People v. Enrique

This appealed addressed whether an ex-girlfriend’s testimony should be allowed for the Respondent at a pre-release hearing to determine whether he suffered from a mental abnormality. Respondent was nearing the end of his prison term for attempted sexual abuse in the first degree when the State commenced a civil management proceeding pursuant to New York Mental Hygiene Law article 10, requiring civil commitment or supervision for sex offenders. At the jury trial,

Respondent’s attorney attempted to call Naomi N.—his ex-girlfriend—to testify whether he ever offended against her in any way. Respondent’s attorney argued that the testimony was relevant as to whether he satisfied the second component a mental abnormality finding: inability to control oneself.

The trial court denied the request to call Naomi N. as a witness but stated that Respondent’s expert could testify as to any information provided by the ex-girlfriend so long as that information contributed to the expert’s diagnosis and opinion. Later, upon a second motion to allow Naomi N. to testify, the trial judge again denied the request. Following a dispositional hearing, the supreme court found that Respondent was a dangerous sex offender and was in need of confinement. The appellate division affirmed the supreme court’s decision, stating that the supreme court had not committed reversible error in denying the request to allow Naomi N. to provide witness testimony at trial.

The Court of Appeals reversed this decision and found that the supreme court abused its discretion by prohibiting Naomi N. from testifying. New York Mental Hygiene Law section 10.08(g) provides that a respondent in an article 10 proceeding may testify on his own behalf, call and examine other witnesses, and produce other evidence on his behalf. According to the Court, the relevant issue was whether Naomi N. had material and relevant evidence to offer on the question before the trial court. The Court found that Naomi N.’s testimony was relevant to the expert’s diagnosis of paraphilia NOS—non-consent. With respect to the two prongs of the expert’s diagnosis, the Court reasoned that Naomi N.’s testimony would have called into question whether Respondent exhibited a longstanding fixation on non-consenting women and whether he experienced difficulty controlling his sexual behavior. Therefore, Respondent was not limited to expert witnesses at trial.

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2013 WL 5707863, 2013 N.Y. Slip Op. 06807

People v. Clermont

This appeal addressed whether the trial court’s denial of Defendant’s motion to suppress a gun should be reversed due to ineffective counsel. Defendant, Jocelyn Clermont, had been walking down the street in a known gang location when a detective in an unmarked police car stopped, got out, and displayed his identification to Defendant. Defendant fled, and, during the chase, the detective testified that Defendant took a gun from his waistband area and threw it to the ground. When the detective arrested Defendant, he retrieved the gun from the yard where it had been tossed. Before trial, Defendant’s counsel moved to suppress the weapon. Defendant’s counsel also made an application to be relieved as counsel three days before the hearing. The trial court required Defendant’s counsel to complete the hearing.

At the hearing, Defendant’s counsel recited a completely different factual scenario of the events leading up to the arrest and seizure of the gun. Counsel also only asked two questions on cross-examination of the detective—the sole witness—and did not call any witnesses or make an opening or closing statement. The trial court immediately denied suppression of the gun. The appellate division affirmed the trial court’s decision, finding that counsel’s representation had not fallen below the constitutional standard. The Court of Appeals, however, remitted the matter to the supreme court for further proceedings on the suppression application and possible reopening of the hearing.

The Court of Appeals explained that its confidence in the fairness of the proceeding had been substantially undermined because Defendant was charged solely with weapon possession, and, if suppression had been granted, the indictment would have been dismissed. Further, the Court reasoned that counsel’s numerous errors were not even part of a legal strategy but simply denied Defendant of meaningful representation. The Court did not need to discuss the merits of suppression to decide ineffective counsel because both parties presented substantial arguments and the issue was close under De Bour jurisprudence. People v. De Bour, 40 N.Y.2d 210 (1976). Therefore, the Court remitted the matter to the supreme court.

Judge Rivera, in her dissent, argued that this issue was not close under De Bour jurisprudence and that it was clear that the gun should have been suppressed as a matter of law. She found that the police lacked reasonable suspicion to approach Defendant just because he had been walking in a gang location and had adjusted his waistband. On the face of the record, Rivera wrote, the issue was clear and should not be remitted to the trial court, but rather the denial motion should be granted and the indictment dismissed.

