By Friedman, J.P., Sweeny, Webber, Kahn, Oing, JJ.6904. PEOPLE, res, v. Samuel Bell, def-ap — Christina Swarns, Office of the Appellate Defender, New York (Emma Luttrell Shreefter of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for res — Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered October 1, 2015, as amended October 27, 2015, convicting defendant, upon his plea of guilty, of attempted criminal sexual act in the first degree, burglary in the second degree as a sexually motivated felony, burglary in the second degree, robbery in the third degree, and grand larceny in the fourth degree (two counts), and sentencing him to an aggregate term of five years, unanimously affirmed.The record does not establish that defendant made a valid waiver of his right to appeal. The transcript does not sufficiently demonstrate that defendant orally confirmed his understanding of the waiver (see People v. Bradshaw, 18 NY3d 257, 267 [2011]).However, we find that the court providently exercised its discretion in denying defendant’s request for youthful offender treatment, in light of the seriousness of the offenses, his pattern of aggressive behavior, and his appropriate termination from a treatment program that he was required to complete as a condition of his plea agreement (see e.g. People v. Baptiste, 116 AD3d 588 [1st Dept 2014], lv denied 24 NY3d 1081 [2014]).The court properly found that there were no issues of fact requiring a hearing on whether defendant was properly terminated from the program. The legitimacy of the termination was abundantly established by the program’s reliable reports setting forth defendant’s increasingly serious misbehavior (see People v. Redwood, 41 AD3d 275 [1st Dept 2007], lv denied 9 NY3d 880 [2007]), and the court’s determination satisfied the requirementsof People v. Fiammegta (14 NY3d 90, 98 [2010]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Friedman, J.P., Sweeny, Webber, Kahn, Oing, JJ.6905. Wilhelm Derix, plf-res, v. The Port Authority of New York & New Jersey def, AlliedBarton Security Services LLC, def-ap — Wood Smith Henning & Berman LLP, New York (Kevin T. Fitzpatrick of counsel), for ap — Berkowitz & Weitz, P.C., New York (Andrew D. Weitz of counsel), for res — Order, Supreme Court, New York County (Erika M. Edwards, J.), entered September 11, 2017, which granted plaintiff’s motion for summary judgment as to liability on his negligence claim as against defendant AlliedBarton Security Services LLC, unanimously affirmed, without costs.Plaintiff established prima facie that defendant created or had notice of the dangerous condition on which he tripped and fell through his own testimony, the testimony of an employee eyewitness and a nonparty eyewitness, and defendant’s own internal reports and incident reviews showing that plaintiff tripped and fell on a yellow plastic chain lying on the ground that defendant controlled but had left unattended (see Uhlich v. Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [1st Dept 2003]).In opposition, defendant failed to raise a triable issue of fact. As the motion court found, defendant’s argument that plaintiff was unable to identify the cause of his fall is unsupported by the record. The motion court also correctly rejected as speculative defendant’s argument that black ice may have contributed to the accident. Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence to be entitled to summary judgment as to defendant’s liability (see Rodriguez v. City of New York, __ NY3d __, 2018 NY Slip Op 02287 [2018]). For this reason, we also reject defendant’s argument that the chain on which plaintiff tripped was open and obvious, since that issue too is relevant to comparative fault and does not preclude summary resolution of the issue of defendant’s liability (see Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d 69, 72-74 [1st Dept 2004]).We have considered defendant’s remaining contentions and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
