First Department

Rule of Thumb--Step Away From the Pot

In People v Huertas, 2006 NY Slip Op 06922, the First Department was kind enough to provide those of you who cultivate marijuana some useful tips on how to avoid prosecution for your gardening activities.  Bottom line, find an unwitting friend with a garage able to house the operation and avoid actually entering the garage--especially when the police stumble upon your Garden of Eden. But, feel free to share gardening tips with the curious officers.

From the decision:

Even though defendant conceded that the garage wherein he was arrested was a marijuana-growing operation and that the high intensity lights and other accouterments found in the garage were used for the purpose of growing marijuana...(and) (g)iven that defendant was standing inside the garage entryway when the police entered the garage, the People failed to connect defendant to the marijuana operation, which was located in the two rooms of the garage. "[D]efendant's mere knowledge of the presence of mari[j]uana, without proof that he had the ability and intent to exercise dominion or control over the contraband' (People v Wesley, 73 NY2d 351, 361-362 [1989]), is insufficient to establish constructive possession" (People v Burns, 17 AD3d 709, 711 [2005]).

On behalf of my interested readers, I offer heartfelt thanks to the always helpful First Department for the handy tips.


First Department on Serious Injury

In Hernandez v. Almanzar,  2006 NY Slip Op 06350, the First Department considered the issue of whether the plaintiff in a personal injury case had suffered a "serious injury" within the meaning of the No-Fault Law.  The plaintiff was involved in a car accident in February of 2002 and subsequently filed suit.  Defendants moved for summary judgment alleging that she failed to establish that she'd suffered a serious injury.

The defendants submitted reports from an orthopedist and a neurologist, both of whom, not surprisingly, opined that she had not suffered from a serious injury.  More importantly defendants submitted the plaintiff's deposition testimony in which she testified that she'd been in two additional automobile accidents in 1999 and 2003.

In opposition to the motion, the plaintiff submitted the affirmation of a neurologist dated April 19, 2005 in which he reported "certain alleged range-of-motion deficits due to neck and back injuries he attributed to the February 2002 accident" based upon an examination of the plaintiff. 

Unfortunately, the Court did not note the date of the neurologist's examination of the plaintiff, and it's unclear whether his affirmation included that information.

The Court concluded:

Although Dr. Hausknecht acknowledged that plaintiff had been injured in the October 1999 and January 2003 accidents, he did not explain the basis for his claim that the deficits he allegedly found in April 2005 — more than three years after the subject accident in February 2002 — were proximately caused by that accident, rather than by the October 1999 accident, and were only exacerbated (not caused in the first instance) by the January 2003 accident. Accordingly, plaintiff failed to come forward with evidence sufficient to prove "a serious injury causally related to the [subject] accident" (Pommells v Perez, 4 NY3d 566, 579 [2005] [emphasis added]).

To the extent Dr. Hausknecht's conclusions were based on the unaffirmed reports of plaintiff's treating physicians, such reports do not constitute admissible evidence, and therefore do not suffice to defeat a well-supported summary judgment motion...In any event, such reports, which were created within two months after the February 2002 accident, are not probative of the existence of a permanent injury.

Does anyone else find the Court's  rationale to be confusing? 

Assuming that the neurologist's exam occurred close in time to the preparation of his April 2005 affirmation (and that's a big assumption--I wish the court had been clearer on that issue), based on the facts of this case, it makes sense that the plaintiff's neurologist's affirmation was inadequate in light of the failure to explain why he thought that the 2002 accident was the proximate cause of her injuries.

But, what I find confusing is the latter half of the Court's holding--that the reports by her physicians prepared a few months after the 2002 accident were not probative as to the existence of a permanent injury.  If the information contained in those reports (let's assume they were offered in admissible form) cannot be used to establish that she suffered from an injury at the time of the 2002 accident that ultimately resulted in a permanent limitation in the range of motion for her back and neck, then how is she to prove that her injuries were causally related to the 2002 accident as opposed to one of the other accidents?   

Is a plaintiff who has the bad luck of being in a number of car accidents in a short time effectively prevented from recovering for injuries sustained in any accident under this reasoning?   Or would affidavits from one of those treating physicians who examined her within months of the accident suffice as long as the physician was able to conclude based upon subsequent examinations that the alleged injuries were proximately caused by the 2002 accident?   What if she'd switched physicians and was never examined by those initial physicians again?  Would she then be out of luck?

