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue” … . People v Stanley, 2021 NY Slip Op 00924, Fourth Dept 2-11-21

 

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THE EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS AND PARAPHERNALIA IN AN APARTMENT IN WHICH DEFENDANT WAS PRESENT WAS INSUFFICIENT; DEFENDANT’S CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after a bench trial, determined the evidence that defendant constructively possessed drug and paraphernalia was insufficient. The “possession” convictions, therefore, were against the weight of the evidence:

Although defendant was present in the apartment at the time the police executed the search warrant, no other evidence was presented “to establish that defendant was an occupant of the apartment or that he regularly frequented it” … . Two of the police officers testified that they did not discover anything that belonged to defendant on the premises. The clothing, cell phone, and identification found on the premises belonged instead to other men who were present in the apartment during the execution of the search warrant. Photographs found on the premises included the other men but not defendant. While defendant admitted that he had been at the apartment on one other occasion, the evidence did not otherwise specifically connect defendant to the apartment in which the contraband was found. We thus conclude that the weight of the evidence does not support a finding that defendant “exercised dominion and control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Ponder, 2021 NY Slip Op 00923, Fourth Dept 2-11-21

 

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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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