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Meaning of Imprecise and Confusing Term “Violent Felony Override” Explained

The Second Department, in response to the defendant’s request for a “violent felony override” at sentencing, explained that the confusing term relates to a document that sets force the precise statute, including the section and subdivision, of which the defendant was convicted.  Certain specific enumerated offenses, although violent felonies, will not disqualify an inmate from eligibility for temporary release. Only the Department of Corrections can make the determination whether a conviction disqualifies an inmate from eligibility:

“Violent felony override” is not a term contained in a statute or regulation. It is an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense (see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility … . One source of confusion that may arise from the use of the term “violent felony override” is that the term may imply that the document itself qualifies the inmate for eligibility for temporary release. It does not. It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility (see generally 7 NYCRR 1900.4).

A second source of confusion that may arise from the use of the term “violent felony [*2]override” to describe the document specified in 7 NYCRR 1900.4(c)(1)(iii) is the erroneous belief that the issuance of the document is discretionary. Although this provision refers to “a court-generated document or document generated by the Office of the District Attorney,” a defendant is entitled to have the exact subdivision of the statutory provisions under which he or she was convicted specified in the sentence and commitment: “[a] sentence and commitment or certificate of conviction, specifying the section, and to the extent applicable, the subdivision, paragraph and subparagraph of the penal law or other statute under which the defendant was convicted, or a certified copy thereof . . . must be delivered to the person in charge of the correctional facility or office of children and family services facility to which the defendant is committed at the time the defendant is delivered thereto” … . People v Lynch, 2014 NY Slip Op 06608, 2nd Dept 10-1-14

 

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Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)

The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant’s statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):

A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]…). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination” … . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant’s statement … . * * *

…[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury …, and that this type of participation should not be repeated. In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback … . “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors”… . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14

 

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“Substantial Evidence” Standard of Court Review Explained

The Second Department explained the “substantial evidence” standard of court review of an administrative agency’s determination after a disciplinary hearing:

Substantial evidence “is related to the charge or controversy and involves a weighing of the quality and quantity of the proof”; the term “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . “Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14

 

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Elements of Civil and Criminal Contempt Explained

In affirming the denial of mother’s motion to hold father in civil and criminal contempt for failing to exercise his right to visitation, the Second Department explained the elements of each:

To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” (…see Judiciary Law § 753[A]). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party … .

In a criminal contempt proceeding, proof of guilt must be established beyond a reasonable doubt … . “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … . “However, [a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may [*2]be rebutted with evidence of good cause for noncompliance'” … . Matter of Figueroa-Rolon v Torres, 2014 NY Slip Op 06584, 2nd Dept 10-1-14

 

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Criminal Judgment May Be Given Collateral Estoppel Effect in Derivative Neglect Proceedings—Summary Judgment Appropriate in Derivative Neglect Proceedings—Out-of-Court Statements of Siblings Cross-Corroborated One Another

In a derivative neglect case, the Second Department noted that a criminal proceeding can be given collateral estoppel effect and summary judgment can be granted in a neglect proceeding.  Here the father had pled guilty to endangering the welfare of a child in connection of the smothering-death of a child in his care.  The Second Department also explained that the out-of-court statements of siblings may cross-corroborate one another.  The Second Department affirmed the derivative neglect findings:

A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct … . * * *

Although the Family Court Act does not specifically provide for summary judgment, it does state that “the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved” (Family Ct Act § 165[a]). Thus, in an appropriate case, the Family Court may enter a finding of neglect or abuse on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioner’s prima facie showing of neglect or abuse as a matter of law and the respondent’s failure to raise a triable issue of fact in opposition to the motion… . * * *

Pursuant to Family Court Act § 1046, “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]…). The out-of-court statements of siblings may properly be used to cross-corroborate one another … . The Family Court has considerable discretion in the first instance to determine if a child’s out-of-court statements have been reliably corroborated, and whether the record as a whole supports a finding of abuse or neglect … . Matter of Harmony ME…, 2014 NY Slip OP 06580, 2nd Dept 10-1-14

 

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Petitioner Entitled to Homestead Exemption During Period Prior to the Contract of Sale for Her Home

The Second Department determined that a January contract of sale of the petitioner’s home did not overcome the presumption in favor of recognizing the homestead exemption during the three months prior to the contract of sale.  The petitioner was in a nursing home and had indicated her “intent to return home” entitling her to the homestead exemption from the calculation of her assets during the pre-contract-of-sale period:

Pursuant to the Medicaid Reference Guide (hereinafter the MRG), published by the NYSDOH, when a Supplemental Security Income-related applicant is “requesting Medicaid coverage for the three month retroactive period . . . the value and availability of the applicant’s resources are determined as of the first day of the month for each month that applicant is seeking Medicaid coverage” (emphasis added). The MRG also provides that an applicant’s homestead, i.e., primary residence, is an exempt resource for purposes of determining Medicaid eligibility despite the fact that the applicant is temporarily absent therefrom, if the applicant “indicates an intent to return” to the home. Pursuant to 18 NYCRR 360-4.7(a)(1), a person who is 65 or older loses the homestead exemption if he or she moves out of the home “without intent to return.” In determining such intent, “the proper standard to be applied is a subjective intent’ standard and not an objective expectations’ standard”… . There is a “presumption in favor of the homestead exemption” in cases where a hospitalized Medicaid applicant intends to return home … . Matter of Inglese v Shah, 2014 NY Slip Op 06586, 2nd Dept 10-1-14

