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THE DEFENDANT’S DNA ON THE WEAPON AND DEFENDANT’S PRESENCE AS A PASSENGER IN THE CAR WHERE THE WEAPON WAS FOUND WERE NOT SUFFICIENT TO PROVE DEFENDANT POSSESSED THE WEAPON AT THE TIME ALLEGED IN THE INDICTMENT; DEFENDANT’S CONVICTION REVERSED BASED ON A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a weapon conviction, applying a weight of the evidence analysis, determined the defendant’s DNA on the weapon and his presence as a passenger in the car where the weapon was found was not enough:

It is undisputed that the driver owned the vehicle and that the duffle bag belonged to him as well. The People relied on evidence that defendant’s DNA profile matched that of the major contributor to DNA found on the handgun and that the driver was excluded as a contributor thereto. Although ” an inference could be made [from that evidence] that defendant had physically possessed the gun at some point in time’ ” … , that evidence alone … does not establish that defendant actually possessed the handgun on the date and at the time alleged in the indictment … . …

Defendant was not the owner or operator of the vehicle, nor did the duffle bag in the locked trunk belong to him, and there was no evidence that defendant possessed or had access to the keys for the vehicle or that he had any access to or control over the trunk and duffle bag … . Contrary to the People’s contention, defendant’s statement to the police did not constitute an admission that he had possessed the handgun …  or that he knew about its presence in the duffle bag and, in any event, mere knowledge of the presence of the handgun would not establish constructive possession … . People v Hunt, 2020 NY Slip Op 04270, Fourth Dept 7-24-20

 

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SEVERE ABUSE FINDING SUPPORTED BY FATHER’S FAILURE TO SEEK IMMEDIATE MEDICAL CARE FOR THE SERIOUSLY INJURED CHILD (FOURTH DEPT).

The Fourth Department, over a dissent, determined the evidence supported the severe abuse finding against father on the ground father delayed in seeking medical attention for the child’s severe injuries:

Family Court’s finding of severe abuse was based on two incidents in which the father found the older child at the bottom of the basement stairs in the morning. After the first incident, the older child sustained back and leg injuries, torso abrasions and facial bruising that was so severe that she could not open her eyes all the way. After the second incident, the child had two lacerations across the front of her neck that required significant medical attention. * * *

A finding of severe abuse requires clear and convincing evidence that a child was found to be abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in [Penal Law § 10.00 (10)]” (Social Services Law § 384-b [8] [a] [i]; see Family Ct Act §§ 1046 [b] [ii]; 1051 [e]). Here, the older child suffered severe injuries, including cuts to her throat that required a significant amount of medical attention and serious bruising. The act of cutting the older child’s throat twice demonstrates that the actor did so because he or she simply did not care whether grievous harm would result to the older child. Even assuming, arguendo, that the evidence did not establish that the father was the one who inflicted those injuries, we conclude that the evidence demonstrates that he was in the home when the older child sustained her serious physical injuries and that he offered no compelling explanation for what caused them or why he failed to seek immediate medical help for her after discovering those injuries … .

We disagree with the dissent’s view that petitioner was required to present evidence that the father’s delay in seeking medical treatment exacerbated the older child’s injuries or complicated the older child’s medical treatment. Matter of Mya N. (Reginald N.–Sadie H.), 2020 NY Slip Op 04266, Fourth Dept 7-24-20

 

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THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the persistent felony offender statement was inadequate because it did not clearly describe the periods of defendant’s incarceration, which tolls the ten-year cut off for consideration of prior felonies. The matter was remitted for the submission of a valid statement and resentencing:

The sentences upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]). It is undisputed that, here, the sentences for defendant’s two prior violent felony convictions were imposed more than 10 years before defendant committed the subject violent felony offense (see §§ 70.04 [1] [b]; 70.08 [1] [a], [b]). Thus, the prior violent felony convictions may be considered predicate violent felony convictions only in accordance with the tolling provision of section 70.04 (1) (b) (v) based upon defendant’s subsequent periods of incarceration.

