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TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD.

The Third Department determined the town had the right, pursuant to the Highway Law, to a pubic road easement three rods wide, even though the easement extended past the paved portion and included a plaintiffs’ fence:

After a roadway is established as a highway by use, Highway Law § 189 plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Stated differently, so long as the use at issue relates directly or indirectly to the public’s right of travel, the use of the highway may be extended past the paved portion of the road to a width of at least three rods. In our view, this interpretation of the statute is consistent with case law holding that the extent of the easement is defined by its actual use … . Inasmuch as the Town’s plowing and widening of Fox Hollow Road are uses that are “necessary to preserve the public’s right of passage,” they define the Town’s easement pursuant to Highway Law § 189 … . Further, it is undisputed that plaintiffs’ fence and the widening of the roadway were well within the three-rod width that defendants are statutorily authorized to open. Hoffman v Town of Shandaken, 2017 NY Slip Op 01430, 3rd Dept 2-23-17

MUNICIPAL LAW (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/HIGHWAYS AN ROADS (TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)/EASEMENTS (MUNICIPAL LAW, PUBLIC ROADS, TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD)

EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000).

The Third Department noted that even where (as in this case) “serious injury” within the meaning of the No-Fault law has not been demonstrated, an injured plaintiff may still be entitled economic loss above “basic economic loss:”

Under New York’s No-Fault Law, an injured party’s right to bring a personal injury action for noneconomic losses, i.e., “pain and suffering” (Insurance Law § 5102 [c]), arising out of an automobile accident is limited to those instances where such individual has incurred a serious injury … . However, basic economic loss coverage (up to $50,000) is available to a covered person regardless of fault (see Insurance Law § 5102 [a]) and “includes payments . . . for items such as lost earnings of up to $2,000 per month for three years after the date of the accident” … . Where, as here, an injured party asserts a claim for economic loss in excess of basic economic loss, he or she need not demonstrate that a serious injury was sustained … . Rather, all that is required is that such party demonstrate that his or her total economic loss actually exceeded basic economic loss … . To our analysis, “plaintiff[s] made a sufficient showing that [Jones] sustained economic loss in excess of basic economic loss to warrant submission of the issue to [a] jury” … and, therefore, Supreme Court should not have dismissed plaintiffs’ claim in this regard. Jones v Marshall, 2017 NY Slip Op 01432, 3rd Dept 2-23-17

INSURANCE LAW (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/SERIOUS INJURY (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/BASIC ECONOMIC LOSS (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))/ECONOMIC LOSS (NO-FAULT, EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000))

REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED.

The Third Department, in a full-fledged opinion by Justice Garry, determined petitioner-mother’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged should have been granted. The finding of inadequate guardianship was based on two incidents where the petitioner was abused by her paramour in the presence of a child. Three days after the latest incident petitioner reported the abuse to the police and the paramour was taken into custody. The Third Department held that, under the circumstances of the abuse targeting petitioner, petitioner acted reasonably to protect her children:

… [A]ddressing petitioner’s brief delay in reporting the abuse, it is well recognized that the most dangerous time in an abusive relationship occurs when the victim attempts to separate from the abuser … . * * * A finding that petitioner failed to exercise a minimum degree of care cannot be supported where the record reveals that she acted reasonably under the circumstances and thoughtfully planned a strategy to report her paramour’s abuse in such a way as to protect her own safety and that of her children … . * * *

…[W]e find no basis in the record to support respondent’s finding that petitioner’s actions resulted in impairment or immediate danger to the children. A finding of impairment “requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child” … . An immediate danger must be “near or impending” and more than “merely possible” … . Although the record supports a finding that the youngest child was placed in immediate danger during both incidents and that the eldest child suffered emotional impairment after witnessing the second incident, neither the danger nor the impairment were the consequence of petitioner’s actions. As a result of petitioner’s actions shortly thereafter, the paramour was incarcerated and an order of protection was issued; these circumstances continued through the time of the hearing. Matter of Elizabeth B. v New York State Off. of Children & Family Servs., 2017 NY Slip Op 01424, 3rd Dept 2-23-17

 

FAMILY LAW (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CHILD ABUSE (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)/CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED)

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FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT.

The Third Department determined a sentence of incarceration for father’s willful failure to pay child support was proper. However, because the support was paid by father prior to sentencing, Family Court abused its discretion by issuing the order of commitment:

Upon a willful violation, Family Court is authorized to impose a sentence of incarceration of up to six months … . Such a sentence is in the nature of a civil contempt, which “may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Since respondent cured the default prior to sentencing, we conclude that Family Court abused its discretion by issuing the order of commitment. Matter of Provost v Provost, 2017 NY Slip Op 01422, 3rd Dept 2-23-17

FAMILY LAW (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)/CHILD SUPPORT (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)

UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS.

