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ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT).

The Second Department, although finding the error harmless, determined the introduction of DNA evidence without testimony by the analysts violated the Confrontation Clause:

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The defendant’s rights under the Confrontation Clause (see US Const Sixth Amend) were violated when the Supreme Court admitted into evidence lab reports from a nontestifying DNA analyst which directly linked the defendant to the crime … .

“Confrontation Clause violations are subject to a constitutional harmless error analysis” … . “Constitutional error requires reversal unless the error’s impact was harmless beyond a reasonable doubt'” … . This determination is based on a review of the ” entire record'”… . In order for the error to be harmless beyond a reasonable doubt, the evidence of the defendant’s guilt must be overwhelming, and there must be “no reasonable possibility that the error might have contributed to the defendant’s conviction” … .

Here, apart from the erroneously admitted evidence, the evidence of the defendant’s guilt was overwhelming. People v Tsintzelis, 2017 NY Slip Op 05980, Second Dept 8-2-17

 

CRIMINAL LAW (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/DNA (CRIMINAL LAW, CONFRONTATION CLAUSE, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/CONFRONTATION CLAUSE (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))

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DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was not given the opportunity to object to the procedure used in finding that he violated probation and did not freely waive his right to a hearing. Preservation of the error was not required for appellate review:

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Under the circumstances of this case, the defendant’s contention that the County Court erred in finding that he violated the conditions of his probation without holding a hearing is not subject to the preservation requirement … . The transcript of the resentencing proceeding confirms that the defendant had no reasonable opportunity to object to the court’s procedure before the finding of probation violation was made, and the defendant was resentenced immediately thereafter.

Contrary to the People’s contention, the record contains no evidence that the defendant freely admitted to the violation of probation. Nor is there any evidence that the defendant waived his right to a revocation hearing pursuant to CPL 410.70. Rather, the County Court, without conducting any hearing, found “by a preponderance of the evidence” that the defendant had violated the conditions of his probation. This was error … . People v Montenegro, 2017 NY Slip Op 05973, Second Dept 8-2-17

 

CRIMINAL LAW (PROBATION VIOLATION, APPEALS, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/PROBATION VIOLATION (DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROBATION VIOLATION, DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO OBJECT TO THE PROCEDURE RE AN ALLEGED VIOLATION OF PROBATION AND DID NOT WAIVE HIS RIGHT TO A HEARING, APPELLATE REVIEW APPROPRIATE IN THE ABSENCE OF PRESERVATION (SECOND DEPT))

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SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have rejected plaintiff’s request for more time to file opposition papers. On the return date for the motion to dismiss, plaintiff tried to file a stipulation signed by defendant’s (NCAA’s) counsel which allowed plaintiff to adjourn the motion and granted plaintiff more time in which to file the papers. The court rejected the stipulation and marked the motion unopposed. That same evening, plaintiff e-filed the opposing papers:

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CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” In considering a motion for an extension of time, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” … .

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits” … . Calderone v Molloy Coll., 2017 NY Slip Op 05932, Second Dept 8-2-17

CIVIL PROCEDURE (CPLR 2004, SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))/CPLR 2004 (SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF MORE TIME TO FILE PAPERS OPPOSING DEFENDANT’S MOTION TO DISMISS, PLAINTIFF DEMONSTRATED GOOD CAUSE FOR THE DELAY, THE LACK OF PREJUDICE AND MERITORIOUS DEFENSES (SECOND DEPT))

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DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT).

The Second Department determined Supreme Court properly found the defendant attorney’s retainer agreement unenforceable and properly ordered the attorney to disgorge the $65,000 fee which had been paid. The attorney had agreed to acted as both a broker and attorney in the sale of a business. The sale was not completed:

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… [T]he plaintiffs established, prima facie, that the defendants acted as both attorney and broker in connection with the possible sale of the plaintiff company … , and that the retainer agreement provided for a contingency fee to compensate them in the event a sale of the company was completed. In opposition, the defendants failed to raise a triable issue of fact … . Accordingly, the Supreme Court properly determined that the retainer agreement is unenforceable because it created a nonconsentable conflict of interest under the Rules of Professional Conduct (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][2]; NY St Bar Assn Comm on Prof Ethics Op 1015 [2014] … ). The fact that the defendants are seeking to recover under the hourly fee provision of the retainer agreement, instead of the contingency fee provision, does not alter this result. The conflict created by the contingent fee existed during the representation, regardless of whether a sale of the business was ultimately completed. Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ first counterclaim to recover fees under the retainer agreement.