Because the tolling provision of Penal Law § 70.04 (1) (b) (v) is implicated, the persistent violent felony offender statement filed by the People was required to “set forth the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling of the ten year limitation” (CPL 400.15 [2]; see CPL 400.16 [1], [2]). Here, however, the statement filed by the People did not comply with that requirement … . Moreover, contrary to the position taken by the People that the statement substantially complies with CPL 400.15, the absence of the required information deprived defendant of the requisite “reasonable notice and an opportunity to be heard” with respect to the tolling period … . People v Watkins, 2020 NY Slip Op 04265, Fourth Dept 7-24-20

 

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DEFENDANT TOLD THE POLICE HE DIDN’T WANT TO TALK, HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED BUT THE ERROR WAS HARMLESS; CONSECUTIVE SENTENCES FOR POSSESSION OF THE KNIFE AND MURDER BY STABBING FOUND PROPER (FOURTH DEPT).

The Fourth Department determined defendant’s statement should have been suppressed but found the error harmless. The Fourth Department further held that defendant was properly sentenced to consecutive sentences for possession of the knife and murder by stabbing:

… [D]efendant unequivocally informed the police immediately after being advised of his Miranda rights that “he didn’t want to talk.” No reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police … . Regardless, the police continued the interrogation, thereby failing to ” scrupulously honor[ ]’ defendant’s right to remain silent” … .

Nevertheless, the error is harmless because the evidence of defendant’s guilt is overwhelming and there is no reasonable possibility that any error in admitting defendant’s statements to the police contributed to his conviction … . * * *

In cases concerning consecutive sentencing in the CPW [criminal possession of a weapon] context, we employ a framework that “appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used” … . To determine whether a single act constituted both offenses under section 70.25 (2), we look to when the crime of possession was completed, i.e., both the actus reus and mens rea … .”Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed” … . Consecutive sentencing is permissible here because defendant’s act of possessing the knife was accomplished before he used it to kill the victim and “defendant’s possession [thereof] was marked by an unlawful intent separate and distinct from” his intent with respect to the homicide … . Indeed, the mental state associated with the CPW count, i.e., intent to use the knife unlawfully, is discrete from the mental state associated with the homicide count, i.e., negligence … . People v Colon, 2020 NY Slip Op 04257, Fourth Dept 7-24-20

 

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ALTHOUGH NO GENERAL MUNICIPAL LAW NOTICE OF CLAIM NEED BE FILED FOR THE FEDERAL EMPLOYMENT DISCRIMINATION OR THE STATE HUMAN RIGHTS LAW CAUSES OF ACTION, A NOTICE OF CLAIM PURSUANT TO THE SYRACUSE CITY CHARTER WAS REQUIRED FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the federal employment discrimination causes of action and the state Human Rights Law causes of action did not trigger the need to file a notice of claim under General Municipal Law section 50-e and 50-i, but the notice of claim requirement pursuant to the Syracuse City Charter did apply to the Human Rights Law causes of action:

… [T]he issue here is whether plaintiffs were required to file a notice of claim pursuant to the Syracuse City Charter.

We agree with plaintiffs that they did not need to file a notice of claim with respect to their Federal discrimination claims … . …

… [T]he notice of claim provisions of General Municipal Law §§ 50-e and 50-i are inapplicable to State claims under the Human Rights Law … . But that is because Human Rights claims “are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i” … . In contrast, Syracuse City Charter § 8-115 (3) is not limited to tort claims or claims for personal injury. It provides in relevant part that “[n]o action or special proceeding, for any cause whatever, . . . involving the rights or interests of the [C]ity shall be prosecuted or maintained against the [C]ity” unless a notice of claim was served on the City within three months after the accrual of such claim … . The broad language of that notice of claim requirement encompasses plaintiffs’ causes of action under the Human Rights Law … . Blackmon v City of Syracuse, 2020 NY Slip Op 04254, Fourth Dept 7-24-20

 

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THE PROOF DID NOT SUPPORT SURROGATE’S COURT’S FINDING THAT THERE WAS A CONFIDENTIAL RELATIONSHIP BETWEEN RESPONDENTS AND THE DECEDENT AND THE PROOF DID NOT SUPPORT THE FINDING THAT RESPONDENTS EXERTED UNDUE INFLUENCE UPON DECEDENT (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the evidence did not support the finding that the respondents, decedent’s daughter Ellen and her son, Alex, exerted undue influence upon the decedent. In addition, the proof did not support the finding of a confidential relationship between respondents and the decedent:

