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THE GRAND JURY EVIDENCE SUPPORTED THE INDICTMENT COUNTS CHARGING DEFENDANT STATE TROOPER WITH “DEPRAVED INDIFFERENCE” CRIMES STEMMING FROM HIGH-SPEED CHASES OF PURPORTED SPEEDERS WHICH RESULTED IN CRASHES AND THE DEATH OF A CHILD; THERE WAS A COMPREHENSIVE DISSENT WHICH ARGUED THE CRITERIA FOR “DEPRAVED INDIFFERENCE” WERE NOT MET (THIRD DEPT).

The Third Department, over a dissent, reversed County Court and reinstated the depraved indifference murder and first-degree reckless endangerment (which also requires “depraved indifference”) counts. County Court, after reviewing the grand jury evidence, had dismissed the depraved indifference murder count and reduced the first-degree reckless endangerment counts to second degree reckless endangerment. The charges against defendant, a State trooper, stemmed from two separate high-speed chases, about a year apart, which resulted in crashes and the death of an 11-year-old passenger. The chases began because the drivers were allegedly speeding on a highway. In one instance the driver stopped, but fled when defendant allegedly pepper-sprayed everyone in the car, including the 11-year-old. Both the majority and the dissent focused on detailed versions of the events which cannot be fairly summarized here. As an example:

The grand jury heard from witnesses that, around 11:40 p.m., defendant was “see[ing] if he could get one last ticket” before meeting his partner when he stopped an SUV for speeding. The SUV pulled over, and, as told by Tristin Goods, who was driving the SUV, along with Goods’ wife, who was seated in the front passenger seat, defendant began the traffic stop by angrily and profanely accusing Goods of traveling over 100 miles per hour. An argument between defendant and Goods ensued in front of Goods’ wife and two children, who tried to calm him. Witnesses testified that, after defendant stepped away upon Goods’ request to summon a supervisor, defendant returned and, without warning or provocation, pepper-sprayed the passenger cabin of the SUV, and Goods’ wife and two children began screaming in pain. Goods, who had shielded his eyes from the spray, fled the traffic stop; in the commotion, defendant’s pepper spray canister ended up inside the passenger cabin of the SUV.

Defendant radioed that the SUV was “taking off” with his pepper spray. According to the grand jury record, defendant pursued and caught up to the SUV and, without activating his siren, intentionally rammed the back of the SUV at 130 miles per hour. Defendant radioed dispatch, however, that the SUV had “just f***ing rammed me.” The collision caused the SUV to fishtail, and pieces of it fell onto the road. The SUV continued on, so defendant intentionally rammed the back of the SUV again, this time at 100 miles per hour. Defendant radioed dispatch that the SUV “rammed me again.”

The second collision caused Goods to lose control of the SUV, and the SUV flipped over, coming to a stop upside down in the grass next to the Thruway with Goods, his wife and two children inside. Defendant, seeing this, radioed that a car was overturned.[FN1] Testimony established that defendant drew his gun, instructed the occupants of the SUV to put their hands out of the windows and asked repeatedly whether they possessed weapons or drugs. Defendant did not inquire if anyone inside was injured in the crash and, when Goods’ 11-year-old child could not be located, defendant did not assist him in looking for her. According to Goods, who had sustained arm, hand and head injuries, defendant “did not care.” The child was later found pinned inside the wreck of the SUV, having already died from severe injuries sustained in the accident. People v Baldner, 2024 NY Slip Op 04495, Third Dept 9-19-24

Practice Point: This is a detailed, fact-specific decision, with an extensive fact-specific dissent, which should be consulted re: the legal sufficiency of evidence of a “depraved indifference” state of mind (at the grand jury stage).

 

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THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential:

… [T]he record is devoid of any indication that the parties are unable to effectively communicate to meet the child’s needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate … . As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order … . …

… [P]arenting time with a noncustodial parent is presumed to be in a child’s best interests, and Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare … . The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error requires reversal … .