What evidence should the plaintiff have submitted in order to defeat the motion for summary judgment on the issue of serious injury?  I'm not sure that I know the answer to that, but perhaps I've overlooked an obvious solution.


First Department Invites Legislature to Spring Into Action

People v. Zimmerman, 2006 NY Slip Op 06312 is an interesting case for a number of reasons, not the least of which is the fact that the First Department held that there is no county in New York that would serve as an appropriate venue in which to prosecute the defendant even though the State of New York had jurisdiction to prosecute the defendant.

In this case, the Attorney General was investigating alleged antitrust violations by department stores in New York and examined the defendant under oath in Ohio prior to commencing a civil or criminal action in New York.  The Attorney General then commenced a grand jury proceeding in New York County based on allegations that the defendant lied under oath six times during the examination in Ohio and subsequently obtained an indictment for perjury in the first degree. 

The First Department upheld the trial court's ruling that dismissed the indictment on the grounds that New York County was an inappropriate venue:

Although, as defendant concedes, New York State has jurisdiction to prosecute him pursuant to CPL 20.20(2)(b) based on the "particular effect" that his perjury has on the State, New York County does not.Assuming arguendo that defendant committed perjury based upon the statements he made in Ohio during the course of the New York State Attorney General's investigation, the "particular effect" venue provision would only confer geographical jurisdiction upon New York County if "[s]uch conduct had, or was likely to have, a particular effect upon such county...and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein" (CPL 20.40[2][c]). Criminal conduct constituting an offense has a "particular effect" upon a county when it "produces consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]" (CPL 20.10[4])...

(A)ll that can be reasonably inferred from the facts (in this case) is that at the time he made his statements in Ohio, defendant knew his conduct would have a deleterious effect on the governmental or judicial processes of the State of New York, but not on any particular county.

The Court then noted that under the current statutory scheme, no county in New York State would serve as an appropriate venue:

We find it perplexing that under the particular circumstances of this case, where the State of New York has jurisdiction to prosecute defendant, there is no county in the entire state which would serve as an appropriate venue under the current statutory scheme...(T)here should be a statute which directs a prosecutor to an appropriate county for venue purposes. We would invite the Legislature to consider amending the statute to accomplish this goal.

What's all this talk I hear about judges legislating from the bench?  Not in New York!  No sir!  Rather, we simply extend polite invitations for our oh-so-efficient legislature to spring into action.  I wonder if they'll get around to it before the statute of limitations for perjury expires.  I don't know about you, but I'm not holding my breath.

But, on the bright side, a victory for the defense is a victory for the defense, statutory loopholes notwithstanding.


He Probably Should Have Kept His Mouth Shut

I came across an interesting First Department case yesterday while conducting research for a client: Matter of Caruso v. Wetzel, 2006 NY Slip Op 05895. 

During voir dire for a kidnapping case, a juror, the petitioner in this Article 78 proceeding, decided to speak his mind, no holds barred:

[PETITIONER]: I'm not going to be fair and impartial in this case. I have been held up three times at gunpoint. One time almost identical, sir, to this.

THE COURT: You would judge the case on what happened to you even if you were satisfied he was not guilty, you would vote on what happened to you, right?

[PETITIONER]: I am already looking at him, I think he is a "scumbag."

THE COURT: First of all, that is an insult not only to him, . . . to me, and the other people in the room. What do you do [for] a living?

[PETITIONER]: What does that matter?

As a result of his conduct, the following occurred:

When petitioner failed to respond, the court said, "Put down not served." When petitioner asked, "What do you mean not served?" the court directed him to "[j]ust leave the room." At that point, petitioner left his seat and approached the bench. After twice being ordered by a court officer to step out, petitioner, at the court's direction, was escorted from the courtroom. At 3:30 that afternoon, petitioner returned to the courtroom, at the court's direction, at which time he was ordered to return the next morning to show cause why he should not be held in criminal contempt pursuant to Judiciary Law § 750(A)(1)....

The next day, petitioner appeared, accompanied by counsel...Petitioner himself addressed the court and stated that in "hindsight," he should not have used "that choice of words" and that he had not intended to be disruptive.

The court found petitioner in contempt....(and)imposed a fine of $1000 and issued an order "Punishing Contempt Summarily" pursuant to Judiciary Law § 750(A)(1).

