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FAILURE TO PRESERVE AND PHOTOGRAPH THE CONTRABAND REQUIRED ANNULMENT OF THE CONTRABAND AND SMUGGLING DETERMINATIONS.

The Fourth Department annulled the contraband and smuggling determinations because the respondent did not preserve and photograph the items:

We … agree with petitioner that the judgment must be modified with respect to the first misbehavior report by granting the petition in part because respondent failed to preserve and photograph the alleged contraband in violation of Department of Corrections & Community Supervision Directive No. 4910A … , and the error cannot be deemed harmless on this record. Matter of Adams v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 04728, 4th Dept 6-9-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO PRESERVE AND PHOTOGRAPH THE CONTRABAND REQUIRED ANNULMENT OF THE CONTRABAND AND SMUGGLING DETERMINATIONS)

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DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY.

The Fourth Department, over a two-justice dissent, determined defendant’s statement should have been suppressed because he was in custody, not warned of his Miranda rights, and was asked questions designed to elicit an incriminating response. However, although the statement he had a firearm should have been suppressed, the firearm would have been discovered even if the statement had not been made (inevitable discovery doctrine). Therefore the firearm need not be suppressed. Even though the conviction was by guilty plea, the court determined the suppression error could not have affected the defendant’s decision to plead guilty and the conviction was affirmed:

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Here, defendant’s statement admitting his possession of the handgun was the tainted primary evidence arising from the unlawful pre-Miranda custodial interrogation and must be suppressed … ; however, the inevitable discovery doctrine applies to the handgun as secondary evidence arising therefrom … . We conclude that there was a ” very high degree of probability’ ” that the officers would have discovered the firearm, which was found inside the right leg of defendant’s pants during a lawful and routine search of defendant’s person prior to his attempted flight … .

Although defendant’s statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant’s guilty plea … . “[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . “The … doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no reasonable possibility that the error contributed to the plea’ ” … . In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court’s error in failing to suppress defendant’s statement admitting possession of the firearm contributed to his decision to plead guilty … . People v Clanton, 2017 NY Slip Op 04579, 4th Dept 6-9-17

CRIMINAL LAW (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/EVIDENCE (SUPPRESSION, INEVITABLE DISCOVERY, (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SUPPRESS, MOTION TO (DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/SEARCH AND SEIZURE (INEVITABLE DISCOVERY, DEFENDANT’S STATEMENT THAT HE HAD A HANDGUN SHOULD HAVE BEEN SUPPRESSED, HOWEVER THE HANDGUN WOULD HAVE BEEN DISCOVERED ABSENT THE STATEMENT AND WAS ADMISSIBLE, THE SUPPRESSION ERROR THEREFORE COULD NOT HAVE AFFECTED DEFENDANT’S DECISION TO PLEAD GUILTY)/GUILTY PLEA (SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)/HARMLESS ERROR (GUILTY PLEA, SUPPRESSION ERROR COULD NOT HAVE AFFECTED DECISION TO PLEAD GUILTY, CONVICTION AFFIRMED)

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PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing County Court, determined the search of defendant’s person after traffic stop was not supported by proof of a valid warrant for defendant’s arrest. Defendant was a passenger in a car stopped by a sheriff’s deputy. The driver was arrested for driving without a license. The deputy then checked the defendant’s “data” and found defendant did not have a license and  there was a warrant for defendant. The defendant was then taken into custody on the warrant and cocaine was found in a pat-down search. The People did not demonstrate that the warrant was valid at the time of the arrest. County Court ruled the search was a valid “safety pat-down” before placing defendant in the police car:

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We agree with defendant that the court erred in upholding the search on the ground that it was a lawful “safety pat-down.” There was no evidence in the record of the hearing to support a conclusion that “defendant had a weapon or was a threat to [the deputy’s] safety” … . Moreover, “[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” … . Here, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. First, the People failed to establish “the existence of a validly-issued and outstanding warrant” … . Once defendant challenged the validity of the warrant by questioning the deputy concerning the status of the warrant and whether it was still valid, the People were “required to make a further evidentiary showing by producing the . . . warrant” (id.). The People did not do so. Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing defendant in the patrol vehicle … . Although defendant, who did not have a valid driver’s license, could not have driven the stopped vehicle from the scene after the arrest of the driver, the deputy testified that, in the absence of a warrant, defendant could have called for someone to pick him up and therefore could have lawfully refused to be transported away from the scene in the patrol vehicle. People v Richards, 2017 NY Slip Op 04668, 4th Dept 6-9-17

CRIMINAL LAW (PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, PAT-DOWN SEARCH, PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT.

