ARBITRATION (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EDUCATION-SCHOOL LAW (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/FAITHLESS SERVANT THEORY (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/TEACHERS (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)

 

ARBITRATION, EMPLOYMENT LAW, EDUCATION-SCHOOL LAW.

 

GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT'S STARTING A PLENARY ACTION AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT.

 

The Second Department determined a grievance involving a teacher was arbitrable under the collective bargaining agreement (CBA). The grievance was filed by the teachers' association against the school district regarding the district's starting a plenary action against a teacher under a faithless servant theory:

 

Here, the respondent, Locust Valley Teachers' Association (hereinafter the LVTA), filed a grievance against the petitioner, Locust Valley Central School District (hereinafter the School District), regarding the commencement by the School District of a plenary action against a teacher formerly employed by the School District. The former teacher was a member of the LVTA. The applicable collective bargaining agreement (hereinafter CBA) between the parties provided that either party had the right to submit a grievance to arbitration, where that grievance was not resolved by the School District. The CBA defined a "grievance" as "a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement." In the plenary action, the School District sought, under a "faithless servant" theory, the forfeiture of all compensation earned by the subject teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher's plea of guilty to several criminal charges.

 

The School District has not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance. Further, in light of the fact that the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA, there exists a reasonable relationship between the grievance and the CBA. Therefore, the Supreme Court did not err in finding the grievance to be arbitrable pursuant to the CBA ... . Locust Val. Cent. Sch. Dist. v Benstock, 2016 NY Slip Op 07299, 2nd Dept 11-9-16

 

 

 

 

 

 

 

CIVIL PROCEDURE (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT'S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)/JURISDICTION (PERSONAL) (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT'S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)

 

CIVIL PROCEDURE.

 

CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT'S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION.

 

The Second Department determined the complaint against a Chinese national was properly dismissed for lack of jurisdiction. The court explained the law re: (1) the burdens of proof for the motion to dismiss, (2) the procedure when discovery is required to determine jurisdiction, (3) the definition of "domicile" and (4) the nature of business transactions which will provide New York with jurisdiction:

 

... [T]he plaintiffs failed to make a prima facie showing that the defendant was domiciled in New York at the time the action was commenced in July 2013. Evidence of the defendant's ownership of a cooperative apartment in Queens is, on its own, insufficient to confer personal jurisdiction over him absent evidence of his intent to make the apartment his "fixed and permanent home" ... . The record demonstrated that the defendant resided in Shanghai, China, while his wife and daughter resided in the cooperative apartment in Queens. It was undisputed that the defendant had not even visited New York since March 2013. * * *

 

The transaction of business is established where it is shown that a " defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'"... .

 

" Purposeful activities are those with which a defendant, through volitional acts, avails [himself or herself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws'" ... . A single transaction in New York may suffice to invoke jurisdiction even if the defendant never enters the state, provided that the activity was purposeful and " there is a substantial relationship between the transaction and the claim asserted'"... .  Indeed, absent " some articulable nexus'" between a defendant's purposeful business activities in the state and the plaintiff's claims, personal jurisdiction pursuant to CPLR 302(a)(1) may not be exercised ... .

Here, the sole purposeful activity cited by the plaintiffs in support of their argument that the defendant is subject to personal jurisdiction pursuant to CPLR 302(a)(1) is the employment relationship between Crystal Window and the defendant. However, the alleged wrongdoing upon which the complaint primarily is based occurred during the defendant's employment with Huai'an Crystal, a Chinese company, prior to any employment with Crystal Window. Chen v Guo Liang Lu, 2016 NY Slip Op 07290, 2nd Dept 10-9-16

 

 

 

 

 

 

 

 

 

CIVIL PROCEDURE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EVIDENCE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/REBUTTAL EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)

 

CIVIL PROCEDURE, EVIDENCE, NEGLIGENCE.

 

EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT DISCLOSURE NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED.

 

The First Department, in remanding for a new trial, determined (1) the expert disclosure notice provided by the defense was sufficient, and (2) plaintiff should have been allowed, during the trial, to submit an expert disclosure notice for a rebuttal witness.  Plaintiff alleged his foot was run over by a bus:

 

After the defense rested, plaintiff's attorney sought permission to call two rebuttal witnesses. He submitted a CPLR 3101(d)(1) notice for an expert in biomechanical medicine, arguing that the disclosure notice for Dr. Kurtz had provided no indication that the doctor's opinion was based on the lack of tread marks or injury to the metatarsals and ankle. He argued that the notice's insufficiency had not allowed him to prepare an expert witness to address these issues directly. His proposed expert would demonstrate, by use of an anatomical model of a foot, that plaintiff's foot could have been positioned after he fell in such a manner that when the bus wheel rolled over his foot, his ankle and upper foot would not have been injured as Dr. Kurtz claimed. The court denied his request based on the timing of the notice and its reasoning that no rebuttal was needed. ...

