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SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the severe abuse petition against mother (respondent) should not have been dismissed by Family Court. The abuse was apparently inflicted by mother’s boyfriend in her absence and resulted in the child’s death:

Respondent demonstrated reckless judgment and disregard for the safety and well-being of the older child by allowing the boyfriend — who she had dated for only a very brief period of time and knew went out at night to procure illegal drugs — to care for her children and, significantly, by permitting him to continue to care for her children and inflict further abuse after the older child had sustained serious and an abnormal degree of bruising, which she unreasonably attributed to accidental causes and the explanations provided by the boyfriend … . To that end, respondent was aware, or should have been aware, of the older child’s numerous injuries indicative of extensive, repeated and accumulating abuse.

Equally troubling is respondent’s failure to seek professional medical treatment for the older child notwithstanding her knowledge of numerous visible injuries. Matter of Mason F. (Katlin G.–Louis F.), 2016 NY Slip Op 05408, 3rd Dept 7-7-16

 

FAMILY LAW (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/CHILD ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/SEVERE ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY.

The Third Department, in a full-fledged opinion by Justice Garry, clarified the application of General Construction Law 25-a to the six-month speedy trial time limit for felonies:

At issue here is the deadline by which the People must declare readiness when a defendant is charged with a felony. It has also been held that for General Construction Law § 25-a to apply in any factual circumstance, “there must be an initially ascertainable certain day from which reckoning may be made” … . CPL 30.30 (1) (a) specifies such an ascertainable day — that is, the commencement of a criminal action — from which the six-month period within which the People are required to declare readiness for trial is to be computed. Thus, we find that when the last day of the six-month period specified by CPL 30.30 (1) (a) falls upon a Saturday, Sunday or legal holiday, the expiration of the period in which the People must declare readiness is extended to the next succeeding business day pursuant to General Construction Law § 25-a. Here, the People’s second declaration of readiness was made on the next succeeding business day following the legal holiday upon which the six-month period expired; it was therefore timely and effective, and dismissal of the indictment was not required. People v Mandela, 2016 NY Slip Op 05401, 3rd Dept 7-7-16

CRIMINAL LAW (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/SPEEDY TRIAL (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/GENERAL CONSTRUCTION LAW (SPEEDY TRIAL DEADLINE, GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)

ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE.

The Third Department, reversing Supreme Court, determined the alleged oral modification of a contract which required written notice was not enforceable:

… [I]f an oral modification has not “been acted upon to completion” in a manner that “demonstrate[s], objectively, the nature and extent of the modification” … , it will be enforceable only upon a showing “of either partial performance . . ., which must be unequivocally referable to the oral modification, or equitable estoppel, based upon conduct which is not otherwise compatible with the agreement as written” … . * * *

The performance of the parties under [the] purported [oral] arrangement, in other words, was identical to that required under a renewed sales agreement. It cannot, as a result, be said that “there was [any] performance on [plaintiff’s] part that was unequivocally referable to the existence of an oral contract” … . Likewise, inasmuch as the behavior of the parties was “compatible with the agreement as written,” and given the absence of written notice of nonrenewal, there is no basis for estopping defendant from relying upon the agreement as written … . J. Triple S., Inc. v Aero Star Petroleum, Inc., 2016 NY Slip Op 05414, 3rd Dept 7-7-16

 

CONTRACT LAW (ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/ORAL MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)

FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED.

The Third Department determined mother presented sufficient evidence of a change in circumstances to survive father’s motion to dismiss her petition for a custody modification:

Viewed as a whole and accepted as true for this purpose, despite the existence of some apparent contrary evidence, the mother’s proof regarding physical discipline in the father’s household, together with the alleged improvement and stabilization of the mother’s living situation, constituted a change in circumstances sufficient to overcome a motion to dismiss … . The mother thus satisfied her initial burden, and a further and more complete inquiry as to whether a modification of custody is in the best interests of the children is warranted … . Accordingly, we find that Family Court erred in granting the father’s motion to dismiss on this ground.  Matter of Mary BB. v George CC., 2016 NY Slip Op 05406, 3rd Dept 7-7-16

FAMILY LAW (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/MODIFICATION OF CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)

INTERPRETER WAS AN EMPLOYEE.

