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CRIMINAL LAW

 

FEATURED OPINION

 

Pat-Down Search Justified by the Objective Existence of Probable Cause to Arrest, Even Though the Officer Did Not Intend to Arrest at the Time of the Search

 

In a full-fledged opinion by Justice Saxe, the First Department determined that a pat-down search was justified because probable cause for arrest existed (for DWI) even though the officer did not intend to arrest the defendant, whom he had just directed to step out of his car, at the time of the search.  The Court wrote:

 

This appeal addresses whether suppression should have been granted where the police stopped defendant’s car for a traffic infraction, and, based on what the arresting officer heard and observed, defendant was asked to exit the car and patted down; he was placed under arrest only after a knife was found in his pocket.  Because the arresting officer candidly admitted that he had not intended to arrest the driver before discovering the knife, defendant contends that the officer lacked the requisite predicate for the search and that therefore we must suppress the knife and other fruits of the search that followed.  We disagree.

 

The arresting officer’s factual testimony … established that the necessary predicate existed for each step taken by the officer.  Because … we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the search were admissible.  While we rely on the factual testimony of the arresting officer, we are not bound by his subjective assessment at the time regarding the nature and extent of his authority to act.

 

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…[W]e conclude that, even if the police are incorrect in their assessment of the particular crime that gives them grounds to conduct the search, or if they incorrectly assess the level of police activity that is justified by their knowledge, where the facts create probable cause to arrest, a search must be permissible.  People v Reid, 7360 Ind. 717/09 1st Dep. 1-3-13.

 

 

 

 

 

General Question Whether Defendant Was “A Law Abiding Person” Violated Sandoval Ruling and Required Reversal

 

The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial.  Defendant was charged with rape.  Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse.  The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury].   “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.”  The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.”  People v Snyder, 1370, KA 11-00316 4th Dept. 2-1-13

 

 

Queens County District Attorney’s Standard “Preamble” to the Miranda Warnings Struck Down

 

In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office.  Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given.  The Second Department determined the preamble rendered the Miranda warnings ineffective.  The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself.  The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time.  Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation.  This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.”  People v Dunbar, 2010-04786, Ind. No. 1217/09 2nd Dept. 1-30-13

 

Defendant’s Flight Did Not Justify Police Pursuit

 

Flight was not sufficient to justify police pursuit.  A police officer had been shot in the afternoon.  About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred.  The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer.  The defendant subsequently pled guilty to criminal possession of a weapon.  The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”.  Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”.  People v Cady, 1427, KA 12-00337 4th Dept. 2-1-13

 

Flight Elevated Level of Suspicion and Justified Pursuit

 

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 1st Dept. 1-29-13

 

Flight Provided Justification for Pursuit

 

Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire.  The defendant’s flight provided reasonable suspicion to pursue and stop him.  The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action.  People vs Barrow, 2011-030059, Ind. No. 1356/09 2nd Dept. 2-13-13

 

No “Reasonable Suspicion”/Defendant Should Not Have Been Stopped and Detained

 

A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department.  A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood.  The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene.  People v Polhill, 2010-01680, Ind. No. 943/09 2nd Dept. 1-30-13

 

Evidence Seized in Search Suppressed/Police Officer Did Not Have a Founded Suspicion of Criminal Activity When He Questioned Defendant

 

A police officer approached the defendant’s car which was illegally parked.  The officer asked the defendant “What’s going on” and the defendant answered that he was seeking a prostitute.  The officer asked if there was anything in the car he “should be aware of” and then asked for and received permission to search the car.  A gun was found.  Defendant eventually pled guilty to attempted criminal possession of a weapon.  The Fourth Department determined the search was illegal and suppressed the evidence seized in the search.  The Court determined the officer’s question whether there was anything in the car he should be aware of, a question that rose to the level of “a common-law inquiry under De Bour,” was not based on a “founded suspicion that criminal activity is afoot.”  People vs Carr, 3, KA 08-02222 4th Dept. 2-8-13

 

