You are here: / Third Department

Tag Archive for: Third Department

, ,

THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

, ,

HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records kept by the police and prosecutors:

We must … decide whether CPL 160.55 i… encompasses the content that plaintiff seeks to have excluded from trial. After plaintiff entered a guilty plea to disorderly conduct in the criminal action, County Court issued a sealing order pursuant to CPL 160.55, which applies when an action has been terminated by a conviction of certain violations, including disorderly conduct. * * *

A careful comparison of the language used in CPL 160.50 and 160.55 leads us to agree with defendants’ contention that CPL 160.55 does not extend to court records. Under CPL 160.55 (1) (c), once notified of a qualifying violation conviction, the enumerated criminal justice entities must seal “all official records and papers relating to the arrest or prosecution” in their possession. By comparison, CPL 160.50 (1) provides that, when an action has been terminated in favor of the accused, unless the court requires otherwise, “the record of [an] action or proceeding shall be sealed” and notification of such termination and sealing shall be sent by the clerk of the court to the “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” … . Upon receipt thereof, “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency” (CPL 160.50 [1] [c] … . By its plain terms, CPL 160.50 seals official court records pertaining to the arrest and prosecution, whereas CPL 160.55 omits that express sealing … . * * *

We are mindful that the record does not reveal how defendants obtained copies of the indictment and combined plea/sentencing transcript. To the extent defendants obtained these documents from the official court file maintained by County Court, they would not be subject to the sealing order issued pursuant to CPL 160.55. However, if these documents were obtained from the files of “the division of criminal justice services, police agency, or prosecutor’s office” (CPL 160.55 [1] [c]), they would be subject to the sealing order.  … [P]laintiff did not waive the privilege that is afforded to these documents in the event they were obtained from one of the aforementioned law enforcement entities. Given that the record is not sufficiently developed on the issue of how these records were obtained, we must reverse so much of Supreme Court’s order as denied plaintiff’s motion in limine as it pertains to the indictment and plea/sentencing transcript and remit to Supreme Court for further proceedings on the matter. Kokoska v Joe Tahan’s Furniture Liquidation Ctrs., Inc., 2025 NY Slip Op 04130, Third Dept 7-10-25

Practice Point: Pursuant to Criminal Procedure Law section 160.55, a sealing order does not extend to court records, as opposed to records kept by law enforcement and prosecutors. Here there was a question whether the defendants procured the indictment and plea transcript from the court. If so, the sealing order did not apply to them.

 

, , , ,

ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court noted that petitioner, as a limited liability company, can be penalized for the intentional violation of regulations by its employees under an agency theory:

… [P]etitioner [limited liability company], like corporations and similar entities, may be penalized “for the intentional acts of its agents that are either (1) in violation of positive prohibitions or commands of statutes regarding corporate acts, (2) authorized through action of its officers or which are done with the acquiescence of its officers, or (3) performed on behalf of the corporation if undertaken within the scope of the agents’ authority, real or apparent” … . As it is alleged here that a regulation governing petitioner’s conduct was intentionally violated by one of its employees in the course of his work, petitioner may be penalized for that conduct, if proven. * * *

Petitioner had no deficiencies in the five infection control surveys conducted in the months leading up to the December 2020 survey, counsel for the Department conceded at the hearing that it “had a great infection control program for many months,” and the surveyor who witnessed the violation acknowledged that petitioner had developed an appropriate infection control plan and properly trained employees about their obligations under it. Respondent was nevertheless free to credit the proof that the aide violated that policy on one occasion in December 2020 and, notwithstanding petitioner’s efforts to argue otherwise, we are satisfied that such constitutes substantial evidence in the record for the determination that petitioner’s employee “violate[d], disobey[ed] or disregard[ed]” multiple provisions of 10 NYCRR 415.19 and the infection control program in the course of his work and that such rendered petitioner liable (Public Health Law § 12). Matter of RSRNC, LLC v McDonald, 2025 NY Slip Op 04131, Third Dept 7-10-25

Practice Point: Here a violation of Public Health Law regulations concerning COVID-19 infection control by an employee of petitioner nursing home, a limited liability company, warranted imposing a penalty on the nursing home.

