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Engineer/Engineering Firm Did Not Have Standing to Contest Variance

The Third Department determined the petitioner, Klein, an engineer who claimed to be representing neighbors opposed to a variance granted by the town zoning board, did not have standing to contest the variance:

The Town Code permits appeals by “any person aggrieved” by, among other things, the zoning administrator’s decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning … . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who “has sustained special damage, different in kind and degree from the community generally” … . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute’s zone of interests and his or her property is sufficiently proximate to the property at issue … .

The notice of appeal to the ZBA [Zoning Board of Appeals] listed Klein’s engineering firm as the appellant and Klein as the appellant’s agent. Klein and his firm did not exhibit any specialized harm and do not own property near the Kitchens’ property. Thus, Klein does not have standing in his individual capacity or as an agent for his firm. Klein asserts that at the public hearings and in letters he identified himself as appearing on behalf of neighbors. While this is true, at no point up until the day before the hearing on his appeal did he identify who his clients were. The other petitioners involved in this appeal, who later claimed that Klein was their agent, were not listed on the notice of appeal and did not file a formal designation form naming him as their agent — as the Town generally requires — prior to the expiration of the statute of limitations for appealing an administrative determination. Under the circumstances, the ZBA did not err in finding that Klein was not a duly authorized agent of an aggrieved party during the requisite limitations period for the appeal and was not himself aggrieved, so he had no standing … . Matter of Fund for Lake George, Inc. v Town of Queensbury Zoning Bd. of Appeals, 2015 NY Slip Op 518831, 3rd Dept 3-12-15

 

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Corporation Is a Proper Respondent in an Article 78/Mandamus to Compel Proceeding

The Third Department determined that respondent corporation (CGFNS), which contracted with the state to provide credential verification services to the Department of Education for foreign-trained nurses, was a proper respondent in an Article 78/mandamus to compel proceeding.  The proceeding was brought by the foreign nursing school after CGFNS indicated it could not verify the school’s credentials:

CGFNS argues that it is not a “body or officer” subject to CPLR article 78 (CPLR 7802 [a]) and that it did not make a “determination” reviewable in this proceeding (CPLR 7803 [3]). CPLR 7802 (a) defines a “body or officer” against whom a CPLR article 78 proceeding may be instituted to include, as relevant here, “every court, tribunal, board, [or] corporation” (emphasis added). CGFNS is a not-for-profit corporation. Courts have recognized that corporations, both public and private, may be subject to CPLR article 78 as quasi-governmental bodies because they are “beholden to the [s]tate for their franchise or charter or the exercise of their functions” (… Siegel, NY Prac § 558 at 989; § 564 at 1001-1002 [5th ed 2011]). As a corporate entity, CGFNS is a “body or officer” subject to a writ of mandamus under CPLR article 78 (CPLR 7802 [a]; see CPLR 7803 [1], [3]…). Matter of American Univ. of Antigua v CGFNS Intl., 2015 NY Slip Op 02028, 3rd Dept 3-12-15

 

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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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Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained

The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice).  The court explained the relevant analysis:

“Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction” … . “‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'” … . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded … and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion … . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15

 

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“Constructive Possession” Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit

The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:

Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised “dominion and control over the weapon or the area in which it was found” … . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee’s marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant’s hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward’s patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating that the handgun had been fired once.

… “[V]iewing the evidence in a neutral light and according deference to the jury’s credibility determinations,” we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence … . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15

 

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Presentation of Hearsay to Grand Jury Did Not Taint the Proceedings—Criteria Explained

The Third Department determined that the admission of hearsay before the grand jury (the audio of a videotape which could not be muted) did not constitute reversible error, mainly because the prosecution did not intentionally present inadmissible evidence:

We first address defendant’s argument that the grand jury’s exposure to inadmissible hearsay so tainted the proceedings that dismissal of the indictment is required. Dismissal of an indictment is an extreme remedy that is limited to “‘those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury'” … . Defendant’s challenge relates to a recording of the bar’s security camera footage that depicted the attack on the victim. Specifically, the victim’s son made a video recording of a monitor as it played the surveillance footage, during which recording he and another person can be heard making several comments regarding the severity of the attacks upon the victim. The People explained to Supreme Court that they were unable to mute the video as it was being played during grand jury proceedings, and that the prosecutor provided an instruction to disregard the audio component of the video recording. Thus, it is apparent that the People did not intentionally present inadmissible hearsay or otherwise engage in an “over-all pattern of bias and misconduct” … . Moreover, in light of the ample evidence supporting the assault in the second degree charge against defendant, we find no basis to determine that the hearsay evidence rendered the indictment defective … . People v Boddie, 2015 NY Slip Op 105524, 3rd Dept 3-12-15

 

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Defendant Properly Precluded from Introducing Medical Records Without Accompanying Medical Testimony

The Third Department determined defendant was properly precluded from placing his hospital records into evidence in the absence of any accompanying medical testimony.  The defendant in this DWI case wanted to use the hospital records to demonstrate his failure of the sobriety tests was due to his medical condition, not intoxication.  The trial court correctly ruled that, without accompanying medical testimony, the jury would have to speculate about the meaning of the hospital records:

In support of his theory that his failure of the field sobriety tests was caused by his medical ailments as opposed to intoxication, defendant sought the admission of his hospital records — unaccompanied by any testimony from a medical professional. County Court denied the relief, concluding that defendant’s hospital records, while generally admissible pursuant to CPLR 4518, would lead the jury to speculate as to defendant’s medical condition unless a medical professional offered an explanation. The court did permit defendant to testify regarding his physical condition and hospital treatment, and to introduce photographs of his injuries at trial … . Inasmuch as the hospital records, without explanatory testimony, would have required the jury to speculate as to whether defendant’s injuries caused him to fail the sobriety tests, we find that the court properly excluded them … . People v Collins, 2015 NY Slip Op 105558, 3rd Dept 3-12-15

 

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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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