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ALTHOUGH THE ‘LEGALLY INSUFFICIENT EVIDENCE’ ISSUE WAS NOT PRESERVED BY THE MOTION FOR A TRIAL ORDER OF DISMISSAL, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; THE ELEMENT OF RECKLESSNESS IN THIS ASSAULT CASE WAS LEGALLY INSUFFICIENT; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault convictions and dismissing the indictment, determined the evidence of recklessness was legally insufficient. Although the issue was not preserved by the motion for a trial order of dismissal, the appeal was heard in the interest of justice. The facts were not described:

Defendant failed to preserve that contention for our review, however, “because [her] motion for a trial order of dismissal was not specifically directed at the ground[] advanced on appeal’ ” … . We nevertheless exercise our power to review her challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant that the conviction of both counts of assault in the third degree is not supported by legally sufficient evidence … . The evidence submitted by the People is insufficient to establish that defendant acted recklessly, “i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation” … . People v Romeiser, 2020 NY Slip Op 04054, Fourth Dept 7-17-20

 

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THE BURGLARY PLEA COLLOQUY DID NOT INDICATE DEFENDANT INTENDED TO COMMIT A CRIME OTHER THAN TRESPASS IN THE PREMISES; THEREFORE THE COLLOQUY NEGATED AN ESSENTIAL ELEMENT OF THE CRIME; PRESERVATION FOR APPEAL IS NOT REQUIRED FOR THIS GENRE OF ERROR (FOURTH DEPT).

The Fourth Department vacated defendant’s plea to burglary because the colloquy negated an essential element of the offense. The court noted that this type of error does not require preservation for appeal. The intent to commit burglary includes the intent to commit a crime in the premises other than trespass:

Although we agree with the People that defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … , this case nevertheless falls within the rare exception to the preservation requirement … . Where a defendant’s recitation of the facts “negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered” … .

Here, defendant’s factual recitation negated at least one element of the crime. Specifically, defendant negated the “intent to commit a crime therein” element of burglary (Penal Law § 140.25) because his factual recitation contradicted any allegation that “he intended to commit a crime in the apartment other than his trespass” ( … see § 140.25). Criminal trespass in the second degree “cannot itself be used as the sole predicate crime in the intent to commit a crime therein’ element of burglary” … . The court thus had a duty to conduct an inquiry to ensure that defendant understood the nature of the crime … . Instead, the court stated, “I just want to make sure . . . [that] you still accept [the plea deal], because you have an absolute right to go to trial . . . I think you understand . . . [t]hat your defense of you going to the bathroom may be a difficult sell to a jury.” Because that minimal inquiry by the court did not clarify the nature of the crime in order to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea. People v Hernandez, 2020 NY Slip Op 04049, Fourth Dept 7-17-20

 

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FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court. determined a firefighter was not entitled to back pay for the suspension period while awaiting a disciplinary hearing because the firefighter (or his attorney) was responsible for the delay:

Civil Service Law § 75 provides that a public employee may be suspended without pay for a maximum of 30 days while awaiting a hearing on disciplinary charges (see § 75 [3]). Although an employee suspended without pay for a longer period under those circumstances is generally entitled to receive back pay, he or she waives any claim to back pay if a delay in the disciplinary hearing beyond the 30-day maximum is “occasioned by” his or her own conduct … .

We agree with respondents that petitioner is not entitled to reinstatement or back pay because petitioner was solely responsible for the delay. Petitioner’s attorney is an experienced practitioner familiar with Civil Rights Law § 50-a. As such, petitioner’s attorney either knew or should have known that, in order to secure production of the [the disciplinary file of Kelly, another firefighter], section 50-a required that he obtain either Kelly’s consent or a court order. Indeed, respondents publicly announced in multiple press releases several months before the arbitration that Kelly’s file was confidential pursuant to section 50-a. Moreover, petitioner’s attorney had specific knowledge of the contents of the file because he was involved professionally in the investigation of Kelly’s misconduct. Based on that experience and knowledge, petitioner could have taken steps to obtain the file long before the arbitration commenced, such as asking Kelly for his consent or commencing a proceeding to obtain a court order. Because petitioner failed to take any action, “the entire period of delay in holding the hearing resulted from his dilatory tactics” … . Matter of Carcone v City of Utica, 2020 NY Slip Op 04103, Fourth Dept 7-17-20

 

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BECAUSE PETITIONER WAS REINSTATED IN HER JOB AND BACKPAY HAD BEEN PROVIDED FOR THE PERIOD OF WRONGFUL SUSPENSION BY THE TIME THE CONTEMPT HEARING WAS HELD, PETITIONER COULD NOT SHOW SHE HAD BEEN PREJUDICED BY ANY FAILURE TO COMPLY WITH THE RELEVANT ORDER; THEREFORE THE EMPLOYER SHOULD NOT HAVE HELD IN CONTEMPT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s employer (NYS Department of Transportation [DOT}]) should not have been held in contempt for the alleged failure to quickly restore petitioner to the payroll and provide backpay because DOT had fulfilled those directives by the time the contempt hearing was held:

