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PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reaffirmed its precedent allowing voluntary statements made after Miranda rights have been invoked to be used to impeach should the defendant take the stand:

This Court has long held that if a statement made by the defendant to the police is voluntary, it may be used for impeachment purposes; but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable … . * * *

Here, County Court determined that the statements were voluntary and the Appellate Division affirmed that determination. …  …[T]here is nothing in the record to support defendant’s contention that [the interrogating officer] consciously circumvented defendant’s invocation of his Fifth Amendment rights or otherwise rendered defendant’s statements involuntary as a matter of law. Thus, it cannot be said that County Court abused its discretion in denying defendant’s motion to preclude the People from utilizing the statements on cross-examination or rebuttal. People v Wilson, 2016 NY Slip Op 06942, CtApp 10-25-16

 

CRIMINAL LAW (PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/EVIDENCE PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/STATEMENTS (CRIMINAL LAW, PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED

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RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY (ENTRY OF DWELLING) CONVICTION REVERSED.

The Court of Appeals, over an extensive dissent, determined defendant should not have been convicted of burglary (entry of a “dwelling”) because the residential area of the building could not be accessed from where he entered:

Under the narrow circumstances of this case, application of the general rule as to what constitutes a dwelling in a mixed residential and commercial building within the meaning of Penal Law § 140.00 (2) is not warranted. Defendant, from a public sidewalk, entered the open cellar doors into a basement that was both entirely disconnected from the building and completely inaccessible to the residences in that building. The basement was not contiguous to any residential units. * * * …[T]he deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk. The basement was remote given that it was not used by the residents for any purposes and that there was no proof of any relationship between that space and the residents. In sum, there was no “close contiguity” … between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” … . People v Joseph, 2016 NY Slip Op 06945, CtApp 10-25-16

CRIMINAL LAW (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/BURGLARY (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/DWELLING (BURGLARY, (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)

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PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirming the dismissal of the attempted first degree murder indictment on speedy trial grounds, determined the People did not act with due diligence in seeking DNA test results. DNA had been recovered from the gun involved. A DNA swab was not taken from the defendant until nine months after indictment:

The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion “is to be given reasonable effect and [] is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it” … . In addition, while we have recognized that “‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),'” we have stated “that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … .

Here, as a result of the People’s inaction in obtaining defendant’s DNA exemplar, the 161-day period of delay to test the DNA and to produce the DNA report was not excludable from speedy trial computation as an exceptional circumstance. People v Clarke, 2016 NY Slip Op 06939, CtApp 10-25-16

 

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/ SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/DNA TESTS (CRIMINAL LAW, PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)

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IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT.

In this will construction proceeding, the Third Department determined Surrogate’s Court properly found that the decedent intended to benefit all ten children, including two stepchildren from her husband’s (Warren’s) prior marriage. The will did not anticipate that Warren would die before the decedent. If the laws of intestacy were applied, the two stepchildren would have been excluded. But because decedent’s contrary intent was clear, Surrogate’s Court properly ignored the laws of intestacy:

… [W]hile the residuary clause of the will is silent as to what would happen if decedent outlived Warren, all of her other testamentary dispositions evince the goal of equally dividing her assets among all 10 children, either at the time of her death or Warren’s death. There is nothing in the will to suggest that she intended a contrary result with regard to the residuary estate if Warren died before her, or that she had any interest in excluding petitioner and his sister from that part of her estate. The will implies the contrary and that decedent considered all 10 children as her own, as she named petitioner as one of several trustees in the will and regretted that she could not name all of her “other children” as well. Thus, Surrogate’s Court correctly “g[ave] effect to the expressed general testamentary plan and purpose of the testator” by implying a provision in decedent’s will leaving her residuary estate to all 10 children… . Matter of Warren, 2016 NY Slip Op 06925, 3rd Dept 10-20-16

TRUSTS AND ESTATES (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/WILLS (IN THIS WILL CONSTRUCTION PROCEEDING, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)/CONSTRUCTION PROCEEDING (WILLS, ALTHOUGH THE WILL DID NOT ANTICIPATE DECEDENT’S HUSBAND WOULD DIE BEFORE HER, THE DECEDENT’S INTENT WAS CLEAR AND WAS PROPERLY ENFORCED BY SURROGATE’S COURT)

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FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102.