Suppression Motion Should Not Have Been Granted/Officers Had “Objective Credible Reason” to Approach

 

In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court.  The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of criminality” for doing so.  The men were seen walking from a private driveway toward a car in a public parking lot for a recreation area.  The men were dressed “pretty heavy” for the mid-70-degree weather, unlike the bikers and hikers who use the park.  And there had been a number of daytime burglaries in the area.  People vs Johnston, 8, KA 12-01414 4th Dept. 2-8-13

 

 

Frisk of Defendant After a Vehicle Stop Okay/Officer Had Reasonable Suspicion of Criminal Activity and an Articulable Basis to Fear for His Safety

 

The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety.   Before the defendant got into the car which was stopped for a traffic infraction, the officer had observed the defendant “engage in a number of ‘handshakes’ “which the officer determined were either hand to hand drug sales or “gang signals.”  When the car was stopped the officer saw the defendant either take something out of or put something into his pocket. People vs Daniels, 9, KA 09-287 4th Dept. 2-8-13

 

 

 

Throwing Objects Off Balcony Evinces Depraved Indifference

 

The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour.  He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.”  In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 1st Dept. 1-17-13.

 

 

Criminal Impersonation—Falsely Attributed E-Mails

 

Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls.  The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13

 

 

Waiver of Right to Appeal Unenforceable

 

A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”.  For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence.  People v Brady-Laffer, 2011-11051, Ind. No. 1783-11 2nd Dept. 1-16-13

 

Waiver of Appeal Insufficient/Sentence Excessive

 

Defendant’s right to appeal was not knowingly, voluntarily, and intelligently waived—it was not established that defendant was aware the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty.  Defendant’s sentence was deemed excessive.  The sentence was reduced in the interest of justice in light of defendant’s age, the mitigating facts of the case and defendant’s lack of a juvenile record (youthful offender).

People v Maria M. 8726 Ind. 1563/10 1st Dept. 1-3-13

 

 

Sentence Could Be Challenged In Spite of Waiver of Appeal

 

A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver.  People vs Scott, 107, KA 11-01655 4th Dept. 2-8-13

 

Guilty Plea Waives All Nonjurisdictional Pre-Trial and Trial Defects

 

Defendant went to trial before he pled guilty.  On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial.  People vs Alvarado, 130, KA 11-02011 4th Dept. 2-1-13

 

Victim’s Testimony About Her Own Statements Not Hearsay

 

In affirming a rape conviction, the Fourth Department noted it was not necessary to apply the “prompt outcry” hearsay exception to the victim’s testimony about her own out-of-court statements because the statements were not hearsay. People v Curran, 1323, KA 08-01510 4th Dept. 2-1-13

 

19-Year Preindictment Delay Okay/Prior Incidents of Domestic Violence Probative of Motive, Intent and Identity/Admissions Are Direct, Not Circumstantial, Evidence

 

A 19-year preindictment delay did not violate defendant’s speedy trial and due process rights.  The charge was murder.  The defendant was at liberty until indicted.  The People established good cause for the delay in that the case was not ready to bring to a grand jury until the statements of three witnesses and DNA test results were obtained.  The Fourth Department held that there was no need for a Singer hearing to determine the reason for the delay because there was no issue of fact with respect to the cause of the delay and the record provided County Court with a sufficient basis to determine whether the delay was justified.  The admission of prior incidents of domestic violence against the victim (defendant’s wife) was proper because the evidence was probative of defendant’s motive, intent and identity. The defendant was not entitled to a circumstantial evidence charge because the admissions he made about killing his wife constituted direct evidence.  People v Rogers, 1425, KA 11-00012 4th Dept. 2-1-13

 

 

 

Because the “Identity” of the Perpetrator Was Not an Issue, Allowing Evidence of Prior Crimes to Prove Identity Was Reversible Error

 

In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 2nd Dept. 2-13-13

 

 

Miranda Violations Mandate Suppression

 