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2013 WL 5707868, 2013 N.Y. Slip Op. 06806

People v. Asaro

This appeal addressed whether the defendant Patrick Asaro’s convictions for manslaughter and assault, both in the second-degree, were supported by sufficient evidence. Asaro was driving a modified hotrod with four passengers on a rural two-lane road when he suddenly stopped his car, then quickly accelerated over the speed limit. Asaro crossed the lane and struck an oncoming car, killing the driver and injuring both his and the other car’s passengers. Witnesses testified seeing Asaro drinking at a party and appearing intoxicated prior to the accident.
Asaro’s blood tested negative for alcohol but initially confirmed the presence of marijuana, though a second test by another lab did not detect any marijuana.

However, the toxicologist explained that the absence of marijuana could have resulted from the gap in time between the first and second tests. A state police expert in the field of collision reconstruction testified that he performed calculations that concluded Asaro was driving at a minimum of 94 mph. Unfortunately, the police witness admitted the notes he used to make the calculations had been lost and he could not replicate them. A passenger in Asaro’s car also testified to seeing the speedometer at 130 mph.

The jury convicted Asaro on a number of charges, including second-degree manslaughter and four counts of second-degree assault, which Asaro appealed. On appeal, he challenged the mens rea of recklessness for each conviction. Asaro contended that, at most, he was criminally negligent and that the counts should be reduced to negligent homicide and third-degree assault. The Court had previously held that speeding alone was insufficient to establish “recklessness” and that an additional affirmative act was required.

On this appeal, the Court found that there was evidence that Asaro did more than simply drive above the speed limit. The testimony established that Asaro stopped his car in the middle of the road and accelerated before crossing the line into oncoming traffic. Moreover, although the jury acquitted Asaro of driving while ability impaired, there was evidence he had been drinking alcohol and smoking marijuana prior to the accident. The Court found that Asaro had engaged in conduct necessary to establish an additional affirmative act—particularly disregarding warnings made by his own passengers about his speed—and that Asaro acted recklessly.

Finally, Asaro also contended he was entitled to a new trial because the trial court erred when it did not strike the portion of the accident reconstruction expert’s testimony based on his missing notes. However, Asaro asked the trial court to strike all of the expert’s testimony rather than a specific portion, and, under those circumstances, the Court could not find that the trial court abused its discretion in denying Asaro’s request.

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21 N.Y.3d 677, 2013 N.Y. Slip Op. 06805

Belzberg v. Verus Investments Holdings Inc.

This case arose when Petitioner Samuel Belzberg appealed an order from the appellate division that denied his application for a permanent stay of third-party arbitration claims by Respondent Verus Investments Holdings, Inc. (“Verus”). The New York Court of Appeals reversed because Belzburg’s conduct, as a third-party non-signatory, was not sufficient under the direct benefits theory of estoppel to compel him to arbitrate.

In October 2008, Belzburg helped broker a deal with Verus, in which Verus used its brokerage account at Jefferies & Co., Inc. (“Jefferies”) to move money around to complete the purchase of securities in Fording Canadian Coal Trust. The business deal was funded with $5 million dollars from Winton Capitol Holding (“Winton”), a company owned by a trust established by Belzberg, and with $1 million from Verus. All $6 million was initially transferred to the Jefferies account. After the completion of the business deal, Jefferies transferred all the money plus profits back to Verus. Then, Verus transferred the $5 million back to Winton. Upon receipt, and at the direction of Gibralt Capital (another holding company Belzburg used to facilitate the business deal), Winton transferred the $5 million to his friend, Doris Lindbergh, to purchase a summer home.

Later, Canadian tax authorities informed Jefferies that it owed $928,053.45 in taxes for the business deal. Pursuant to the arbitration clause in the agreement between Verus and Jefferies, Jefferies commenced arbitration against Verus to pay the Canadian tax. Verus answered and asserted third-party arbitration claims against Belzburg, Winton, Lindbergh, and Gibralt for their share of the taxes. On appeal, Belzburg and the others asserted that, since they were not signatories to the contract between Verus and Jefferies, they cannot be compelled into arbitration.

