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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Plaintiff Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action—Plaintiff Was Standing on an A-Frame Ladder When It Swayed and Tipped Over

The Second Department determined plaintiff, Casasola, was entitled to summary judgment on his Labor Law 240 (1) cause of action.  Plaintiff was standing on an unsecured A-frame ladder when it swayed and tipped over. The incident occurred when Casasola was working on property owned by the State of New York. The court noted that, to be liable, the property owner need not have exercised any control over the work.  All the plaintiff must show is the violation of a statute proximately caused his injury:

Labor Law § 240(1) provides that “[a]ll contractors and owners and their agents . . . shall furnish or erect, or cause to be furnished or erected . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]” … . The purpose of this statute, commonly referred to as the “scaffold law,” is to protect workers “by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” … . Casasola v State of New York, 2015 NY Slip Op 04798, 2nd Dept 6-10-15

 

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Plaintiff Who Fell From Scaffolding Which Did Not Have Safety Rails Entitled to Summary Judgment on His Labor Law 240(1) Cause of Action

he Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from scaffolding which did not have safety rails. The relevant law was succinctly explained:

Labor Law § 240(1) imposes a nondelegable duty upon owners, lessees that control the work performed, and general contractors to provide safety devices necessary to protect workers from risks inherent in elevated work sites … . “To recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident” … . Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold which lacked safety rails on the sides and that he was not provided with a safety device to prevent him from falling … . Vasquez-Roldan v Two Little Red Hens, Ltd., 2015 NY Slip Op 04842, 2nd Dept 6-10-15

 

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Dismantling, Salvaging or Demolishing a Product Is Not a Foreseeable Use of the Product

The First Department determined the dismantling, salvaging and demolishing of valves containing asbestos did not constitute a foreseeable use of the valves.  The complaint against the manufacturer of the valves, sounding in strict products liability and negligence, was dismissed.

“A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose” (Lugo v LJN Toys, 75 NY2d 850, 852 1990] [citations omitted]; see also New Holland at 53-54). The issue, which has not been squarely addressed by the courts of this State, is whether dismantling constitutes a reasonably foreseeable use of a product.  * * *

“To recover for injuries caused by a defective product, the defect must have been a substantial factor in causing the injury, and the product must have been used for the purpose and in the manner normally intended or in a manner reasonably foreseeable'” … . As plaintiff did not use [defendant’s] manufactured product in a reasonably foreseeable manner and his salvage work was not an intended use of the product, the complaint should have been dismissed. Hockler v William Powell Co., 2015 NY Slip Op 04765, 1st Dept 6-9-15

 

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Pursuant to the Public Authorities Law, Interest on a Judgment To Be Paid by the New York City Transit Authority Cannot Exceed 3%

The First Department noted that, although plaintiff procured a judgment (after trial) for past lost earnings against the city, the judgment will ultimately be paid by non-party New York City Transit Authority.  Therefore, pursuant to Public Authorities Law 1212(6), the interest on the judgment cannot exceed 3 %.  Soltero v City of New York, 2015 NY Slip Op 04770, 1st Dept 6-9-15

 

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An Unconditional Guaranty of Payment of a Another’s Obligations Is Enforceable by Summary Judgment In Lieu of a Complaint In New York, Even In the Face of an Allegation the Underlying Judgment Was the Result of Collusion and Fraud

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined an unconditional guaranty (re: payment of corporate debts) was a proper basis for summary judgment in lieu of a complaint, notwithstanding defendant’s (unsupported) allegation the underlying judgment was the result of collusion and fraud.  An unconditional guaranty is enforceable in New York, even where it is alleged the guaranty itself was the product of fraud:

Guarantees that contain language obligating the guarantor to payment without recourse to any defenses or counterclaims, i.e., guarantees that are “absolute and unconditional,” have been consistently upheld by New York courts * * *.

This Court has acknowledged the application of these absolute guarantees even to claims of fraudulent inducement in the execution of the guaranty … .* * *

Here, defendant personally guaranteed the obligations owed by Agra Canada under the Purchase Agreement, as well as obligations owed by Agra USA. Moreover, defendant specifically agreed that his “liability under this Guaranty shall be absolute and unconditional irrespective of (1) any lack of validity or enforceability of the agreement; . . . or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Seller (Agra Canada) or a guarantor.” By its plain terms, in broad, sweeping and unequivocal language, the Guaranty forecloses any challenge to the enforceability and validity of the documents which establish defendant’s liability for payments arising under the Purchase Agreement, as well as to any other possible defense to his liability for the obligations of the Agra businesses. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v Navarro, 2015 NY Slip Op 04753, CtApp 6-9-15