The Third Department, in a full-fledged opinion by Justice Peters, reversing Supreme Court, determined that fiber-optic cables are not taxable real property under Real Property Tax Law (RPTL) 102. However, petitioner telecommunications company was not entitled to a refund of taxes paid because no protest was made at the time of payment:

We … address petitioner’s application for a judgment declaring that its fiber optic installations are not taxable real property under the RPTL. Resolution of this issue turns upon the construction of RPTL 102 (12) (f), which provides that real property shall include, among other things, “equipment for the distribution of heat, light, power, gases and liquids.” The parties agree that the fiber optic cables at issue consist of filaments of glass through which light beams are used to transport information and data from one point to another. Yet they sharply disagree as to whether this constitutes the “distribution” of light within the meaning of RPTL 102 (12) (f). …[W]e hold that it does not.  Matter of Level 3 Communications, LLC v Clinton County, 2016 NY Slip Op 06930, 3rd Dept 10-20-16

REAL PROPERTY TAX LAW (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)/FIBER OPTIC CABLES (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)/TAX LAW (FIBER OPTIC CABLES ARE NOT TAXABLE REAL PROPERTY UNDER REAL PROPERTY TAX LAW (RPTL) 102)

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QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING.

The Third Department, reversing Supreme Court, determined there was a question of fact whether the operators of a tubing hill unreasonably increased the risk of injury. The issues included whether there was adequate supervision, whether there was adequate protection at the bottom of the hill (hay to slow the tubes), and whether mother and son should have been allowed to tube together (thereby increasing speed):

… [I]t was plaintiff’s burden to demonstrate “facts from which it could be concluded that defendant . . . unreasonably enhanced the danger . . . or created conditions which were unique or above those inherent in [the] activity …”. A supervisor for defendants testified that on busy days, two people were assigned to work at the base of the tubing hill to spread and “fluff” the hay as needed based on conditions. At the time of the accident, however, there was only one attendant working in this area. Further, the supervisor decided to limit the tandem riders to a parent and a child based on conditions and confirmed that weight affected the speed of the tubes, i.e., the greater the weight, the greater the speed. Plaintiff testified that just before the accident, the attendant at the top of the tubing hill assured her that it was safe for her to ride in tandem with her adult-sized son, who was nearly six feet tall and weighed approximately 250 pounds. Plaintiff’s son testified that “there wasn’t a whole lot of hay” spread at the bottom of the course. A nonparty witness testified that the tubing park was very busy and that, before the accident, he observed that the hay had diminished to the point where tubers were dragging their feet to stop their tubes. Notably, defendant’s base attendant testified that once the tandem riders were limited to one adult and one child, no other groups went past the hay, while plaintiff and her son “blew through everything.” She recalled being surprised to see two adult-sized people coming down in tandem because “it was supposed to be an adult and a child.” Connolly v Willard Mtn., Inc., 2016 NY Slip Op 06937, 3rd Dept 10-20-16

NEGLIGENCE (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/ASSUMPTION OF THE RISK (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/TUBING (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)

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EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL.

The Third Department, reversing Supreme Court, determined defendant, Oak Mountain Ski Center, was entitled to summary judgment based upon plaintiff’s (Schorpp’s) assumption of the risk. Plaintiff, who had decades of skiing experience, and who had skied at Oak Mountain weekly, flipped over when he struck a depression on a “black diamond” trail. It was the first time plaintiff used that particular trail:

Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain” … . The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” … .

We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing … . Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope … . Schorpp v Oak Mtn., LLC, 2016 NY Slip Op 06932, 3rd Dept 10-20-16

 

NEGLIGENCE (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/ASSUMPTION OF THE RISK (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)/SKIING (EXPERIENCED SKIER ASSUMED THE RISK OF STRIKING A DEPRESSION IN THE SKI TRAIL)

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LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice partial dissent, determined the requirements of section 5 of the Lien Law, which concerns private development on public land, was satisfied by a contractual guarantee, as opposed to the posting of a bond. The nearly $170,000,000 construction project ultimately collapsed. The opinion, which addresses the substance of the contracts, piercing the corporate veil, as well as a motion to disqualify a law firm on conflict grounds, is too complex to summarize here. With respect to the Lien Law issue, the court wrote:

The crux of plaintiff’s position is that the guarantee provided in this case does not comply with the law because it is not equivalent to a bond or “other form of undertaking” under the statute.

