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When the Police Are Aware Suspect Is Represented by an Attorney and the Attorney’s Assistance Is Specifically Requested, the Attorney Must Be Contacted Before Conducting a Lineup Identification Procedure

Although the issue was not raised by the facts in the case, the Second Department noted the proper procedure for a lineup when the police are aware the suspect is represented by an attorney:

Where police are “aware that a . . . defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney,” the police may not proceed with a lineup procedure, “without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear” … . People v Blyden, 2014 NY Slip Op 02448, 2nd Dept 4-9-14

 

Neglect Finding Can Be Based Upon a Single Incident of Excessive Corporal Punishment

The Second Department noted that a finding of neglect can be based upon a single incident of excessive corporal punishment:

Neglect may be established by even a single incident of excessive corporal punishment … . The Family Court’s assessment of the credibility of witnesses is entitled to considerable deference … .Here, contrary to the appellant’s contention, the Family Court’s finding of neglect of the child Shervon M., based on excessive corporal punishment, was supported by a preponderance of the evidence (see Family Ct Act § 1012[f][i][B]…). The Family Court’s finding that the appellant engaged in excessive corporal punishment when he struck the child Shervon M. several times with a belt, causing raised red marks on her arm and legs, is supported by the evidence presented at the fact-finding hearing. Shervon’s out-of-court statements that the appellant struck her with a belt were sufficiently corroborated by the caseworker’s observations of Shervon’s injuries and the appellant’s admission to the caseworker that he had struck Shervon with a belt in the past (see Family Ct Act § 1046[a][vi]…).  Matter of Nurridin B, 2-14 NY Slip Op 02431, 2nd Dept 4-9-14

 

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Failure to Allege a Favorable Result Would Have Obtained “But For” the Attorney’s Alleged Malpractice Required Dismissal of the Complaint

The Second Department determined a legal malpractice action was properly dismissed because the plaintiff failed to adequately allege that but for the malpractice the result would have been favorable to the plaintiff.  The court explained the elements of a legal malpractice action:

To recover damages in a legal malpractice action, a plaintiff must establish “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . ” A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'” … . Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Benishai v Epstein, 2014 NY Slip Op 02404, 2nd Dept 4-9-14

 

Mother’s Interference With Relationship Between Father and Child Warranted Modification of Custody Arrangement Entered Into by Stipulation

The Second Department determined father had made a sufficient showing of a change in circumstances to justify a modification of custody arrangements created by stipulation:

Here, the father established that there had been a sufficient change in circumstances since the time of the stipulation. Specifically, he demonstrated that the mother had interfered with his relationship with the child, such that a modification in the custody arrangement was in the best interests of the child. The mother’s unfounded allegations of sexual abuse of a child that she made against the father were an act of interference with the parent-child relationship so inconsistent with the best interests of the child as to raise a strong probability that the mother is unfit to act as custodial parent … . The mother’s conduct here in making these unfounded allegations demonstrated a purposeful placement of her self-interest above the interests of others … . The record shows that the father is more likely than the mother to foster a relationship between the child and the noncustodial parent … . The mother’s unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court’s determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child’s best interests. Matter of Fargasch v Alves, 2014 NY Slip Op 02435, 2nd Dept 4-9-14

 

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Weight of the Evidence Review Required Reversal

The Second Department determined the defendant’s conviction was not supported by the weight of the evidence—there were too many unexplained problems in the People’s proof:

Although great deference is accorded the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor …, objective facts, which were not adequately explained, cast doubt upon the officers’ credibility, including the loss of the arresting officer’s memo book, the fact that the ammunition allegedly retrieved from the gun was only submitted to the police laboratory for analysis five days after the gun was submitted for analysis, and the fact that a photograph of the gun was exhibited in the precinct with a caption referring to a white lie. Further, the eyewitness who initially called the police to the scene testified at the trial that the man involved in the incident was not the defendant, and that the police arrested the wrong man. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt. Thus, the judgment must be reversed and the indictment dismissed… . People v Battle, 2014 NY Slip Op 02447, 2nd Dept 4-9-14

 

Failure to Give the Jury Instruction on Intoxication Required Reversal

The Second Department reversed defendant’s conviction, finding that the trial court erred by not giving the intoxication charge to the jury.  There was sufficient evidence defendant was so intoxicated at the time he committed the sexual offense, he could not form the requisite intent:

According to the defendant, during the night or early morning before he committed the instant offense, he finished drinking a “big” bottle of vodka. Then, within the hour leading up to the crime, he “kept pouring cognac” in his coffee and drinking it. The complainant observed the defendant drinking cognac shortly before he committed the crime, and observed that he “smelled a little bit like” alcohol. Additionally, the complainant’s mother knew that the defendant had a bottle of cognac in his possession because she had bought him a bottle as a gift.