 

We find that Dr. Kurtz's CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party's expert is expected to testify ... . * * *

 

... [N]otwithstanding the delay by plaintiff in providing a CPLR 3101(d)(1) disclosure for his medical expert, the trial court, in the interest of justice, should have permitted the medical expert to testify in rebuttal. The court had allowed Dr. Kurtz to opine that there were inconsistencies between the claim of how the accident occurred and the resulting injuries, and although the testimony was not in his expertise, it was heard by the jury and opened the door to the necessity for plaintiff to produce a medical expert to attempt to rebut those opinions. Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394, 1st Dept 11-10-16

 

 

 

 

 

 

 

 

CONTRACT LAW (AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT)

 

CONTRACT LAW.

 

AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT.

 

The Second Department, reversing Supreme Court, determined the applicable provisions of a construction contract were ambiguous and defendant's motion for summary judgment should have been denied. The plaintiff installed a sidewalk shed around a school building to facilitate its roof work. A dispute arose whether the construction of the sidewalk shed was included in the contract, or whether it was extra work for which extra compensation was due:

 

A contractor may properly recover payment for extra work that is not contemplated by the terms of the original agreement, and which is performed at the direction of the defendant ... . However, a contractor may not recover for any alleged extra work that was actually covered by the terms of the original contract ... . * * *

 

... [T]he contract provision requiring the plaintiff to install sidewalk shedding "to provide proper protection to the school population, workers and pedestrians" is ambiguous with respect to whether it obligated the plaintiff to install a sidewalk shed around the existing building. Moreover, contrary to the Supreme Court's conclusion, the provision in the contract providing that the plaintiff must install "sidewalk sheds and/or fences . . . in the most conservative manner" is also ambiguous as to whether the plaintiff was required to install a sidewalk shed around the existing building and is subject to different interpretations. The parol evidence submitted by the plaintiff does not conclusively resolve this ambiguity. Thus, in light of these ambiguities as to whether the contract required the plaintiff to perform the work in question, there are triable issues of fact which preclude a grant of summary judgment to either party... . Arnell Constr. Corp. v New York City Sch. Constr. Auth., 2016 NY Slip Op 07282, 2nd Dept 11-9-16

 

 

 

 

 

 

 

 

 

 

COOPERATIVES (COOPERATIVE BOARD'S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)/BUSINESS JUDGMENT RULE (COOPERATIVES, COOPERATIVE BOARD'S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)

 

COOPERATIVES.

 

COOPERATIVE BOARD'S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE.

 

The Second Department determined the cooperative board's parking restriction was a proper exercise of the business judgment rule (and did not constitute a breach of fiduciary duty):

 

"In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination [s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'"... . "[D]ecision making tainted by discriminatory considerations is not protected by the business judgment rule'" ... .

 

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that the decision to enforce parking rules and prohibit parking in the grass area behind one of the cooperative buildings was protected by the business judgment rule ... . In particular, the defendants demonstrated that they were acting in the best interests of the cooperative after making a number of capital improvements that added to the aesthetics and value of the property. Beach Point Partners v Beachcomber, Ltd., 2016 NY Slip Op 07284, 2nd Dept 11-9-16

 

 

 

 

 

 

 

 

 

CORPORATION LAW(COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/PIERCING THE CORPORATE VEIL (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/APPEALS (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)

 

CORPORATION LAW, APPEALS.

 

COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL.

 

The Second Department determined plaintiff had stated a cause of action under the "pierce the corporate veil" theory. Weaver was the developer of a construction project and Andrea was the general contractor. Defendant Weinberg was a member of Weaver and a shareholder of Andrea. Plaintiff had obtained a unpaid judgment against Andrea. Plaintiff alleged Weinberg abused the privilege of doing business in corporate form and sought to pierce the corporate veil and hold Weinberg liable for Andrea's debts. The court noted that, although the contention that New York does not recognize a cause of action for piercing the corporate veil was not raised below, the question could be considered on appeal because it involves a question of law which appears on the record and which could not have been avoided if raised at the proper time:

 

To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene ... . "Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of [corporate or] LLC funds" ... .

 

"Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego" ... . A cause of action under the doctrine of piercing the corporate veil is "not required to meet any heightened level of particularity in its allegations ... . 