The Third Department determined a foreign language interpreter (linguist) was an employee of Legal Interpreting Services (LIS) entitled to unemployment insurance benefits:

The record establishes that LIS recruits through advertisements in newspapers and social media. Before adding an individual to its database of available interpreters, LIS recruiters meet with the applicant, review his or her resume, request certain personal identification information and negotiate his or her hourly pay rate. Claimants signed contracts, which set forth rules and regulations governing their conduct when providing translation or interpretation services. Although the principal of LIS testified that the rules and regulations were included at the insistence of certain customers and were merely “suggestions,” the contracts were drafted by an attorney hired by LIS and printed on LIS letterhead and do not indicate that the rules and regulations were merely suggestions.

When clients contacted LIS to request interpretation services, LIS selected a linguist from its database and provided that linguist with the specifics of the assignment, including the languages required and the date, time and location. Linguists were free to accept or decline assignments at their convenience. However, once they accepted an assignment, the linguists were required to notify LIS if they were running late, were unable to complete the assignment or were sending a substitute in their stead. With respect to pay, LIS required the linguists to submit time sheets, billed its clients and paid its linguists prior to receiving payment from those clients. A linguist’s payment was not contingent upon the client’s payment of the bill. Matter of Bin Yuan (Legal Interpreting Servs., Inc.–Commissioner of Labor), 2016 NY Slip Op 05200, 3rd Dept 6-30-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)

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IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT.

The Third Department determined the notice of claim, although “bare bones,” was sufficient under the circumstances because defendant Office of Mental Retardation and Developmental Disabilities (OMRDD) had conducted an investigation into the fire at a residential care facility with caused the death of claimant’s decedent:

Court of Claims Act § 11 (b) “places five specific substantive conditions upon [defendant’s] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed” … . The guiding principle and “purpose of the notice of claim requirement [is] to allow [defendant] to investigate the claim and to estimate its potential liability” … . “‘Absolute exactness'” is not required …, but the claim must enable prompt investigation and be “sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” … . Moreover, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . * * *

Where an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant’s ability to investigate a claim … , nor that defendant has been improperly required to “assemble” information regarding a claim … . Davila v State of New York, 2016 NY Slip Op 04752, 3rd Dept 6-16-16

 

NEGLIGENCE (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/COURT OF CLAIMS (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/NOTICE OF CLAIM (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)

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PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE.

The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:

 

Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …

Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16

 

CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE

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CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED.

The Third Department, reversing County Court, determined plaintiff was not required to file a notice of claim because the action against the city sounded in contract, not tort. Plaintiff alleged the city violated an easement when work was done on plaintiff’s property:

General Municipal Law § 50-e (1) (a) provides that a party seeking to bring a tort action against a municipality must file a notice of claim within 90 days of the date that the claim arises … . A similar provision is contained in Charter of the City of Glens Falls § 10.14.5. The notice of claim provisions of General Municipal Law § 50-e, however, apply only to actions sounding in tort, not to those premised upon breach of contract … . The same is true of City of Glens Falls City Charter § 10.14.5, as its terms make clear. Here, plaintiff’s small claims action is premised upon defendant’s alleged failure to comply with the provisions of the easement agreement resulting in damage to his property in the amount of $5,000. Inasmuch as plaintiff’s action sounds in breach of contract, not tort, the notice of claim provisions of General Municipal Law § 50-e and Charter of the City of Glens Falls § 10.14.5 are inapplicable. Strauss v City of Glens Falls, 2016 NY Slip Op 04750, 3rd Dept 6-16-16

 

MUNICPAL LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/REAL PROPERTY (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/CONTRACT LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/EASEMENTS (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/NOTICE OF CLAIM (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)

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