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FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED.

The Second Department, reversing defendant’s conviction, determined a for cause challenge to a juror should have been granted:

Here, prospective juror number 12 stated unequivocally that her experience as a crime victim, which she described as “traumatic,” would make it hard for her to be fair and impartial in this case. The prospective juror’s follow-up statement that she would “have to hear the case” before she could make a decision did not rehabilitate her initial response … .

Inasmuch as the sum of the prospective juror’s statements revealed a state of mind likely to preclude her from rendering an impartial verdict based upon the evidence adduced at the trial … , the challenge for cause should have been allowed … . People v Hutthinson, 2017 NY Slip Op 03774, 2nd Dept 5-10-17

 

CRIMINAL LAW (FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED)

FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT).

The Second Department determined the plaintiff’s false arrest and false imprisonment complaint was properly dismissed. Although plaintiff appeared at the General Municipal Law § 50-h hearing, he did not answer all of the questions posed by the defendant city’s attorney and he did not invoke the Fifth Amendment. Because the 50-h hearing is a condition precedent to the suit against the city, dismissal was required:

The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to conduct an investigation into the circumstances surrounding an alleged occurrence and to explore the merits of the claim while information is readily available … . The oral examination of the claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the public corporation, with a view toward settlement… . “Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action”… .

Here, while the plaintiff appeared for the scheduled examination, he failed to answer many of the questions that were posed to him, and he never invoked his Fifth Amendment privilege against self-incrimination. Since he failed to assert his privilege at the time he was relying on it, he was unable to benefit from it … . Even if the plaintiff had properly asserted his privilege, he was obligated to schedule a new General Municipal Law § 50-h examination after his criminal case ended, but he failed to do so … . Instead, the plaintiff simply commenced an action in January 2016 without indicating the status of the criminal charges. Di Pompo v City of Beacon Police Dept., 2017 NY Slip Op 06059, Second Dept 8-9-17

MUNICIPAL LAW (50-H HEARING, FALSE ARREST, FALSE IMPRISONMENT, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/50-H HEARING (MUNICIPAL LAW, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/FALSE ARREST (50-H HEARING, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))/FALSE IMPRISONMENT (50-H HEARING, FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT))

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DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department determined a question of fact precluded defendant-abutting-property-owner’s (51 Remsen’s] motion for summary judgment in this sidewalk slip and fall case. The NYC Administrative Law imposed the burden of keeping the sidewalk safe on the abutting property owner, but the curb was excluded from the property owner’s responsibility. Plaintiff testified there was a gap between the curb and the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty on “the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition,” and provides that the owner of said real property “shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” “Sidewalk” is defined as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians” … .

Here, the Supreme Court properly denied the motion of 51 Remsen for summary judgment dismissing the complaint and all cross claims insofar as asserted against it…. 51 Remsen’s expert opined that while the sidewalk was in good condition, set properly, and free of tripping defects, the curb was “problematic” because it did not meet City Department of Transportation height regulations. The plaintiff, however, testified at his deposition that there was a “[l]ittle gap” between the curb and the sidewalk. Viewing the evidence in the light most favorable to the plaintiff as the nonmovant …, 51 Remsen failed to eliminate all triable issues of fact regarding whether it had a duty to maintain the area of the plaintiff’s fall, and whether the alleged dangerous sidewalk condition, i.e., an improper setback from the curb, was attributable to its negligence and contributed to the plaintiff’s fall … . Gelstein v City of New York, 2017 NY Slip Op 06064, Second Dept 8-9-17

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NEGLIGENCE (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF FACT RE WHETHER A GAP BETWEEN THE CURB AND THE SIDEWALK WAS ATTRIBUTABLE TO ITS NEGLIGENCE AND CONTRIBUTED TO PLAINTIFF’S SLIP AND FALL (SECOND DEPT))

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QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT).

The Second Department determined there was a question of fact whether a steel plate (covering a pole vault pit) unreasonably increased the risk of injury for high school football players. Plaintiff was tackled and struck the steel plate, which was several feet from the sideline:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 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'”… . “Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks”… . Thus, “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … .

Here, the Supreme Court properly determined that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants … . Deserto v Goshen Cent. Sch. Dist., 2017 NY Slip Op 06058, Second Dept 8-917

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ASSUMPTION OF RISK,  QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT))/FOOTBALL (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, QUESTION OF FACT WHETHER A STEEL PLATE NEAR THE SIDELINE OF A FOOTBALL FIELD UNREASONABLY INCREASED THE RISKS ASSOCIATED WITH PLAYING HIGH SCHOOL FOOTBALL (SECOND DEPT)) 

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MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT).

The Second Department determined the defendant’s (Queens Ballpark’s) motion to dismiss this slip and fall action, based on documentary evidence, was properly denied. The documents did not conclusively establish that defendant did not create the condition which caused the sidewalk slip and fall, and did not establish that had not assumed the landowner’s responsibility to maintain a safe sidewalk by the terms of the lease:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk[] . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” (id. § 7-210[b]). “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party”… . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the documentary evidence submitted by Queens Ballpark failed to utterly refute the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law … . Further, Queens Ballpark failed to establish conclusively that the plaintiff had no cause of action … . In her complaint, the plaintiff alleged that Queens Ballpark created the alleged defect in the sidewalk, and that Queens Ballpark was liable pursuant to Administrative Code § 7-210 for failing to maintain the sidewalk in a reasonably safe manner. Queens Ballpark’s evidence, namely, excerpts from its lease of the parking lot, photographs of the sidewalk, and an affidavit from the Executive Director of Ballpark Operations for Queens Ballpark, did not address whether Queens Ballpark created the alleged defect, or whether Queens Ballpark had entirely displaced the landowner’s duty to maintain the sidewalk such that Queens Ballpark could be held liable to the plaintiff under Administrative Code § 7-210 … . Torres v City of New York, 2017 NY Slip Op 06096, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SLIP AND FALL (SIDEWALK, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS,  MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION PROPERLY DENIED, DEFENDANT DID NOT UTTERLY REFUTE THE ALLEGATION IT CREATED THE CONDITION OR THAT IT HAD NOT ASSUMED THE RESPONSIBILITY FOR MAINTAINING THE SIDEWALK BY THE TERMS OF ITS LEASE (SECOND DEPT))