The Fourth Department determined defendants should be sanctioned for spoliation of evidence, but that striking the answer is too severe a sanction. Plaintiff allegedly slipped and fell on stairs which were replaced by defendants at a time when plaintiff’s expert had yet to examine them. Plaintiff, however, had photographs of the stairs and was therefore able to proceed with the suit:

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… [W]e conclude that the court abused its discretion in striking defendants’ answer and granting plaintiff partial summary judgment on liability based on defendants’ destruction of the stairway … . In deciding whether to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . “It is well established that a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense’ ” … . Here, the record does not demonstrate that plaintiff has been left ” prejudicially bereft’ ” of the means of prosecuting her action … , given that plaintiff has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs … . Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, 4th Dept 6-9-17

CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/NEGLIGENCE (CIVIL PROCEDURE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, SPOLIATION,  ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/SPOLIATION OF EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)

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THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS.

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the exclusion of plaintiff’s representative (a nurse) from the examination of plaintiff by defendant’s physician in this personal injury (traffic accident) action warranted sanctions:

… [A] plaintiff “is entitled to be examined in the presence of [his or] her attorney or other . . . representative . . . so long as [that person does] not interfere with the conduct of the examinations’ . . . , unless [the] defendant makes a positive showing of necessity for the exclusion of’ such an individual” … . Nonetheless … there is no requirement that a representative of plaintiff be present during the examination, and plaintiff may waive the right to have a representative present. Two examples of waiver are set forth by the dissent, the first of which involves the plaintiff’s merely appearing for the examination without a representative. Clearly, that is not the factual situation here. Second, a waiver can occur by the examined party’s unreasonable delay in making a motion to enforce the right … . Here, it was less than two months from the November 16, 2015 examination until the January 5, 2016 motion to preclude, not the 2½ years at issue in Pendergast, the decision relied upon the dissent. Marriott v Cappello, 2017 NY Slip Op 04580, 4th Dept 6-9-17

CIVIL PROCEDURE (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/NEGLIGENCE (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PRECLUDE, MOTION TO (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PHYSICAL EXAMINATION (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/DISCOVERY (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)

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NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND.

The Third Department, reversing Supreme Court, determined plaintiffs were not entitled to amend their pleadings to conform to the proof after a nonjury trial in this adverse possession proceeding. Plaintiffs sought adverse possession of portions “paper streets” on both plaintiffs’ and defendants’ (Hart’s) land arguing that any easement had been abandoned and should be extinguished pursuant to Real Property Actions and Proceedings Law (RPAPL) 1951. The court explained that non-use alone does not constitute abandonment and RPAPL 1951 cannot be used to retroactively extinguish an easement on someone else’s land:

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Because nonuse, as a matter of law, does not establish intent to abandon, and given that plaintiffs did not allege that the proof showed any other acts that would be cognizable in satisfying the requirement of “unequivocal [acts] . . . clearly demonstrat[ing] the owner[s’] intention to permanently relinquish all rights to [an] easement” … , plaintiffs’ proposed amendment regarding abandonment of any easement is palpably insufficient on its face … . …

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As the Court of Appeals has made clear, the Legislature intended for RPAPL 1951 (2) to make “available to owners of parcels burdened with outmoded restrictions an economical and efficient means of getting rid of them” … . As the Legislature intended for the provision to allow landowners to seek the extinguishment of restrictions on their property, the provision does not permit plaintiffs to extinguish an easement on Hart’s property. Moreover, the relevant inquiry for RPAPL 1951 focuses on “the time the enforceability of the restriction is brought in question” … . That time frame is a plain indication that any act by a court in extinguishing a restriction would not apply to a time prior to when the enforceability of the restriction was challenged. Therefore, as RPAPL 1951 (2) does not permit plaintiffs to retroactively extinguish an easement on Hart’s property, it is inapplicable to plaintiffs’ adverse possession claim. Ferguson v Hart, 2017 NY Slip Op 04523, 3rd Dept 6-8-17

 

REAL PROPERTY (ADVERSE POSSESSION, EASEMENTS, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)/ADVERSE POSSESSION (EASEMENTS, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)ABANDONMENT (EASEMENTS,  NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)/EXTINGUISHMENT (EASEMENTS, RPAPL 1951, ADVERSE POSSESSION, NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT BE USED TO RETROACTIVELY EXTINGUISH AN EASEMENT ON SOMEONE ELSE’S LAND)

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REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE.