Since arbitration is a matter of contract, non-signatories are generally not subject to arbitration agreements. However, under limited circumstances non-signatories may be compelled to arbitrate. A third-party non-signatory may be compelled to arbitrate under the direct benefits theory of estoppel where the non-signatory “knowingly exploits” the benefits of an agreement containing an arbitration clause and receives benefits flowing directly from the agreement. It was the application of this direct benefits theory by the appellate division that Belzberg challenged before the Court of Appeals.

The Court explained that a benefit is indirect where the non-signatory exploits the contractual relation of the parties but not the agreement itself. In distinguishing between direct and indirection benefits, the guiding principle is whether the benefit gained by the non-signatory is one that can be traced directly to the agreement containing the arbitration clause.

Here, the Court agreed with Belzburg that he did not receive the type of direct benefit from the Jefferies-Verus contract encompassed by the estoppel theory. First, Belzburg’s access and appropriation of the profits was based on his relationship with Winton, not based on the Jefferies-Verus agreement. Second, Belzburg’s influence over the appropriation of the profit is several steps removed from the formation of the arbitration agreement between Jefferies and Verus. The Court found that this attenuated connection did not justify an application of the direct benefits estoppel theory and, accordingly, reversed the appellate division’s holding.

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21 N.Y.3d 626, 2013 N.Y. Slip Op. 06729

Tuminno v. Waite

The defendant, Marjorie Waite, appealed from an order that directed the sale of the property she owned as tenant-in-common with the plaintiff, Cathy Tuminno. Waite and Tuminno acquired the property at issue during the settlement of their mother’s estate. At the time, Tuminno and Waite signed a settlement agreement with the other named defendants that granted James Flagella and the others the option to purchase the property in the event that Waite and Tuminno, either jointly or severally, decided to sell, assign, or transfer the property to anyone other than each other. Flagella and each of the other named defendants had sixty days after being notified to purchase the property for $120,000. The settlement agreement was afterward reduced to a document executed by Tuminno and Waite, stating that they granted Flagella and the other named defendants a sixty-day option to purchase the property for $80,000 if Waite and Tuminno desired to sell the property.

The Supreme Court, Chautauqua County, determined that the agreement created an option contract, which was triggered when Tuminno initiated this action to partition and sell the property. The appellate division ruled that the settlement agreement created a right of first refusal and not an option to purchase despite the use of the word “option” in the agreement. A right of first refusal is a “dormant right that is triggered when an owner decides to sell the property to third party at an agreed-upon price.” Markan Corp. v. Plane’s Cayuga Vineyard, Inc., 24 A.D.3d 1264, 1265 (4th Dep’t 2005). In addition, the Court held that Tuminno’s action to partition the property did not trigger the right of first refusal. Instead, the right of first refusal would only be triggered by the sale of the property after a court had partitioned it.

The Court also ruled that the supreme court erroneously ordered the sale of the property without first resolving the accounting issues and adjusting any equities. Further, the Court ruled that the right to partition must, in some circumstances, yield to the equitable exception that a court will not award partition to a party in violation of his or her own agreement. In this case, a partition that results in Tuminno and Waite each having a portion of the property would defeat the right of first refusal as it applies to the entire property. In order for a court to award partition, the entire property would have to go either Waite or Tuminno. Therefore, whoever received the whole property would owe the other party owelty as compensation for the unequal division of the property. The Court therefore vacated the supreme court’s order and remanded the case.

In addition, the Court also ruled that the supreme court erred in determining that the purchase price for the property was $120,000. The Court held that the recorded document reduced the price to $80,000. Hence, the correct purchase price was $80,000 and not $120,000.

