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AUDIOTAPES OF CONVERSATIONS BETWEEN THE PATERNAL GRANDMOTHER AND THE CHILD WERE PROPERLY SUPPRESSED BECAUSE THEY WERE THE PRODUCT OF ILLEGAL WIRETAPPING UNDER CPLR 4506 (SECOND DEPT).

The Second Department determined Family Court properly suppressed audiotapes of conversations between the paternal grandmother and the child in this custody dispute between the maternal and paternal grandmothers. The audiotapes constituted illegal wiretapping pursuant to CPLR 4506:

Contrary to the maternal grandmother’s contention, the Family Court properly granted the paternal grandmother’s motion to suppress audiotapes of conversations between the paternal grandmother and the child pursuant to CPLR 4506, which provides for the suppression of evidence obtained by illegal wiretapping. The maternal grandmother and her son (the child’s uncle) were not parties to the conversation, were not present during the conversation, and the maternal grandmother does not assert that, under the circumstances, any vicarious consent was given… . Moreover, there is no merit to the maternal grandmother’s contention that the motion was untimely because it was not made before the hearing, since the paternal grandmother only learned of the existence of the tapes during the hearing (see CPLR 4506[4]). Matter of Dennis v Davis-Schloemer, 2018 NY Slip Op 08480, Second Dept 12-12-18

MOTION TO SUPPRESS, SUPPRESSION

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PETITION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED, THE CITY’S KNOWLEDGE OF THE CROSSWALK DEFECT IN THIS SLIP AND FALL CASE IS NOT EQUIVALENT TO TIMELY KNOWLEDGE OF THE NATURE OF PLAINTIFF’S CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s petition to deem the late notice of claim timely served should not have been granted in this slip and fall case. Plaintiff alleged she tripped and fell over a defect in a crosswalk. The notice of claim was serve eight months after the fall. Photos of the defect were alleged to have been taken “shortly after” the fall but were not authenticated. An Internet map service apparently depicted the defects in 2013 and 2014. The court held that the fact that the city may have known of the defect does not mean the city had timely notice of the nature of plaintiff’s claim:

… [W]e disagree with the Supreme Court’s determination that the City acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter. While the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the crosswalk defect, actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability… . Similarly, the service of the notice of claim approximately five months after the expiration of the 90-day statutory period for service did not provide the City with the requisite actual knowledge within a reasonable time … .

We also disagree with the Supreme Court’s determination, based on the photographs submitted by the petitioner, that she sustained her burden of demonstrating that the City would not be substantially prejudiced by the late notice. The petitioner contended that the photographic evidence showed that the defective condition was substantially the same in appearance at the time of her accident as it was some eight months later when her petition was served. However, the photographs purportedly taken “shortly after” the accident were never authenticated … , nor did the petitioner identify the actual date the photographs were taken or the person who took them. Moreover, the more recent photographs were taken at different angles than the earlier photos, and neither set of images contained any measurements or dimensions to support the conclusion that a comparison of the two sets of photographs established that the defect did not change in the interim … . Matter of Bermudez v City of New York, 2018 NY Slip Op 08477, Second Dept 12-12-18

 

PLAINTIFF ASSUMED THE RISK OF INJURY STEMMING FROM A FIGHT DURING A HOCKEY GAME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff, an amateur hockey player, assumed the risk of injury stemming from a fight on the ice. Plaintiff alleged he was injured when a referee tried to pull him away from the fight. Plaintiff voluntarily engaged in physical contact with a player involved in the fight (plaintiff alleged he was trying to pull a player out of the fight when the referee grabbed the plaintiff):

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the risks inherent in the sport of ice hockey, and in particular, involving oneself in an ongoing fight, were fully comprehended by the plaintiff and perfectly obvious. Further, the defendants established that the referees were permitted to make physical contact with players involved in a fight and, accepting the plaintiff’s version of the events as true, the plaintiff voluntarily engaged in physical contact with a player involved in the fight. Falcaro v American Skating Ctrs., LLC, 2018 NY Slip Op 08469, Second Dept 12-12-18

VOLUNTARY ENGAGEMENT PARTICIPATION FIGHT

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THE DIGNITY FOR ALL STUDENTS ACT (DASA) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR IN-SCHOOL BULLYING AND HARASSMENT (SECOND DEPT),

