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THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department, noting that the issues need not be preserved for appeal, determined the jury should have been instructed to consider the top count, murder first degree, and the inclusory concurrent count, murder second degree, in the alternative:

… [T]he court should have instructed the jury to consider count two “only in the alternative as an inclusory concurrent count” of count one … . The court, … erred when it did not instruct the jury to consider counts one and two in the alernative and instead directed the jury to consider the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree for each of the two murder charges. That error resulted in the jury improperly returning a verdict convicting defendant of two identical counts of manslaughter in the first degree with respect to the same victim. We therefore … modify the judgment by reversing the conviction of manslaughter in the first degree under count two of the indictment and dismissing that count of the indictment … . People v Smith, 2020 NY Slip Op 04702, Fourth Dept 8-20-20

 

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT).

The Fourth Department, remitting that matter to allow defendant to move to withdraw his guilty plea, considering the issue in the interest of justice, determined defendant was not informed of the deportation consequences of pleading guilty. Because the ineffective assistance claim depends in part on matters outside the record, it can only be addressed in a motion to vacate the conviction:

… [D]efendant, a noncitizen, contends that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because Supreme Court failed to advise him of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 [2013], cert denied 574 US 840 [2014]). As a preliminary matter, we note that defendant’s challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal … . Even assuming, arguendo, that defendant was required to preserve his contention under the circumstances of this case … , we exercise our power to address it as a matter of discretion in the interest of justice … . “[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . Here, the record of the plea proceeding establishes that the court failed to fulfill that obligation … . As defendant contends and contrary to the People’s suggestion, “the case should be remitted to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had the court advised him of the possibility of deportation” … . People v Jumale, 2020 NY Slip Op 04697, Fourth Dept 8-20-20

 

BECAUSE THE PLEA AGREEMENT COULD NO LONGER BE COMPLIED WITH DEFENDANT’S GUILTY PLEA MUST BE VACATED; UNDER THE AGREEMENT DEFENDANT’S SENTENCE WAS TO RUN CONCURRENTLY WITH THE SENTENCE ON A SEPARATE INDICTMENT, BUT THAT SEPARATE INDICTMENT WAS DISMISSED AFTER APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the inability to comply the plea agreement required the vacation of the plea. The plea was based on the promise that defendant’s sentence would be concurrent with the sentence imposed under a separate indictment. That separate indictment was dismissed after appeal:

Defendant appeals from a judgment entered in Livingston County convicting him upon a plea of guilty of criminal sale of a controlled substance in the third degree … . The plea satisfied another indictment pending against defendant in Livingston County (indictment No. 2014-042). Pursuant to the plea agreement, County Court sentenced defendant to a determinate term of imprisonment that was to run concurrently with a 10-year sentence previously imposed on defendant in Monroe County for criminal possession of a weapon in the second degree. We later reversed the Monroe County judgment and dismissed the indictment … . Defendant now contends, and the People correctly concede, that, inasmuch as his plea in Livingston County was induced by the promise of a concurrent sentence, which is no longer possible, the judgment must be reversed and the plea vacated … . This will result in the reinstatement of indictment No. 2014-042, which was satisfied by defendant’s plea … . People v Peterson, 2020 NY Slip Op 04691, Fourth Dept 8-20-20

 

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THE SENTENCING COURT INDICATED IT COULD NOT DEVIATE FROM ITS SENTENCING AGREEMENT WITH THE PEOPLE BUT SENTENCING COURTS HAVE DISCRETION; SENTENCE VACATED AND MATTER REMITTED FOR RE-SENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting the matter, determined the sentencing court erroneously indicated it had no discretion to deviate from the sentencing agreement with the People:

“[T]he sentencing decision is a matter committed to the exercise of the court’s discretion and . . . can be made only after careful consideration of all facts available at the time of sentencing” … . “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Here, the court indicated that it had no choice but to sentence defendant pursuant to its agreement with the People … , and the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. People v Knorr, 2020 NY Slip Op 04690, Fourth Dept 8-20-20

 

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ALTHOUGH THE PEOPLE SHOULD HAVE DISCOVERED THE PROBLEM WITH CERTAIN EVIDENCE SOONER, FOR SPEEDY TRIAL PURPOSES THE PEOPLE CAN BE CHARGED ONLY WITH THE TIME NECESSARY TO INVESTIGATE THE NEWLY DISCOVERED EVIDENTIARY ISSUE; THE NEED FOR MORE INVESTIGATION DID NOT INVALIDATE THE PEOPLE’S STATEMENT OF READINESS WHICH WAS WITHDRAWN; THEREFORE THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the indictment should not have been dismissed on speedy trial grounds. The People withdrew their statement of readiness stating that there was newly discovered evidence. Supreme Court found that the evidence was available early on and should have been discovered had the People been diligent.