Here, although the record establishes that Ellen and Alexander held a position of trust with decedent, and that Ellen assisted decedent with her finances and was named decedent’s power of attorney, the record also reflects that, despite Ellen’s position of trust, decedent was actively and personally involved in managing her real estate and in drafting her estate plan, and that she directed her personal attorney and the branch manager at her bank to act according to her own desires based on her own personal, stated reasons. …

Here, the record reflects that Ellen and Alexander wanted to benefit from decedent’s estate, and that Ellen assisted decedent in executing the relevant estate plan and making the disputed transactions. The relevant inquiry, however, is not what Ellen and Alexander may have wanted, asked for, or facilitated, but rather whether decedent’s free will, independent action, and self-agency were overcome by their conduct … . In this case, the record establishes that decedent informed her attorney in 2011 that she did not want petitioner to have any further power over her affairs, that decedent thereafter worked with her attorney directly in order to revise her estate plan, and that decedent discussed with her attorney her personal reasons for altering her prior estate plan to the exclusion of petitioner. Indeed, decedent’s attorney testified that he never prepared a document that decedent did not personally authorize, and testimony from numerous non-beneficiaries established decedent’s capacity and active management of her own affairs during the relevant time frame, albeit with the assistance of Ellen. Simply put, the record does not reflect that decedent at any time lost her free will or agency, and instead the record reflects that she took the disputed actions based on her stated personal motives. Matter of Kotsones, 2020 NY Slip Op 04102, Fourth Dept 7-17-20

 

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CERTAIN LABOR LAW 200, COMMON LAW NEGLIGENCE, AND LABOR LAW 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; QUESTION OF FACT RE: WHETHER PLAINTIFF WAS THE SOLE CAUSE OF THE ACCIDENT IN THIS LADDER-FALL CASE; THE PROJECT COORDINATOR MET SEVERAL DEFINITIONS OF ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240(1), INCLUDING AS THE HOLDER OF AN EQUITABLE INTEREST IN THE PROPERTY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined common law negligence and Labor Law 200 causes of action should have been dismissed re: several defendants because of the absence of supervisory control, several of the Labor Law 241(6) causes of action should have been dismissed because the Industrial Code provisions did not apply, and plaintiff should not have been awarded summary judgment on his Labor Law 240(1) cause of action because there was a question of fact whether plaintiff was the sole proximate cause of the fall, The dissenters argued plaintiff’s summary judgment motion on his Labor Law 240(1) cause of action was properly granted. Plaintiff fell when he switched from one ladder to another and the ladder kicked out from under him. The definition of “owner” within the meaning of Labor Law 240(1) was discussed in some depth:

Although the term owner generally refers to the titleholder of the property, it may “also encompass[ ] one who has an interest in the property [and] . . . who contracted for or otherwise ha[d] the right to control the work” … . Here, Tucker Homes [the project coordinator] had an equitable interest in the property by virtue of provisions in its contract with the titleholders that permitted it to take possession of the deed and obtain legal title to the property if the titleholders did not pay for the home’s construction. Moreover, Tucker Homes, as the only entity that had a contractual relationship with RGGT [defendant subcontractor], was the only entity that could insist that RGGT adhere to safety practices and obtain insurance. The titleholders, by contrast, had no contractual relationship with RGGT and did not obtain any insurance on the project. Thus, the court properly concluded that Tucker Homes, “as the only party with [both] a property interest and the right to insist on safety practices,” was an owner within the meaning of the Labor Law … . …

Even if Tucker Homes was not an “owner” for purposes of the Labor Law, we conclude that the court properly determined that Tucker Homes was a general contractor based on its power to enforce safety standards and essentially select the responsible subcontractors to perform work on the project, such as RGGT … . …

