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DEFENDANT’S SENTENCE REDUCED IN THIS MANSLAUGHTER, BURGLARY, MURDER CASE DUE TO DEFENDANT’S AGE AND MENTAL ILLNESS (FOURTH DEPT).

The Fourth Department found defendant’s sentence of 25 years to life in this manslaughter, burglary, murder case unduly harsh and severe due to his age and his mental illness. Sentence reduced to 15 years to life:

This Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and may exercise that power, “if the interest of justice warrants, without deference to the sentencing court” … . Defendant was 20 years old at the time of the offense. His criminal history consisted of only three incidents within the year leading up to the killing, all of which stemmed from the onset of defendant’s documented schizophrenia and all charges were dismissed as a result of defendant’s incapacity due to mental disease or defect. Here, at trial, both experts testified that, at the time of the killing, defendant was experiencing delusions. Indeed, the People’s own expert expressly recognized that defendant had a diminished capacity to understand the wrongfulness of his actions at the time and that “the action was a product of his symptoms of mental illness.” … [W]e modify the judgment by reducing the sentences of imprisonment imposed for manslaughter in the first degree under count one of the indictment and for burglary in the first degree under counts three and four of the indictment to determinate terms of 15 years, to be followed by the five years of postrelease supervision imposed by the court, and by reducing the sentence imposed for murder in the second degree under count two of the indictment to an indeterminate term of incarceration of 15 years to life. People v Gillie, 2020 NY Slip Op 04275, Third Dept 7-24-20

 

DEFENDANT WAS PROPERLY SENTENCED TO INCARCERATION UPON A VIOLATION OF PROBATION IN THIS FELONY DWI CASE, DESPITE DEFENDANT’S COMPLETION OF THE SIX-MONTH PERIOD OF INCARCERATION ORIGINALLY IMPOSED (FOURTH DEPT). ​

The Fourth Department determined defendant was properly sentenced to imprisonment after a violation of probation in this felony DWI case, despite his completion of the original six-month sentence:

County Court sentenced defendant to six months of imprisonment and five years of probation on each count. Several years later, after serving the imprisonment portion of his sentence, defendant admitted that he had violated the conditions of his probation. He now appeals from a judgment that revoked his sentence of probation and sentenced him to concurrent indeterminate terms of imprisonment. * * *

Courts have held that, where a defendant is originally sentenced pursuant to section 60.21 and then later violates the terms of his or her probation or conditional discharge after fully serving his or her term of incarceration, the defendant cannot be sentenced to an additional term of incarceration without violating the rule against multiple punishments for the same offense … . Defendant thus contends that, inasmuch as he completed the imprisonment portion of his original sentence, the court was not authorized to impose an additional sentence of imprisonment upon his admission that he violated the conditions of his probation. We reject that contention.

Contrary to defendant’s contention, he was not originally sentenced to a term of imprisonment under Penal Law § 60.21 with respect to any of the three counts. That section provides, in pertinent part, that “[n]otwithstanding [section 60.01 (2) (d)], when a person is to be sentenced upon a conviction for a violation of [Vehicle and Traffic Law § 1192 (2), (2-a) or (3)], the court may sentence such person to a period of imprisonment authorized by article seventy of this title and shall sentence such person to a period of probation or conditional discharge” (§ 60.21 …). The probation or conditional discharge imposed pursuant to section 60.21 is to run consecutively to any period of imprisonment imposed pursuant to article 70. Here, however, defendant was not sentenced to a period of imprisonment pursuant to Penal Law article 70. Rather, he was sentenced on each count to a traditional split sentence pursuant to Penal Law § 60.01 (2) (d), with the period of probation running concurrently with the period of imprisonment. Thus, Penal Law § 60.21 is inapplicable to this case and does not preclude the imposition of a sentence of imprisonment upon the revocation of probation … . People v Boldt, 2020 NY Slip Op 04284, Fourth Dept 7-24-20

 

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UNDER THE CIRCUMSTANCES OF THIS CASE, WHETHER THE CONDITIONS PRECEDENT TO ARBITRATION OF A GRIEVANCE REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WERE COMPLIED WITH IS A QUESTION FOR THE COURT, NOT THE ARBITRATOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was for the court, not the arbitrator, to determine whether the conditions precedent for arbitration were met in this action seeking General Municipal Law Section 207-a benefits for an injured firefighter:

… [T]he CBA [collective bargaining agreement] contains conditions precedent to arbitration within the provisions addressing the grievance procedure and … the court should have decided whether the conditions precedent had been met. “Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators,” except in cases involving “a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration” … . Here, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration. Under these circumstances, we conclude that “it was for the court, and not the arbitrator, to decide whether the grievance[] had been timely [served] and completed by the . . . employee at steps one and two of the grievance procedure” … . Therefore, we … remit the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination on the petition to stay arbitration … . Matter of Village of Manlius (Town of Manlius Professional Firefighters Assn., Iaff Local #3316), 2020 NY Slip Op 04251, Fourth Dept 7-24-20

 

THE CITY MAY NOT CHARGE A FEE FOR REVIEW AND REDACTION OF POLICE BODY-WORN CAMERA FOOTAGE PURSUANT TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the city was not entitled to charge a fee for the review or redaction of police body-worn camera (BWC) footage under the Freedom of Information Law (FOIL):