 

Here, the plaintiff adequately pleaded allegations that Weinberg dominated Andrea, and that he engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiff. In this regard, the plaintiff alleged that Andrea was inadequately capitalized, that Weinberg commingled the assets of Andrea with the assets of Weaver, that Weinberg failed to adhere to corporate formalities with respect to Andrea, that Weinberg kept assets out of Andrea to avoid paying its debts and the judgment to the plaintiff, and that Weinberg used the account of Weaver to partially pay the debts of Andrea to the plaintiff. The plaintiff also sufficiently pleaded allegations that Weaver was the alter ego of Andrea. Olivieri Constr. Corp. v WN Weaver St., LLC, 2016 NY Slip Op 07302, 2nd Dept 11-9-16

 

 

 

 

 

 

CRIMINAL LAW (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/JURY NOTE (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/MODE OF PROCEEDINGS ERROR (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)

 

CRIMINAL LAW.

 

RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED.

 

The Fourth Department determined a mode of proceedings error required reversal of a murder conviction. The record was silent about whether defense counsel was apprised of the contents of a jury note requesting further instruction:

 

... [A] mode of proceedings error occurred and reversal is required because the record fails to show that defense counsel was advised of the contents of a jury note requesting, inter alia, further instruction on reasonable doubt, murder in the second degree and manslaughter in the first degree ... . Moreover, because the record does not establish that the court advised defense counsel of the contents of the note, we cannot assume that the court complied with its core responsibilities pursuant to CPL 310.30 and People v O'Rama (78 NY2d 270) ... . People v Owens, 2016 NY Slip Op 07431, 4th Dept 11-10-16

 

 

 

 

 

 

 

 

CRIMINAL LAW (DEFENDANT'S GUILTY PLEA COERCED BY JUDGE'S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL)/GUILTY PLEA (DEFENDANT'S GUILTY PLEA COERCED BY JUDGE'S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL)

 

CRIMINAL LAW.

 

DEFENDANT'S GUILTY PLEA COERCED BY JUDGE'S REMARKS ABOUT A POTENTIAL SENTENCE AFTER TRIAL.

 

The Fourt Department vacated defendant's guilty plea, finding the trial judge's comments about the possible sentence after trial amounted to coercion:

 

Pursuant to the terms of the plea agreement, defendant entered his guilty plea in satisfaction of the indictment by which he was charged with, inter alia, murder in the second degree (§ 125.25 [1]), and County Court imposed a determinate term of incarceration of 25 years. During discussions over the plea offer, the court addressed the possibility of a jury convicting defendant of the lesser included offense of manslaughter in the first degree by stating: "[Y]ou wouldn't get any better than 25 [years] if you get a manslaughter. That's a big if.' " Defendant contends that the court erred in denying his motion to withdraw his guilty plea on the ground that it was coerced. We agree. "[T]he court's statements do not amount to a description of the range of potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur" ... . People v Williams, 2016 NY Slip Op 07450, 4th Dept 11-10-16

 

 

 

 

 

 

 

 

 

CRIMINAL LAW (SANDOVAL HEARING HELD IN DEFENDANT'S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT'S PRESENCE DID NOT RECTIFY THE DEFECT)/SANDOVAL HEARING (SANDOVAL HEARING HELD IN DEFENDANT'S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT'S PRESENCE DID NOT RECTIFY THE DEFECT)

 

CRIMINAL LAW.

 

SANDOVAL HEARING HELD IN DEFENDANT'S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT'S PRESENCE DID NOT RECTIFY THE DEFECT.

 

The Fourth Department determined holding the Sandoval hearing in the defendant's absence required dismissal of the indictment (without prejudice to file another charge):

 

We agree with defendant that Supreme Court erred in conducting the Sandoval hearing in his absence ... . The court's Sandoval ruling in this case was not wholly favorable to defendant, and thus "it cannot be said that defendant's presence at the hearing would have been superfluous" ... . Contrary to the People's contention, although the court placed its Sandoval ruling on the record in defendant's presence the morning after the hearing, "[a] mere repetition or recitation in the defendant's presence of what has already been determined in [the defendant's] absence is insufficient compliance with the Sandoval rule" ... . People v Gardner, 2016 NY Slip Op 07469, 4th Dept 11-10-16

 

 

 

 

 

 

CRIMINAL LAW (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT'S CONVICTION GRANTED AND NEW TRIAL ORDER)/VACATE CONVICTION, MOTION TO (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT'S CONVICTION GRANTED AND NEW TRIAL ORDER)/SHAKEN BABY SYNDROME (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT'S CONVICTION GRANTED AND NEW TRIAL ORDER)

 

CRIMINAL LAW.