Unfortunately for the petitioner, the First Department agreed with trial court and upheld the finding of contempt and the fine.  Of particular interest to me was the Court's rejection of the petitioner's argument that to uphold the contempt finding would violate public policy since it would discourage potential jurors from speaking honestly and would risk subjecting those who were inarticulate to being found in contempt.  The Court stated:

This is abject nonsense. As the court stated in imposing sentence on petitioner, this proceeding(:) is most definitely not about a juror being candid, open or honest [or a]bout his ability to be fair and impartial. It is about an insulting, demeaning invective spewed at a defendant. It is an affront to our criminal justice system. . . . [T]o allow prospective jurors or anyone else to verbally debase a defendant on trial is in absolute conflict with our cherished constitutional beliefs and the presumption of innocence and the right to a fair trial. (Emphasis added.)

I love the highlighted language, especially since it came from an appellate court.   And, I completely agree with the Court's decision. 

I do, however, feel ever-so-slightly bad for the petitioner.  He clearly had no idea what he was getting himself into when he decided to shoot off his mouth.  I suppose he'll just have to consider a lesson learned--the hard way.


1st Department Holds Assumption of the Risk Applies to "Experienced Cyclist"

In DeJesus v. City of New York, 2006 NY Slip Op 03970, the plaintiff alleged that the pedestrian walkway and/or the curb was "broken", thus causing the bicycle accident that resulted in his injuries.  The First Department concluded that assumption of the risk applied to bar the claim, and that even if that doctrine did not apply, the plaintiff failed to raise an issue of fact as to the existence of a dangerous condition.  The Court held that:

The...plaintiff, an experienced cyclist, should have realized that certain risks, including having to swerve to avoid a pedestrian or that his tire might come in contact with the abutting curb, causing him to fall, were inherent in riding a bike on a pedestrian-only cement walkway and are not dangers over and above the usual dangers associated with bicycle riding in an urban area.  (Emphasis added).

After reading the above summary of this case, would it surprise you at all to learn that the plaintiff was 14 years old?   It surprised me.  When I think of an "experienced cyclist",  Lance Armstrong comes to mind, not a 14 year old boy. 

I don't think that the plaintiff's age should change the outcome of this case, and can readily think of situations in which a 14 year old boy could have enough bike riding experience to trigger the doctrine of assumption of the risk.  Nevertheless, I found the Court's characterization of that particular fact to be a bit strange.


Two Interesting First Department Cases

I came across two interesting, albeit short, First Department cases that were handed down yesterday.

In People v. Chiddick, 2006 NY Slip Op 03806, the Court held that a bite wound was sufficient to support an assault in the second degree conviction.  The Court stated that:

The element of physical injury was established by evidence supporting the conclusion that the victim's bite wound caused him an impairment of physical condition and substantial pain over a period of nearly a week (see People v Guidice, 83 NY2d 630, 636 [1994]), an injury far outside the realm of "petty slaps, shoves, kicks, and the like . . ." (Matter of Philip A., 49 NY2d 198, 200 [1980]).

It's unfortunate that the Court didn't provide the underlying facts regarding how the bite affected the victim.  Nevertheless, I was a bit surprised by the Court's conclusion.  That must have been a hell of a bite, or else it must have been in a strange location.

Another case that surprised me a bit was Pappalardi v. Jones, 2006 NY Slip Op 03818.  In this short decision, the Court held that:

It cannot be said that defendant driver's conduct was the sole proximate cause of the accident, as a matter of law, merely because his approach into the intersection was regulated by a stop sign whereas there were no traffic control devices regulating plaintiff's approach (Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381 [2003]). The conflicting deposition testimony raises issues of fact, including whether defendant stopped for a stop sign, whether defendant driver's vehicle was already in the intersection when plaintiff approached and whether plaintiff's view of defendant's vehicle was obstructed.

I've run into this issue on a number of occasions in cases that I've handled.  It seems to me that unless the driver that had no traffic control device was driving unusually recklessly, that there should be no issue of fact and it's simply an issue of law to be determined by the Court. Although all drivers have an obligation to see what should have been seen, the driver who is actually faced with a traffic control device, in this case, a stop sign, is obligated to ensure that the intersection is clear prior to  proceeding into it.  Absent extremely unusual circumstances,the failure to do so, in my opinion, constitutes negligence as a matter of law.

I don't think that any of the factors identified by the Court in the last sentence quoted above would have any effect on the issue of whether the defendant was solely negligent in this situation.