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2013 WL 5496025, 2013 N.Y. Slip. Op. 06462

Koch v. Sheehan

This appeal considered a decision of the Office of Medicaid Inspector General (“OMIG”) to exclude Petitioner from participating in New York’s Medicaid program. Petitioner Eric J. Koch, D.O., was investigated by the Office of Professional Medical Conduct (“OPMC”) for his treatment of two patients, both of whom died shortly after receiving treatment in 2006. The Board for Professional Medical Conduct (“BPMC”), the state agency responsible for adjudicating professional misconduct complaints against physicians, found that Petitioner had negligently practiced medicine with respect to these two patients, and it entered into a consent agreement with Petitioner and OPMC. Pursuant to the consent agreement, Petitioner pleaded “no contest” to these charges and accepted a sanction of 36 months probation. OMIG, an independent state agency responsible for, inter alia, assuring that Medicaid funds are expended on quality medical care, was notified of the BPMC finding and removed Petitioner from the Medicaid program pursuant to 18 N.Y.C.R.R. §§ 515.7(e), 515.3(a)(1), which permit OMIG to take immediate action against a person found guilty of professional misconduct.

Petitioner challenged the OMIG decision, and the Supreme Court, Erie County, vacated OMIG’s decision and reinstated Petitioner. OMIG appealed, and the Appellate Division, Fourth Department, affirmed, holding that it was arbitrary and capricious to remove Petitioner from the program when BPMC had permitted him to continue to practice. It held further that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order.

The Court of Appeals affirmed on different grounds. The Court rejected the idea that OMIG was required to conduct an independent investigation and that it was required to give any deference to BPMC’s findings. It held that there was no statutory or regulatory basis for such a requirement and noted that OMIG may adopt the findings of BPMC and may choose not to levy further sanctions. However, it is ultimately within OMIG’s discretion to determine what sanctions, if any, are to be imposed.

Thus, the Court reasoned that OMIG may remove a physician based solely on the findings of a BPMC consent order in an exercise of its inherent discretionary authority. But, such a discretionary action requires an explanation. The Court held that, in cases such as this, where OMIG seeks to impose sanctions more severe than those imposed by BPMC, it must explicitly explain why exclusion from the program is warranted. The record in this case did not provide any such explanation. Rather, the recommendation for exclusion merely reiterated that Petitioner had two charges of negligence and was placed on probation for 36 months. The Court held that this was insufficient and that OMIG’s decision was arbitrary and capricious and an abuse of discretion.

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2013 WL 5707874, 2013 N.Y. Slip Op. 06804

Georgitsi Realty, LLC v. Penn-Star Ins. Co.

This appeal addressed two issues of first impression related to whether a property insurance policy covering acts of “vandalism” included the damage suffered. Plaintiff owned an apartment building in Brooklyn, which was damaged when excavation of a parking garage took place on the adjacent lot. Cracks were discovered in the foundation and walls of the apartment building eventually leading the New York City Department of Buildings to issue violations and stop-work orders against the owner of the adjacent lot, Armory Plaza. Plaintiff alleged that the stop-work orders and a temporary restraining order from the supreme court were ignored.

Prior to the discovery of damage, Plaintiff obtained from Defendant a “named perils” property insurance policy that protected against loss stemming from different events, including acts of vandalism. Under the policy, “vandalism” is defined as “willful and malicious damage to, or destruction of, the described property.” 2013 N.Y. Slip Op. 06731 at 2. Subsequent to the damage, Plaintiff made a claim under its insurance policy. Defendant rejected the claim, and Plaintiff filed suit. The suit was initially brought in the Supreme Court, Kings County, and removed to the United States District Court for the Eastern District of New York. The district court granted summary judgment for Defendant, holding that the alleged conduct of Armory Plaza did not constitute “vandalism” within the meaning of the policy. After summary judgment was granted, Plaintiff appealed to the United States Court of Appeals for the Second Circuit.

The Second Circuit certified two questions to the New York Court of Appeals. The first question was, “[f]or purposes of construing a property insurance policy covering acts of vandalism, may malicious damage be found to result from an act not directed specifically at the covered property?” Georgitsi Realty, LLC v. Penn-Star Ins. Co., 702 F.3d 152, 159 (2d Cir. 2012). The second question certified was, “[i]f so, what state of mind is required?” Id.