… [W]e take this opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value …, and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . … [I]nformation shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, [but] such considerations must remain silent to ensure that the child’s right to confidentiality is protected” … . Matter of C.M. v Z.N., 2024 NY Slip Op 04427, Third Dept 9-12-24

Practice Point: Here the court noted there was no proof the parents could not communicate to meet the child’s needs and, therefore, the record did not support the award of sole custody to father.

Practice Point: A parenting-time schedule must be crafted by the judge and not left up to the agreement of the parties.

Practice Point: A child’s testimony in a Lincoln hearing has no independent evidentiary value and must not be revealed.

 

ROBERT F KENNEDY, JR’S NOMINATING PETITION DECLARED INVALID (THIRD DEPT).

The Third Department determined that the nominating petition for presidential candidate Robert F. Kennedy, Jr. of the We the People Party was properly declared invalid because the New York residency requirement was not met. The address Kennedy listed as his New York residence was a friend’s home where Kennedy stayed one night:

… [B]oth Kennedy and the friend testified that Kennedy spent only one night at the Katonah home, in June 2024, approximately one month after his nominating petition was filed and two weeks after petitioners commenced this proceeding. Matter of Cartwright v Kennedy, 2024 NY Slip Op 04354, Third Dept 8-29-24

Practice Point: Here 2024 presidential candidate Robert F. Kennedy, Jr’s. nominating petition was declared invalid because the New York residency requirement was not met.

 

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ALTHOUGH THE SEXUAL ABUSE COUNT WAS FACIALLY VALID, THE VICTIM’S TESTIMONY RENDERED THE COUNT DUPLICITIOUS, REQUIRING REVERSAL ON THAT COUNT (THIRD DEPT).

The Third Department, reversing defendant’s conviction of one count of sexual abuse, determined, although the count was facially valid, it was rendered duplicitous by the victim’s testimony:

The evidence relative to these charges derived mostly from the victim’s trial testimony, wherein she revealed that she and defendant lived in the same household during the relevant time frame and he touched her inappropriately on several occasions while in the basement of the residence. With respect to count 2, when asked on direct examination whether defendant had his clothes on, the victim answered that he would “sometimes . . . take off his shirt” and “sometimes he would have no shirt on at all” … . The prosecutor then asked the victim whether she remembered “more than one time that [defendant] didn’t have a shirt on” and she stated: “I remember one time that he did not have his shirt on.” On cross-examination, defense counsel asked the victim whether it was true that there were multiple times defendant “took his shirt off,” to which she responded in the affirmative. She then explained that “[i]t was at least two” times and repeated this again when confronted with the fact that, during her grand jury testimony, she stated that defendant had taken his shirt off only once, clarifying that she “meant to say two.”

… Where, as here, “trial testimony provides evidence of repeated acts that cannot be individually related to specific counts in the indictment, the prohibition against duplicitousness has been violated” … . People v McNealy, 2024 NY Slip Op 04230, Third Dept 8-15-24

Practice Point: Where an indictment court charges one incident and the trial testimony indicates there were multiple similar incidents, it is impossible to tell whether the jury was unanimous in convicting under that count. The count was rendered duplicitous by the trial testimony, requiring reversal. 

 

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HERE THE COMPLAINT STATED A CHILD-VICTIMS-ACT CAUSE OF ACTION AGAINST THE STATE; THE STATE ASSUMES A DUTY OF PROTECTION AGAINST HARM FOR A CHILD IN ITS CUSTODY; THE COMPLAINT WAS NOT DEFECTIVE FOR FAILURE TO ALLEGE THE STATE OWED PLAINTIFF A SPECIAL DUTY, OVER AND ABOVE THAT OWED THE GENERAL PUBLIC (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, over a concurrence, determined the complaint in this Child Victims Act action alleging sexual abuse while under the care of the state should not have been dismissed. The issue was whether the complaint must allege a special duty owed by the government to the plaintiff. The Third Department found that a special duty need not be alleged to survive a motion to dismiss under the facts alleged:

A cause of action for negligence requires proof that defendant owed the claimant a legally recognized duty, that “defendant breached that duty and that such breach was a proximate cause of an injury suffered by the [claimant]” … . That said, “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . “A special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” … . Claimant does not dispute that he has not pleaded one of those three bases for a special duty, instead contending that he was not required to so plead because he was in OCFS’s [Office of Children’s and Family Services’] custody.