A statute, however, is to be construed so as to give meaning to each word … . Black’s Law Dictionary defines an “undertaking” first as “[a] promise, pledge, or engagement,” and second as “[a] bail bond” … . Similarly, the CPLR defines “Undertaking” first as “[a]ny obligation, whether or not the principal is a party thereto, which contains a covenant by a surety to pay the required amount, as specified therein, if any required condition . . . is not fulfilled” … . Hence, an “undertaking,” as distinct from a “bond,” is simply a “formal promise [or] guarantee” … .

That the legislature intended the term “undertaking” in Lien Law § 5 to mean a “guarantee” is strongly supported by the statute’s legislative history, which indicates that the Governor vetoed an earlier version of the 2004 amendment that added the above quoted language because the earlier version would have required the posting of a bond in every instance, disallowing “other forms of security designed to guarantee payment” … . The senate sponsor of the amendment clarified that the phrase “or some other form of undertaking” was added to meet the Governor’s concerns by providing “an alternative to posting a bond” … . Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 2016 NY Slip Op 06903, 1st Dept 10-20-16

LIEN LAW (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/BONDS (CONSTRUCTION) (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/GUARANTEE (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)/CONTRACT LAW (LIEN LAW DID NOT REQUIRE A BOND FOR A $170,000,000 PRIVATE CONSTRUCTION PROJECT ON PUBLIC LAND; CONTRACTUAL GUARANTEE SATISFIED THE STATUTE)

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QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action should not have been granted. Plaintiff was severely injured when a row of stacked scaffolding frames fell forward like “dominos.” Whether Labor 240(1) applies depends on whether the scaffolding, which was on the same level as plaintiff, presented a risk related to a significant elevation differential:

… [W]e are unable to glean from the present record whether plaintiff’s injury arose from the requisite “physically significant elevation differential” … . In determining whether an elevation differential is physically significant or de minimis, we must consider not only the height differential itself, but also “the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Critically absent from the record is any indication as to plaintiff’s height or any other evidence shedding light on the height differential between plaintiff and the stacked frames at the time they fell. Further, issues of fact remain with regard to such other relevant factors as the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff. Given these unresolved factual questions, summary judgment on plaintiff’s Labor Law § 240 (1) is not appropriate … . Wright v Ellsworth Partners, LLC, 2016 NY Slip Op 06927, 3rd Dept 10-20-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)/ELEVATION DIFFERENTIAL (LABOR LAW 240(1), QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)

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FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD.

The First Department, reversing Family Court, determined mother’s petition for a modification of custody should not have been dismissed without a hearing and without interviewing the 13-year-old child:

… [P]etitioner submitted evidence of the younger child’s preference, his growing apprehension about staying with respondent [father], and respondent’s maltreatment of the child. She submitted evidence that she was addressing the mental health concerns that had led to her initial consent to relinquish custody to respondent and evidence that she had sought treatment for issues relating to a history of domestic violence and that she had obtained new living quarters for herself and the younger child. The child supported the petition and asked for an in camera hearing … .

Without meeting with the child or considering the sworn allegations of domestic abuse (see Domestic Relations Law § 240[1]), the court granted the motion to dismiss. This was error.

Petitioner presented sufficient evidence to warrant a plenary hearing to determine whether the totality of the circumstances warrants a modification of the custody order, including its limited visitation provisions and the grant of complete decision-making authority to respondent, and whether such a change is in the best interests of the child … . The child’s wishes, to be discerned from an interview, should be considered in making the determination … . Matter of Athena H.M. v Samuel M., 2016 NY Slip Op 06865, 1st Dept 10-20-16

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)/CUSTODY (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)

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