 

, , ,

THE ARGUMENT THAT THE ARBITRATOR’S AWARD, WHICH ALLOWED REINSTATEMENT OF AN EMPLOYEE AFTER A PERIOD OF SUSPENSION, VIOLATED PUBLIC POLICY WAS REJECTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s award in this employment-discipline case should not have been vacated. The court rejected the argument that the award, which penalized the employee (Williams) for misbehavior as a corrections officer but allowed her reinstatement, violated public policy. The decision is too complex to fairly summarize here. But it illustrates just how difficult it is to vacate an arbitrator’s award on public-policy grounds:

“A court may vacate an arbitrator’s award only on grounds stated in CPLR 7511 (b)” … . Among other circumstances, vacatur is permitted where an arbitrator directs an award that “violates a strong public policy” … . An arbitration award may only be vacated on public policy grounds “where a court can conclude, without engaging in any extended factfinding or legal analysis [(1)] that a law prohibits, in an absolute sense, the particular matters to be decided, or [(2)] that the award itself violates a well-defined constitutional, statutory or common law of this State” … . As there is no contention that the law prohibited the arbitrator from deciding Williams’ guilt and penalty under the CBA, [collective bargaining agreement] our inquiry focuses on whether “the final result creates an explicit conflict with other laws and their attendant policy concerns” … . Matter of Spence (New York State Dept. of Corr. & Community Supervision), 2025 NY Slip Op 04135, Third Dept 7-10-25

Practice Point: Consult this decision for an explanation of the criteria for vacating an arbitrator’s award on public policy grounds.

 

,

A CANINE SNIFF OF A PERSON IS A SEARCH AND REQUIRES PROBABLE CAUSE TO BELIEVE THE SUBJECT HAS COMMITTED A CRIME, THEREBY TRIGGERING THE NECESSITY FOR A SEARCH WARRANT OR AN EXCEPTION TO THE WARRANT REQUIREMENT (THIRD DEPT). ​

The Third Department, reversing County Court and remitting the matter, in a full-fledged opinion by Justice Ceresia, determined probable cause to believe a crime has been committed is the proper standard for a canine sniff of a person. Here defendant was asked to step out of his vehicle. The canine put his nose in defendant’s groin/buttocks area and alerted for the presence of narcotics:

… [A] canine sniff of the body is far more intrusive than that of a vehicle exterior or common hallway, and an individual has a correspondingly greater expectation of privacy in one’s own body than in those settings. Indeed, when it comes to canine sniff searches, it would be difficult to imagine one more intrusive or involving a more significant privacy right than the one at issue here. Accordingly, we conclude that the serious “intrusion on personal privacy, security, and dignity” that accompanies a canine sniff of the body can only be justified at DeBour level 4 — namely, upon probable cause to believe that the target of the sniff search has committed a crime … .

… [G]iven the fact that County Court only evaluated the evidence under the lesser standard of reasonable suspicion, we are constrained to remit this case to that court for a determination of whether the police had probable cause to perform the canine sniff search of defendant’s body …thereby triggering the necessity of either a search warrant or an exception to the warrant requirement … .  People v Butler, 2025 NY Slip Op 04052, Third Dept 7-3-25

Practice Point: It is hard to believe the law on this topic is just now being settled. A canine sniff of a person is a search requiring probable cause to believe the subject has committed a crime, thereby triggering the necessity for a search warrant or an exception to the warrant requirement.

 

,

THE RECORD DOES NOT SUPPORT THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMAINT IS NOT ENTITLED TO PERMANENT-TOTAL-DISABILITY STATUS BASED UPON EXTREME FINANCIAL HARDSHIP; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not make findings which justified its ruling that claimant was not entitled to relief based upon extreme financial hardship:

Workers’ Compensation Law § 35 (3) provides that, “[i]n cases where the loss of wage-earning capacity is greater than [75%], a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits under [Workers’ Compensation Law § 15 (3) (w)], that the [B]oard reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship” … . “[A] claimant seeking reclassification based upon extreme hardship must demonstrate financial hardship beyond the ordinary and existing in a very high degree” … . * * *

Claimant’s C-35 form, the accompanying submissions and her hearing testimony demonstrate that her essential monthly expenses — consisting of rent, utilities and basic amenities — would exceed her monthly income of $1,280, received from Social Security disability, by more than $300 if her workers’ compensation benefits are ended. This deficit results in claimant’s inability to cover even basic grocery expenses upon the expiration of her workers’ compensation benefits. Significantly, the Board made no finding that claimant’s income would be sufficient to meet her essential living expenses, nor is there substantial evidence in the record to support any such conclusion. * * * … [T]he Board did no analysis, and gave no explanation, as to how the future reduction of claimant’s income to an amount significantly below the most basic of living expenses did not result in an extreme financial hardship. Claimant now lives alone in a modest apartment and uses a high-mileage, nearly 20-year-old vehicle, for which she pays a nominal monthly parking fee. Upon this record, substantial evidence does not support the Board’s determination that claimant failed to demonstrate extreme financial hardship warranting a reclassification pursuant to Workers’ Compensation Law § 35 (3) and, thus, we reverse. Matter of Martin v D’Agostino Supermarkets Inc., 2025 NY Slip Op 04059, Third Dept 7-3-25

Practice Point: Consult this decision for a discussion of the criteria for permanent-total-disability status based upon extreme financial hardship.