 

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Derivative-Shareholder-Claim Versus Direct-Individual-Claim Explained/Out-of-Pocket Damages Rule for Fraud and Negligent Misrepresentation Claims Briefly Discussed

The First Department, in a full-fledged opinion by Justice Gische, with one exception, affirmed Supreme Court’s dismissal of defendant’s (Lipper’s) cross-claims because the cross-claims were deemed derivative claims by a shareholder, not direct, individual claims.  Lipper alleged damages stemming from the overvaluation of Lipper’s hedge fund assets by defendant Pricewaterhouse Coopers. In addition to the “derivative versus direct claim” issue, the court briefly discussed the “out of pocket” damages rule re: the fraud and negligent misrepresentation claims stemming from Lipper’s payment of gift taxes based upon the overvalued assets given to his daughters:

It is black letter law that a stockholder has no individual cause of action against a person or entity that has injured the corporation. This is true notwithstanding that the wrongful acts may have diminished the value of the shares of the corporation, or that the shareholder incurs personal liability in an effort to maintain the solvency of the corporation …, or that the wrongdoer may ultimately share in the recovery in a derivative action if the wrongdoer owns shares in the corporation … . An exception exists, however, where the wrongdoer has breached a duty owed directly to the shareholder which is independent of any duty owing to the corporation … . This is a narrow exception, and Lipper’s cross claim must be factually supportable by more than complaints that conflate his derivative and individual rights … . In addition, Lipper may not obtain a recovery that otherwise duplicates or belongs to the corporation … .

Recognizing the difficulty in determining whether a claim is direct or derivative in the recent case of Yudell v Gilbert (99 AD3d 108 1st Dept [2012]), this court adopted the test developed by the Supreme Court of Delaware in Tooley v Donaldson, Lufkin & Jenrette, Inc. (845 A2d 1031, 1039 [Del 2004]) as a common sense approach to resolving such issues. We held that the Delaware test is consistent with existing New York State law. In order to distinguish a derivative claim from a direct one, the court considers “(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually)” … . If there is any harm caused to the individual, as opposed to the corporation, then the individual may proceed with a direct action … . On the other hand, even where an individual harm is claimed, if it is confused with or embedded in the harm to the corporation, it cannot separately stand… . * * *

…[W]e find that recoupment of [gift] taxes paid violates New York’s out-of-pocket damages rule applicable to both the fraud and negligent misrepresentation cross claims Lipper has asserted … . Pursuant to the New York rule, recovery is denied where it leaves the claimant in a better position than the claimant would have been in the absence of wrongdoing … . Lipper contends that he would not have made the gifts to his daughters if he had known the true value of his holdings. The payment of taxes was a consequence of making that gift. The relief he seeks would put him in a better financial position than had the claimed wrongdoing not occurred … . Serino v Lipper,2014 NY Slip Op 06551, 1st Dept 9-30-14

 

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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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Explicit Verbal Waiver of Miranda Rights Not Required

The Fourth Department determined that the absence of an express waiver of defendant’s Miranda rights did not require suppression of his statement:

…[D]efendant contends that the evidence at the Huntley hearing demonstrates that he did not waive his Miranda rights, but that he asked the arresting officer “[w]hat’s going on” after the arresting officer read him the Miranda warnings. Contrary to defendant’s contention, the court properly refused to suppress those statements. It is well settled that “an explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances” … . Thus, “[w]here, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights’ ” … . People v Jones, 2014 NY Slip Op 06452, 4th Dept 9-26-14

 

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Teacher’s Subpoena for School Records of a Student Who Testified at the Teacher’s Education Law 3020-a Proceeding Should Have Been Quashed

The Fourth Department determined a subpoena for a student’s school records should have been quashed. The subpoena was served on the school district on behalf of the respondent, a tenured teacher who was the subject of an Education Law 3020-a proceeding.  The alleged misconduct of the student (who testified at the proceeding) occurred outside the classroom and the teacher did not demonstrate the relevance of the requested records:

The record establishes that, following an initial prehearing conference in the section 3020-a proceeding, the Hearing Officer granted respondent’s request for production of the testifying high school students’ records, notwithstanding protections under the Family Educational Rights and Privacy Act of 1974 (FERPA), and thereafter limited production of students’ records to those from seventh grade forward. In connection with that request, the Hearing Officer issued a subpoena duces tecum ordering the production of those student records. Although the Hearing Officer had the authority to order the production of student records that were material and relevant to respondent’s defense (see § 3020-a [3] [c] [iii] [A], [C]), it is well established that, “[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence” … . Where, as here, “the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation,” to show “that the material sought bears a reasonable relation to the matter under investigation” … . Here, the allegations of misconduct against respondent involved activities outside of the classroom, and respondent stated only generally that the students’ records were “highly relevant” in asserting a defense and that the records are “necessary and relevant to the preparation of a defense to the charges on its face.” Thus, in light of respondent’s failure to indicate how the records are reasonably related to respondent’s defense and a factual basis establishing their relevance …, we conclude that the court abused its discretion in refusing to quash the subpoena duces tecum … . Matter of Watertown City Sch Dist v Anonymous, a Tenured Teacher, 2014 NY Slip Op 06444, 4th Dept 9-26-14

 

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