A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.”  The officer asked if the occupants of the vehicle had “anything illegal.”  The defendant produced a small bag of marijuana.  The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.”  The officer searched the vehicle and found two bags of marijuana under the driver’s seat.  When he asked the defendant if the bags of marijuana were his, he said “yes.”  A gun was also recovered in the search.  The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.”  The defendant then asked to speak to the detective.  He was read his Miranda rights again and confessed to owning the gun.  The Second Department suppressed the marijuana and the gun---the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it---and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent.  Subsequent questioning was not proper.  People vs. Jackson, 2011-05745, Ind. No. 10-00130 2nd Dept. 2-20-13

 

 

Witness Impeached With Attorney’s Statements

 

“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “.  People vs Davis, 2010-11219, Ind. No. 921/09 2nd Dept. 2-20-13

 

Answering Juror’s Question Outside Presence of Defendant, Counsel and Other Jurors Required Reversal

 

The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”.  Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.”  Preservation is not required for such a “mode of proceedings” error.  People v Rivera, 2009-11428, Ind. No. 9921/07 2nd Dept. 1-23-13

 

Judge’s Failure to Follow Statutory Requirements for Handling Jury Questions Required Reversal

 

The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?”  The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.”  Defense counsel did not object to the way the judge handled the jury’s question.  The First Department explained  the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording  “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error.  People vs McGhee, 2010-05026, Ind. No. 2434/08 2nd Dept. 2-6-13

 

Syracuse Police Officer Did Not Have Authority to Arrest in Town of DeWitt/Judge Abused Discretion During Jury Selection

 

A City of Syracuse police detective was assigned to a security detail for a college athletic event.  The detective saw codefendant walk toward the gymnasium, turn around and walk back the way he came.  The detective followed the codefendant to a car. The detective then approached the codefendant and asked to speak with him.  Defendant, who had been in the car, got out of the car.  The detective smelled burnt marihuana and both codefendant and defendant admitted they had been smoking marihuana.  A consent search of the car turned up a loaded revolver leading to the defendant’s and codefendant’s arrest.  The encounter with the City of Syracuse detective actually took place in the Town of DeWitt, not the City of Syracuse.  The Fourth Department held, pursuant to Criminal Procedure Law section 140.50 (1), the City of Syracuse detective did not have statutory authority to stop and question the defendant outside “the geographical area of such officer’s employment…”.  The physical evidence was suppressed and the indictment dismissed on that basis.  The Fourth Department went on to hold that there was a valid alternative ground for reversal.  The jury selection process went very fast, proceeding group to group.  The judge told counsel that once the peremptory challenges for a particular group were finished, there would be no further opportunity to challenge anyone in that group.  One of the defense attorneys told the judge that the jury selection process was moving too fast and the defense did not want one of the jurors in the previous group.  The judge refused to allow a challenge of that juror.  The Fourth Department held the judge’s refusal was an abuse of discretion requiring reversal stating:  “ ‘We can detect no discernable interference or undue delay caused by [the] momentary oversight [of the attorneys for defendant and codefendant] that would justify [the court’s] hasty refusal to entertain [their] challenge….’ ”.  People v McGrew, 1453, KA 09-01308 4th Dept. 2-1-13

 

 

Post-Conviction Review of Redacted Portions of Officer’s Notes Ordered

 

After conviction, the inference that redacted portions of the arresting officer’s memo book constituted Rosario material warranted an in camera review of the memo book to determine whether the deleted portions constituted Rosario material and whether the nondisclosure prejudiced the defendant.  People v Perry 8933 Ind. 1054/09 1st Dept. 1-3-13

 

 

Preservation of Error/DNA Expert/Confrontation Clause

 

Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved.  There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial for Confrontation Clause purposes.  People v Rios, 7651, Ind. 1037/08 1st Dept. 1-15-13.

