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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

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Child’s Disclosure of Sexual Abuse One Year After Abuse Ended Properly Admitted Under the “Prompt Outcry” Exception to the Hearsay Rule

The Second Department determined a child’s disclosure of sexual assault one year after the abuse ended was properly admitted under the “prompt outcry” exception to the hearsay rule:

Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place … . “An outcry is prompt if made at the first suitable opportunity’ …, and is a relative concept dependent on the facts’ … . “There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified” … . “[W]hat might qualify as prompt in one case might not in another” … .

Here, the trial court permitted testimony concerning the victim’s first “outcry” to a friend which occurred approximately one year after the abuse had ended … . Under all of the circumstances of this case, including the victim’s young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim’s outcry to her friend … . People v Caban, 2015 NY Slip Op 01959, 2nd Dept 3-11-15

 

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Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met

The Second Department determined defendant’s girlfriend was properly cross-examined about her delay in coming forward with defendant’s alibi.  The prosecutor laid the proper foundation for the cross-examination:

…[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met … . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant’s girlfriend about her apparent delay in informing law enforcement authorities of the defendant’s alibi. The record indicates that, during a bench conference, it was ascertained that the defendant’s girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant’s girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant’s girlfriend that she delayed in contacting the authorities with exculpatory evidence … . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15

 

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Failure to Follow Statutory Risk-Level-Determination Procedure Violated Defendant’s Due Process Rights

The Second Department determined that ignoring the statutory SORA risk-level-determination procedure violated defendant’s due process rights. The court exercised its interest of justice jurisdiction in the absence of an objection by the defendant:

Supreme Court sentenced the defendant to two one-year terms of incarceration, without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately prior to imposing sentence, and did so using a risk level assessment instrument prepared by the District Attorney’s office. This procedure violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before the defendant’s release from custody (see Correction Law § 168-n[2]…). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review … . People v Grabowski, 2015 NY Slip Op 01930, 2nd Dept 3-11-15

 

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Extent of Court Review of Town Board’s Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained

The Second Department determined the Town Board had properly adopted the Final Generic Environmental Impact Statement (FEGIS) and Findings Statement re: an airport master plan (dealing with noise).  The Second Department explained the court’s review powers:

Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure … . Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination … . ” [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'” … .

Here, the Town Board of the Town of East Hampton (hereinafter the Town Board) fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the Final Generic Environmental Impact Statement (hereinafter FGEIS), which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.  Matter of Committee to Stop Airport Expansion v Wilkinson, 2015 NY Slip Op 01941, 2nd Dept 3-11-15

 

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Nursing License Not Marital Property/Criteria Explained

The Second Department determined Supreme Court properly found that plaintiff’s nursing license was not marital property.  The Court explained the relevant analytical criteria:

Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party’s acquisition of that marital asset. Where only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity … . Here, there is no evidence that the defendant made a substantial contribution to the plaintiff’s acquisition of her nursing degree. There is no evidence that the defendant made career sacrifices or assumed a disproportionate share of household work as a consequence of the plaintiff’s education; his contributions were minor… . Badwal v Badwal. 2015 NY Slip Op 01910, 2nd Dept 3-11-15

 

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Search of Backpack Which Was No Longer In Defendant’s Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances

In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant’s backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant’s clothes.  The defendant was handcuffed and his backpack was placed on a car about three feet away.  After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack.  At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:

Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. “On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . For “compelling reasons,” including the safety of the officers or the public, “a search not significantly divorced in time or place from the arrest’ may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police” … . People v Alvarado, 2015 NY Slip Op 01955, 2nd Dept 3-11-15

 

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Corroboration Requirements for Child’s Out-of-Court Statements Described

The Second Department agreed with Family Court’s ruling that the child’s out-of-court statements were sufficiently corroborated to be allowed in evidence.  The court explained the analytical criteria:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . “The Family Court’s credibility findings must be accorded considerable deference on appeal” … . Matter of Zeeva M. (Abraham M.), 2015 NY Slip Op 01948, 2nd Dept 3-11-15

 

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Statutes of Limitations for Actions Stemming from the Alleged Fraudulent Transfer of Real Property Explained

The Second Department determined plaintiff’s actions, which stemmed from the allegation defendant had acquired a deed to his property by fraud, were timely. The court explained the statutes of limitations for actual and constructive fraud, breach of fiduciary duty, actions to quiet title, conversion by fraud, money had and received, and constructive trust. In essence, actions which have an equitable component are governed by a six-year statute of limitations:

The statute of limitations for a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated … . * * *

The statute of limitations for a cause of action sounding in breach of fiduciary duty is dependent on the relief sought. The Court of Appeals ruled in IDT Corp. v Morgan Stanley Deal Witter & Co. (12 NY3d at 139):

“New York law does not provide a single statute of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging injury to property’ within the meaning of CPLR 214(4), which has a three-year limitations period. Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies. Moreover, where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)” (citations omitted).

Since the plaintiff’s right to the subject property is in issue, awarding damages would not be adequate. Therefore, the six-year statute of limitations for causes of action sounding in equity should be applied … . Since the second and third causes of action accrued in 2006, when the defendants allegedly acted contrary to their fiduciary obligations, to the plaintiff’s detriment, those causes of action, interposed four years later in 2010, are not time-barred.

The first cause of action, to quiet title pursuant to RPAPL article 15, is not time-barred, since the plaintiff was seized or possessed of the premises within 10 years before the commencement of the action and is in essence seeking a determination that the quitclaim deed which he executed in 2003 was part of a mortgage transaction, and not a conveyance of title (see CPLR 212[a]; Real Property Law § 320…).

The fourth cause of action, alleging conversion based upon fraud, is not time-barred, since it is governed by the statute of limitations set forth in CPLR 213(8) … .

The fifth cause of action, seeking damages for money had and received …, is equitable in nature and, therefore, the applicable statute of limitations is six years … . Since the defendants’ receipt of money occurred in 2006, and the action was commenced in 2010, the cause of action is not time-barred. Similarly, the sixth cause of action, sounding in unjust enrichment, is equitable in nature, and is not time-barred … .

The seventh cause of action alleging a constructive trust is equitable in nature and governed by a six-year statute of limitations … . The elements of a cause of action to impose a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment … . The cause of action accrued on the date of the “wrongful transfer” of the subject property … . Loeuis v Grushin. 2015 NY Slip Op 01926, 2nd Dept 3-11-15

 

 

 

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