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brahwaite Nelson, determined that the Dignity for All Students Act (DASA, Education Law section 10) does not create a private right of action for a student injured by a school’s failure to enforce policies prohibiting discrimination and harassment. The plaintiffs alleged Joshua, a student, was bullied and the complaint, in addition to alleging a violation of DASA, alleged negligent supervision and negligent retention of employees. The negligence causes of action properly survived the motions to dismiss:

A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . …

A review of DASA’s legislative history shows that finding a private right of action under the act would be inconsistent with the legislative scheme. As noted above, DASA requires school districts to create and implement certain policies, procedures, and guidelines aimed at creating an educational environment in which children can thrive free of discrimination and harassment (see Education Law §§ 10, 13). In a letter to the Governor, Senator Thomas Duane described DASA as focusing “on the education and prevention of harassment and discrimination before it begins rather than punishment after the fact” …  The letter stated that under the existing regime, school districts were paying “a high cost in civil damages for failure to prevent bullying,” thereby suggesting that implementing DASA would alleviate such costs (id. at 9). Similarly, the Assembly sponsor of the bill also advised the Governor that “the Legislature intends [DASA] to be primarily a preventive, rather than punitive, measure; it should therefore be implemented accordingly, with the emphasis on proactive techniques such as training and early intervention to prevent discrimination and harassment” … . Eskenazi-McGibney v Connetquot Cent. Sch. Dist., 2018 NY Slip Op 08467, Second Dept 12-12-18

 

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A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT).

The Second Department. reversing Supreme Court, determined that the medical malpractice action should have been dismissed as time-barred. Plaintiff alleged a ureteral stent/catheter was inserted during surgery in 1993 and was discovered and removed in 2012. If the stent were a “foreign object,” the action would have been timely. But the stent was deliberately inserted for a medical purpose, although it should have been removed after up to six months. Because the stent was purposely inserted, it was not a “foreign object:”

… [T]he plaintiff failed to raise a triable issue of fact as to whether the ureteral stent/catheter allegedly inserted in his body was a “foreign object” such that the discovery rule should apply. According to the parties’ experts, a ureteral stent/catheter is a tube that bridges the kidney to the bladder, and is inserted and intentionally left in a patient for up to six months to assist in the draining of the kidney when the ureter is obstructed or when damage to the ureter was repaired and it is healing. The parties’ experts agree that if a ureteral stent/catheter was inserted in the plaintiff’s body during the 1993 procedure, then it was intentionally left in his body for the purpose of assisting in the draining of the kidney. Thus, the device was retained in the plaintiff’s body (if inserted at all) for ” postsurgery healing purposes'” and was not “analogous to tangible items” or “surgical paraphernalia,” such as clamps, scalpels, sponges, and drains, “introduced into a patient’s body solely to carry out or facilitate a surgical procedure”… . For these reasons, the ureteral catheter/stent was not a “foreign object,” and the action should have been dismissed as time-barred … . Livsey v Nyack Hosp., 2018 NY Slip Op 08289, Second Dept 12-5-18

NEGLIGENCE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/FOREIGN OBJECT (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS  (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))

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SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT).

The Second Department determined; (1) although no appeal lies from a judgment entered by default against the appealing party the contested issues may be reviewed; (2) Supreme Court did not abuse its discretion in dismissing the complaint because plaintiff was not ready to proceed; (3) Supreme Court did not abuse its discretion in refusing to allow plaintiff to present a “substitute expert” when the noticed expert could not appear at trial; (4) Supreme Court should not have dismissed the action with prejudice because the dismissal was not on the merits:

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review ” those matters which were the subject of contest before the Supreme Court'” … . …

“Pursuant to 22 NYCRR 202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to appear or is not ready to proceed” … . Here, the plaintiff was not ready to proceed to trial due to the unavailability of her expert. …

Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” … . “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” … . Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” … . Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts … .

… “[S]ince dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits,” the dismissal should have been without prejudice … . Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280, Second Dept 12-5-18

CIVIL PROCEDURE (SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT))/APPEALS (SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT))

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QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant-store’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff fell over a small table that was behind a taller table thinking that it was possible to walk behind the taller table:

“Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . Even a condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances”… .

Here, the defendants failed to establish, prima facie, that the table at issue was open and obvious and not dangerous given the surrounding circumstances at the time of the accident, including the evidence submitted by the defendants on their motion as to the lighting conditions and the presence of other customers in the area … . Further, the defendants’ own evidence, including the deposition testimony of their employees, demonstrated the existence of a triable issue of fact as to whether the space on the side of the table on which the plaintiff was injured could be anticipated as an area of egress by the plaintiff. Elfassi v Hollister Co., 2018 NY Slip Op 08279, Second Dept 12-5-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT).