The Court held (1) that an act of vandalism does not have to be directed specifically toward a particular covered property in order for malicious damage to be found, and (2) that conduct is malicious when it reflects “such a conscious and deliberate disregard of the interests of others that it may be called wil[l]ful or wanton.” Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511 (2013) (citations omitted). The Court explained that there is no principled distinction between conscious disregard by construction workers and classic vandalism from irresponsible youth.

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2013 WL 5637757, 2013 N.Y. Slip Op. 06731

Davis v. Boeheim

This appeal dealt with the issue of whether the supreme court properly dismissed Plaintiffs’ complaint for failure to state a cause of action against Defendant Boeheim. Plaintiffs Davis and Lang commenced a defamation action seeking damages for statements made by Defendant Boeheim, the head men’s basketball coach for Defendant Syracuse University, in the wake of allegations by Plaintiffs that associate head coach Bernie Fine sexually abused them. Plaintiff Davis reported the alleged abuse to the Syracuse Police Department in 2002 and to the university in 2005. No criminal charges were brought against Fine at that time, and the University advised Plaintiff that it had determined, following an internal investigation, that the allegations were unsubstantiated and that the investigation was closed. It was after this investigation closed that Defendant Boeheim made the alleged defamatory statements.

The statements were made on November 17 and 18, 2011, during interviews that appeared on,, and in the New York Times. Among the statements made by Defendant in various interviews were that Plaintiff lied when he stated that Defendant saw Plaintiff lying on the bed in Fine’s hotel room in New Orleans in 1987; that Plaintiffs’ allegations against Fine were lies; that Plaintiff had provided the University with the names of four people who could corroborate his allegations, but that the allegations were not corroborated; and that Plaintiffs’ allegations were financially motivated.

Considering these statements on appeal, the Court used the three factors laid out in Mann v. Abel, 10 N.Y.3d 271 (2008), to determine whether the alleged defamatory statements were actionable statements of fact or nonactionable statements of opinion. The Court first agreed with Plaintiffs that Defendant’s statements that they lied and did so out of a financial motivation were statements of fact when viewed against the first two factors set forth in Mann (i.e. those statements used specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false”). Id. at 276 (citations omitted). However, when applying the third factor in Mann, “whether either the full context of the communication in which the statement[s] appear[ ] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact,” the Court found that Defendant’s statements were likely opinion. Id. Defendant’s statements were opinion because they showed his support for Fine and constituted his reaction to Plaintiff’s implied allegation that Defendant knew or should have known of Fine’s alleged improprieties. In concluding that the statements were opinion and not fact, the Court affirmed the supreme court’s decision.

Justices Smith and Fahey dissented in the case because they believed Defendant’s statements were of “mixed opinion” (i.e. “statement[s] of opinion that impl[y] a basis in facts which are not disclosed to the reader or listener”). Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993). The dissent also found that the defamatory nature of the statements could not be immunized simply by preceding them with the words “I believe.”

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2013 WL 5495837, 2013 N.Y. Slip Op. 06446

Soto v. J. Crew

Jose Soto (“Plaintiff”), an employee of a commercial cleaning company hired to provide janitorial services for J. Crew, appealed the lower court’s grant of summary judgment on his New York Labor Law section 240(1) claim against J. Crew. While dusting a shelf with a “high duster,” Plaintiff fell from the four-foot-tall ladder on which he was standing. Due to the fall, he suffered injuries to his back, knee, and elbow.

Plaintiff instituted a personal injury action against J. Crew and the building owner (“Defendants”) under Labor Law section 240(1). Defendants moved for summary judgment, arguing that the type of work Plaintiff was performing did not fall within the type of cleaning protected under the statute and that he failed to establish his exposure to an elevation-related risk or that the ladder was defective. Plaintiff also moved for summary judgment, arguing that the statute covered all commercial cleaning, including the act he was performing. He also claimed that he was not provided with adequate protection because the ladder was not properly supported. The Supreme Court for New York County granted summary judgment for Defendants on the ground that the statute did not apply to individuals employed on a daily basis to do routine commercial cleaning. The appellate division unanimously affirmed.
Under Labor Law section 240(1), owners and contractors have an absolute liability for failing to provide safety devices necessary for workers subjected to elevation-related risks. To be covered, the plaintiff must be engaged in “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” and the injury must have been a direct consequence of the lack of proper protection. N.Y. LAB. LAW § 240(1) (McKinney 2013).