 

ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTION PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT'S CONVICTION GRANTED AND NEW TRIAL ORDERED.

 

The Fourth Department affirmed the grant of defendant's motion to vacate her conviction based on newly-discovered evidence. Defendant, a daycare provider, was convicted in the death of a toddler. Medical testimony at trial attributed the death to shaken baby syndrome. In the motion to vacate her conviction, defendant argued that advances in medicine and science have called into question the prior opinions about shaken baby syndrome, and indicate a short-distance fall can mimic the shaken baby symptoms:

 

In general, advancements in science and/or medicine may constitute newly discovered evidence ... , and we conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that "a significant and legitimate debate in the medical community has developed in the past ten years over whether infants [and toddlers] can be fatally injured through shaking alone, . . . and whether other causes [such as short-distance falls] may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome" ... .

 

We further conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that the newly discovered evidence would probably change the result if a new trial were held today. "A motion to vacate a judgment of conviction upon the ground of newly discovered evidence rests within the discretion of the hearing court . . . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial' " ... . Here, the cumulative effect of the research and findings on retinal hemorrhages, subdural hematomas or hemorrhages and cerebral edemas as presented in SBS/SBIS cases and short-distance fall cases supports the court's ultimate decision that, had this evidence been presented at trial, the verdict would probably have been different ... . People v Bailey, 2016 NY Slip Op 07490, 4th Dept 11-101-6

 

 

 

 

 

 

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)/APPEALS (CRIMINAL LAW, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)

 

CRIMINAL LAW, APPEALS.

 

DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW.

 

The Second Department determined Supreme Court erred in finding defendant did not have standing to contest the search of a van. The court explained that it could not consider the merits of the suppression motion because the merits were not ruled upon by the court below. The options for handling this scenario were explained in some detail. The court opted to hold the appeal in abeyance and remit the matter for a suppression hearing:

 

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion ... , or where the trial court has already determined the alternative issue in the defendant's favor, in which case the issue would, in all likelihood, be decided in the defendant's favor again, and thus would remain unreviewable after remittal ... . However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant's appeal in abeyance and remit the matter for consideration of the alternative issue. People v Chazbani, 2016 NY Slip Op 07337, 2nd Dept 11-9-16

 

 

 

 

 

 

CRIMINAL LAW (DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)/PRO SE (CRIMINAL LAW, DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL)

 

CRIMINAL LAW, ATTORNEYS.

 

DEFENDANT'S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL.

 

 

The First Department reversed defendant's conviction because the trial judge did not make an inquiry into his request to represent himself. Defendant's request was made during jury selection and was summarily rejected as untimely:

 

The right to self-representation ... is subject to several restrictions ... . Thus, "[a] defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" ... . When a defendant timely invokes the right to self-representation, "the trial court should conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily" ... .

 

Judged by these principles, we conclude that defendant's right to self-representation was violated. Contrary to the trial court's finding, defendant's requests to proceed pro se, made during jury selection, were timely asserted ... . People v Crespo, 2016 NY Slip Op 07396, 1st Dept 11-10-16

 

 

 

 

 

 

 

CRIMINAL LAW (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT'S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)/710.30 NOTICE (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT'S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

 

CRIMINAL LAW, EVIDENCE.

 

STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT'S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE.

 

The Fourth Department, over a two-justice dissent, determined a statement alleged to have been made during a search, but which was not part of the 710.30 notice, should not have been admitted at trial. The defendant was charged and convicted of constructive possession of drugs found in the searched residence. The statement indicated where defendant's "own room was." There was little or no other evidence defendant lived at the searched residence. The court rejected the argument that the statement was "pedigree information" and further rejected the argument that the search consent form, signed by the defendant, was an admission of his dominion and control of the residence:

 

The People served on defendant a CPL 710.30 notice of their intent to offer defendant's admissions as evidence at trial and attached a police report to the notice. The police report referenced defendant's statement to the deputies, during the search, that one of the bedrooms belonged to another person. At trial, however, the court permitted an investigator to testify that defendant "explained where his [own] room was," referring to another of the bedrooms. Inasmuch as the CPL 710.30 notice did not cover that statement, the court's ruling on that point was error (see CPL 710.30 [1]...). That error permitted the court to conclude that defendant was an occupant of the residence and, consequently, to find that defendant had constructive possession of the drugs found therein ... . People v Buza, 2016 NY Slip Op 07423, 4th Dept 11-10-16

 

 

 

 

 

 

 

 

CRIMINAL LAW (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT'S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/EVIDENCE (CRIMINAL LAW, RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT'S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/HUNTLEY HEARING (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT'S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)

 

CRIMINAL LAW, EVIDENCE.