… [R]espondents may not charge petitioner a fee for the costs associated with their review or redaction of the BWC footage requested by petitioner … . We note that the Committee on Open Government has specifically opined that “if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge” (Comm on Open Govt FOIL—AO—18904 [2012]). While “the advisory opinions issued by the Committee on Open Government are not binding on the courts . . . , an agency’s interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational” … . We therefore modify the judgment by vacating that part of the judgment permitting respondents to charge petitioner a fee for the cost of reviewing and redacting the requested video footage. Matter of Forsyth v City of Rochester, 2020 NY Slip Op 04250, Fourth Dept 7-24-20

 

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42 USC 1983 CAUSES OF ACTION AGAINST THE SHERIFF AND UNDERSHERIFF IN THEIR OFFICIAL CAPACITIES STEMMING FROM THE SUICIDE OF PLAINTIFFS’ DECEDENT IN THE ERIE COUNTY JAIL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the 42 USC 1983 causes of action against the sheriff and undersheriff in their official capacities, stemming from plaintiffs’ decedent’s suicide in the Erie County Jail, should not have been dismissed:

We agree with plaintiffs that in state court they can assert a section 1983 cause of action against a sheriff or undersheriff in his or her official capacity. Until 1989, New York Constitution, article XIII, section 13 (a) stated that counties could not be made responsible for acts of sheriffs. Although that provision was removed via amendment in 1989, that amendment merely granted counties the ability to assume liability if the they chose to do so … . Erie County has not passed any legislation assuming such responsibility and, as a result, cannot be responsible for the acts of the Sheriff or Undersheriff … . We thus conclude that the Sheriff and the Undersheriff are the proper defendants for the section 1983 cause of action.

“The gravamen of the cause of action pursuant to 42 USC § 1983 is deprivation of property without due process of law. The essential elements of the cause of action are conduct committed by a person acting under color of state law, which deprived the plaintiff of rights, privileges, or immunities secured . . . by the Constitution or laws of the United States’ ” … . The Sheriff has a duty to “ensure that inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable measures to guarantee the safety of the inmates’ ” … . Here, plaintiffs’ allegations that the Sheriff and Undersheriff failed to take measures to ensure the safety of the inmates from suicide are sufficient to state a viable cause of action under section 1983 … . Freeland v Erie County, 2020 NY Slip Op 04244 Fourth Dept 7-24-20

 

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THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY COULD NOT REALIZE A REASONABLE RETURN ON THE PROPERTY ABSENT THE USE VARIANCE ALLOWING CONSTRUCTION OF A “DOLLAR STORE;” THE USE VARIANCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the property owners seeking a use variance to build a “Dollar Store” did not demonstrate the existing zoning regulations imposed unnecessary hardship on them. The proof presented to the Zoning Board of Appeals (ZBA) did not demonstrate the owners inability to realize a reasonable return for the property absent a use variance:

… [T]here is no evidence in the record establishing whether respondents could realize a reasonable return on the parcel if it were used for any other conforming use. Indeed, respondents’ expert did not discuss any possible use of the property other than as vacant land. Thus, inasmuch as respondents’ expert failed to discuss the possible return with respect to all uses permitted within the zoning district, respondents failed to meet their burden of demonstrating that they cannot realize a reasonable return on the property without the requested use variance … .

… The fact that respondents’ application for a use variance was limited to the two-acre parcel is “of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime” … . The expert’s failure to address respondents’ ability to obtain a reasonable return on the remaining parts of the parcel, or on other permissible uses within the zoning district, is fatal to the application. Thus, the determination is not supported by substantial evidence … . Matter of Dean v Town of Poland Zoning Bd. of Appeals, 2020 NY Slip Op 04242, Fourth Dept 7-24-20

 

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MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motions for leave to file late notices of claim in these actions stemming from pollution escaping from a landfill should have been granted. Although leave to file a late notice of claim can not be granted after the statute of limitations has run, here the statute of limitations was tolled by the filing of a federal class action suit:

Although more than one year and ninety days had elapsed between the November 2016 accrual date alleged in claimants’ proposed notices of claim and their application for leave to serve late notices of claim, we agree with claimants that the filing of the federal class action in March 2017, in which claimants are putative class members, tolled the statute of limitations … . …

… [T]he court abused its discretion in denying their application insofar as it sought leave to serve late notices of claim on respondent … . “In determining whether to grant such [relief], the court must consider, inter alia, whether the claimant[s have] shown a reasonable excuse for the delay, whether the [respondent] 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 [respondent]” … . Although claimants failed to establish a reasonable excuse for the delay, “[t]he failure to offer an excuse for the delay is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” … .

… [B]ecause respondent knew that its Site was upgraded to a Class 2 site in 2015 and because similarly situated individuals served timely notices of claim on respondent alleging “substantively identical” exposure to the Site’s pollutants and resulting damages … , we conclude that claimants established that respondent received the requisite actual timely knowledge of the claims claimants now assert. We further conclude that claimants met their initial burden of establishing that respondent would not be substantially prejudiced by the delay inasmuch as respondent has been investigating similar claims since early 2017 … and that, in opposition, respondent failed to make a “particularized showing” of substantial prejudice caused by the late notice … . Matter of Bingham v Town of Wheatfield, 2020 NY Slip Op 04241, Fourth Dept 7-24-20

 

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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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