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Unsigned Depositions Admissible

In ruling that both defendant’s and plaintiff’s unsigned deposition transcripts could be considered in slip and fall summary judgment motion, the Second Department wrote:

Contrary to the plaintiff’s contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent…. Additionally, in reply to the plaintiff’s opposition, the defendant submitted evidence which showed that the plaintiff’s certified deposition transcript had been submitted to her for review, but that she failed to sign and return it within 60 days. Thus, the plaintiff’s deposition transcript was properly used as fully as though it were signed…. Moreover, this evidence demonstrating the defendant’s compliance with CPLR 3116(a) was properly considered in reply because it was submitted in direct response to allegations raised for the first time in the plaintiff’s opposition papers…. David v Chong Sun Lee, 2013 NY Slip Op 03811, 2nd Dept, 5-29-13

 

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Failure to Raise Denial of Constitutional Right to Present a Complete Defense Precluded Appeal

The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review.  People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13

 

Court Did Not Abuse Discretion In Not Sentencing Pursuant to Jenna’s Law Even Though Defendant Qualified​

The Second Department, over a dissent by Justice Balkin, affirmed a determinate sentence of five years in prison.  The sentencing court chose not to apply Penal Law 60.12 (Jenna’s Law) which allows indeterminate terms of imprisonment for first-time violent felons if the victim’s domestic violence was a factor in the commission of the crime (criteria met by the defendant).  The sentencing court noted that the defendant would probably never commit another crime, but imposed the sentence as a deterrent to others:

While the court accurately noted that the sentence would have limited deterrent and rehabilitative impact on this particular defendant, the court’s aim in imposing the sentence was, in large part, to deter others from engaging in similar misconduct. Indeed, the court stated at sentencing that “[s]ociety certainly must be concerned with self-help, violent behavior that is not sanctioned by law.” Since the court viewed general deterrence as an overriding sentencing principle, we cannot say that the emphasis was erroneous or that the interest of justice calls for a reduction in the defendant’s sentence …. People v Sheehan, 2013 NY Slip Op 03859, 2nd Dept, 5-29-13

 

10-Year Period for Predicate Felony Tolled by Incarceration​

The Second Department noted that incarceration tolls the 10-year period for consideration of a predicate felony:

Although the period of time between the defendant’s 1999 conviction and the commission of the felonies for which he stands convicted in this case was more than 10 years, the 1999 conviction constituted a predicate felony for purposes of second felony offender sentencing, since the 10-year statutory period was tolled while the defendant was incarcerated from May 5, 2000, to February 22, 2007 (see Penal Law §§ 70.06[1][b][iv], [v]; 70.70[3][b][i]). People v McCray, 2013 NY Slip Op 03857, 2nd Dept, 5-29-13

 

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No Reasonable Suspicion of Criminal Activity—Frisk of Defendant Improper​

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:

The level one request for information may include ” basic, nonthreatening questions regarding, for instance, identity, address or destination'” …. However, ” [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'” … and the encounter has become a level-two common-law inquiry, which must be supported by ” “a founded suspicion that criminal activity is afoot”‘” …”[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” ….

“[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior” …. ” [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'” …. Thus, “in order to justify a frisk of a suspect’s outer clothing, a police officer must have “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety”‘”…. Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or “stop-and-frisk” search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

STREET STOPS

Insufficient Evidence of Depraved Indifference Assault and Assault on a Police Officer

The Second Department determined there was insufficient evidence to support defendant’s convictions for depraved indifference assault and assault on a police officer.  The facts did not demonstrate defendant acted with depraved indifference, nor was the injured police officer engaged in a “lawful duty” when he stopped defendant’s car in the absence of reasonable suspicion of criminal activity:

Under these facts, where the defendant was attempting to get away from the officers’ unlawful questioning, where the injuries were caused not by the direct crash, but when the police car pivoted after being hit, and where it all happened in an instant, “the evidence did not establish the degree of depravity and indifference to human life required for depraved indifference [assault]” ….  * * *

A person commits the crime of assault on a police officer when, “with intent to prevent a . . . police officer . . . from performing a lawful duty, he [or she] causes serious physical injury to” the officer (Penal Law § 120.08). “To sustain a conviction of assault in the second [or first] degree under Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault by the defendant” … .Here, the police conduct in pulling in front of the defendant’s parked vehicle so as to block his ability to pull out of the parking space “constituted a stop, which required reasonable suspicion that the defendant [was] either involved in criminal activity or posed some danger to the police”…. However, Sergeant Pagnotta’s testimony was clear that, at no time prior to the positioning of the police car so as to block the defendant’s vehicle, nor during the ensuing encounter after Sergeant Pagnotta got out of the police car and approached the window of the defendant’s vehicle, was the defendant observed to be engaged in any criminal activity, or in any activity that would have aroused reasonable suspicion.  People v Hurdle, 2013 NY Slip Op 03849, 2nd Dept, 5-29-13

 

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Grabbing and Spinning a Person Does Not Constitute Unlawful Imprisonment​

The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment:

…[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the second degree (see Penal Law § 135.05). At the fact-finding hearing, the complaining witness testified that the appellant grabbed her by the waist and spun her around, and that, when she ordered him to release her, he immediately complied. This evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant “restrict[ed] a person’s movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commence[d] or in a place to which [s]he ha[d] been moved, without consent and with knowledge that the restriction [was] unlawful” (Penal Law § 135.00; see Penal Law § 135.05…).  Matter of Terry JP, 2013 NY Slip Op 03844, 2nd Dept, 5-29-13

 

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Town Failed to Demonstrate It Did Not Create Dangerous Condition—Summary Judgment in Favor of Town Denied—Exception to Written Notice Requirement​

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town’s construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff’s case …. In the absence of the required showing, the Town’s motion was properly denied, without regard to the sufficiency of the plaintiffs’ papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

 

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Defendant Did Not Demonstrate Plaintiff was Special Employee​

The Second Department determined the defendant did not demonstrate plaintiff was its special employee and therefore plaintiff was not restricted to Workers’ Compensation as his remedy:

In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge…. “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'”….

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work… . Nolan v Irwin Contr, Inc, 2013 NY Slip Op 03648, 2nd Dept, 5-22-13

 

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Question of Fact About Whether Release Procured by Fraud or Duress

In upholding the denial of defendant’s (Countrywide’s) motion for summary judgment based upon the execution of a release, the Second Department determined that the allegations of fraud and duress in procurement of the release raised a question of fact:

 The Countrywide defendants’ motion was properly denied. Although the plaintiff’s execution of the release in favor of the defendants was “a jural act of high significance” …, “a motion to dismiss should be denied where fraud or duress in the procurement of the release is alleged”… . Here, the plaintiff sufficiently alleged that the Countrywide defendants procured the release by means of fraud or duress, so as to warrant denial of their motion.   Warmhold v Zagarino, 2013 NY Slip Op 03668, 2nd Dept, 5-22-13

 

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