The Third Department determined respondent mother was entitled to a new dispositional hearing on termination of her parental rights. At the time of the prior hearing she was facing a long incarceration for murder and manslaughter. However, those convictions were subsequently reversed:

Remittal is … required for a new dispositional hearing. Upon appeal from respondent’s criminal conviction, this Court modified the judgment of conviction by reversing her murder and manslaughter convictions and dismissing the underlying counts of the indictment. Respondent is accordingly not facing the lengthy term of imprisonment anticipated at the time the dispositional order was issued and, as such, it is unclear whether the best interests of the children continue to demand the termination of her parental rights. Thus, we agree with petitioner and respondent that a new dispositional hearing is required … . Matter of Zoey O. (Veronica O.), 2017 NY Slip Op 01413, 3rd Dept 2-23-17

FAMILY LAW (UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS)/PARENTAL RIGHTS (UPON REVERSAL OF MOTHER’S MURDER AND MANSLAUGHTER CONVICTIONS, MOTHER ENTITLED TO NEW DISPOSITIONAL HEARING ON TERMINATION OF HER PARENTAL RIGHTS)

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UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBEL PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION.

The Third Department affirmed Supreme Court’s awards of damages (upon defendant’s default) for libel per se and abuse of process, as well as punitive damages and attorney’s fees. The Third Department determined the causes of action for intentional infliction of emotional distress and violation of privacy were not viable, and Supreme Court did not have the authority to issue an order of protection. Plaintiff alleged defendant had contacted his employers making false allegations and had initiated many actions against him raising issues already litigated. With respect to intentional infliction of emotional distress, violation of privacy, and the order of protection, the court explained:

A cause of action for intentional infliction of emotional distress should not be entertained “where the conduct complained of falls well within the ambit of other traditional tort liability” … . Here, plaintiff’s complaint incorporated his libel and abuse of process allegations as the basis for this cause of action. Because damages were awarded on those causes of action, the damages awarded on the cause of action for intentional infliction of emotional distress must be vacated.

A cause of action for violation of the right to privacy under Civil Rights Law §§ 50 and [*4]51 is “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … . Absent from the proof furnished by plaintiff was any indication that defendant sought to use his name or photograph “for advertising purposes or for the purposes of trade only” … . Therefore, Supreme Court should have determined that this was not a viable cause of action. …

Supreme Court can properly issue an order of protection in a matrimonial action under Domestic Relations Law §§ 240, 252 … ; here, no matrimonial action was pending. Although such an order is available under Family Ct Act article 8, the pleadings do not contain allegations of conduct that would constitute one of certain enumerated family offenses … . Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 3rd Dept 2-23-17

 

DEFAMATION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/LIBEL PER SE (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ABUSE OF PROCESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/PRIVACY, VIOLATION OF (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ORDER OF PROTECTION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)

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A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED.

The Third Department determined a sexual offense which defendant admitted committing but with which he was never charged could not be considered in the under risk factor 8:

… [W]e agree with defendant that 10 points were improperly assessed for risk factor 8, his “[a]ge at first sex crime.” The People submitted evidence that the victim had recounted to police that her first sexual contact with defendant had occurred in June 2011, when defendant was 19 years old and she was 13 years old; defendant admitted that this incident had occurred but claimed that the victim had been the aggressor. As defendant pointed out at the SORA hearing, however, he was never charged with or convicted of a crime consisting of that conduct. Under the criminal history section of the RAI, 10 points may be assessed under risk factor 8 where “[t]he offender committed a sex offense, that subsequently resulted in an adjudication or conviction for a sex crime, at age 20 or less” … . The commentary similarly instructs, with regard to risk factor 8, that “criminal convictions [and] youthful offender adjudications  . . . are to be considered in scoring this category, as well as [risk factors] 9 [number and nature of prior crimes] and 10 [recency of prior felony or sex crime]” … . To that end, the commentary specifically indicates that, for purposes of the criminal history section of the RAI, “the term ‘crime’ includes criminal convictions [and] youthful offender adjudications” and that “[c]onvictions for Penal Law offenses and unclassified misdemeanors should be considered” … . The commentary further clarifies that, “[w]here an offender has admitted committing an act of sexual misconduct for which there has been no such judicial determination, it should not be used in scoring his [or her] criminal history” … . …

While proof of the commission of a prior sex crime committed by an offender at age 20 or under that did not result in a conviction or adjudication may be relied upon to argue in favor of an upward departure … , the People did not request this alternative relief from County Court at any point. People v Current, 2017 NY Slip Op 01415, 3rd Dept 2-23-17

CRIMINAL LAW (SORA, A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED)/SEX OFFENDER REGISTRATION ACT (SORA) (A SEXUAL OFFENSE WHICH DEFENDANT ADMITTED COMMITTING BUT WITH WHICH HE WAS NEVER CHARGED SHOULD NOT HAVE BEEN CONSIDERED)

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DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED; PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER.