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DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment was properly granted. Plaintiff, a student living in defendant’s on-campus housing, was injured when a globe from an overhead light fell on her. The defendant college demonstrated it did not created the dangerous condition and did not have actual or constructive notice of the condition:

The plaintiff was a student at the defendant, Long Island University, and resided at its on-campus housing facility in Brooklyn. During the evening of November 5, 2010, a glass globe fell from a ceiling lighting fixture in the plaintiff’s room onto her head. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the condition that allegedly caused the plaintiff’s injuries or have actual or constructive notice of it … . Williamson v Long Is. Univ., 2017 NY Slip Op 06100, Second Dept 8-9-17

 

NEGLIGENCE (DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, DEFENDANT COLLEGE DEMONSTRATED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION WHICH INJURED PLAINTIFF, A PORTION OF A LIGHT FIXTURE IN PLAINTIFF’S ON-CAMPUS ROOM FELL ON HER (SECOND DEPT))

NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT).

The Second Department determined the defendants demonstrated they did not own, occupy or control the area where plaintiff slipped and fell. Therefore the defendants owed no duty of care to the plaintiff:

“To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff” … . Where there is no duty of care owed by the defendant to the plaintiff, there can be no breach, and thus, no liability can be imposed upon the defendant … . Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property… . The existence of one or more of these elements is sufficient to give rise to a duty of care… . Where none is present, “[generally] a party cannot be held liable for injuries caused by the allegedly defective condition” … .

Here, the defendants established, prima facie, that they did not owe a duty to the plaintiff by demonstrating that they did not own, occupy, or control the area where the subject accident occurred, and thus, that they did not have a duty to maintain the staircase on the date of the accident. Donatien v Long Is. Coll. Hosp., 2017 NY Slip Op 06061, Second Dept 8-9-17

 

NEGLIGENCE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/SLIP AND FALL (NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))/DUTY OF CARE (SLIP AND FALL, NO DUTY OF CARE OWED PLAINTIFF, DEFENDANTS DID NOT OWN, OCCUPY OR CONTROL THE STAIRCASE WHERE PLAINTIFF SLIPPED AND FELL (SECOND DEPT))

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PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT).

The Second Department determined the “substantial evidence” standard did not apply to review of the Unified Court System’s finding that the court assistant (petitioner) was not asked to do out-of-title work. The “arbitrary and capricious” standard was the proper one:

Contrary to the petitioner’s contention, “a substantial evidence’ question is presented only where a quasi-judicial evidentiary hearing has been held”… . The fact that the petitioner had the “right to be heard . . . and to present facts in support of [his] position” at a grievance meeting …did not render the grievance meeting “a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of CPLR 7803(4)”… . Since the administrative determination in this case was made after a grievance meeting, as opposed to a quasi-judicial evidentiary hearing, the court properly concluded that the relevant standard of review was whether the “determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion” … .

The petitioner further contends that the Deputy Director’s determination was arbitrary and capricious. “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … . “In applying the arbitrary and capricious’ standard, a court inquires whether the determination under review had a rational basis” … . Matter of Manning v New York State-Unified Ct. Sys., 2017 NY Slip Op 06077, Second Dept 8-9-17

 

ADMINISTRATIVE LAW (EVIDENCE, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/ARBITRARY AND CAPRICIOUS (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))/QUASI-JUDICIAL (ADMINISTRATIVE LAW,  PROCEEDING UNDER REVIEW WAS NOT QUASI-JUDICIAL, SUBSTANTIAL EVIDENCE STANDARD DID NOT APPLY (SECOND DEPT))

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ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT).

Although the facts of the case were not spelled out, the Second Department determined the introduction of a chart showing the structure and membership of a gang was (harmless) error:

We agree with the defendant that under the circumstances here, it was improper to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang’s members by name and their associated arrest photos … .  Nevertheless, the error was harmless, as the proof of the defendant’s guilt of arson in the first degree and conspiracy in the second degree was overwhelming, and there is no significant probability that, but for the error, the verdict would have been less adverse … . People v Burkette, 2017 NY Slip Op 06082, Second Dept 8-9-17

CRIMINAL LAW (EVIDENCE, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, GANGS, ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE,  ADMISSION OF A CHART SHOWING THE STRUCTURE AND MEMBERSHIP OF A GANG WAS (HARMLESS) ERROR (SECOND DEPT))

IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED; PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT).

The Second Department determined the sentencing court erroneously considered a crime of which defendant was acquitted in sentencing. The Second Department further noted that the People did not demonstrate that the assault and robbery convictions were based upon different underlying facts, therefore the sentences must run concurrently:

Certain remarks made by the sentencing court demonstrate that it improperly considered a crime of which the defendant was acquitted as a basis for sentencing. Accordingly, the matter must be remitted … for resentencing … . Further, since the People failed to establish that the acts underlying the conviction of assault in the first degree were separate and distinct from the acts underlying the conviction of attempted robbery in the first degree, the sentences imposed on remittal are to run concurrently … . People v Newman, 2017 NY Slip Op 06086, Second Dept 8-9-17

CRIMINAL LAW (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/SENTENCING (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/CONCURRENT SENTENCES (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))

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