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ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was not restricted to a Worker’s Compensation Law remedy in this pedestrian-car accident case. Both plaintiff and defendant were employed by the Culinary Institute of America (CIA). The accident occurred on a private CIA road as defendant was leaving work. The Third Department determined the accident was not related to defendant’s work:

The parties’ submissions reveal that the accident occurred on Campus Drive, which plaintiff described as a ring road encircling the campus — a description consistent with the campus map submitted by defendant. Defendant essentially maintains that because Campus Drive is a private road maintained by the CIA, he necessarily was acting within the scope of his employment when the accident took place. There is support for the premise that going to or from work while on the employer’s premises is considered an incident of the employment … . By comparison, accidents occurring on a public street outside working hours are generally not considered to arise out of the employment absent some nexus between the access route and the employer’s premises… .

Even accepting that Campus Drive is a private road, the submissions demonstrate that the CIA encourages the public to frequent the restaurants on campus and it opened up Campus Drive for general use by the public. There is nothing in this record indicating that the accident was precipitated by any special hazard or incident related to defendant’s employment. To the contrary, the accident allegedly occurred when defendant slowed down but did not stop as plaintiff was in the crosswalk. Such an accident is a common risk shared by the general public traveling on Campus Drive… . We conclude that defendant’s workday ended when he left the parking lot to drive home and, thus, as a matter of law, defendant was not acting within the scope of his employment at the time of the accident. Siegel v Garibaldi, 2018 NY Slip Op 01239, Third Dept 2-22-18

WORKERS’ COMPENSATION LAW (ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/TRAFFIC ACCIDENTS (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/NEGLIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))

QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property owner’s cross motion to dismiss the complaint should not have been granted in this slip and fall case. Plaintiff (Torgersen) had raised questions of fact whether defendant’s snow removal and salting efforts were sufficient, and whether the lighting in the parking lot was adequate:

Torgersen claimed in an affidavit that his legs kicked out from under him on ice that was covered by snow and obscured by poor lighting. This account did not directly conflict with his prior deposition testimony — in which he gave a similar account of his fall, said the lighting was not “very good” and was cut off while trying to answer the only question posed regarding the presence of ice — and the discrepancies between them “raised a credibility issue” but did not warrant rejecting the affidavit out of hand … . Plaintiffs further provided the affidavit of another tenant who stated that she observed Torgersen fall as he described. The tenant saw a large patch of ice when she came to assist him and asserted, among other things, that no one salted the parking lot when it was plowed that day and that the poor plowing and salting at the complex had been the subject of complaints. The latter allegation ran counter to proof provided by defendant and Larkin [snow removal contractor], but there is no stated reason why the other tenant would misrepresent what had occurred and, in any event, “a court may not assess credibility on a summary judgment motion ‘unless it clearly appears that the issues are not genuine, but feigned'” … . It is by no means clear here.

Considering the foregoing “in the light most favorable to plaintiffs as the opponents of summary judgment”… , material issues of fact exist regarding the role ice and poor lighting played in Torgersen’s fall and whether the ice was due to inadequate salting by Larkin or defendant’s employees and should “reasonably have [been] discovered and remedied” by defendant … . Torgersen v A&f Black Cr. Realty, LLC, 2018 NY Slip Op 01237, Third Dept 2-22-18

NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SLIP AND FALL ( QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/LIGHTING (NEGLIGENCE, SLIP AND FALL,QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SNOW REMOVAL (NEGLIGENCE, SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT).

The Third Department, modifying Supreme Court, in a decision dealing with several substantive insurance and employment issues not summarized here, determined that plaintiff, as the beneficiary of her husband’s life insurance policy, had sufficiently alleged she was in a relationship close to privity such that the insurance agent (Pontillo) and his employers owed her a duty of care. Plaintiff’s suit stemmed from the insurers’ denial of coverage based upon material misrepresentations in the decedent’s application (not mentioning substance abuse):