The Third Department, reversing defendant’s conviction, determined the trial judge erred when the full circumstantial evidence jury instruction was not given. There was no direct evidence identifying defendant as the robber of the victim, who was sitting in his car at the time he was robbed. Blood matched to the defendant by DNA evidence was found on the handle of the door of the victim’s car. The Third Department also noted that the prosecutor exceeded the bounds of acceptable commentary during summation when he told the jury the blood on the victim’s car belonged to the robber:

Contrary to the People’s assertion, this was not a case “where both direct and circumstantial evidence [were] employed to demonstrate . . . defendant’s culpability[,] thereby negating the need for the [requested] charge” … . While there indeed is no question — based upon the victim’s testimony and the photographic evidence contained in the record — that the charged crimes did in fact occur, the record makes clear — and the People readily concede — that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match “can provide strong evidence of a person’s presence at and participation in a criminal act” … , a defendant’s mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator … . Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given … . As the People’s proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant’s request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court’s failure to grant the requested charge to be harmless error … . People v James, 2017 NY Slip Op 01409, 3rd Dept 2-23-17

CRIMINAL LAW (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/ATTORNEYS (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/PROSECUTORIAL MISCONDUCT (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/DNA (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW,  DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)

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PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT SUBSTANTIALLY WEAKENED BUT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION; DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION.

The Third Department, reversing defendant’s conviction, determined the People should not have been allowed to impeach their own witness (Abellman) with a prior inconsistent statement which did not contradict the People’s theory of prosecution and the trial judge should have instructed the jury on circumstantial evidence:

Abellman indicated in a written statement to investigators and testimony before the grand jury that defendant was his heroin supplier and that defendant’s heroin was stashed at the apartment. Abellman testified at trial, however, that he did not know defendant, had never bought drugs from defendant and did not recall ever having been to the apartment. * * * … [T]he People extensively questioned Abellman regarding his prior statements by asking if he recalled previously saying, among other things, that defendant supplied him with heroin and that he and defendant frequently went to the apartment to bag heroin and cocaine for sale.

While “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching [a] witness’s credibility with respect to his or her testimony,” it is inadmissible where “the testimony of the witness ‘does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony'” … . Abellman’s trial testimony falls into the latter category, as he did not call defendant’s connection to the heroin into question and only maintained that he had no knowledge of whatever connection there might be. This claimed lack of knowledge “merely failed to corroborate or bolster the [People]’s case” and did not affirmatively “contradict or disprove” evidence presented by them … . …

There was direct evidence of defendant’s dominion and control over the apartment [where the herein was found] but, as things ultimately stood, proof of his dominion and control over the heroin and related items was circumstantial. County Court was obliged to, but did not, give a circumstantial evidence charge to the jury under these circumstances … . People v Gaston, 2017 NY Slip Op 01411, 3rd Dept 2-23-17

 

CRIMINAL LAW (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/EVIDENCE (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, EOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CONSTRUCTIVE POSSESSION (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/IMPEACHMENT (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW, (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)

UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS.

The Third Department, in the interest of justice, determined that the attempted kidnapping conviction merged with the sexual abuse and assault convictions:

The merger doctrine bars convictions for kidnapping “based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” … . While application of the doctrine is dependent on the particular facts and circumstances of each case, “a kidnapping is generally deemed to merge with another offense . . . ‘where there is minimal asportation immediately preceding’ the other crime or ‘where the restraint and underlying crime are essentially simultaneous'” … .

Here, the victim’s testimony, as well as the surveillance footage, established that defendant immediately began punching the victim upon opening the door to her vehicle and that, after dragging her roughly 58 feet, he continued to punch the victim while forcibly subjecting her to sexual contact. This brutal encounter lasted between three and four minutes. Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree … , we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment … . People v Bautista, 2017 NY Slip Op 01410, 3rd Dept 2-23-17

CRIMINAL LAW (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/KIDNAPPING (UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)/MERGER (CRIMINAL LAW, UNDER THE FACTS, THE ATTEMPTED KIDNAPPING CONVICTION MERGED WITH THE SEXUAL ABUSE AND ASSAULT CONVICTIONS)

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