The record shows that the People were not aware until April 30, 2019 that mistakes by police detectives had incorrectly led them to conclude that they could not locate the user of the Instagram account that had been used to send the photographs of defendant engaging in sexual acts with the victim to defendant’s ex-girlfriend. While we agree with the court that the People’s late realization was entirely due to the People’s failure to properly inspect the evidence within their possession, the time chargeable to the People is only the delay that is directly attributable to their inaction, and that which directly implicated their ability to proceed to trial … . Thus, the delay that is chargeable to the People due to their inaction with respect to the photographs is any additional time that they required to investigate the matter, which they could have previously investigated. Moreover, the People’s need to further investigate the photographs did not render their prior statement of readiness illusory because the record shows that, at the time they announced their readiness, the People would have been able to establish a prima facie case and proceed at trial … . People v Pratt, 2020 NY Slip Op 04662, fourth Dept 8-20-20

 

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PLAINTIFF AT-WILL EMPLOYEE WAS ENTITLED TO COMMISSIONS EARNED ON HIS ACCOUNTS BEFORE, BUT NOT AFTER, PLAINTIFF WAS TERMINATED; ALTHOUGH THE EMPLOYMENT CONTRACT WAS ORAL, IT WAS NOT SUBJECT TO THE STATUTE OF FRAUDS UNTIL AFTER PLANTIFF WAS TERMINATED. (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff, an at will employee, was not entitled to commissions on sales to any account generated by plaintiff earned after plaintiff was terminated. Although the employment contract was oral, it was not subject to the statute of frauds until after plaintiff was terminated:

General Obligations Law § 5-701 (a) (1) provides that “[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [b]y its terms is not to be performed within one year from the making thereof.” “Only those agreements which, by their terms, have absolutely no possibility in fact and law of full performance within one year’ will fall within the statute of frauds” … .

Here, plaintiff was an at-will employee of defendant, and “an at-will employment . . . is capable of being performed within one year despite the fact that compensation remains to be calculated beyond the one-year period” … . We therefore reject defendant’s contention that the court erred in denying its motion with respect to plaintiff’s claim for payment of commissions fixed and earned during the course of plaintiff’s employment with defendant … .

… [T]he court erred in denying [defendant’s] motion [for summary judgment] with respect to plaintiff’s claim for “commissions on sales to any accounts generated by [plaintiff] on a future and ongoing basis including post-termination of [plaintiff’s] employment,” i.e., the claim for commissions that would accrue subsequent to the termination of plaintiff’s employment. Although “[a]n oral agreement that is terminable at will is capable of performance within one year and, therefore, does not come within the Statute of Frauds . . . [,] General Obligations Law § 5-701 (a) (1) bars enforcement of a promise to pay commissions that extends indefinitely, dependent solely on the acts of a third party and beyond the control of the defendant” … . Thus, the court erred in denying defendant’s motion with respect to plaintiff’s claim for commissions accruing subsequent to the termination of plaintiff’s employment … . Bermel v Vital Tech Dental Labs, Inc., 2020 NY Slip Op 04666, Fourth Dept 8-20-20

 

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QUESTION OF FACT WHETHER THE ACCELERATION OF THE DEBT IN 2010 WHEN THE FORECLOSURE ACTION WAS STARTED WAS REVOKED BEFORE THE SIX-YEAR STATUTE OF LIMITATIONS RAN OUT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff bank raised a question of the fact whether the acceleration of the debt at the time the foreclosure action was commenced in 2010 was revoked before the six-year statute of limitations ran out:

We nevertheless agree with plaintiff that its submissions in opposition to the motion raised a question of fact whether the present action was timely commenced. It is well settled that “[a] lender may revoke its election to accelerate the mortgage, [although] it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” … .