Plaintiff was the intended beneficiary of the ReliaStar policy from the moment when decedent applied for the policy. She further alleged that she was linked to Pontillo by his status as a family member and trusted financial advisor and that Pontillo knew not only that the policy was intended to ensure plaintiff’s financial well-being in the event of decedent’s death, but that she would rely upon his expertise in preparing a valid application for it. Accepting these allegations as true, they show “an affirmative assumption of a duty of care to a specific party, [plaintiff,] for a specific purpose, regardless of whether there was a contractual relationship” … . As Supreme Court correctly determined, this alleged “reliance by . . . plaintiff that was ‘the end and aim of the transaction'” … constituted “a relationship so close as to approach that of privity” and created a duty of care toward her that permitted a negligence claim against Pontillo and his purported employers … . Vestal v Pontillo, 2018 NY Slip Op 01236, Third Dept 2-22-18

INSURANCE LAW (ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))/PRIVITY (INSURANCE LAW, NEGLIGENCE, (ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))

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DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s presence in a meth lab was not sufficient to demonstrate constructive possession of the contraband in the lab:

A defendant’s mere presence in the same location as contraband is insufficient to establish constructive possession … . Knowledge that the contraband is present is insufficient, standing alone, to show constructive possession… . Some factors that courts may consider in determining whether a defendant constructively possessed contraband are the defendant’s proximity to the contraband, whether the defendant had keys to the location where the contraband was found, whether the contraband was in plain view, evidence that the defendant had used some of the drugs (when drugs are the contraband at issue), and whether there is witness testimony that the contraband belonged to the defendant … .

The evidence at trial demonstrated that defendant and [codefendant] Yerian had been in the garage with [codefendant] Alberts for approximately one hour when the officer arrived. There was no evidence that defendant lived in the house or garage, kept any of his personal belongings there or had keys to the property… . When the officer observed defendant in the workshop area, which measured approximately 10 to 12 feet by 20 to 24 feet, defendant was sitting on a stool in front of a bench, not touching anything. No contraband was recovered from defendant himself, nor did the proof establish that he owned or had even touched any of the contraband. People v Maricle, 2018 NY Slip Op 01217, Third Dept 2-22-18

CRIMINAL LAW (CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/POSSESSION (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/METHAMPHETAMINE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County County should have assigned a new attorney after defense counsel took a position adverse to her client’s motion to withdraw his plea:

At sentencing, defense counsel appropriately advised County Court that, although she had counseled defendant regarding the potential consequences of withdrawing his guilty plea, and despite her legal advice to the contrary, defendant nevertheless wished to proceed with such a motion. Defendant thereafter set forth various reasons as to why he believed he was entitled to the requested relief. In response to County Court’s subsequent inquiries, however, defense counsel made comments that, in our view, could be construed as undermining the very arguments that defendant had raised in support of his motion. Accordingly, once defense counsel took a position that was adverse to defendant, County Court should have assigned a new attorney to represent him on his motion to withdraw his plea … . People v Oliver, 2018 NY Slip Op 01221, Third Dept 2-22-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))

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COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal:

… County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiver does not foreclose a defendant’s challenge that a court failed to make the requisite on-the-record determinations regarding youthful offender treatment … . Pursuant to CPL 720.10 (3), “a youth who has been convicted of . . . criminal sexual act in the first degree . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Where, as here, the only barrier to youthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), “the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)”… . This determination is mandatory, without regard to whether it has been requested or purportedly waived … . People v Martz, 2018 NY Slip Op 01222, Third Dept 2-22-18

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/APPEALS (CRIMINAL LAW, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/YOUTHFUL OFFENDER (COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/SEX OFFENSES (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))

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DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied:

“[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because . . . ‘the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized'” … . Here, defendant stated during her plea allocution that she did not intend to violate the underlying order of protection, thus negating an element of criminal contempt in the first degree… . Although County Court promptly responded and afforded defendant an opportunity to again consult with her counsel, further discussion was then held off the record. Thus, we are unable to ascertain from the record whether the court conducted the requisite further inquiry to ensure that defendant understood the elements of the crime to which she was pleading guilty and that the plea was knowing, voluntary and intelligent … . People v Busch-scardino, 2018 NY Slip Op 01218, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/GUILTY PLEA (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/PRESERVATION (CRIMINAL LAW, APPEALS, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))

ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the judicial diversion hearing should have been presided over by a judge in the Drug Treatment Court, not County Court:

… County Court was not designated by the Administrative Judge for the Third Judicial District to preside over the drug treatment court in Sullivan County. … Accordingly, while County Court had jurisdiction to hear the subject felony case … , once an alcohol and substance abuse evaluation was ordered for defendant … — for the express purpose of determining whether he was eligible for judicial diversion — the case should have been referred to the designated Superior Court for drug treatment pursuant to 22 NYCRR part 143. Accordingly, under the circumstances presented, we find that County Court was without authority to preside over defendant’s judicial diversion hearing … . People v Lee, 2018 NY Slip Op 01216, Third Dept 2-22-18

CRIMINAL LAW (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/JUDICIAL DIVERSION HEARING (CRIMINAL LAW, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/DRUG TREATMENT COURT  (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/ALCOHOL AND SUBSTANCE ABUSE EVALUATION (CRIMINAL LAW,  ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))

DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s request for a jury instruction on a lesser included offense should have been granted. Defendant shot another hunter and was charged with assault second. Defendant requested a jury instruction on assault third which was denied:

Defendant argued that the jury could reasonably find from the trial proof that he did not act recklessly so as to commit assault in the second degree (see Penal Law § 120.05 [4]), but did behave negligently so as to commit assault in the third degree … . Recklessness and criminal negligence are achingly close to one another; a reckless defendant “perceives the risk, but consciously disregards it,” while a criminally negligent defendant “negligently fails to perceive the risk” altogether … . A jury distinguishes between the two by considering “the evidence . . . relating to the mental state of the defendant at the time of the crime”… .

… [D]efendant knew that the victim had permission to hunt on the property where the shooting occurred, but also told investigators that he had seen no sign of the victim or anyone else in the three weeks that he had been hunting in the area. The victim confirmed that the area was not frequented by hunters, testifying that he had never seen another person in the 30 years that he had hunted there and saw human tracks for the first time the week before he was shot. There was no proof that defendant recalled the advice given at a hunting safety class, which he took 20 years prior, to be certain of his target before opening fire. Even if he did, however, he told investigators that he opened fire after hearing what he thought were deer horns rubbing against branches and watched what he thought was a deer but was, in reality, the stooped-over victim in a camouflage jacket. Viewing this evidence in the light most favorable to defendant … , the jury could have reasonably found that defendant did not disregard, but instead failed to perceive, an unjustifiable risk of injury to the victim when he opened fire without sufficient observation… . County Court therefore erred in refusing to charge the lesser included offense of assault in the third degree … . People v Lavalley, 2018 NY Slip Op 01223, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/ASSAULT (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/HUNTERS (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))

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ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard waste. Because the court determined this was a SLAPP suit, the complaint against a defendant based upon statements made by the defendant about plaintiff’s yard waste business (alleging defamation, interference with a a business relationship, inter alia) should have been dismissed:

It is undisputed that, in 2007, plaintiffs registered with the Department of Environmental Conservation (hereinafter DEC) as a yard waste composting facility that accepts between 3,000 to 10,000 cubic yards of waste per year … . Lawful operation of plaintiffs’ composting facility requires DEC permission and ongoing compliance with all applicable regulations and is subject to oversight by DEC … . …  In light of the fact that operations pursuant to a registration require DEC permission and are subject to continuing DEC oversight, Supreme Court properly concluded that plaintiffs are public permittees, as defined by Civil Rights Law § 76-a (1) (b) … .

We also conclude that the relevant conduct challenged in this action — defendants’ statements about plaintiffs and the operations conducted at their property — establishes that the action is materially related to plaintiffs’ registered yard composting facility. …

Inasmuch as we have determined that this action involves public petition and participation, to avoid dismissal of the complaint against [defendant] Merced, plaintiffs must demonstrate that any statement they allege she made “was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a [2]…) . Plaintiffs failed to meet this burden. Edwards v Martin, 2018 NY Slip Op 01238, Third Dept 2-22-18

CIVIL RIGHTS LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/DEFAMATION (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/SLAPP SUITS (ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

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