 

,

PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A CHERRY TOMATO IN DEFENDANT’S STORE; CONSULT THIS DECISION FOR A DISCUSSION OF HOW A DEFENDANT CAN DEMONSTRATE A LACK OF ACTUAL AND CONSTRUCTIVE NOTICE; DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this slip and fall case, determined defendant grocery-store’s motion for summary judgment should have been granted. Plaintiff failed to raise a question of fact about the store’s constructive notice of the presence of a cherry tomato on the floor:

Defendant offered plaintiff’s deposition testimony and the deposition testimony of several of its employees, including the produce manager on duty the day of the fall. Plaintiff recalled in her deposition testimony that she was walking, slipped and fell forward to the ground. She did not know what caused her fall at the time, but afterward when she examined both the bottom of her shoe and the floor, she realized that she slipped on a cherry tomato. Plaintiff did not see the tomato prior to falling and has no knowledge of how long it may have been there. The assistant store manager stated that the store was cleaned every night by an outside company, that he inspected the store every morning when he first arrived as well as throughout the day, and that he did not recall any produce on the floor prior to plaintiff’s fall. The produce manager relayed in his deposition testimony that he had been the produce manager at the subject store for 14 years, that he received training regarding safety concerns and that he had, in turn, trained his associates on matters of safety. Here, defendant’s safety policy with regard to the floor area did not call for any sort of regularly scheduled inspections but rather consisted of directing its employees to be continually vigilant for dropped items — in essence, if you see something, immediately pick it up. The produce manager stated that the cherry tomatoes sold at the store are packaged in a clamshell container with a lid that locked into place. He further stated that he regularly inspects the floors for safety issues, that he was not aware of anyone who stepped on or slipped on produce in his department prior to plaintiff’s fall in 2020, nor had he received any complaints about produce being spilled on the floor. He asserted that the cherry tomato display was approximately 15 to 20 feet from where plaintiff fell. Most importantly, he testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.[FN1] Additionally, he testified that he had not received any complaints that morning about produce on the floor. The foregoing was sufficient to establish defendant’s prima facie entitlement to summary judgment by demonstrating that it maintained the property in a reasonably safe condition, did not create the allegedly dangerous condition that caused plaintiff’s injury and had neither actual nor constructive notice of such condition … . Levitt v Tops Mkts., LLC, 2025 NY Slip Op 04060, Third Dept 7-3-25

Practice Point: Here defendant proved a lack of actual and constructive notice of a cherry tomato on the store floor which allegedly caused plaintiff’s slip and fall. Essentially the store demonstrated the floor is inspected continually throughout the day and the area of the fall was inspected 40 minutes before the fall.

 

, , ,

IN A CRIMINAL CONTEMPT PROCEEDING BASED UPON AN ACT WHICH WAS NOT COMMITTED IN THE IMMEDIATE VIEW AND PRESENCE OF THE COURT, THE CONTEMPT MOTION MUST BE PERSONALLY SERVED; HERE THERE WAS NO PROOF THE MOTION WAS PROPERLY SERVED, DEPRIVING FAMILY COURT OF JURISDICTION (THIRD DEPT).

The Third Department, reversing Family Court, determined the criminal contempt motion against father for bringing a recording device into court should have been dismissed because there was no proof father was personally served with the motion:

A finding of criminal contempt, as is pertinent here, must be supported by a showing of “[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority” (Judiciary Law § 750 [A] [1]), and proof of guilt must be established beyond a reasonable doubt … . “Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense” (Judiciary Law § 751 [1] …). To this end, a “criminal contempt proceeding requires personal service on the contemnor” … . “A court lacks personal jurisdiction over a respondent who is not properly served with process” and, “[w]hen the requirements for service of process have not been met, it is irrelevant that the respondent may have actually received the documents, because notice received by means other than those authorized by statute does not bring a respondent within the jurisdiction of the court” … .

Family Court acknowledged in its written order that it was unable to summarily hold the father in contempt, as the only direct evidence of his possession of a prohibited recording device was discovered outside of the courtroom by court officers who were not immediately available to testify. As such, personal service of the motion charging the father with contempt was required. Nothing in the record reflects that such service was effectuated. We note that, to the extent that the court’s notice of motion indicates that it was mailed to the father to a Pennsylvania address, there is similarly no affidavit of service/mailing and no receipt of mailing in the record. Matter of Ruoyao P. (Zhechen P.), 2025 NY Slip Op 04065, Third Dept 7-3-25

Practice Point: Consult this decision for the procedural requirements for a motion charging criminal contempt for an act which was not committed in the immediate view and presence of the court. The motion must be personally served in accordance with the CPLR. Failure of proper service deprives the court of jurisdiction.