… [W]e conclude that the court erred in granting that part of petitioner’s motion seeking to have the DOT respondents adjudged in contempt of the October 2015 judgment. “A finding of civil contempt must be supported by four elements: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) [i]t must appear, with reasonable certainty, that the order has been disobeyed; (3) the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party; and (4) prejudice to the right of a party to the litigation must be demonstrated” … . A movant seeking a contempt order bears the burden of establishing the foregoing elements by clear and convincing evidence … . We review a court’s ruling on a contempt motion for an abuse of discretion … .

Here, we conclude that petitioner failed to show by clear and convincing evidence that the failure of the DOT respondents to immediately comply with the directives of the October 2015 judgment ” defeat[ed], impair[ed], impede[d] or prejudice[d]’ ” petitioner’s rights … . We are mindful that “[a]ny penalty imposed [for a civil contempt] is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both” … . By the time the court conducted the hearing on petitioner’s contempt motion, it was undisputed that she had been restored to the payroll, was receiving payment, and had been awarded back pay for the time she was wrongly suspended without pay. Thus, the goals of civil contempt would not be furthered by granting petitioner’s motion absent any prejudice to her once the relevant DOT respondents complied with the directives of the October 2015 judgment and restored her to paid status. Matter of Mundell v New York State Dept. of Transp., 2020 NY Slip Op 04099, Fourth Dept 7-17-20

 

STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant’s step one Batson challenge was properly rejected as a vague and conclusory assertion that did not create a so-called Concepcion problem. The dissent argued the scenario presented a classic Concepcion problem. The court noted that the cross-racial identification jury instruction should have been given but found the error harmless:

… [D]efense counsel stated that the prospective juror in question was the “only black juror” who had not already been dismissed for cause and there was “no indication” that the juror would be “anything other than fair and impartial to both sides.” After considering defendant’s argument at step one, the court observed that defendant had failed to demonstrate a discriminatory pattern of strikes and denied his application without prompting the prosecutor to provide a race-neutral reason at step two … . Insofar as the court based its reasoning on the erroneous notion that a discriminatory pattern of strikes must be shown, that reasoning was flawed … . Nevertheless, because defendant failed to establish a prima facie case at step one, the court properly denied his application without further inquiry … .

Our dissenting colleague concludes that we have a Concepcion problem (see generally People v Concepcion, 17 NY3d 192, 197-198 [2011]), but we respectfully disagree. Whether a defendant has demonstrated a discriminatory pattern of peremptory strikes goes to the issue of whether that defendant has established a prima facie case at step one of the Batson inquiry (see generally Bolling, 79 NY2d at 324). Because the court relied on that ground in denying the application, Concepcion does not preclude us from affirming the judgment on the same ground, i.e., that defendant failed to establish a prima facie case at step one … . …

Where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect” … . People v Boyd, 2020 NY Slip Op 03342, Fourth Dept 6-12-20

 

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IT MAY HAVE BEEN ERROR TO ALLOW THE VICTIM TO TESTIFY ACCOMPANIED BY A DOG, BUT THE ISSUE WAS NOT PRESERVED; ALTHOUGH THE PROSECUTOR MADE AN IMPROPER COMMENT IT DID NOT REQUIRE REVERSAL; PROSECUTORS ADMONISHED THAT THEIR ROLE IS TO ENSURE JUSTICE IS DONE, NOT SIMPLY SEEK CONVICTIONS (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, noted that allowing the adult victim to testify accompanied by a dog may have been an error but was unpreserved. The court also found that a remark made by the prosecutor was improper (but not reversible error) and took the opportunity to address prosecutorial misconduct generally:

We conclude that defendant’s contention that the court abused its discretion when it permitted the adult victim to testify while accompanied by a dog is unpreserved because defendant did not object to that arrangement … . … Even assuming, arguendo, that defense counsel erred in not objecting to the court’s decision to let the victim testify while accompanied by a dog … , we conclude that the failure to object did not amount to ineffective assistance … .

… [I]t was improper for the prosecutor on summation to characterize defense counsel’s summation as evincing “a Brock Turner mentality”—inflaming the passions of the jury by specifically referring to a recent sexual assault case of nationwide notoriety that involved allegations similar to those made against defendant … .