The Second Department noted that the anonymous 911 was properly admitted into evidence, in part, because the call was nontestimonial:

We agree with the Supreme Court’s determination to admit into evidence at the trial a recording of a 911 emergency telephone call made by an unidentified caller. The recording was admissible under the present sense impression exception to the hearsay rule  … . Moreover, the admission of the recording did not violate the defendant’s right of confrontation. Since the primary purpose of the statements by the unidentified caller was to obtain an emergency response to a burglary in progress, the statements were not testimonial in nature … . People v Torres, 2018 NY Slip Op 08337, Second Dept 12-5-18

CRIMINAL LAW (EVIDENCE, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))/TESTIMONIAL HEARSAY (CRIMINAL LAW, ANONYMOUS 911 CALL DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION BECAUSE THE INFORMATION WAS NONTESTIMONIAL IN THAT IT DID NOT IDENTIFY THE DEFENDANT BUT MERELY ALERTED THE POLICE TO A BURGLARY IN PROGRESS (SECOND DEPT))

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department determined defendant was denied his right to counsel when defense counsel told the court he did not want to be a party to defendant’s motion to withdraw his guilty plea:

The defendant stated that he wished to withdraw his plea of guilty on the grounds that he was innocent and that he was coerced into pleading guilty. His attorney stated that he did not want to be a party to the motion. His attorney further stated: “I fought long and hard to get this. I thought we had this.” The court advised the defendant not to say anything further, and noted that the defendant could be charged with perjury. The court denied the defendant’s motion, and imposed sentence.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant with respect to his motion to withdraw his plea of guilty… . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion … . We further note that, in advising the defendant not to say anything further because he could be charged with perjury, the court deprived the defendant of the opportunity to present his contentions … . People v Sarner, 2018 NY Slip Op 08335, Second Dept 12-5-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW,  DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE COUNSEL TOLD THE COURT HE DID NOT WANT ANY PART OF DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT))

THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department determined that a 2015 Court of Appeals decision holding that a jury cannot be instructed that it could find defendant guilty of both depraved indifference murder and intentional murder of a single victim should not be applied retroactively. Defendant was shooting at another when he struck and killed his accomplice:

In People v Dubarry (25 NY3d at 165), the Court of Appeals addressed “the novel question” of whether the defendant could be subject to multiple liability for a single homicide based on a theory of transferred intent. “The transferred intent theory, codified under Penal Law § 125.25(1), provides that where the resulting death is of a third person who was not the defendant’s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed'” … . The Court in Dubarry concluded that the defendant “cannot be convicted of depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person,” and, “[t]herefore, the trial court erroneously submitted to the jury both charges in the conjunctive rather than in the alternative” … . * * *

… Dubarry established new precedent and constitutes a new rule of law. Consequently, retroactivity analysis is required under this State’s rules … . “Whether a new rule of New York State law is to be given retroactive effect requires an evaluation of three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application”… . “The second and third factors are, however, only given substantial weight when the answer to the retroactivity question is not to be found in the purpose of the new rule itself'” … . …

As to the first factor, the Court of Appeals in Dubarry clarified the proper application of the transferred intent theory, which should be employed, not to multiply criminal liability, “but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . The Court’s purpose was to dispel confusion concerning the application of the separate mens rea of intent and depraved indifference to the same outcome … , and, similar to Policano, to make future homicide prosecutions more sustainable. Furthermore … , “nonretroactivity poses no danger of a miscarriage of justice” … . The other two Pepper factors also weigh in favor of nonretroactivity. … [T]hree of the departments of the Appellate Division permitted the submission of both intentional (transferred intent) and depraved indifference crimes in the conjunctive. Moreover, “[a]ffording retroactivity to [the] defendant would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become [a] beneficiary'” … . People v Drayton, 2018 NY Slip Op 08323, Second Dept 12-5-18

CRIMINAL LAW (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/DEPRAVED INDIFFERENCE MURDER (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))/TRANSFERRED INTENT  (THE 2015 COURT OF APPEALS DECISION WHICH PROHIBITED INSTRUCTING A JURY THAT IT COULD FIND A DEFENDANT GUILTY OF BOTH DEPRAVED INDIFFERENCE MURDER AND INTENTIONAL (TRANSFERRED INTENT) MURDER OF A SINGLE VICTIM SHOULD NOT BE APPLIED RETROACTIVELY (SECOND DEPT))

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