 

 

Insufficient Proof of Value in Grand Larceny Case

 

In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value.  The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value.  People v Sutherland, 2011-06497, Ind. No. 12436/08 2nd Dept. 1-23-13

 

 

 

“Weight of the Evidence” Review

 

The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain.  The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review.  People v McCray, 103682 3rd Dept 1-17-13

 

 

“Searching Inquiry” Required Before Proceeding Without Attorney in SORA Hearing

 

In reversing a SORA determination, the Fourth Department determined that the SORA court did not make a “searching inquiry” to make sure the defendant’s decision to proceed with the SORA hearing without an attorney was knowing, intelligent and voluntary.  “The requisite inquiry ‘should affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ “… . People vs Wilson, 1475, KA 11-01197 4th Dept. 2-1-13

 

SORA Hearing Procedure

 

In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, 2nd Dept. 2-20-13

 

 

Procedure for Modification of SORA Level

 

The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required.  People vs Hazen, 514028 3rd Dept. 2-14-13

 

 

Permission to Re-Submit Charges to a Second Grand Jury Was Required

 

The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea.  The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges.  The prosecutor then submitted the drug charges to a second grand jury which voted to indict.  The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”.  People vs Smith, 7310, 135/10, 801/10 1st Dept. 2-7-13

 

Judge’s Mistaken Belief Period of Post-Release Supervision Was Mandatory Required Resentencing

 

Resentencing was required where the sentencing judge indicated the five-year post-release supervision was mandatory.  There was, however, an applicable exception to the five-year rule which the judge had the discretion to impose.  (Penal Law section 70.45 former [2]).  People vs Whitmore, 104652 3rd Dept. 2-14-13

 

 

 

Multiplicitous Indictment Count Dismissed in the Interest of Justice

 

The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count).  The error was not preserved but the Court reviewed the issue “in the interest of justice.”  People vs Quinn, 1131, KA 11-00278 4th Dept. 2-8-13

 

 

No Right to Counsel in Presentence Interview

 

There is no right to counsel in a presentence interview with the probation department.  People vs McNamara, 1472, KA 12-00204 4th Dept. 2-8-13

 

Although Victim Was Shot Injuries Did Not Constitute “Serious Physical Injury” Within Meaning of Assault 1st Statute

 

Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st.  The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal).  People vs Madera, 6, KA 11-00450 4th Dept. 2-8-13

 

 

Attorney Conflict Affected Defense Requiring Reversal

 

The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest.  The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal.  One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case.  People vs McGillicuddy, 7 12-00530 4th Dept. 2-8-13

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Mistrial on Motion by Prosecution Precluded Retrial

 

The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions.  The court granted the mistrial.  The First Department determined that the defendant could not be retried.  “When the court declares a mistrial on the prosecution’s motion and over the defendant’s objection, a retrial is precluded unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated’ …”  The First Department felt that defense counsel’s conduct, while blameworthy, could have been adequate addressed by alternative measures and, therefore, there was not a sufficient basis in the record for a mistrial.  Matter of Morris vs. Livote, 4334/10, 9012-5107, 1st Dept. 2-21-13

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DISCIPLINARY HEARINGS (RE: INMATES)

 

Right to Call and Question Witnesses

 

In an inmate’s disciplinary hearing, the hearing officer’s refusal to allow an inmate to call witnesses, without providing the inmate with a written statement explaining the reasons for the refusal, together with the hearing officer’s refusal to allow the inmate to question witnesses, required a new hearing before a new hearing officer.  In the Matter of Benito v Calero, 2011-06219, Index No. 10-00715 2nd Dept. 1-16-13

 

 

Refusing to Provide Relevant Information to an Inmate Required Annulment of the Determination

 

In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance.  Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 2nd Dept. 2-13-13

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DEFAMATION

 

Journalist Deemed “Limited Public Figure”

 

A defamation complaint was dismissed because the plaintiff, a journalist, was deemed to be a “limited public figure,” and there was no showing the challenged statements were made with “actual malice or gross irresponsibility.”  The First Department noted that the statement which included the word “liar” was likely to be understood as opinion, not fact.  Farber vs Jeffreys, 9297, 106399/09 1st Dept. 2-19-13

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