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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT).

The Third Department determined burglary as a sexually motivated felony is not a registrable offense under SORA:

… [W]e agree with defendant, as well as the People’s concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a “[s]ex offense” pursuant to Correction Law § 168-a (2) (a) … .

… [T]he judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee … . People v Vakhoula, 2023 NY Slip Op 02034, Third Dept 4-20-23

Practice Point: Burglary as a sexually motivated felony is not a registrable offense under SORA. Conviction does not require registration as a sex offender.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of defendant’s murder first degree convictions:

… [W]e agree with defendant’s contention that his convictions for second degree murder (counts 2 and 3) must be dismissed as inclusory concurrent counts of his convictions for murder in the first degree (counts 7, 8 and 9) (see CPL 300.40 [3] [b]). People v Burton, 2023 NY Slip Op 01919, Third Dept 4-13-23

Practice Point: Here the murder second degree convictions were reversed as inclusory concurrent counts of the murder first degree convictions.

 

THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department, reversing defendant’s criminal mischief conviction, determined the underlying statute includes an exception which must be affirmatively pleaded. The exception was not affirmatively pleaded in the Superior Court Information (SCI):

“In order to determine whether a statute defining a crime contains an exception that must be affirmatively pleaded as an element in the accusatory instrument or a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial, a court must look to the language of the statute itself” … . To that end, “legislative intent to create an exception that must be affirmatively pleaded has generally been found when the language of exclusion is contained entirely within a Penal Law provision” … . Penal Law § 145.05 (2) provides that “[a] person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . damages property of another person in an amount exceeding [$250]” … . Inasmuch as the qualifying language is contained within the statute itself, we agree that such language constitutes an exception. Given that count 1 of the 2016 SCI did not allege that defendant had neither a right to cause the property damage at issue nor a reasonable ground to believe that she had such right, that count — charging defendant with criminal mischief in the third degree — is jurisdictionally defective … . People v West, 2023 NY Slip Op 01921, Third Dept 4-13-23

Practice Point: If a criminal statute includes language which is deemed an “exception,” the exception must be affirmatively pled. The failure to affirmatively plead an exception renders the count jurisdictionally defective.

 

PETITIONER POLICE OFFICER WAS AWARE OF THE DEFECT IN THE FLOOR WHICH CAUSED HIS CHAIR TO START TO TIP OVER BACKWARDS WHEN THE WHEELS CAUGHT IN THE DEFECT; THEREFORE THE INCIDENT WAS NOT UNEXPECTED AND PETITIONER WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a dissent, determined petitioner police officer was not entitled to accidental disability benefits for injuries incurred at his desk when he prevented himself from falling over backwards in his chair. When he attempted to roll the chair backwards it caught in a rut and petitioner was injured when he grabbed at a desk to keep from tipping over backwards:

Petitioner acknowledged that he was aware that the flooring at the front desk was in poor condition and that, both on previous occasions and prior to the incident that day, he had observed that there were two ruts in the flooring right behind the desk. Petitioner also testified that, in his estimation, the ruts were “three inches across, maybe a little more.” His testimony also demonstrates that he was aware that the chair he was utilizing that day had wheels and that, when sitting at the desk, those wheels would be in the “general area” of the holes. Given this testimony and the photographs of the floor that were admitted, respondent’s finding that petitioner could have reasonably anticipated the hazard — i.e., that the small wheels catching a depression in the floor would cause the chair to tip — was reasonable and supported by substantial evidence, despite other reasonable interpretations. Therefore, the finding that the precipitating event was not unexpected and did not constitute an accident within the meaning of the Retirement and Social Security Law will not be disturbed … . Matter of Bodenmiller v DiNapoli, 2023 NY Slip Op 01930, Third Dept 4-13-23

Practice Point: To constitute an accident under the Retirement and Social Security Law, the incident must be “unexpected.” Here petitioner was aware of the floor-defect which cause his chair to start tipping over backwards when the wheels caught in the defect. Therefore the incident was not “unexpected” within the meaning of the applicable law.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).

The Third Department determined defendant was not required to register as a sex offender because the offense to which he pled guilty, burglary as a sexually motivated felony, is not one of offenses to which SORA applies. In addition, the Third Department held defendant’s waiver of appeal was invalid:

… [W]e agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as “[s]ex offense[s]” pursuant to Correction Law § 168-a (2) … . As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA … . …

During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing “any argument” that defendant might take to a higher court … . The written waiver, in turn, states that “[i]t is [defendant’s] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case.” Although the written appeal waiver also includes qualifying language limiting its application “to all legal issues that can be waived under the law[,]” and the court confirmed that defendant had discussed the waiver with counsel … , we find that the “totality of the circumstances” presented here fails to confirm that defendant understood that some appellate review would survive the waiver … . People v Winter, 2023 NY Slip Op 01820, Third Dept 4-6-23

Practice Point: A defendant may not be required to register as a sex offender if convicted of a crime not listed in the Correction Law. Burglary as a sexually motivated felony is not listed.

Practice Point: The failure to inform the defendant that, despite the waiver of appeal, certain issues remain appealable, renders the waiver of appeal invalid.

 

THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT).

The Third Department, dismissing the superior court information, noted the record did not indicate the waiver of indictment was signed in open court, which is a jurisdictional defect:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” provided that “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court and contains a written waiver of indictment bearing the date of that appearance, which defendant and defense counsel acknowledged signing, the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . Moreover, neither the written waiver of indictment, to which the District Attorney executed consent … , nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court … . In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Camlin, 2023 NY Slip Op 01821, Third Dept 4-6-23

Practice Point: If the record does indicate the waiver of indictment was signed in open court, the superior court information will be dismissed.

