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Doctrine of “Practical Location” (to Determine Boundary Line) Explained

In affirming Supreme Court’s determination of the location of a boundary line, the Third Department explained the doctrine of “practical location” which is used when the description of the land in deeds is inadequate:

As a general proposition, “[d]eeds and surveys indicate boundary lines by various descriptive elements or ‘calls’ which consist mainly of monuments, courses and distances, adjacent lands and area or quantity” … . Here, however, … our review confirms — that the subject deeds contain no specific bearings or directional calls and set forth only the vaguest description of the intended boundary line between the land originally conveyed to plaintiff and Laight. Indeed, [a surveyor] opined that the deeds in question were “so bad” that a boundary line could not be established absent either a boundary line agreement, which the parties apparently were unable to forge, or judicial intervention … . To that end, where a dispute exists as to the location of a boundary line, “the intent of the parties existing at the time of the original conveyance of the disputed property controls” … . Pursuant to the doctrine of practical location, “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than [the statutory period governing adverse possession] is conclusive of the location of the boundary line” … . “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … . Gibbs v Porath, 2014 NY Slip Op 07030, 3rd Dept 10-16-14

In another case, the Third Department found the “practical location” doctrine inapplicable.  Kennedy v Nimons, 2014 NY Slip Op 07036, 3rd Dept 10-16-14

 

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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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Town’s Duty to Maintain Roadways in a Safe Condition Extends to the Maintenance of Trees Not Located on Town Property—Here a Tree Limb Fell Onto Plaintiffs’ Moving Vehicle

The plaintiffs were injured when a limb fell from a tree onto their moving vehicle.  The defendant town moved for summary judgment, alleging that the tree was not located in the town’s right of way and the town did not therefore owe a duty to the plaintiffs.  The Second Department disagreed:

The Town’s duty to maintain its roadways in a reasonably safe condition extends to the maintenance of trees, adjacent to a road, that could reasonably be expected to pose a danger to travelers … . Contrary to the Town’s contention that it owed no duty to the plaintiffs by virtue of the fact that it did not own, maintain, or control the subject tree or the location of that tree, “the exact location of the tree with respect to the Town’s right of way is not dispositive” of the issue of the Town’s duty … . Accordingly, the Town failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court correctly denied the Town’s cross motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers … . Piscitelli v County of Suffolk, 2014 NY Slip Op 06961, 2nd Dept 10-15-14

 

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Nurse Acting Under a Doctor’s Supervision Generally Cannot Commit Malpractice—Judgment Dismissing Nurse’s Complaint As a Matter of Law Pursuant to CPLR 4401 Was Properly Granted

The Second Department explained that a nurse acting under a doctor’s supervision and not exercising independent medical judgment generally cannot be liable for medical malpractice.  Here the nurse’s motion to dismiss the complaint pursuant to CPLR 4401 as a matter of law was properly granted:

“[C]ourts have recognized that a nurse who renders treatment can play a significant role [in a patient’s care] and is capable of committing malpractice” … . However, a nurse whose work is supervised by a physician and who does not exercise independent medical judgment cannot be liable for medical malpractice unless the directions from the supervising physician so greatly deviate from normal medical practice that the nurse should be held liable for failing to intervene, or the nurse commits an independent act that constitutes a departure from accepted medical practice … .

Here, while there was evidence that the defendant Elizabeth Vilanova, a certified registered nurse anesthetist, played an active role in the decedent’s operation, it was established that she was acting under the direct supervision of the attending anesthesiologist the entire time and did not exercise any independent medical judgment, nor did she commit an independent act constituting a departure … . Yakubov v Jamil, 2014 NY Slip Op 06966, 2nd Dept 10-15-14

 

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Stipulation of Discontinuance With Prejudice in Federal Action Did Not Bar State Action Under the Doctrine of Res Judicata

The Second Department determined a stipulation of discontinuance (with prejudice) of a federal action did not preclude the state action under the doctrine of res judicata.  The court explained the narrow application of “with prejudice” in this context:

“A stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits” … . “The general rule is that a stipulation of discontinuance with prejudice is afforded res judicata effect and will bar litigation of the discontinued causes of action” … . But the language “with prejudice” is narrowly interpreted when the interests of justice or the particular equities involved warrant such an approach … .

As the Supreme Court found, the gravamen of [plaintiff’s] federal complaint was civil RICO claims. The complaint in the instant action, however, does not allege that [defendant] violated a substantive RICO statute … . “[E]stablishing a RICO violation requires more than proof of common-law fraud or conspiracy to defraud” … . Furthermore, the particular equities involved require that the phrase “with prejudice” in the stipulation of discontinuance be narrowly construed so as not to bar the continued litigation of the instant action … . The record demonstrates that the instant action continued to be actively litigated contemporaneously with the voluntary discontinuance of [the] federal action. The record supports a determination that [plaintiff] never abandoned litigation of his state action and that [defendant] was aware of this fact. Accordingly, the Supreme Court properly determined that the voluntary discontinuance with prejudice by [plaintiff] of his federal action did not operate as a res judicata bar to the litigation of his instant action. Klein v Gutman, 2014 NY Slip Op 06949, 2nd Dept 10-15-14

 

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