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Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective

The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:

In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *

As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14

 

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Assignment of New Counsel and Adjournment of Trial Over Defendant’s Objection Was Proper—Defense Counsel Had Represented the Confidential Informant in the Past—District Attorney Objected to Preclusion of Confidential Informant’s Testimony as a Solution

The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant’s objection, the assignment of new counsel because of a conflict of interest.  Assigned counsel had represented the confidential informant (CI).  The court was faced with either assigning new counsel or ruling that the CI could not testify:

County Court did not abuse its discretion in substituting assigned counsel against defendant’s wishes … . A criminal defendant’s right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel’s continued representation of the defendant would present a conflict of interest … . Here, upon learning of the CI’s identity,[FN2] defendant’s original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest … . Faced with “the dilemma of having to choose between undesirable alternatives” in addressing the conflict …, County Court’s decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented … . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14

 

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Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance

The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *

Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14

 

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Search of Home for Weapon Not Justified by Exigent Circumstances

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed the appellate division, finding that exigent circumstances did not justify the search for and seizure of weapon after the suspects and all members of the household were in one room of the home under police supervision.  The police responded to gunfire, saw one of the suspects with a firearm, and used force to gain entry to the apartment into which the suspects fled:

“[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional” … . One exception, commonly referred to as the “exigent circumstances” exception, dictates that police may act without a warrant where they possess probable cause to search but “urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” … . Even in such cases, however, “the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises” … . The People have the burden of establishing that the exigencies of the situation justified the warrantless search … .

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division's conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” … . At that point, contrary to the People's contention, there was no danger that defendant would dispose of or destroy the weapon …nor was there any danger to the public or the police … .  Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view … the police were required to obtain a warrant prior to searching the box. People v Jenkins, 2014 NY Slip Op 07007, CtApp 10-16-14

 

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Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply

The Third Department reversed defendant’s conviction by guilty plea, finding that the defendant’s waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:

A trial court must ensure that a defendant’s waiver of the right to appeal is knowing, intelligent and voluntary … . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, “separate and distinct from those rights automatically forfeited upon a plea of guilty” … . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about “the circumstances surrounding the document’s execution” or confirm that defendant had been fully advised by counsel of the document’s significance … . As such, the appeal waiver was invalid … .

On the merits of defendant’s appeal, a criminal defendant’s right to receive the assistance of counsel attaches at arraignment “and entails the presence of counsel at each subsequent critical stage of the proceedings” … . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel … . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury … or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process … . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied … . Further, we observe that, while defendant’s motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before County Court … . Inasmuch as defendant was not afforded an opportunity to consult with counsel “and make an informed decision as to whether to appear before the [g]rand [j]ury”…, the resulting deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment … . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14

 

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Court-Ordered Blood Test Results Should Have Been Suppressed Because the Application Failed to Indicate the Application Was Based Upon Hearsay/Elements of Reckless Driving Explained

The Third Department vacated defendant’s conviction for aggravated driving while intoxicated because the application for a court-ordered blood test did not indicate that it was based on hearsay.  In addition, the court, in affirming the defendant’s conviction for reckless driving, explained the elements of that offense. The defendant, who had stopped drinking a few hours before the accident, moved into the oncoming lane and struck the victim’s car head-on (the victim died):

Although an application for a court-ordered blood test may contain hearsay and double hearsay statements that satisfy the Aguilar-Spinelli test, the application must disclose that it is supported by hearsay and identify the source or sources of the hearsay” … . Here, the investigator based the application on information provided to him from other officers that defendant had made oral admissions at the scene to operating the vehicle and consuming alcohol, had a reading of .12% blood alcohol content on the Alco-Sensor test and refused to take a chemical test. The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter … . Accordingly, the motion to suppress the blood test results should have been granted and, in the absence of those results, the conviction for aggravated driving while intoxicated must be vacated … .

As for the charge of reckless driving, it is defined as driving “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway” … . “More than mere negligence is required, and the term has been held to mean ‘the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences'” … . “Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road” … .

Here, the investigator who reconstructed the accident testified that defendant crossed the center line and collided driver-side “headlight to [driver-side] headlight” with the oncoming vehicle. The passenger in the other vehicle testified that the victim observed defendant in their lane and, although the victim attempted to move over as far as possible to avoid the accident, defendant was almost entirely in their lane at the time of the collision. Defendant admitted that she had been drinking, and the arresting officer testified that she had glassy eyes, slurred speech and the odor of alcohol. The officer concluded, based on his experience and observations, that defendant was intoxicated. People v Earley, 2014 NY Slip Op 07022, 3rd Dept 10-16-14

 

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Where a School District Employee’s Job Is Eliminated Due to a Transfer of Function, the Procedure Mandated by Civil Service Law Section 70 Must Be Completed Before the Four-Month Statute of Limitations (for an Action Seeking Reinstatement) Starts Running

The Third Department determined the procedure mandated by Civil Service Law section 70 applied to a school district’s decision to cease its own data management services and purchase the services from BOCES.  Petitioner was employed by the district in data management.  The court held that the four-month statute of limitations for the employee’s action seeking reinstatement did not start until the Civil Service Law section 70 procedures had been followed:

Civil Service Law § 70 (2) applies “[u]pon the transfer of a function” from the District to BOCES (Civil Service Law § 70 [2] [first sentence][FN3]). The District’s decision to cease providing its own data management services and purchase such services from BOCES constituted the “transfer of a function” within the meaning of the statute … . The statute required the District, not less than 20 days before any such transfer, to certify to BOCES a list of the names and titles of all District employees who were “substantially engaged in the performance of the function to be transferred” and to publicly post that list along with a copy of the statute (Civil Service Law § 70 [2] [second sentence]). All District employees could then, before the effective date of such transfer, give written notice of protest to BOCES and the District of their “inclusion in or exclusion from such list” (Civil Service Law § 70 [2] [third sentence]). The head of BOCES would be required, within 10 days of receiving a protest, to review the protest, consult with the District and notify the employee of the determination regarding such protest (see Civil Service Law § 70 [2] [fourth sentence]). “Such determination shall be a final administrative determination” (Civil Service Law § 70 [2] [fifth sentence]). Respondents would then be required to determine which employees on the list were necessary to be transferred, by considering statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services (see Civil Service Law § 70 [2] [first and eighth sentences]…). Employees who were not transferred would be placed on a preferred hire list for similar positions at both the District and BOCES (see Civil Service Law § 70 [2] [eleventh sentence]).

* * * Ignoring the statutory procedure would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.

In transfer cases, the statute of limitations begins to run after the transferee agency rules against a protest to include an employee on the certified list or declines to transfer an employee who is on the list. Matter of Thornton v Saugerties Cent Sch Dist, 2014 NY Slip Op 07046, 3rd Dept 10-16-14

 

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Civil Service Law Did Not Create a Contractual or Vested Right in Health Benefits—Statutory Provision Allowing the Reduction in Benefits Valid and Enforceable Retroactively

The Third Department, in a full-fledged opinion by Justice Peters, determined that a Civil Service Law statutory provision allowing reductions in the state’s contribution to retired state employees’ health benefits (Civil Service Law section 167 (8)) was valid and enforceable retroactively.  The court further determined that Civil Service Law section 167 (1)(a) did not create a contractual or vested right in health benefits which was violated by section 167 (8):

Petitioners argue that Civil Service Law § 167 is internally inconsistent to the extent that it imposes a fixed contribution rate for retiree health insurance while concomitantly authorizing modification of those statutory rates, and they urge this Court to harmonize the statute’s provisions by declaring that Civil Service Law § 167 (8) applies only prospectively. We begin our analysis with the familiar maxim that the text of a statute is the best evidence of legislative intent and, “where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . It is also fundamental that a statute must be considered as a whole and its various sections construed with reference to one another and in a way that renders them internally compatible … .

Applying these principles here, we conclude that Civil Service Law § 167 (8) plainly and unambiguously permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law § 167 (1) (a). * * * …[W]hile Civil Service Law § 167 (1) (a) provides for a fixed percentage contribution, the explicit command of the Legislature in Civil Service Law § 167 (8) makes clear that the former provision does not apply where it would otherwise conflict with Civil Service Law § 167 (8). As the plain language renders these provisions internally compatible, “there is no room for construction and [we] have no right to add to or take away from that meaning” … .

Petitioners next claim that they have a contractual and vested property right to the percentage contribution rate set forth in Civil Service Law § 167 (1) (a) * * *.  “[B]efore a law may be deemed to amount to a contract between the [s]tate and a third party, the statutory language must be examined and found to be ‘plain and susceptible of no other reasonable construction’ than that a contract was intended” … . Indeed, “certain types of legislative acts, including those fixing salaries and compensation, . . . [give rise to the presumption that the] ‘law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise'” … .

We find nothing in the language of Civil Service Law § 167 (1) (a) to constitute “clear and irresistible evidence” that the Legislature intended to “fetter[] its power in the future” with respect to retirees’ health insurance contributions … . Matter of Retired Pub Empls Assn Inc v Cuomo, 2014 NY Slip Op 07044, 3rd Dept 10-16-14

 

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Resentencing Under Drug Law Reform Act Is Available to a Persistent Felony Offender As Long As the Offender Has Not Been Convicted of Any of the Serious Offenses Enumerated in Correction Law 803

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, resolved a conflict among the appellate division departments about the applicability of the Drug Law Reform Act (DLRA) to persistent felony offenders.  The court determined that the resentencing allowed by the DLRA for certain drug-related offenses is available to persistent felony offenders who have not been convicted of any of the serious crimes enumerated in Correction Law 803:

The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, hereinafter “2009 DLRA”) provides remedial resentencing to low-level non-violent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an “exclusion offense,” which is, among other things, an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender's predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence “authorized for an A-I felony offense” from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.02 [2] [a]; 70.02 [3] [a] [i]; 70.10 [2]).

In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender's recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender. People v Coleman, 2014 NY Slip Op 07010, CtApp 10-16-2014

 

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Elements of Florida “Theft” Statute and New York Larceny Statutes Are Different—Florida Conviction Cannot Serve as a Predicate Felony in New York

The Third Department, using its “interest of justice” review power, determined defendant’s Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:

Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony “theft” in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to “knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property” (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York’s larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]…). Thus, the Florida crime undoubtedly contains an element that is not included in New York’s larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 … . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14

 

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