An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered … .Here, the plaintiffs discharged the defendants for cause based on their nonconsentable conflict of interest in violation of Rules of Professional Conduct (22 NYCRR 1200.0) 1.7 … ). Thus, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ second counterclaim to recover in quantum meruit. Further, although the first cause of action is styled as one to recover damages for breach of fiduciary duty, it does not seek damages allegedly caused by such a breach, but merely for disgorgement of fees already paid … . Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment on the first cause of action, in effect, to disgorge fees which had already been paid … . Jay Deitz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 2017 NY Slip Op 05940, Second Dept 8-2-17

 

ATTORNEYS (DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/BROKERS (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))

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ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gische, determined that defendant’-trustee’s motion to dismiss the breach of contract cause of action should not have been granted. Although the defendant indenture trustee did not owe the plaintiffs a fiduciary duty with regard to the sale of securities, the trustee still owed plaintiffs a duty of care as described in the trust agreement, including a duty to avoid conflicts of interest. Here the plaintiffs alleged the trustee sold the securities below market price and then sold them for a profit, thereby depriving plaintiffs of the equity in the securities:

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This appeal concerns the rights and obligations of the parties with respect to the termination of certain REMIC (real estate mortgage investment conduit) trusts. The assets held by the trusts were mortgage loans. The trusts originally sold securities to outside investors, representing two classes of holders, i.e., regular security holders and residual security holders. Plaintiffs … are holders of the residual security interests in those trusts. While the holders of regular securities were entitled to receive regular payments on distribution dates, the residual security holders had no such right. Instead, they were entitled to receive the proceeds of the disposition of any asset remaining in the trust REMICs upon their termination, but only after each class of regular security holder had been paid. Plaintiffs’ interest is referred to as the trust “equity.” The residual holder interest was the riskiest tranche of ownership and any right to payment was subordinate to payment in full of amounts due to the regular interest holders.

… The trustee argues that under the trust documents, it had the right to purchase trust assets at below market, even though it could resell them within days of acquiring them, allowing the trustee to realize millions of dollars in personal profit. The trustee is alleged to have kept for itself the profit it realized on the forward sale, which was in excess of $3,000,000.

… Even if the sale of assets to the trustee had been conclusively established by documentary evidence, there is still a valid claim that the trustee’s actions create a conflict of interest prohibited under the operative trust agreements and in violation of the trustee’s contractual obligations. The trust documents do not give the trustee the express right to purchase the trust assets for its own financial benefit at less than market value and to thereby diminish, let alone extinguish, plaintiffs’ interest as residual security holders. NMC Residual Ownership L.L.C. v U.S. Bank N.A., 2017 NY Slip Op 05923, First Dept 8-1-17

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Similar issues and result in Cece & Co. Ltd. v U.S. Bank N.A., 2017 NY Slip Op 05924, First Dept 8-1-17 (Gische, J)

 

SECURITIES (ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/TRUSTS AND ESTATES (REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS, ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS (ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (REAL ESTATE MORTGAGE INVESTMENT CONDUIT TRUSTS, ALTHOUGH THE DEFENDANT INDENTURE TRUSTEE DID NOT OWE PLAINTIFFS A FIDUCIARY DUTY, THE TRUSTEE DID OWE PLAINTIFFS A DUTY OF CARE AS DESCRIBED IN THE TRUST AGREEMENT, THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

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PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT).

The First Department, in a detailed decision, over a dissent, determined that the illegal search of defendant’s belongings at the hospital did not taint the subsequent search of an area near defendant’s residence (his uncle’s apartment) which turned up a gun. Defendant, although charged with robbery, was convicted only of criminal possession of a weapon. The victim had been robbed by a masked man who fired a gun in the elevator where the robbery took place. Because the police could not find evidence a shot was fired in the elevator they believed the robber may have shot himself. The police found the defendant at a hospital, suffering from a gunshot wound in his leg. Defendant’s belongings were searched at the hospital and items taken in the robbery were seized. The police spoke with the defendant and his girlfriend and eventually searched the apartment where defendant lived with his uncle, with the uncle’s consent. The majority held that the investigation would have continued even if the illegal search at the hospital had not been conducted. The dissent argued the police would have had no reason to continue the investigation without the items found in the illegal search:

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“[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” … . “[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply” … . A key consideration in determining whether this rule applies is whether “the prosecution has somehow exploited or benefitted from its illegal conduct, [whether] there is a connection between the violation of a constitutional right and the derivative evidence” … .