We agree. Mindful that our review requires us to determine “whether the alleged facts fit within any cognizable legal theory” … , claimant’s failure to plead a special duty is not fatal to the extent his claim alleges negligence in the performance of obligations stemming from OCFS’s custody of him during his placement at the Schenectady facility … . When a government entity assumes custody of a person, thus diminishing that person’s ability to self-protect or access those usually charged with such protection, that entity owes to that person a duty of protection against harms that are reasonably foreseeable under the circumstances … . The duty of protection is coextensive with the entity’s “physical custody of and control” of the person, terminating at the point the person passes out of the “orbit of [the entity’s] authority” … . Thus, we have held that “[a] governmental foster care agency is under a duty to adequately supervise the children in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” including “negligence in the selection of foster parents and in supervision of the foster home” … . A.J. v State of New York, 2024 NY Slip Op 04231, Third Dept 8-15-24

Practice Point; When the state assumes custody of a child, it owes the child a duty of protection against harm. Under the facts of this case, the plaintiff was not required to alleged the state owed a special duty to the plaintiff.

 

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HERE TWO DISSENTERS ARGUED THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS THAT THE PROSECUTOR’S RACE-NEUTRAL REASONS FOR PEREMPTORY CHALLENGES WERE NON-PRETEXTUAL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied Batson challenges to the prosecutor’s peremptory challenges:

From the dissent:

Although trial courts are permitted to implicitly determine that the race-neutral explanations offered by the prosecutor are not pretextual … , we find that the language utilized by County Court cannot be construed as making an implicit determination. County Court did not state that it believed the race-neutral reasons offered by the prosecutor; instead, the court indicated that it “believe[d] there’s a race-neutral reason . . . which would permit a . . . peremptory challenge by the People, not subject to Batson.” This language demonstrates that the court only considered whether the People had proffered a race-neutral reason and not whether the race-neutral reason was pretextual as required under the third step of the Batson inquiry, despite defendant’s arguments to this effect … . People v Morgan, 2024 NY Slip Op 04165, Third Dept 8-8-24

Practice Point: As part of a Batson juror challenge, the judge must determine whether the race-neutral reasons for a peremptory challenge are genuine (non-pretextual). Here two dissenters argued the judge did not make that determination.​

 

THE COMMISSIONER OF TEMPORARY AND DISABILITY ASSISTANCE CAN RECOUP MONEY PAID TO A SSI-BENEFIT-APPLICANT UNDER A WORK EXPERIENCE PROGRAM (WEP) DURING THE PERIOD THE APPLICANT IS AWAITING SSI-BENEFIT APPROVAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Commissioner of Temporary and Disability Assistance can seek reimbursement of income earned in a work experience program (WEP) while awaiting approval of Supplemental Security Income (SSI) benefits:

… [T]he Commissioner offers the example of an individual who receives $14,000 in interim assistance while waiting 28 months for the Social Security Administration to render a determination on his or her SSI application. The interim assistance recipient performs unpaid work under a WEP during that period and would have received $11,200 had a minimum wage been paid for that work. The SSI application is then approved and an initial lump sum retroactive payment of $16,800 is made, at which point the State seeks and obtains reimbursement for the $14,000 in interim assistance benefits. The benefits recipient has received $14,000 in interim assistance benefits for the 28-month pendency of the SSI application — an amount that includes the value of his or her work — and retains that money. The only effect of the recoupment upon the recipient is to reduce the retroactive SSI payment to account for the duplicative interim assistance payments for those 28 months, preventing the recipient from “double dipping” and receiving both interim assistance benefits and SSI benefits during that period.