… [W]e … take this opportunity to remind the People that ” [i]t is not enough for [a prosecutor] to be intent on the prosecution of [the] case. Granted that [the prosecutor’s] paramount obligation is to the public, [he or she] must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, [the prosecutor’s] mission is not so much to convict as it is to achieve a just result’ ” … . To that end, we emphasize that “[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process” … . People v Carlson, 2020 NY Slip Op 03336, Fourth Dept 6-12-20

 

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NEW YORK DETERMINED TO BE AN INCONVENIENT FORUM IN THIS CUSTODY MATTER (FOURTH DEPT).

The Fourth Department noted the record was sufficient to allow the appellate court to determine whether New York was an inconvenient forum in this custody matter. Mother had moved to California with the child after father abused mother in New York. Father filed the custody petitions in New York. After considering the statutory factors the Fourth Department found New York to be an inconvenient forum. With respect to one of the factors–the location of the relevant evidence–the court wrote:

The location of relevant evidence and, to some extent, the ability of the court in each state to decide matters expeditiously also favor California as the appropriate forum. The majority of the evidence pertaining to the best interests analysis in this custody matter is located in California. Although evidence relating to certain domestic violence incidents is, as noted above, more readily available in New York, most other relevant information regarding the child’s best interests, such as her school performance, response to therapy, the indigenous tribe she belongs to, and her relationship with her extended family, is in California … . It does not appear that the child has any connection with New York other than the father and a paternal grandmother. Further, the Attorney for the Child in New York was having trouble providing effective representation to the child inasmuch as it was difficult to communicate with the child by telephone … . Matter of Coia v Saavedra, 2020 NY Slip Op 03325, Fourth Dept 6-12-20

 

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CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION VIOLATED THE PENAL LAW; ERROR DID NOT NEED TO BE PRESERVED (FOURTH DEPT).

The Fourth Department noted that consecutive periods of postrelease supervision violated the Penal Law and the issue did not need to be preserved:

County Court erred in imposing consecutive periods of postrelease supervision in violation of Penal Law § 70.45 (5) (c) … . Although defendant failed to preserve that contention for our review, the lack of preservation “is of no moment, inasmuch as we cannot allow an illegal sentence to stand” … . We therefore modify the judgment by directing that the periods of postrelease supervision imposed shall run concurrently. People v Hyde, 2020 NY Slip Op 03319, Fourth Dept 6-12-20

 

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RECKLESS ENDANGERMENT AND MENACING A POLICE OFFICER CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department reversed two of defendant’s convictions as against the weight of the evidence.  Defendant was charged with reckless endangerment first degree and menacing a police officer. It was alleged defendant fired a weapon during a foot chase. The two officers heard a gunshot but no bullet or casing was found:

… [T]he jury would have had to resort to sheer speculation to find that defendant displayed or fired a weapon, much less that he fired a weapon intentionally. The officers’ testimony that they “heard” a gunshot from some distance away does not prove beyond a reasonable doubt, for purposes of the menacing charge, that defendant visually displayed the weapon that discharged the shot. Nor does such testimony prove beyond a reasonable doubt, for purposes of the reckless endangerment charge, that the shot was fired toward the officers and thereby created a grave risk of death to them. Indeed, the second officer’s testimony that he “believed” that defendant had shot at the officers is speculative and is contradicted by his contemporaneous statement that the gun might have discharged accidentally. People v Thomas, 2020 NY Slip Op 03318, Fourth Dept 6-12-20

 

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THE TITLE INSURANCE POLICY GAVE THE INSURER THE RIGHT TO PROSECUTE A TITLE CLAIM BUT NOT THE OBLIGATION TO PROSECUTE A TITLE CLAIM; THEREFORE PLAINTIFF’S COMPLAINT ALLEGING DEFENDANT BREACHED THE POLICY BY NOT PROSECUTING THE CLAIM SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s action against a title insurance company should have been dismissed based upon the language of the policy. Plaintiff had requested that defendant take action against a party plaintiff believed was using plaintiff’s land. Defendant refused. The title insurance policy gave defendant the right but not the obligation to bring such an action:

A dismissal of a complaint pursuant to CPLR 3211 (a) (1) is warranted if “the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . Plaintiffs alleged that defendant breached section 5 (b) of the policy, which provides, in relevant part, that defendant “shall have the right . . . to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured.” Defendant’s “right” to prosecute an action is not equivalent to an “obligation” … . Inasmuch as the policy submitted by defendant on the motion did not require defendant to prosecute the action against the property owner, defendant is entitled to dismissal of the complaint insofar as it sought attorneys’ fees and costs that plaintiffs had already incurred for the prosecution of that action … . We further conclude that defendant is entitled to a declaration that it is not obligated to pay for the attorneys’ fees and costs necessary to prosecute that action in the future … . Irma Straus Realty Corp. v Old Republic Natl. Tit. Ins. Co., 2020 NY Slip Op 03307, Fourth Dept 6-12-20

 

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