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Abuse of Discretion to Deny Defendant’s Request for New Defense Counsel—Request Was Supported by Specific Legitimate Concerns and Was Joined by Defense Counsel

The Fourth Department, over a dissent, determined Supreme Court should not have denied defendant’s request for new counsel, which was echoed by defense counsel and supported by specific, legitimate concerns.  The conviction was reversed and a new trial ordered. The Fourth Department outlined the analytical criteria:

The determination “[w]hether counsel is substituted is within the discretion and responsibility of the trial judge . . . , and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[]” … . Thus, where a defendant makes “specific factual allegations” against defense counsel … , the court must make at least “some minimal inquiry” to determine whether the defendant’s claims are meritorious … . Upon conducting that inquiry, “counsel may be substituted only where good cause’ is shown” … .

Here, the court erred in determining that a breakdown in communication between attorney and client cannot constitute good cause for substitution of counsel. Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel …, where a complete breakdown has been established, substitution is required … . Here, both defendant and defense counsel agreed that they were unable to communicate, and nothing said by either of them during the court’s lengthy inquiry indicated otherwise.

We conclude that the court also erred in suggesting that any breakdown in communication was “initiated or promoted by the defendant as opposed to defense counsel.” That conclusion is not supported by the record, which shows that the breakdown in communication resulted from legitimate concerns defendant had about defense counsel’s performance. People v Gibson, 2015 NY Slip Op 02236, 4th Dept 3-20-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

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Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection

The Fourth Department determined the defendant’s conviction must be reversed because he was not informed of the period of postrelease supervision (PRS) at the time of the plea, and he could not be expected to object because he was not informed of the PRS until the end of the sentencing hearing:

…[D]efendant was not required to preserve for our review his challenge to the imposition of PRS under these circumstances. “A defendant cannot be expected to object to a constitutional deprivation of which [he] is unaware . . . [W]here the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge’ . . . And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim” … . Furthermore, “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the [PRS] component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (People v Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS” because only the term of incarceration of 20 years was stated on the record … . While a term of PRS was mentioned earlier in the plea negotiations, it is undisputed that there was no mention of PRS at the plea proceeding and, based on our review of the record, we conclude that defendant was not “advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding” … . People v Rives, 2015 NY Slip Op 02316, 4th Dept 3-20-15

 

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Court’s Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal

The Fourth Department determined the court’s failure to elicit an unequivocal declaration jurors could set aside their bias and render an impartial verdict required reversal:

It is well established that “[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . While no “particular expurgatory oath or talismanic’ words [are required,] . . . [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict” … . During voir dire, the statements of three prospective jurors with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict …, and those prospective jurors failed to provide “unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence” … . Contrary to the court’s conclusion, we conclude that the nodding by these three prospective jurors as part of a group of prospective jurors who were “all nodding affirmatively in regard to the statement [of another prospective juror]” was “insufficient to constitute such an unequivocal declaration”… . People v Strassner, 2015 NY Slip Op 02342, 4th Dept 3-20-15

 

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Appeal Waiver Did Not Encompass Youthful Offender Status/Defendant Should Have Been Adjudicated a Youthful Offender

The Fourth Department determined the defendant did not waive his right to appeal the court’s failure to adjudicate him a youthful offender and further determined defendant should be so adjudicated:

… [T]he waiver [of appeal] does not encompass defendant’s contention regarding the denial of his request for youthful offender status, inasmuch as “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” … .

We agree with defendant that he should have been afforded youthful offender status. Defendant was 16 years old at the time of the offense and committed the offense when he and his two friends were walking to a park, saw a vehicle with the keys in the ignition, and wondered what it would be like to steal the vehicle. Defendant expressed remorse for his actions, which we conclude were the actions of an impulsive youth rather than a hardened criminal (see People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under the circumstances, we modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender … . People v Angel T.C., 2015 NY Slip Op 02296, 4th Dept 3-20-15

 

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Arbitrator Exceeded Her Powers to Modify an Award and Failed to Make a “Final and Definite” Award

The Third Department determined the arbitrator had exceeded her authority when she did not merely correct a miscalculation, but rather made new findings when modifying an award.  The court further determined that the arbitrator initially did not make a “final and definite” award when she failed to take into account a stipulation between the parties:

…[T]he arbitrator’s modification of the original award exceeded the narrow grounds set forth in CPLR 7511 (c). A review of the modified award reveals that the arbitrator did not simply correct a “miscalculation of figures . . . in the [original] award” (CPLR 7511 [c] [1]) but, rather, made new factual findings as to the applicability of the parties’ apparent stipulation relative to petitioner’s counterclaim and its corresponding impact upon the moneys awarded, i.e., the arbitrator impermissibly revisited the merits of the parties’ dispute. Under these circumstances, the modified award was properly vacated … .

We also are persuaded that Supreme Court properly vacated the original arbitration award and remanded the matter to the arbitrator for a rehearing (see CPLR 7511 [d]). CPLR 7511 (b) (1) (iii) permits a court to vacate an arbitration award if the court finds that a party’s rights were prejudiced because the arbitrator, in making such an award, either “exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” Although we find no basis upon which to conclude that the arbitrator exceeded her authority in rendering the initial award, we agree with Supreme Court that, by failing to address the existence and/or content of the parties’ purported stipulation, ascertain whether the contested funds were in fact withheld by petitioner prior to the start of the arbitration and assess the corresponding impact, if any, upon petitioner’s counterclaim, the arbitrator “so imperfectly executed” her powers that “a final and definite award” was not in fact made (CPLR 7511 [b] [1] [iii]). Matter of Delaney Group, Inc. (Holmgren Enters., Inc.), 2015 NY Slip Op 02174, 3rd Dept 3-19-15

 

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The “Strict Compliance” Rule Re: Documents Required for a Drawdown from a Letter of Credit Explained

The First Department, in a full-fledged opinion by Justice Saxe, determined that minor discrepancies in the documents required by a letter of credit as a prerequisite for a drawdown did not violate the “strict compliance” rule.  Here a true copy of a document, rather than the original, was submitted.  The true copy was deemed to satisfy the “strict compliance” rule:

…[A]pplying the standard of strict compliance, plaintiff’s drawdown request should have been honored because, under these circumstances, the production of a true copy of amendment 2, instead of an original, was sufficient even to satisfy the strict compliance standard.

Strict compliance has been said to require that “the papers, documents and shipping directions . . . be followed as stated in the letter [of credit],” that “[n]o substitution and no equivalent, through interpretation or logic, will serve,” and that “[t]here is no room for documents which are almost the same, or which will do just as well” … . Even slight discrepancies in compliance with the terms of a letter of credit have been held to justify refusal to pay … .

“The [strict compliance] rule finds justification in the bank’s role in the transaction being ministerial . . . and to require it to determine the substantiality of discrepancies would be inconsistent with its function” … . The “reason for the strict [compliance] rule is to protect the issuer from having to know the commercial impact of a discrepancy in the documents” … .

However, as this Court has recently observed, “According to the official UCC commentary, the strict compliance standard does not require that the documents presented by the beneficiary be exact in every detail” (BasicNet S.P.A v CFP Servs., Ltd., __ AD3d __, __, 2015 NY Slip Op 02080, [1st Dept 2015]) [summarized directly below]. The doctrine of strict compliance “does not mean slavish conformity to the terms of the letter of credit . . . [and] does not demand oppressive perfectionism” (id., quoting Official Comment 1, reprinted in McKinney’s Cons Laws of NY, Book 62½, UCC 5-108 at 367). Ladenburg Thalmann & Co, Inc. v Signature Bank, 2015 NY Slip Op 02224, 1st Dept 3-19-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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Safety Device Requirement in Industrial Code Was Specific Enough to Support Labor Law 241(6) Action Based Upon the Absence of a Safety Guard on a Tile Grinder

The First Department, over a dissent, determined that a rule (Industrial Code) requiring that all safety devices be kept sound and operable was specific enough to support a Labor Law 241(6) action based upon the absence of safety guard from a tile grinder:

The motion court erred in finding that section 23-1.5(c)(3) was too general to support plaintiff’s Labor Law § 241(6) claim. Industrial Code (12 NYCRR) § 23-1.5(c)(3) provides, “All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” In Misicki v Caradonna (12 NY3d 511, 520-521 [2009]), the Court of Appeals held that the third sentence of 12 NYCRR 23-9.2(a), which says, “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement,” imposed an affirmative duty, rather than merely reciting common-law principles, and that therefore its violation was sufficiently specific to support a Labor Law § 241(6) claim. The regulation plaintiff relies on here, 12 NYCRR 23-1.5(c), has a structure similar to 12 NYCRR 23-9.2(a): the first two sentences of section 23-9.2(a) and the first two paragraphs of section 23-1.5(c) employ general phrases (e.g., “good repair, “proper operating condition,” “sufficient inspections,” “adequate frequency”) while the third sentence and paragraph “mandate[] a distinct standard of conduct, rather than a general reiteration of common-law principles, and [are] precisely the type of concrete specification’ that Ross [v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993])] requires” (Misicki, 12 NY3d at 521). Since the final paragraph of section 23-1.5(c) is functionally indistinguishable from the third sentence of section 23-9.2(a), in that both mandate a distinct standard of conduct, we find that the Court of Appeals’ reasoning in Misicki applies here, and reject the dissent’s suggestion that the preamble of section 23-1.5 precludes any reliance on the section for purposes of Labor Law § 241(6). Becerra v Promenade Apts. Inc., 2015 NY Slip Op 02191, 1st Dept 3-19-15

 

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“Wheel Stop” Is Open and Obvious

The First Department determined a “wheel stop” in a parking lot, over which plaintiff tripped, was open and obvious:

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell over a wheel stop in defendants’ parking lot in the early evening. Defendants submitted evidence showing that the wheel stop was an open and obvious condition and not inherently dangerous … . The evidence demonstrated that the wheel stop’s placement had been approved by the local zoning board, the parking lot lights had been set to turn on at 4:00 p.m., the lights were inspected daily and found to be in good condition on the following day, and there had been no prior complaints about the wheel stop or inadequate lighting.

In opposition, plaintiff failed to raise a triable issue of fact. Her claim that an optical illusion created by inadequate lighting made the wheel stop less visible is insufficient to raise a triable issue of fact, as her testimony established that she was looking toward her car at the time of the accident … . Moreover, a photograph marked at her deposition reveals that the portion of the curb on which plaintiff allegedly tripped was near a light post … . Plaintiff’s affidavit in which she claimed to have been unable to see the surface of the parking lot and wheel stop directly contradicts her earlier testimony and raises only a feigned issue of fact … . Abraido v 2001 Marcus Ave., LLC, 2015 NY Slip Op 02204, 1st Dept 3-19-15

 

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