Here, the challenged searches were attenuated from the illegal search of defendant’s clothing bags. When the detective entered the hospital room, his theory of the crime was that it had been committed by a black male who had a gunshot wound to the leg. Defendant fit that description. Thus, we disagree with the dissent’s statement that, even if the search of the clothing bags turned up no evidence, the police “would have had little cause to pursue the investigation, let alone . . . search defendant’s vehicle and home.” To the contrary, regardless of what the detective were to find in defendant’s possession, he was likely to continue investigating defendant as a possible suspect. Such investigation would have included the routine and natural investigatory step of interviewing defendant and his girlfriend, which is what led him to learn about the car and the apartment. Further, none of the items recovered during the illegal search was used to procure defendant’s uncle’s consent to search the apartment, so the police did not engage in “exploitation of [the] illegality” as charged by the defense. People v Hill, 2017 NY Slip Op 0592, First Dept 8-1-17

 

CRIMINAL LAW (EVIDENCE, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/SEARCH AND SEIZURE (INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/INDEPENDENT SOURCE RULE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))

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ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

… [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) … . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and “the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” … . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker … . …

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were “being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . .” The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was “a significant probability . . . that the jury would have acquitted the defendant had it not been for the error” … . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))

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THE PEOPLE WERE AWARE OF THEIR WITNESS’S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS’S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT).

The First Department, reversing the motion court, over a two-justice dissent, determined the defendant's motion to dismiss the indictment because of a violation of the speedy trial statute should have been granted. The People were aware of a key witness's plan to vacation out of the country. Therefore, the witness's unavailability could not be considered an “exceptional circumstance” justifying the exclusion of time under the speedy trial statute:

… [T]he mere fact that a necessary witness plans to go on a vacation does not relieve them of their speedy trial obligation … .

… The People knew that their cooperative witness was planning a vacation to the Dominican Republic, yet they failed to call him or to otherwise secure his presence before he left the country. The prosecutor admitted that although learning of the witness's proposed vacation plans on July 25, 2013, and being specifically asked by the witness to contact him the next day to discuss the trial schedule and his proposed vacation, no one from the District Attorney's office tried to contact the witness until July 30, 2013, at which time they learned he had already left on vacation. Although the witness indicated a willingness to work with the prosecutor on scheduling his vacation and had not yet bought his ticket to the Dominican Republic, the prosecutor never subpoenaed the witness, sought a material witness order, or even communicated with him prior to his departure. People v Ricart, 2017 NY Slip Op 05922, First Dept 8-1-17

CRIMINAL LAW (SPEEDY TRIAL, THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))/SPEEDY TRIAL (THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))

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ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT).

The First Department vacated defendant's guilty plea because, although the court told the defendant he could receive “jail time” if he violated the plea agreement, the defendant was not informed he could be sentenced to state prison:

The court improperly denied defendant's motion to withdraw his guilty pleas. The record, viewed as a whole, demonstrates that defendant lacked sufficient information about the potential scope of sentencing in the event he violated the plea agreement … . Although the court clearly told defendant that he was pleading guilty to a class D felony, reckless endangerment in the first degree, its repeated statements, over the course of multiple court appearances, that defendant's sentence would involve “jail” time, and its failure to clearly apprise defendant that he could receive a state prison sentence, and the potential maximum term thereof, if he violated the plea agreement, taken together, rendered his pleas unknowing and involuntary … . People v Renvill, 2017 NY Slip Op 05921, First Dept 8-1-17

CRIMINAL LAW (GUILTY PLEA, ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/PLEA AGREEMENT (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))

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EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT.

The Third Department determined claimant was entitled to resume receiving workers’ compensation benefits when he left prison for offenses related to the sale of drugs. The employer argued claimant should be disqualified because he received benefits while he had unreported income from selling drugs. The Third Department found that the plea allocutions were not sufficient evidence that claimant received income from drug sales:

In support of its assertion that claimant violated Workers’ Compensation Law § 114-a (1), the employer submitted the transcripts of the 2012 plea allocutions resulting in claimant’s convictions for a violation of probation, criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in the fifth degree. As a result of recording or transcription errors, the transcript of the Alford plea proceeding is, at times, indecipherable. In addition, both transcripts of the 2012 criminal convictions were insufficient to establish that claimant received income while receiving workers’ compensation benefits or that he otherwise concealed his work status. Further, the employer did not submit the certificate of conviction for claimant’s 2010 convictions or the transcript of that underlying plea allocution. Although we agree with the employer that the Board incorrectly analyzed the 2012 criminal proceedings, we do not find that these inaccuracies warrant reversal and remittal to the Board, given that the Board primarily found that there was insufficient evidence to find a violation of Workers’ Compensation Law § 114-a … . Matter of Pompeo v Auction Direct USA LP, 2017 NY Slip Op 05910, 3rd Dept 7-27-17

WORKERS’ COMPENSATION LAW (CRIMINAL LAW, EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT)/CRIMINAL LAW (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT SUBMIT SUFFICIENT PROOF THAT CLAIMANT RECEIVED UNREPORTED INCOME FROM THE SALE OF DRUGS, THEREFORE CLAIMANT WAS NOT DISQUALIFIED FROM RECEIVING WORKERS’ COMPENSATION BENEFITS 3RD DEPT)

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