 

RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT'S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING, CASE REMITTED.

 

The Fourth Department sent the case back for a reopened Huntley hearing concerning recorded statements made by the defendant to the mother of defendant's children, who was acting as a police agent at the time the statements were made. The statements were under a protective order until two weeks before the trial. The defendant was convicted of the murder of a man he mistakenly believed was having a relationship with the mother of his children:

 

... [T]he court erred in failing to reopen the Huntley hearing at defense counsel's request with respect to recorded statements that he made to an agent of the police (see CPL 60.45 [2] [b] [i], [ii]), i.e., the mother of his children, which were the subject of a protective order until approximately two weeks before trial. Because the admission of those statements at trial cannot be deemed harmless error ... , we hold the case, reserve decision and remit the matter to Supreme Court to reopen the Huntley hearing with respect to those recorded statements ... . People v Mitchell, 2016 NY Slip Op 07543, 4th Dept 11-10-16

 

 

 

 

 

 

 

 

CRIMINAL LAW (DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED)/PAROLE (DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED)

 

CRIMINAL LAW, PAROLE.

 

DENIAL OF PAROLE PROPERLY ANNULLED, NEW HEARING BEFORE DIFFERENT COMMISSIONERS ORDERED.

 

The First Department, in a full-fledged opinion by Justice Gesmer, affirmed Supreme Court's annulment of parole denial and ordered a new hearing before different commissioners. Petitioner shot and killed her husband. Evidence presented at trial indicated she had been abused by her husband for many years and her husband was threatening severe abuse at the time of the shooting. Petitioner earned two college degrees while in prison, participated in every available rehabilitation program, taught other inmates, served on a grievance committee, successfully worked for the Department of Motor Vehicles and testing indicated it was highly unlikely she would re-offend. Yet she was denied parole three times:

 

Based on the record before us, we conclude that the motion court correctly determined that the Board acted with an irrationality bordering on impropriety in denying petitioner parole. The Board focused exclusively on the seriousness of petitioner's conviction and the decedent's family's victim impact statements (which it incorrectly described as "community opposition to her release") without giving genuine consideration to petitioner's remorse, institutional achievements, release plan, and her lack of any prior violent criminal history.

 

The Board's statement that, "[d]espite your assertions of abuse being rejected by a jury after hearing you testify for eight days, and having no corroboration on record of the abuse, you continue to blame your victim for his death," disregards petitioner's testimony accepting responsibility and expressing remorse for her actions. It also fails to recognize that petitioner may legitimately view herself as a battered woman, even though the jury did not find that she met New York's exacting requirements for the defenses of justification (Penal Law § 35.15[2]) and extreme emotional disturbance (Penal Law § 125.25[1][a]). * * * ...[W]e agree with the motion court that apologizing for the shooting while steadfastly maintaining that she was an abuse victim does not indicate a lack of remorse for her actions. Matter of Rossakis v New York State Bd. of Parole, 2016 NY Slip Op 07415, 1st Dept 10-10-16

 

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)/EVIDENCE (INMATE DISCIPLINARY HEARINGS, HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)

 

 

DISCIPLINARY HEARINGS (INMATES).

 

HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED.

 

The Third Department concluded the nature of the confidential information provided to the hearing officer and the hearing officer's failure to adequately inquire into the reliability of the information required annulment of the determination:

 

Here, the confidential information considered by the Hearing Officer consisted of, among other things, memoranda prepared by correction officials that briefly summarized their interviews with three confidential sources who stated, in conclusory fashion, that petitioner was the individual who broke the window. In addition, a memorandum and photo array identification were provided by one of the confidential sources, but were similarly lacking in detail. The Hearing Officer also considered the confidential testimony of the two correction officials who spoke directly with the confidential sources. The officials related that the sources identified petitioner as the individual who broke the window, but did not reveal any specific information regarding the basis of their knowledge. Significantly, there is no indication that the sources actually witnessed petitioner break the window nor any explanation as to how they acquired this information. In addition, the correction officials who interviewed them did not provide any endorsement of their reliability other than to state that they freely provided the information and were not coerced. Under these circumstances, we conclude that the Hearing Officer failed to undertake the requisite independent assessment of the confidential information to establish its reliability ... . Matter of Belliard v New York State Dept. of Corr., 2016 NY Slip Op 07382, 3rd Dept 11-10-16