The Commissioner’s logic is compelling and, as it comports with the statutory framework, we reverse. Matter of Andersen v Hein, 2024 NY Slip Op 04167, Third Dept 8-8-24

 

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THE LEASE FOR THE LAND WHERE PLAINTIFF PLANTED CROPS HAD A MUTUAL 90-DAY TERMINATION PROVISION WHICH DEFENDANTS EXERCISED; DEFENDANTS THEN DESTROYED THE CROPS MONTHS BEFORE THEY COULD BE HARVESTED; PLAINTIFFS’ COMPLAINT STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND CONVERSION BASED UPON THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AND THE THEORY OF EMBLEMENTS (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Pritzker, over a partial dissent, determined the complaint stated causes of action for breach of contract and conversion. Plaintiffs leased land from defendants to grow crops. There was a provision in the lease allowing termination upon 90 days notice. Plaintiffs alleged they planted crops in the fall of 2019 which could not be harvested until the fall of 2020. Defendants elected to terminate the contract effective May 2020. In May 2020 defendants entered the land and destroyed the crops with herbicide: The Third Department found that the implied covenant of good faith and fair dealing and the theory of emblements should be harmonized with the termination provision:

… [T]he purpose of the lease agreement was clear and, since both parties were aware that the land was to be used to seed, maintain and harvest the crops[*3], defendants were under a contractual duty to allow plaintiffs to fulfill this purpose under the implied covenant of good faith and fair dealing … . Against this backdrop, both parties had the express right to terminate the lease agreement with 90 days’ notice. Therefore, plaintiffs’ right of possession would extinguish upon rightful termination and, as such, without an express or implied obligation, plaintiffs would be unable to recover on a breach of contract theory … . However, given the nature of the agricultural lease agreement, the implied covenant of good faith and fair dealing and the theory of emblements must be harmonized with the mutual termination provision. * * *

… [G]iven the purpose of the lease agreement as well as the early termination provision, the doctrine of emblements created an implied contractual term granting plaintiffs a right of reentry to harvest their crops in the event that defendants exercised the early termination provision. * * *

… [P]laintiffs have adequately alleged a possessory interest in the … crops because, under the doctrine of emblements, they retained a right to harvest and take away those crops after defendants terminated their tenancy early … . Together with plaintiffs’ allegation that defendants destroyed the cereal crops, plaintiffs’ conversion cause of action was improperly dismissed … . Van Amburgh v Boadle, 2024 NY Slip Op 04168, Third Dept 8-8-24

Practice Point: Here, although the land-lease for crop-growing included a mutual 90-day termination provision, the exercise of the termination provision must be harmonized with the implied covenant of good faith and fair dealing and the theory of emblements. Because defendants terminated the lease before plaintiffs could harvest the crops, the complaint stated causes of action for breach of contract and conversion.​

 

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A SORA RISK LEVEL ASSESSMENT SHOULD INCLUDE THE POTENTIAL FOR REHABILITATION; HERE PSYCHOLOGICAL EVIDENCE AND EVIDENCE OF FAMILY SUPPORT WARRANTED A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reducing defendant’s SORA risk level from two to one, in a full-fledged opinion by Justice Garry, over an extensive dissent, determined the psychological evidence, evidence of family support, and evidence of defendant’s long-term relationships warranted the downward departure. The nature and weight of the psychological evidence, including test results, is discussed in depth:

Defendant attended college in New Hampshire but left early and did not graduate as a result of grief stemming from the loss of multiple family members. He thereafter remained in New Hampshire and worked as a soccer coach at a local high school. In 2019, defendant cultivated a short-term sexual relationship with a 14-year-old student whom he was coaching; alcohol was involved. He ultimately pleaded guilty in New Hampshire to four counts of felonious sexual assault, and misdemeanor charges related to the provision of alcohol. * * *