The defendant further testified that, before he committed the acts constituting the instant offense, he “started to feel like out of [his] mind” and he did not have “control of the situation.” The complainant testified that, before the defendant committed the criminal acts against her, he said several “weird” things to her and acted in a “weird” manner. She opined that the defendant “wasn’t thinking” when he committed the instant offense.

With the foregoing in mind, we conclude that “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” … .

Contrary to the People’s contention, intent is an element of criminal sexual act in the first degree, and ” the intent required is the intent to perform the prohibited act—i.e., the intent to forcibly compel another to engage in [oral or] anal sexual conduct”‘ … . People v Velcher, 2014 NY Slip Op 02464, 2nd Dept 4-9-14

 

Open and Obvious Condition Precluded Slip and Fall Suit

The Second Department determined a slip and fall case was properly dismissed because the condition which caused the fall, seed pods which had fallen on the steps from a tree, was open and obvious:

The plaintiff allegedly was injured when she slipped and fell on the back steps of the defendant’s residence. The plaintiff testified that, prior to her fall, she felt a “hard cone” or “ball” underneath her foot. After her fall, she observed a crushed seed ball, about the size of a golf ball, on the step. Two or three other seed balls and some leaves were scattered about the steps and landing. The seed balls and leaves apparently had fallen from a nearby tree belonging to the defendant’s neighbor.

The defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. Scalice v Braisted, 2014 NY Slip Op 02421, 2nd Dept 4-9-14

 

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Children’s Out-Of-Court Statements May Corroborate One Another

The Second Department noted that out-of-court statements by children can corroborate one another in a sexual abuse case:

The Family Court’s determination that the maternal stepgrandfather sexually abused the subject children was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[e], [g]; 1046[b][i]…).  “It is well established that the out-of-court statements of siblings may properly be used to cross-corroborate one another” … . Here, the evidence presented at the fact-finding hearing established that, in May 2011, then-10-year-old Naziya D. and 3-year-old Jada A. made independent and consistent out-of-court statements to several individuals describing similar incidents of sexual abuse by the maternal stepgrandfather. Further, the children’s statements were corroborated by the petitioner’s progress notes and the mother’s testimony as to the children’s statements … .Additionally, where, as here, the Family Court is primarily confronted with issues of credibility, its findings must be accorded deference on appeal, as they were supported by the record … .The Family Court, upon a finding of abuse pursuant to Family Court Act § 1012(e), must make a further finding of the specific sex offenses that were committed, as defined in Penal Law article 130 … .  Even if the Family Court fails to make such a finding, this Court can make the finding that the Family Court should have made… . Matter of Jada A, 2014 Slip Op 02430, 2nd Dept 4-9-14

 

Plaintiff’s Allegation of Inadequate Lighting Was a Sufficient Indication She Was Aware of the Cause of Her Fall

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case.  The court found that plaintiff had presented evidence of the cause of the fall (inadequate lighting) and the defendants did not demonstrate that they neither created the dangerous condition nor had constructive notice of it:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

Here, the respondents failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. The injured plaintiff testified during her deposition that the lighting in the hallway was so poor that she could hardly see her surroundings and that she kept her hand on the wall to guide her down the hallway. This testimony, which the respondents submitted with their motion, itself demonstrated the existence of a triable issue of fact as to whether the alleged lack of adequate lighting was a proximate cause of the accident … . Additionally, the respondents failed to establish that they neither created the allegedly dangerous condition nor had actual or constructive notice of it … . Since the respondents failed to satisfy their initial burden of establishing their prima facie entitlement to judgment as a matter of law, their motion should have been denied without regard to the papers submitted in opposition … .  Palahnuk v Tiro Rest Corp, 2014 NY Slip Op 02418, 2nd Dept 4-9-14

 

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Waiver of Appeal Invalid

The Second Department determined defendant’s waiver of his right to appeal, which included a written waiver, was invalid:

A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” … . ” Though a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, a trial court must make certain that a defendant’s understanding’ of the waiver . . . is evident on the face of the record” … . Further, it must be made clear to the defendant that an appeal waiver ” is separate and distinct from those rights automatically forfeited upon a plea of guilty'” … . “A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement'” … .

Here, although the defendant executed a written waiver of his right to appeal, the defendant’s understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the oral colloquy conducted by the Supreme Court in light of the absence of any mention of the waiver during the discussion of the terms of the plea. After the plea agreement had been reached, the court told the defendant that “[b]efore I accept your plea, you need to sign a waiver of your right to appeal.” First, the court’s “terse colloquy [which included this mandatory-sounding language] at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal” … . Second, the court suggested that the right to appeal is automatically forfeited upon pleading guilty when it advised the defendant that the written appeal waiver “tells me you understand the rights you have waived by pleading guilty” … . Accordingly, under these circumstances, including the defendant’s relative inexperience with the criminal justice system …, the defendant’s appeal waiver was invalid … .  People v Pressley, 2014 NY Slip Op 02461, 2nd Dept 4-9-14

 

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