 

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THE THIRD DEPARTMENT, REVERSING THE NEGLECT FINDINGS AGAINST MOTHER, DETERMINED THE SYSTEM FAILED MOTHER WHO WAS DEALING WITH EXTREMELY DIFFICULT CIRCUMSTANCES AND WHO WAS UNSUCCESSFULLY SEEKING HELP FROM PETITIONER FROM THE OUTSET; EVEN THE APPEALS PROCESS FAILED HER BECAUSE IT TOOK TOO LONG (THIRD DEPT). ​

The Third Department, reversing Family Court’s neglect findings, noted that mother was dealing with extremely difficult circumstances, including an abusive and violent father, and, from the outset, was desperately seeking assistance from the petitioner (the county department of social services) which was not provided. The Third Department noted that the appeal should have been brought much sooner, and the failure to do so may have resulted in the unjustified separation of mother from her children for years. In the words of the court: “it … appears that we have failed to address the pressing needs of this family, and the children, at each step:”

An adjudication of neglect based upon emotional impairment must include a determination “that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care” … .  As the oldest child’s emotional difficulties are, at least to some great extent, properly attributed to the trauma he experienced [father beating mother], rather than any failing of the mother, his condition does not support the neglect finding. Family Court further concluded that the other two children were neglected because the oldest child’s behaviors presented a risk to his siblings’ physical well-being. However, at no point did petitioner proffer evidence that either of the younger siblings had been injured by the oldest child, nor is there any evidence that such physical harm was imminent; at most, this conclusion is premised upon possible future harm, which is insufficient to support an adjudication of neglect … .

… [W]hile leaving children unattended, even for a brief period, can constitute a failure to exercise a minimum degree of parental care under certain circumstances … , it does not amount to neglect in all cases, even in certain circumstances where the unattended child is accidentally injured … . Here, considering the surrounding circumstances, we do not find that the evidence revealed such a failure. Nor will we fault the mother for her inability to control all three young children while attending to their various needs — as was the case in the incidents where the youngest child was left in a foam infant seat on a table and where the two older children ran outside of the shelter — or while taking care of necessary chores — as was the case in the incident where the youngest child fell out of a baby carriage. In our view, the mother’s conduct during these alleged incidents of neglect did not fall below a minimum degree of parental [*4]care; nor were the children physically impaired, and it was not demonstrated that any sort of impairment was imminent … . Matter of Alachi I. (Shelby J.), 2023 NY Slip Op 01822, Third Dept 4-6-23

Practice Point: Here mother was dealing with an abusive, violent father and an older child who was difficult to control. She unsuccessfully sought assistance from the social services department from the outset. The Third Department determined the neglect findings based upon the behavior of the older child were baseless and the instances where children were briefly unattended did not amount to neglect. Even the appeals process failed mother because it took years, which necessarily affected her ability to stay connected with her children.

 

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THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER MADE A LEFT TURN INTO TO THE PATH OF DEFENDANT’S ONCOMING CAR WITHOUT CHECKING FOR ONCOMING TRAFFIC; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this traffic accident case should have been granted. The driver of the car in which plaintiff was a passenger attempted a left turn in front of defendant’s vehicle without checking for oncoming traffic:

On this record, defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that Ryan failed to yield the right-of-way and turned directly into the path of his vehicle … . Thus, the burden shifted to plaintiff to demonstrate a triable issue of fact on the issue of defendant’s comparative fault. Plaintiff failed to do so. Ohl v Smith, 2023 NY Slip Op 01823, Third Dept 4-6-23

Practice Point: The driver of the car in which plaintiff was a passenger made a left turn into the path of defendant’s car without checking for oncoming traffic. There was no evidence of comparative fault on defendant’s part. Defendant’s motion for summary judgment should have been granted.

 

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ALTHOUGH PLAINTIFF SIGNED A RELEASE AND WAIVER OF LIABILITY BEFORE ATTENDING THE DEMOLITION DERBY, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT UNREASONABLY INCREASED THE RISK BY FAILING TO INSTALL SUFFICIENT BARRIERS TO PROTECT SPECTATORS FROM THE VEHICLES IN THE DERBY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff raised a question of fact whether defendant unreasonably increased the risk of injury at a demolition derby by failing to install sufficient barriers to protect the public from injury. Here one of the cars in the derby pushed through the concrete barriers and injured the plaintiff:

The issue … distills to whether plaintiff’s submissions “demonstrate[d] facts from which it could be concluded that defendant unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity” … . To that end, in his opposition to the motion, plaintiff submitted an affidavit averring that he was not warned that there was a risk that participating vehicles could break through the barricade and strike spectators. Plaintiff also proffered the expert affidavit of Russell E. Darnell, a licensed engineering contractor and certified National Institute of Automotive Service Excellence master technician who holds several racing licenses. … Darnell opined, among other things, that these barriers “were not up to the standard of the industry and are not generally accepted within the demolition derby community which requires sturdy, immovable barricades in a protective ring.” Waite v County of Clinton, N.Y., 2023 NY Slip Op 01831, Third Dept 4-6-23

Practice Point: The assumption-of-the-risk doctrine will not apply if the defendant unreasonably increased the risks associated with the activity. Here plaintiff raised a question fact whether the risk to spectators at a demolition derby was increased by the failure to install sufficient barriers between the spectators and the derby vehicles.

 

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