 

MOTHER’S ABANDONMENT OF HER PARENTAL OBLIGATIONS IS BEST ADDRESSED IN FATHER’S PARAMOUR’S ADOPTION PROCEEDINGS IN SURROGATE’S COURT; MOTHER’S MOTION TO DISMISS FATHER’S CUSTODY PETITION IN FAMILY COURT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined that the issue of mother’s abandonment of her parental obligations was best addressed the father’s paramour’s adoption proceedings in Surrogate’s Court. Father’s custody petition in Family Court should have been dismissed:

The operative point now is that the paramour has initiated adoption proceedings in Surrogate’s Court on the basis of the mother’s abandonment of the children for a period of six months (see Domestic Relations Law § 111 [2] [a]). As Family Court observed, “the Surrogate would have to determine identical issues and allegations as to whether the mother abandoned the children.” In doing so, the Surrogate will be governed by the evidentiary criteria for an abandonment outlined in Domestic Relations Law § 111 (6) (a-d). By comparison, these same statutory criteria do not expressly apply to a custody modification proceeding. It bears further emphasis that “[a]bandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support” … .

Given that the focus of this entire matter is on the issue of adoption, we conclude that the appropriate course is for the Surrogate to determine the question of abandonment. To have this question addressed on parallel tracks in both Family Court and Surrogate’s Court would be both unnecessary and prejudicial to the interests of the parties, particularly given that the paramour is not a party to the Family Court proceeding. As such, the mother’s motion to dismiss the petition should have been granted. Matter of Jason TT. v Linsey UU., 2025 NY Slip Op 04067, Third Dept 7-3-25

Practice Point: Consult this opinion for a discussion of the parallel proceedings in Family Court and Surrogate’s Court where mother’s abandonment of her parental obligations is the central issue. Here the court determined the issue was best handled in father’s paramour’s adoption proceedings in Surrogate’s Court, as opposed to father’s modification of custody proceedings in Family Court.

 

,

THE MARIJUANA REGULATION AND TAXATION ACT (MRTA) APPLIES TO THE EVIDENCE PRESENTED AT A SUPPRESSION HEARING AND PRECLUDES A FINDING OF PROBABLE CAUSE TO SEARCH A VEHICLE BASED SOLELY ON THE ODOR OF MARIJUANA; THEREFORE THE STATUTE APPLIES HERE WHERE, ALTHOUGH THE SEARCH WAS PRE-ENACTMENT, THE SUPPRESSION HEARING WAS POST-ENACTMENT (THIRD DEPT).

The Third Department, granting defendant’s suppression motion and vacating defendant’s guilty plea, in a full-fledged opinion by Justice Lynch, over a dissent, determined the Marijuana Regulation and Taxation Act (MRTA), which prohibits the search of a vehicle based solely on the odor of marijuana, applied to defendant’s case, even though the statute had not been enacted at the time of the search. The statute had been enacted at the time of the suppression hearing:

On this appeal, we are tasked with answering a question left open by the Court of Appeals in People v Pastrana (41 NY3d 23, 29 [2023] …) — namely, whether Penal Law § 222.05 (3) (a), enacted as part of the Marihuana Regulation and Taxation Act (hereinafter MRTA), applies to a post-enactment suppression hearing concerning a pre-enactment search. * * *

… Penal Law § 222.05 (3) (a) — enacted as part of the MRTA — provides that “in any criminal proceeding including proceedings pursuant to [CPL] 710.20 . . . , no finding or determination of reasonable cause to believe a crime has been committed shall be based solely on evidence of . . . the odor of cannabis” … . CPL 710.20 pertains to motions to suppress evidence. By this comprehensive and present tense language, Penal Law § 222.05 (3) (a) expressly limits a suppression court’s authority to base a probable cause finding solely upon evidence of the odor of marihuana without regard to when the vehicle search occurred. * * *

… [T]his provision is directed at the present evidentiary findings of a court, “and no real question of retroactive effect on past conduct or events is presented” … . Since Penal Law § 222.05 (3) (a) was in effect at the time of the suppression hearing and the suppression court’s probable cause finding was based solely upon the fact that the trooper smelled the odor of marihuana emanating from the vehicle, that determination was erroneous as a matter of law … . People v Martin, 2025 NY Slip Op 03842, Third Dept 6-26-25

Practice Point: Here the Marijuana Regulation and Taxation Act (MRTA) was deemed to apply to the evidence which can be considered at a probable-cause-to-search-a-vehicle hearing. Therefore there was no need to apply the statute retroactively where the search was pre-enactment but the suppression hearing was post-enactment.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy