Page 1177 – New York Appellate Digest

/ Criminal Law

PEOPLE VS CATU, WHICH INVALIDATED GUILTY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, with a concurring opinion and over a dissenting opinion, determined the 2005 case which invalidated guilty pleas accepted without express notice of the period of postrelase supervision (PRS) (People v Catu, 4 NY3d 242) should not be applied retroactively. In both cases before the court, the pre-Catu convictions by guilty plea were challenged to prohibit their consideration as predicate crimes for sentencing in post-Catu offenses. The analysis, which encompasses federal and state constitutional law, is too complex to fairly summarize here:

… [N]either [defendant’s] conviction was obtained in violation of the law as it existed at the time of their respective convictions. Both state and federal law required that a defendant demonstrate that he would not have pleaded guilty had he known about a mandatory term of his sentence. It was not until our 2005 decision in Catu that a defendant was entitled to automatic vacatur. * * *

Our Catu “automatic vacatur” rule did not constitute ,,, a “watershed rule”… . Catu was not necessary to prevent an impermissibly large risk of an inaccurate conviction, and it is doubtful that the failure of the courts to apprise defendants … of the PRS component resulted in them pleading guilty to crimes that they did not commit. Indeed, when presented with their prior convictions, defendants … acknowledged that they were the individuals mentioned in the predicate felony statements filed by the People, and that they did not wish to challenge any of the allegations contained within their respective statements. People v Smith, 2016 NY Slip Op 07106, CtApp 11-1-16

CRIMINAL LAW (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)/POSTRELEASE SUPERVISION (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY).CATU, PEOPLE V (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)/GUILTY PLEAS (PEOPLE VS CATU, WHICH INVALIDATED GUILTLY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY)

November 01, 2016

/ Criminal Law

EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissent, determined the accusatory instrument sufficiently alleged the illegal possession of a “billy.” The accusatory instrument stated that a police officer observed defendant with a “rubber gripped, metal, extendable baton (billy club)” in his rear pants pocket. Based upon his training and experience, the officer stated that “said baton device is designed primarily as a weapon, consisting of a tubular, metal body with a rubber grip and extendable feature and used to inflict serious injury upon a person by striking or choking.” The term “billy” is not defined in the Penal Law. When the law was enacted a billy club was a fixed wooden baton. The question before the court was whether a metal, expandable baton constituted a “billy” within the meaning of the statute:

In our view, ,,, the only plausible interpretation of the term “billy” encompasses a collapsible metal baton … . Our conclusion in this regard does not rest — as the dissent suggests — on whether or not law enforcement personnel has chosen to use this particular type of instrument. Rather, our determination follows from the common understanding of the term “billy” and our view that the baton at issue here fits comfortably within the definition thereof. Therefore, we hold that the accusatory instrument alleging that defendant possessed a metal, extendable striking weapon with a handle grip, was sufficient to charge him with possessing a “billy” under Penal Law § 265.01 (1) so as to provide sufficient notice for him to prepare a defense and to protect him from multiple prosecutions. People v Ocasio, 2016 NY Slip Op 07105, CtApp 11-1-16

CRIMINAL LAW (EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW)/BILLY (EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW)

November 01, 2016

/ Unemployment Insurance

OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR.

The Third Department determined claimant, who operated a janitorial cleaning business, based upon a franchise agreement with Jan-Pro, was an employee of Jan-Pro and was therefore entitled to unemployment insurance benefits:

The record evidence demonstrates that Jan-Pro assigned claimant a specific geographic territory and required new franchisees to undergo initial mandatory training, which was paid for by Jan-Pro. Franchisees were also required to operate the business in accordance with the procedures established at the training and the standards set forth by Jan-Pro … . To that end, franchisees had to use Jan-Pro-sanctioned equipment, supplies, products and business forms … . Jan-Pro helped resolve any complaints between a customer and a franchisee and retained the right to discontinue a franchisee’s services to any client any time … . Jan-Pro provided franchisees with a starter set of business cards, which contained Jan-Pro’s logo, and claimant’s business card listed Jan-Pro’s name, logo and address … . Although claimant had the option of designing his own business card, any such designs required Jan-Pro’s approval. Furthermore, according to the franchise agreement, if claimant developed any new concepts or techniques that improved Jan-Pro’s business, they became Jan-Pro’s property … .

The franchise agreement also contained a non-compete provision barring claimant from operating for one year in any area of Jan-Pro’s affiliates or franchises … . Moreover, the franchise agreement gave Jan-Pro the sole right to invoice and collect from claimant’s customer accounts, maintain revenue records with respect to such accounts and accept payment from claimant’s customers. While the franchise agreement designated claimant as an independent contractor, such terms are not dispositive of claimant’s status … . Matter of Baez (PD 10276, Inc.–Commissioner of Labor), 2016 NY Slip Op 07061, 3rd Dept 10-27-16

NEMPLOYMENT INSURANCE (OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR)

October 27, 2016

/ Negligence

QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT.

The Third Department determined there was a question of fact whether the defect in a sidewalk was trivial, and whether plaintiff could identify the cause of her fall. Therefore, defendant’s motion for summary judgment was properly denied:

Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … .

Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff’s identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[] show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … .

Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Brumm v St. Paul’s Evangelical Lutheran Church, 2016 NY Slip Op 07079, 3rd Dept 10-27-16

NEGLIGENCE (QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SLIP AND FALL (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/SIDEWALKS (SLIP AND FALL, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)/TRIVIAL DEFECTS (SIDEWALKS, QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT)

October 27, 2016

/ Labor Law-Construction Law

ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED.

The First Department determined plaintiff’s Labor Law 240(1) cause of action, which was based upon injury incurred in an elevator, was properly dismissed. Under the circumstances (not explained in the decision) the elevator could not be considered a safety device. Plaintiff’s Labor Law 241(6) cause of action, alleging debris as a slipping hazard, should not have been dismissed:

Dismissal was properly granted with respect to plaintiff’s Labor Law § 240(1) cause of action in that plaintiff alleged that he was injured while riding in one of the building’s elevators. In this case, the passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by Labor Law § 240(1) … .

The court erred, however, in dismissing that portion of plaintiff’s Labor Law § 241(6) claim to the extent the claim was predicated on violations of Industrial Code … . While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff’s complaint, as supplemented by his affidavit in opposition to defendant’s motion, sufficiently alleged that debris was one of the causes of his fall … . Smith v Extell W. 45th St. LLC, 2016 NY Slip Op 07089, 1st Dept 10-27-16

LABOR LAW-CONSTRUCTION LAW (ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)/ELEVATORS (LABOR LAW, ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)

October 27, 2016

/ Insurance Law

DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF OPERATING EXPENSES TO BE PAID BY INSURERS.

In an extensive, detailed opinion by Justice Clark (too detailed to be fairly summarized here), the Third Department determined statutes requiring insurers to pay pro rata shares of the annual operating expenses of the Department of Finance (formerly the Insurance Department), including expenses associated with certain programs administered by other departments (sub-allocated programs), are constitutional. The Third Department further found the assessments imposed on the insurers, which included the costs of the sub-allocated programs, were not arbitrary and capricious and were not imposed in excess of the authority of the Department of Finance. New York Ins. Assn., Inc. v State of New York, 2016 NY Slip Op 07076, 3rd Dept 10-27-16

INSURANCE LAW (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)/FINANCE, DEPARTMENT OF (DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF THE DEPARTMENT’S OF OPERATING EXPENSES TO BE PAID BY INSURERS)

October 27, 2016

/ Civil Procedure, Family Law

FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED.

The Third Department, reversing Family Court, determined father’s petition should not have been dismissed on forum non conveniens grounds. Father, who is incarcerated, was entitled to six visits per year with the child. Mother, unbeknownst to father, relocated to Georgia and cut off all communication between the child and father:

[A “forum non conveniens”] determination “depends on the specific issue(s) to be decided in the pending litigation,” and must involve consideration of all relevant factors, including those set forth in the statute … .

Although Family Court articulated its consideration of each of the statutory factors, we disagree with the weight it accorded certain factors and find that it failed to view those factors in light of the sole issue to be decided in this proceeding, namely, whether the mother violated [the court order]. First, in considering whether the child or a sibling was the victim of violence, mistreatment or abuse that was likely to continue in the future … , Family Court found that the child was negatively affected by the father’s criminal actions, despite the fact that all of the parties agreed that this factor was not relevant, neither the child nor a sibling was involved in the 2008 [criminal case] case [against father] and Family Court had awarded the father six visits per year in 2011. Next, the father promptly commenced this proceeding four months after the mother relocated with the child … — which occurred without his knowledge or Family Court’s permission — and we find that the additional 12 months that it took to dispose of this proceeding does not militate in favor of finding that New York is an inconvenient forum. Further, the father and the paternal grandmother, whose testimony would be central to the issue of whether a violation occurred, are located in New York, and any testimony by the mother could be presented “by telephone, audiovisual means, or other electronic means” … . Matter of Snow v Elmer, 2016 NY Slip Op 07075, 3rd Dept 10-27-16

FAMILY LAW (FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)/FORUM NON CONVENIENS (FAMILY LAW, FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED)

October 27, 2016

/ Criminal Law, Evidence

SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED.

The Second Department, over an extensive dissent, determined the search of defendant’s car was a valid inventory search:

The critical issue in this case is whether the officers’ search of the car, which was conducted back at the police district headquarters and not at the arrest location, was a legitimate inventory search. We conclude that it was. The People introduced a copy of the relevant patrol guide section outlining the procedures for inventory searches. Everything was removed from the car, under the direction of a sergeant, and even items such as nail clippers were vouchered. A contemporaneous list was made of the items that were removed, and the list was introduced at the hearing. Copies of property clerk invoices also were admitted in evidence at the hearing. The testimony at the hearing established that the officers did not exercise discretion in removing items from the car, and that the search was not a ruse to recover incriminating evidence … . People v Lee, 2016 NY Slip Op 07081, 1st Dept 10-27-16

CRIMINAL LAW (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)/INVENTORY SEARCH (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)

October 27, 2016

/ Appeals, Criminal Law

ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.

The Third Department, in a full-fledged opinion by Justice Peters, determined Supreme Court’s summary denial of youthful offender status, which had not even been addressed by counsel or the probation department, did not satisfy the statutory requirements. The Third Department, notwithstanding that the youthful offender issue had not been raised on appeal, stepped in and adjudicated the defendant a youthful offender. The defendant took sneakers from the victim after lifting his shirt, revealing what may have been a gun in his waistband:

The grievous error of the Probation Department, the People and defense counsel, while not specifically raised on appeal, cries out for resolution. Since we are vested with the broad, plenary power to modify a sentence in the interest of justice, we can address this injustice and, if warranted, exercise our power to adjudicate defendant a youthful offender … . * * *

Defendant was just 16 years old at the time of the present offense and, although he had served a period of juvenile probation, he had no prior criminal record or history of violence … . We reiterate that the crime, although serious, did not cause physical injury to anyone involved and defendant neither brandished the object nor uttered any direct threats of violence during the incident. After his arrest, defendant cooperated with police and provided a statement admitting that he had taken the shoes with no intention of returning them to the victim but denying that he had possessed or displayed anything that resembled a gun … . People v Marquis A., 2016 NY Slip Op 07060, 3rd Dept 10-27-16

CRIMINAL LAW (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/APPEALS (CRIMINAL LAW, ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/YOUTHFUL OFFENDER STATUS (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)

October 27, 2016

/ Appeals, Criminal Law

AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.

The First Department, in a case remitted by the Court of Appeals, in a full-fledged opinion by Justice Tom, over a two-justice dissent, determined defendant’s challenge to the legality of his sentence would not be reviewed in the interest of justice. Defendant had been promised a three-year sentence, but was not eligible for a sentence less than six years. In violation of his plea agreement, defendant committed a crime while awaiting sentence. As a result the three-year promise was properly withdrawn and a six year sentence imposed. The Court of Appeals held that defendant’s failure to object based upon the illegal three-year sentence promise precluded appeal to the Court of Appeals. However, upon remittal, the Appellate Division could consider the question if it exercised its interest of justice jurisdiction (which the majority declined to do):

… [T]here is nothing rare or unusual about this case or this defendant. The plea proceedings do not raise a concern about defendant’s guilt. Defendant was advised of the rights he was waiving by pleading guilty and affirmed he was pleading guilty of his own free will. Defendant was represented by counsel and received a favorable sentence. Finally, defendant violated the plea agreement by committing another crime and the final sentence imposed was both legal and within the range announced by the court. Nor has defendant presented anything to demonstrate that his case is extraordinary. These facts, coupled with defendant’s failure to preserve the issue for review, fail to support the exercise of our discretion to review in the interest of justice, and militate against such exercise. People v Williams, 2016 NY Slip Op 07102, 1st Dept 10-27-16

CRIMINAL LAW (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/SENTENCING (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/APPEALS (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/INTEREST OF JUSTICE JURISDICTION (CRIMINAL APPEALS, AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)

October 27, 2016

Search Results

PEOPLE VS CATU, WHICH INVALIDATED GUILTY PLEAS WHERE THE PERIOD OF POSTRELEASE SUPERVISION WAS NOT DISCUSSED, SHOULD NOT BE APPLIED RETROACTIVELY.

EXPANDABLE, METAL BATON IS A “BILLY” WITHIN THE MEANING OF THE PENAL LAW.

OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR.

QUESTIONS OF FACT ABOUT WHETHER SIDEWALK DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF COULD IDENTIFY THE CAUSE OF HER FALL PRECLUDED SUMMARY JUDGMENT.

ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED.

DEPARTMENT OF FINANCE PROPERLY INCLUDED THE COSTS OF SUB-ALLOCATED PROGRAMS (ADMINISTERED BY OTHER DEPARTMENTS) IN ITS ASSESSMENTS OF OPERATING EXPENSES TO BE PAID BY INSURERS.

FAMILY COURT DID NOT PROPERLY APPLY THE STATUTORY FACTORS, FORUM NON CONVENIENS FINDING REVERSED.

SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED.

ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.

AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.

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