Plaintiff also met his burden of establishing that Tucker Homes was, at the very least, a statutory agent of the titleholders, and Tucker Homes did not raise a triable issue of fact in opposition … . Unrefuted evidence established that, under the terms of the subcontract, Tucker Homes had the power to supervise and control the work being done by RGGT at the time of the accident … . …

… [T]he court erred in granting plaintiff’s motion with respect to the Labor Law § 240 (1) claim, and we further modify the order accordingly. Plaintiff failed to meet his initial burden on that part of the motion inasmuch as issues of fact exist whether plaintiff was the sole proximate cause of his accident … . Walkow v MJ Peterson/Tucker Homes, LLC, 2020 NY Slip Op 04098, Fourth Dept 7-17-20

 

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DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter, determined County Court should have ruled on whether defendant should be afforded youthful offender status:

Pursuant to CPL 720.10 (2) (a) (ii) and (3), because defendant was convicted of an armed felony offense (see CPL 1.20 [41]), he is ineligible for a youthful offender adjudication unless the court determines that one of two mitigating factors is present. “If the court, in its discretion, determines that neither of the CPL 720.10 (3) factors is present and states the reasons for that determination on the record, then no further determination is required” (… see People v Middlebrooks, 25 NY3d 516, 527 [2015]). “If, on the other hand, the court determines that one or more of those factors are present, and therefore defendant is an eligible youth, the court then must determine whether he is a youthful offender” … . As the People correctly concede, the court failed to follow the procedure set forth in Middlebrooks. People v Williams, 2020 NY Slip Op 04092, Fourth Dept 7-17-20

 

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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was not entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a truck which apparently failed to yield the right of way and pulled into the path of defendant’s car. The majority held there was a question of fact whether defendant saw what she should have seen when approaching the intersection. The dissenters argued defendant was entitled to assume the truck would yield the right of way:

” It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield’ ” ( … see Vehicle and Traffic Law § 1142 [a]). “Nevertheless, a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … . Here, defendant’s own submissions, including her own deposition testimony, raised an issue of fact whether she met her “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Brooks v Davis, 2020 NY Slip Op 04021,, Fourth Dept 7-17-20

 

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for a preliminary injunction in this dispute between neighbors should have been granted. Plaintiff alleged the neighbor repeatedly damaged and defaced plaintiff’s property and installed a surveillance camera aimed at plaintiff’s property. The Fourth Department went through the elements required for issuance of a preliminary injunction and described the proof offered in support of the trespass, private nuisance and Civil Rights Law causes of action:

Plaintiff’s supplemental affidavit and photographs submitted in support of the motion demonstrate that Nichols repeatedly drove across her lawn and blew snow with his snowblower onto the side of plaintiff’s house, allegedly causing damage to her awning and fence. Both events were intentional invasions of plaintiff’s interest in the exclusive possession of her land. Furthermore, although “an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question” … , plaintiff established that the acts allegedly committed by Nichols on the easement exceeded the scope of the easement and did not constitute a reasonable use of his interest in the easement … . Thus, plaintiff demonstrated a likelihood of success on the merits of her trespass claim. …

The evidence submitted by plaintiff established that Nichols drove across plaintiff’s lawn, used a snowblower to blow snow onto her house, tampered with and removed her property markers, parked his vehicle so as to obstruct plaintiff’s driveway, drove on the freshly paved driveway and left tire tracks in the asphalt, and repeatedly painted a white line across the driveway. That conduct exceeds the scope of the easement and may fairly be characterized as a substantial interference with plaintiff’s use and enjoyment of her property. Thus, plaintiff demonstrated a likelihood of success on the merits of her private nuisance claim.

Plaintiff’s affidavit and video evidence also submitted on the motion demonstrate that Nichols threatened to install a “150-foot night vision camera” in his backyard and to point it directly into plaintiff’s backyard and at her living room. As Nichols installed the surveillance camera, he stated to plaintiff, “It’s gonna look right in your fucking living room! . . . You’re on camera bitch! . . . Smile for the camera bitch!” Thus, plaintiff also demonstrated a likelihood of success on the merits of her claim under Civil Rights Law § 52-a. Cangemi v Yeager, 2020 NY Slip Op 04023, Fourth Dept 7-17-20

 

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