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Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15

 

Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

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Intoxication Jury Instruction Was Warranted, Conviction Reversed

In reversing defendant’s conviction, the Second Department determined there was sufficient evidence of defendant’s intoxication to warrant the intoxication jury instruction:

The defendant’s convictions of assault in the second degree and criminal possession of a weapon in the fourth degree arise out of an incident during which the defendant allegedly struck another man (hereinafter the complainant) with a metal pipe in the presence of the complainant’s wife. Viewing the intoxication evidence in the light most favorable to the defendant …, we conclude, contrary to the Supreme Court’s determination, that an intoxication instruction (see Penal Law § 15.25) was warranted … . The complainant’s wife testified that, just prior to the subject assault, she observed the defendant with a can of beer in his hand and that the defendant seemed drunk. She further testified that the defendant’s breath smelled like beer, his speech was slurred, and that the defendant, with whom she was familiar, was “not himself.” Under these circumstances, there is “sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . Accordingly, the Supreme Court erred in denying the defendant’s request to give an intoxication instruction to the jury and, thus, reversal is warranted … . People v Goldring, 2015 NY Slip Op 08189, 2nd Dept 11-12-15

 

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Constructive Trust Properly Imposed on Real Property, Criteria Explained

The Second Department determined the defendant (Chen) was entitled to impose a constructive trust on real property for which she contributed money. The court explained the criteria:

“Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . “The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment” … . While these factors are useful in many cases, the constructive trust doctrine is not rigidly limited … . Thus, although the elements of a constructive trust must be proved by clear and convincing evidence …, “[t]he constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice” … .

Here, the Supreme Court properly awarded judgment in favor of the defendant Al Ming Chen on her counterclaim to impose a constructive trust on the subject real property. Contrary to the plaintiff’s contention, Chen offered evidence satisfying the elements generally needed for the imposition of a constructive trust. The plaintiff’s contention that Chen never had any interest in the subject property, and therefore is not entitled to the imposition of a constructive trust, is without merit. Chen showed that she contributed money for the purchase of the subject property and for paying down the mortgage in reliance on an implied promise by the plaintiff that she shared an interest in the property … . Moreover, Chen demonstrated that a constructive trust is necessary in this case to satisfy the demands of justice … . Liu v Chen, 2015 NY Slip Op 08152, 2nd Dept 11-12-15

 

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Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction

Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother’s drug conviction:

Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency’s prima facie showing of neglect or abuse as a matter of law, and the respondent’s failure to raise a triable issue of fact in opposition to the motion … .

Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment … . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15

 

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Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15

 

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Criteria for Mandamus to Compel Explained (Not Met Here)

The Second Department determined the county personnel director’s ruling that community college employees would no longer be eligible for promotions to county jobs was rationally based on the terms of an agreement between the county and the college. In finding that the “mandamus to compel” petition was properly denied, the court explained the relevant criteria:

” The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated'” … . “A discretionary act involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . Since the petitioner sought to compel conduct clearly involving the application of … discretion and judgment …, the remedy of mandamus is not available. Matter of Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, 2nd Dept 11-12-15

 

Criteria for a Motion to Dismiss Based Upon Documentary Evidence and a Motion to Dismiss Supported by Submitted Evidence Explained (Not Met Here)

In finding defendant’s motion to dismiss the complaint was properly denied, the Second Department explained the criteria for a motion to dismiss based upon documentary evidence, and for a motion to dismiss accompanied by the submission of evidence. The court noted that affidavits, deposition testimony and letters do not constitute “documentary evidence” in this context:

A party may move for judgment dismissing one or more causes of action asserted against it under CPLR 3211(a)(1) “on the ground that . . . a defense is founded upon documentary evidence.” A motion on this ground, however, “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence’ within the intendment of CPLR 3211(a)(1)” … . …

… A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties … . Moreover, “[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … . Shofel v DaGrossa, 2015 NY Slip Op 08156, 2nd Dept 11-12-15

 

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Motions for Findings Allowing Child to Petition for Special Immigrant Juvenile Status Should Have Been Granted

The Second Department, reversing Family Court, determined mother’s motions for the issuance of special findings to enable the child [Jose] to petition for special immigrant juvenile status should have been granted:

… [I]t is declared that Jose … has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court, and it is found that Jose …  is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to Honduras, his previous country of nationality or last habitual residence. Matter of Gomez v Sibrian, 2015 NY Slip Op 08165, 2nd Dept 11-12-15

 

Injury Caused by Lifting a Heavy Beam Not Covered by Labor Law 240(1), Despite the Fact the Beam Was Resting on an Elevated Scaffold

The Second Department determined that plaintiff’s injury was not related to the type of hazard covered by Labor Law 240(1). Plaintiff injured his back when he lifted a beam which was resting on an elevated scaffold. The court explained:

“[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'” … . Rather, the statute was designed to prevent accidents in which a protective device, ” proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'” … .

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of [the defendant’s] motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). *  *  * … [T]he plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site … . The fact that the plaintiff was injured while lifting a heavy object does not give rise to liability pursuant to Labor Law § 240(1) … . Cardenas v BBM Constr. Corp., 2015 NY Slip Op 08142, 2nd Dept 11-12-15

 

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