On appeal, the Court was asked to determine if Plaintiff was engaged in “cleaning” within the meaning of the statute. In its analysis, the Court determined that the purpose of the controlling law was to protect construction workers who faced elevation-related dangers on the work site. Based on past cases, including Dahar v. Holland Ladder & Mfg. Co., 18 N.Y.3d 521 (2012), the Court found that routine maintenance, such as household window washing, was excluded from the statute because such a task did not typically involve the type of heightened elevation risks that the provision aimed to protect against. Building upon Dahar, the Court reasoned that the task would not be covered under the law as “cleaning” if it was routine, required neither specialized equipment nor expertise, involved insignificant elevation risks, and was unrelated to the purpose of the law.

Based upon these factors, the Court found that the activity undertaken by Plaintiff did not fall within the scope of section 240(1). The Court considered dusting to be routine maintenance that did not require specialized equipment or knowledge and could be accomplished with tools found in a domestic setting. Likewise, the Court noted that the elevation risks involved were comparable to that a homeowner would experience, not a construction worker. Since he was not covered, the Court did not need to determine if the injury was a consequence of lack of proper protection on behalf of the employer.

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2013 WL 5566304, 2013 N.Y. Slip Op. 06603

People v. Delee

The defendant, Dwight R. Delee, was charged with killing the victim, known to be a homosexual, with a rifle. Defendant was charged with three offenses: (1) murder in the second degree for intentionally killing the victim because of his sexual orientation; (2) intentional murder in the second degree; and (3) criminal possession of a weapon in the third degree. At trial, the Onondaga County Court submitted the following lesser-included offenses to the jury: manslaughter in the first and second degrees as a hate crime (for the first offense) and manslaughter in the first and second degrees (for the second offense).

The jury found Defendant guilty of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree, but the jury acquitted Defendant of the remaining charges. On appeal, however, the appellate division reversed Defendant’s manslaughter conviction. The court held that the jury was inconsistent in its verdict by convicting Defendant of one crime but acquitting him of another when both of the crimes contained the same essential elements. Manslaughter in the first degree contains all the same elements as manslaughter in the first degree as a hate crime, with the exception that the latter includes an additional element that the defendant killed the victim because of his sexual orientation. Thus, the jury’s verdict was inconsistent because while it found Defendant not guilty for first-degree manslaughter, it nevertheless found him guilty of first-degree manslaughter as a hate crime.

The State argued that the verdict should be upheld because the jury may have interpreted the court’s instructions to imply that the jury may choose between convicting Defendant of either charge. The court, however, rejected this argument because nothing in the record suggested that the jury base the verdict on any such implication. Moreover, even if there were such an implication, it was immaterial in that the court must consider the record only to review the jury charge to determine the essential elements that the trial court described.

Additionally, the State argued that the split verdict should be upheld because it might have been the result of a mistake, compromise, or exercise of mercy by the jury, consistent with People v. Mason, 101 A.D.3d 1659 (4th Dep’t 2012). The court also rejected this argument because a legally or theoretically impossible verdict cannot be upheld on the basis that it resulted from mistake, compromise, or mercy.
Finally, the court held that the lower court’s jury instructions may only be reviewed to assess whether the instructions led the jury to reach an inconsistent verdict. Here, the court did not find that the instructions led to such a result. The court emphasized that a trial court’s role was to instruct the jury and, if an attorney properly objects to a verdict, to inform the jurors of their defective verdict and guide them to continue deliberating until they reach a proper verdict. The failure of the trial court to comply with this role constitutes reversible error. Thus, the court reversed the conviction of manslaughter in the first degree as a hate crime and dismissed count one of the indictment, as the verdict was inconsistent.

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108 A.D.3d 1145, 969 N.Y.S.2d 350 (4th Dep’t 2013)