Here, plaintiff submitted evidence that its predecessor in interest mailed letters to defendants in January 2016, i.e., before the statute of limitations expired, revoking the prior acceleration of the mortgage. As plaintiff correctly contends, the evidence, including an affidavit of mailing, established that the letters were properly mailed to defendants at their address, thereby giving rise to the presumption that the letters were received by defendants … . Defendants’ unsubstantiated denial of receipt was “insufficient to rebut the presumption of proper service at the address where all notices under the mortgage were to be sent” … . Moreover, on the limited record before us, we conclude that language of the letters and the surrounding circumstances raised a question of fact whether plaintiff’s predecessor in interest validly revoked the prior acceleration of the mortgage and, thus, whether the present action was timely commenced … . U.S. Bank N.A. v Brown, 2020 NY Slip Op 04653, Fourth Dept 8-20-20

 

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BECAUSE PLAINTIFF’S EXPERT AFFIDAVIT IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SEVERAL OF THE MALPRACTICE CLAIMS RAISED IN THE PLEADINGS, THOSE CLAIMS WERE DEEMED ABANDONED (FOURTH DEPT).

The Fourth Department noted that the affidavit of plaintiff’s expert in this medical malpractice action did not address several of the allegations of defendant’s negligence. Therefore the unaddressed claims were deemed abandoned:

The affidavit of plaintiff’s expert anesthesiologist addressed defendant’s conduct only with respect to the claims arising from defendant’s alleged failure to ensure that the transport of Pasek [plaintiff] to the operating room was performed safely and his alleged failure to document the disconnection event and resulting blood loss in Pasek’s medical chart. Inasmuch as plaintiff’s expert failed to address the claims against defendant regarding the diagnosis, consulting, testing, examination, and pre- and post-operative treatment and did not identify any deviation with respect to defendant’s efforts to ventilate, monitor, or resuscitate Pasek, those claims are deemed abandoned. Supreme Court thus erred in denying defendant’s motion with respect to those claims … , and we therefore modify the order accordingly. Pasek v Catholic Health Sys., Inc., 2020 NY Slip Op 04652, Fourth Dept 8-20-20

 

PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT HARNESSES MAY HAVE BEEN AVAILABLE DID NOT RAISE A QUESTION OF FACT SUFFICIENT TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Although plaintiff was a ground worker the on roofing job, he fell from the roof alleging that a toe board “gave out.” The fact that plaintiff was not wearing a harness, in the face of allegations harnesses were available, was not enough to defeat plaintiff’s motion. The dissenters argued the evidence that all the toe boards were in tact after the accident raised a question of fact whether that safety device failed:

… [P]laintiff met his initial burden on that part of the motion by establishing that his ” injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . Specifically, plaintiff submitted his deposition testimony, wherein he stated that the toe board failed, causing him to fall from the roof. He also testified that he was not provided with a harness and that there were no available harnesses nearby. …

The ” presence of [other safety devices] somewhere at the worksite’ does not [alone] satisfy defendants’ duty to provide appropriate safety devices” … . …

… “[T]he mere failure by plaintiff to follow safety instructions” does not render plaintiff the sole proximate cause of his injuries  … . The evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to “use available, safe and appropriate equipment” … . Defendants failed to demonstrate that plaintiff ” chose for no good reason not to’ ” wear a safety harness … . At most, plaintiff’s “alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute” … . Schutt v Bookhagen, 2020 NY Slip Op 04651, Fourth Dept 8-20-20

 

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THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) WAS NOT ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department, dismissing the petition seeking review of the town’s approval of a wind turbine project. determined a second supplemental environmental impact statement (SEIS) was not necessary before approving an increase in the height of the turbines and the placement of the transmission lines underground. The Fourth Department noted that Supreme Court’s failure to address issues raised in the petition constitutes a denial of the related relief, and the petitioners did not cross-appeal those denials:

During the SEQRA [State Environmental Quality Review Act] process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project … . A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” … . “A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary” … , and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … .

We conclude that the Town Board “took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary” … . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence … . The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles. With respect to the buried electrical transmission lines, the materials showed that such a modification would have a significant positive environmental impact, reducing the effect of the project on wetlands. Matter of McGraw v Town Bd. of Town of Villenova, 2020 NY Slip Op 04644, Fourth Dept 8-20-20

 

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