The potential for rehabilitation should be recognized and considered in judicial review and imposition of SORA restrictions. As has been stated, “our application of SORA and its [g]uidelines holds the promise of the recognition of rehabilitation so as to incentivize a sex offender to achieve that which this defendant has achieved” … ; this quote applies in full measure here. Through his submission of multiple psychometric test results, expert opinions and expressions of familial support, defendant has demonstrated the presence of multiple mitigating factors not considered by the guidelines. The totality of the circumstances indicate defendant poses a low risk of reoffending. Thus, in the exercise of our independent discretion, to avoid imposing lifetime and very public restrictions of a risk level two offender upon this young defendant (see Correction Law §§ 168-h [1]-[2]; 168-i; 168-l [6] [a]-[b]; 168-q [1]), we grant his motion for a downward departure and classify him as a risk level one sex offender subject to the applicable restrictions, for the requisite 20-year period … . Essentially, where we depart from the dissent is in our willingness to more fully consider the degree of evidence of rehabilitation and the resulting diminished potential for future criminal conduct. People v Waterbury, 2024 NY Slip Op 04169, Third Dept 8-8-24

​Practice Point: Here defendant presented expert psychological testimony, the results of psychological tests and evidence of strong family support at the SORA risk-level-assessment hearing. On appeal the Third Department found the evidence should have been considered by the SORA court because it demonstrated a potential for rehabilitation.

 

TWO DISSENTERS ARGUED DEFENDANT WAS ENTITLED TO RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied defendant’s request to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA). Defendant pled guilty to manslaughter after her murder and assault convictions were vacated on appeal. She had been in an intimate relationship with the man she killed for a little more than a year:

From the dissent:

Pursuant to Penal Law § 60.12, a court may impose an alternative sentence under the DVSJA when a defendant has established by a preponderance of the evidence following a hearing that “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh” … . At such a hearing, “the court shall consider oral and written arguments, take testimony from witnesses offered by either party, and consider relevant evidence to assist in making its determination” … . “Reliable hearsay shall be admissible at such hearings” … . “The court may consider any fact or circumstances relevant to the imposition of a new sentence which are submitted by the applicant or the district attorney,” including “the institutional record of confinement of such person” … . “The court’s consideration of the institutional record of confinement of such applicant shall include, but not be limited to, such applicant’s participation in or willingness to participate in programming such as domestic violence, parenting and substance abuse treatment while incarcerated and such applicant’s disciplinary history” … . * * *

… [D]efendant explained that she and the victim had been in a relationship for a little [*8]over a year at the time of the subject incident. Around seven months into their relationship, the victim — who was 65 years old while defendant was 28 — became verbally, sexually and physically abusive. Defendant, who was financially dependent on the victim, detailed “almost daily” acts of violence perpetrated against her during their relationship, including threats to her life and instances in which the victim “slam[med] his fist into the side of [her]head,” “s[u]nk his nails into [her],” punched her, slapped her and scratched her. Defendant also testified that the victim bragged about having previously killed someone, sexually assaulted her while she was bound with a rope and drugged her with hallucinogens. In other statements contained in the record, defendant recounted the victim telling her: “I own you” and “If you leave, I’ll kill you.” He also attempted to control her weight and isolated her from friends and family, taking away her vehicle and phone and leaving her alone for “days on end” at the camp where they resided. She further explained that October 2013 — the month before the incident — was the worst month she had ever experienced in her entire relationship. As for defendant’s assertion that the victim isolated her, defendant’s mother confirmed that, for almost a year before the subject incident, there had been “no communication between [defendant] and her.”

Defendant also presented independent corroborative evidence in this regard … . * * *

A resentencing under CPL 440.47 is warranted. People v Angela VV., 2024 NY Slip Op 03851, Third Dept 7-18-24

​Practice Point: CPL 60.12 allows a reduced sentence for defendants who suffered domestic violence at the hands of the victim, criteria explained.

 

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