 

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The Acts of Applying for a Fake Non-Driver ID Card and Possessing the Fake Non-Driver ID Card Upon Arrest (Four-Months After Submitting the Application) Did Not Constitute a Single Criminal Venture—the Prohibition Against Double Jeopardy Did Not Preclude the Second Charge

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined defendant was not entitled to the dismissal of charges on double jeopardy grounds.  Defendant had used his son’s identification information to procure a non-driver ID card in Suffolk County.  Several months later defendant was stopped by police in Westchester County, presented the fake non-driver ID card, and was subsequently charged with possession of a forged instrument in the second degree. Defendant pled guilty to possession of a forged instrument third degree. When defendant’s son returned to New York State (after a four-year absence) and applied for a driver’s license in Westchester County, authorities became aware of defendant’s submission (in Westchester County) of a fake application (MV-44 form) for the non-driver ID. Defendant was then charged in Westchester County with possession of a forged instrument (the ID application form) as well as forgery.  The Court of Appeals held that the two offenses were not “integrated, interdependent acts as seen in conspiracy cases or complex frauds…”. Therefore, unlike individual acts within such conspiracies or complex frauds, the two acts did not constitute a “single criminal venture.” The court noted: “A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here:”

Under CPL 40.20, a subsequent prosecution for offenses involving the “same criminal . . . transaction,” as defined by CPL 40.10 (2), violates the statutory bar against double jeopardy unless an exception applies.

“‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). * * *

Part (b) of the CPL 410.10 definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (7 NY Prac., New York Pretrial Criminal Procedure § 2:6 [2d ed.]). This Court has recognized statutory violations of double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances … .

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and … involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred four months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” … . People v Lynch, 2015 NY Slip Op 04754, CtApp 6-9-15

 

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Although the Right to Appeal Could Have Been Defined More Fully, Defendant’s Waiver of Appeal In Response to a Colloquy Conducted by the Prosecutor Deemed Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined defendant’s waiver of appeal was valid, noting the nature of the right to appeal could have been defined more fully.  “Regarding the waiver of the right to appeal, the following exchange … took place between the prosecutor and defendant: ‘Q Do you understand that as a condition of this plea you are waiving the right to appeal your conviction and sentence to the Appellate Division [2nd] Department? A Yes. Q Have you discussed this waiver of the right to appeal with your attorney? A Yes. Q In consideration of this negotiated plea[,] do you now voluntarily waive your right to appeal your conviction and sentence under this indictment? A Yes.’ ” The Court of Appeals noted “County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea.” [The dissent pointed out that the responsibility for the colloquy re: the waiver of appeal was delegated to the prosecutor here:]

….[W]e conclude that the record before us sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. There is no meaningful distinction between the plea colloquy here and the colloquy upheld in Nicholson, in which defendant acknowledged his understanding that he was “giving up [his] right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case” (Nicholson, 6 NY3d at 254). As in Nicholson, the plea colloquy here was sufficient because County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea. In fact, the People went even further in this case and obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea, as well as counsel’s confirmation that all motions pending or decided were being withdrawn. Thus, while the better practice would have been to define the nature of the right to appeal more fully — as the court did in Nicholson — the Appellate Division correctly determined that no further elaboration was necessary on the phrase “right to appeal your conviction and sentence to the Appellate Division [2nd] Department” in view of the whole colloquy, particularly given this defendant’s background, including his extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment. People v Sanders, 2015 NY Slip Op 04755, CtApp 6-9-15

 

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“Reckless Disregard” Standard of Care Applies to Operators of Street Sweepers in New York City—Standard Explained

The Court of Appeals determined the “reckless disregard” standard in Vehicle and Traffic Law 1103, not the ordinary negligence standard, applied to the operator of a New York City street sweeper who was in the process of cleaning the street when the sweeper struck plaintiff’s car.  A question of fact had been raised whether the applicable standard of care was violated:

… [U]nder VTL § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see VTL § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway . . .]). At the time of the accident, 34 RCNY [Rules of the City of New York] § 4-02 (d) (1)(v) provided that VTL § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that “such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others” (34 RCNY § 4-02 [d] [1] [iv]).

In Riley [95 NY2d 455], this Court held that the unambiguous language of VTL § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “‘has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id. at 466… ). Deleon v New York City Sanitation Dept., 2015 NY Slip Op 04788, CtApp 6-9-15

 

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