The First Department, reversing Supreme Court, determined plaintiff’s complaint should have been dismissed. Plaintiff alleged she choked on a fish bone at defendant’s restaurant:

Plaintiff seeks damages for injuries sustained when she choked on a fish bone while eating a fillet of flounder at defendants-appellants’ restaurant. Plaintiff’s negligence claim should have been dismissed pursuant to the “reasonable expectation” doctrine, as the nearly one-inch bone on which plaintiff choked was not a “harmful substance[]” that a consumer “would not ordinarily anticipate” … . Amiano v Greenwich Vil. Fish Co., Inc., 2017 NY Slip Op 04544, 1st Dept 6-8-17

NEGLIGENCE (REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)/REASONABLE EXPECTATION DOCTRINE (NEGLIGENCE, REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE)

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DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this rear-end collision case. The top of defendant’s truck struck an overhead bridge and came to a sudden stop on a highway. There was evidence the truck driver was negligent for attempting to pass under the bridge in a lane which he had not used before:

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A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident … . The … defendants argue that plaintiff’s contention that a sudden, unforeseeable stop by a lead vehicle can provide such a non-negligent explanation “is contrary to this Court’s consistent holding that an allegation that the lead vehicle suddenly stopped is insufficient to rebut the presumption of negligence on the part of the rear-ending vehicle.” However, this is simply not accurate … . * * *

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… [T]he evidence suggests that plaintiff could have “reasonably expect[ed] that traffic would continue unimpeded” … , since traffic was flowing smoothly and he had no reason to foresee that [defendant’s] truck would not clear the overpass. Baez-Pena v MM Truck & Body Repair, Inc., 2017 NY Slip Op 04538, 1st Dept 6-8-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/TRAFFIC ACCIDENTS (REAR-END COLLISION, DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)/REAR-END COLLISIONS (DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DEFENDANT STOPPED SUDDENLY ON A HIGHWAY BECAUSE THE TOP OF HIS TRUCK STRUCK AN OVERHEAD BRIDGE)

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AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM.

The Third Department, reversing Supreme Court, determined a survey submitted to the public by the village concerning the police department was not a prohibited advisory referendum. The survey was deemed to be merely a sampling of public opinion. An advisory referendum, in contrast, requires a vote during an election.  The Third Department noted that the petitioners, residents of the village, had common law taxpayer standing to bring the Article 78/declaratory judgment action because there was no other way to address the issue:

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… [A] review of the case law dealing with an “advisory referendum” establishes that each such case involves registered voters going to a polling place during a municipal election and casting a ballot on the proposed question … . In light of this, it is our view that the proscription against an “advisory referendum” is limited to a situation where a question that is advisory in nature is placed on the ballot for a vote by the electorate.

Here, in contrast, the Board simply seeks to obtain a sampling of public sentiment regarding police services in the Village before the Board makes a decision to alter current police services. In the event that the Board decides to abolish the police department, such a local law would then be mandated to be placed on the ballot as a proposition to be voted on by the electorate at an upcoming election … . We reject petitioners’ contention that the surveys at issue here will somehow allow the Board to “avoid governmental responsibility and shift the burden of decision [regarding police services] to a public poll” … . Matter of Woodburn v Village of Owego, 2017 NY Slip Op 04513, 3rd Dept 6-8-17

 

MUNICIPAL LAW (AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)/SURVEY (MUNICIPAL LAW, AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)/ADVISORY REFERENDUM (MUNICIPAL LAW, AN OPINION SURVEY WAS PROPERLY CIRCULATED BY THE VILLAGE (CONCERNING THE POLICE DEPARTMENT), THE SURVEY WAS NOT A PROHIBITED ADVISORY REFERENDUM)

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