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NOTWITHSTANDING ANY PRECEDENT TO THE CONTRARY, THE APPELLATE DIVISION CAN REVIEW THE RECORD OF A TRIAL AND FIND THE VERDICT UNSUPPORTED BY THE FACTS DESPITE THE ABSENCE OF A MOTION TO SET ASIDE THE VERDICT; HERE THE RECORD IN THIS TRAFFIC ACCIDENT CASE DID NOT SUPPORT THE FINDING THAT THE DRIVER OF A NEW YORK STATE THRUWAY DUMP TRUCK ACTED RECKLESSLY BY PARKING THE TRUCK ON THE SHOULDER OF THE THRUWAY (FOURTH DEPT).

The Fourth Department, refusing to follow any decisions to the contrary, determined, despite the defendant’s failure to make a motion to set aside the verdict, the appellate court may review the record and render a judgment warranted by the facts. The Fourth Department, over a two-justice dissent, reversed the plaintiffs’ verdict in this traffic accident case. Defendant, an employee of the New York State Thruway Authority, was the driver of a dump truck parked on the shoulder of the thruway while other employees picked up debris in the median. The truck was parked 18 inches to the left of the fog line. Plaintiffs’ van drifted out of its lane and struck the back of the dump truck. The plaintiffs argued defendant was required by the relevant regulations to pull off “as far from traffic as feasible.” The Fourth Department held that, although failure to pull off the highway further than 18 inches may demonstrate a lack of due care, it did not demonstrate recklessness as required by Vehicle and Traffic Law 1103:

… [A]t the time of the collision, defendant had parked the truck entirely outside of the travel lane approximately 18 inches to the left of the yellow fog line on or near the rumble strips located on the shoulder. Defendant had also activated multiple hazard lights on the truck, which consisted of regular flashers, two amber lights on the tailgate, beacon lights, and four flashing caution lights on the arrow board. Moreover, the undisputed evidence established that there were no weather, road, or lighting conditions creating visibility or control issues for motorists on the morning of the incident. Even if, as the court found, defendant knew or should have known that vehicles occasionally leave the roadway at a high rate of speed due to motorists being tired, distracted, or inattentive, we conclude that, here, it cannot be said that defendant’s actions were of an “unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and . . . done . . . with conscious indifference to the outcome” … . Alexandra R. v Krone, 2020 NY Slip Op 04631, Fourth Dept 8-20-20

 

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CLAIMANT’S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS STUDENT-ON-STUDENT ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant’s petition for leave to file a late notice of claim on the school district in this student-on-student third-party assault case should not have been granted:

” In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality’ ” … . …

… [C]laimant described the assault on her child as “unprovoked,” and the accident report prepared contemporaneously by a school nurse, which claimant submitted with her reply affidavit, describes a single punch resulting only in a headache and swollen face. Inasmuch as “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” …, we agree with respondent that the known facts failed to give “reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by [respondent]”. Matter of Mary Beth B. v West Genesee Cent. Sch. Dist., 2020 NY Slip Op 04630, Fourth Dept 8-20-20

 

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DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER FOR WHOM THERE WERE OUTSTANDING ARREST WARRANTS; THE PEOPLE FAILED TO MEET THEIR BURDEN OF GOING FORWARD AT THE SUPPRESSION HEARING BECAUSE THEY FAILED TO PROVE THE EXISTENCE AND VALIDITY OF THE ARREST WARRANTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined defendant’s motion to suppress the weapon seized from after he fled the police should have been granted. At the suppression hearing the officers testified they thought defendant was defendant’s brother and approached defendant because they aware of outstanding warrants for the brother’s arrest. To meet their burden of going forward at the suppression hearing, the People were required to prove the existence and validity of the arrest warrants, but no such proof was presented:

… ” [T]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought’ ” … . The ” reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest’ ” … . Thus, to establish a lawful arrest of defendant, the People were required to establish the existence of a validly issued arrest warrant for defendant’s brother or probable cause to arrest him … and, here, the People concede that the police arrested defendant based only upon the arrest warrants issued for defendant’s brother.

Contrary to the People’s position and the dissent’s assertion, we conclude that defendant challenged the existence and validity of the arrest warrants for his brother by questioning the police witnesses at the suppression hearing concerning the status of the arrest warrants and whether they were still valid … . Notably, the court acknowledged and “accept[ed] that the [d]efendant [was] in fact contesting the validity of [the] warrants.” Once defendant challenged the existence and validity of the arrest warrants, the People were ” required to make a further evidentiary showing by producing the . . . warrant[s]’ ” … , or “reliable evidence that the warrant[s were] active and valid” … . Here, the People failed to meet their burden inasmuch as they failed to produce the arrest warrants themselves or other reliable evidence that the warrants were active and valid … . People v Dortch, 2020 NY Slip Op 04711, Fourth Dept 8-20-20

 

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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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