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Facts Admitted In Guilty Plea Have Subsequently Been Found Insufficient to Constitute the Offense (Possession of Child Pornography)—Yet Vacation of the Conviction Not Warranted

The Third Department determined the fact that judicial interpretation of the law had changed since defendant’s guilty plea did not provide a basis for vacation of the plea.  The defendant contended he merely viewed child pornography on his computer but did not download, print or save them, and he was unaware the images were stored by the computer’s cache function (relying upon People v Kent, 19 NY3d 290 [2012]):

“[A]bsent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise” … . Here, defendant’s guilty plea was unequivocal, and his motion papers failed to present any evidence that tends to establish that his plea was less than a knowing, voluntary and intelligent choice among the alternatives available to him at that time … . By his definitive admission of guilt, defendant thus waived his claim that the facts, as previously alleged by him, were not sufficient to establish the crime … . Accordingly, we find that County Court did not abuse its discretion in denying defendant’s motion without a hearing. People v Mauro, 2014 NY Slip Op 02470, 3rd Dept 4-10-14

 

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Remote Drug-Related Convictions and a Single DWAI Not Enough to Assess Points (in a SORA Proceeding) for Substance Abuse

The Third Department determined points for substance abuse should not have veen assessed against the defendant in a SORA proceeding:

Here, there is no indication on this record that either drugs or alcohol played a role in the offense at issue herein or in defendant’s prior sex offense. County Court relied on defendant’s 1992 convictions for criminal sale of a controlled substance in the third degree, his 2002 conviction for criminal possession of a controlled substance in the seventh degree, and his 2009 conviction for driving while ability impaired. However, in our view these widely spaced incidents are not of the nature or degree to establish a pattern of drug or alcohol use by clear and convincing evidence (see Correction Law § 168-l [5] [a] [ii]…). The 1992 convictions, as well as other information relied upon in the case summary pertaining to defendant’s drug and/or alcohol use at that time, are excessively remote …, and his 2002 conviction for criminal possession of a controlled substance in the seventh degree does not prove drug use …, leaving his 2009 conviction for driving while ability impaired as the sole evidence of defendant’s substance abuse within the past 20 years … . People v Ross, 2014 NY Slip Op 02472, 3rd Dept 4-10-14

 

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Automobile Exception to Warrant Requirement Applied

The Third Department determined the police had probable cause to conduct a warrantless search of the glove box of defendant’s car based upon information provided by a confidential informant:

…[T]here was probable cause for the search of the vehicle pursuant to the automobile exception to the warrant requirement, which permits a search of a vehicle where there is probable cause to believe that contraband or evidence of a crime will be found inside … . Following defendant’s arrest, the information furnished by the confidential informant provided the police with probable cause to believe that there was a large quantity of ecstasy in the glove box. Inasmuch as the police were authorized to conduct a warrantless search of defendant’s vehicle, County Court properly denied his suppression motion. People v Portelli, 2014 NY Slip Op 02467, 3rd Dept 4-10-14

 

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Commissioner’s Finding Site Constituted a Significant Threat to Public Health or Environment Upheld

The Third Department affirmed the Commissioner of Environmental Conservation’s denial of petitioner’s request to reclassify a hazardous waste site.  The site is polluted with PCBs and is classified at level 2 (significant threat to public health or environment–action required).  The petitioner sought reclassification at level 3 (no significant threat to public health or environment–action may be deferred).  In finding the Commissioner’s determination supported by the evidence, the court wrote:

The Commissioner did not … premise his determination in this matter upon the mere presence of PCBs at the site and a potential for harm. He found that a highly toxic contaminant (i.e., PCBs) was present in concentration levels at the site that exceeded the environmental quality standards (see 6 NYCRR part 703; see also 6 NYCRR former 375-1.4 [b] [7]; 375-2.7 [a] [3] [viii]), and he determined that, under such circumstances, the contaminant could constitute a significant threat. We need not decide in this case whether such exceedances of environmental standards alone can — as stated by the Commissioner — constitute a significant threat since ultimately he did not premise his determination solely on such ground. Although setting forth in detail the reasons and record proof supporting a conclusion that the onsite impact of the PCB contamination at the site constituted a significant threat, he went on to find record support for actual threats and offsite impact on the river, wetlands and nearby wildlife. The exceedances of groundwater standards was clearly a significant factor; however, it was considered in conjunction with other proof pertinent to the ultimate finding of a significant threat. We are not persuaded that the Commissioner used an analysis at odds with the regulations or case law. Matter of ELG Utica Alloys Inc v Department of Envtl Conservation, 2014 NY Slip Op 02485, 3rd Dept 4-10-14

 

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Intra-Agency Exemption Applied to FOIL Request About AIG Prosecution

The Third Department determined the “intra-agency” exemption applied to documents requested from the Attorney General’s office concerning the prosecution of American International Group (AIG):

The intra-agency exemption applies to “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” (…see Public Officers Law § 87 [2] [g]…). The purpose of such exemption is “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . Matter of Smith v New York State Off of the Attorney Gen, 2014 NY Slip Op 02488, 3rd Dept 4-10-14

 

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Judge Immune from Suit

The Third Department upheld the dismissal of a suit against a judge which alleged “intentional professional and malicious misconduct.”  The court explained the applicable law:

It is well settled that a “[j]udge is immune from civil liability for acts done in the exercise of his [or her] judicial function” … . “Absolute immunity is . . . necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation” … and “discourages inappropriate collateral attacks on court rulings and fosters judicial independence by protecting courts and judges from vexatious litigation” … . There are only two recognized exceptions to the broad cloak of judicial immunity, namely “when a [j]udge does not act as a [j]udge, or when a [j]udge, though acting under color of judicial authority, lacks any jurisdiction supporting judicial authority for the action taken” … . As to the latter exception, there is a clear “‘distinction between acts performed in excess of jurisdiction[, which fall within the scope of immunity,] and acts performed in the clear absence of any jurisdiction over the subject matter,'” which do not…. .  Best v State of New York 2014 Slip Op 02484, 3rd Dept 4-10-14

 

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Code Provision Requiring Issuance of Rental Certificate by City Prior to Leasing an Apartment Deemed Constitutional

The Third Department determined the code provision (Rental Certificate Ordinance or RCO) which required the issuance a rental certificate each time a vacant apartment is about to be leased is constitutional.  Entry to the apartment is accomplished either with the consent of the owner, or upon the issuance of a search warrant:

The RCO provided, in relevant part, that “[i]t shall be unlawful for any owner to permit the occupancy of any rental unit subject to [former article X of the Code of the City of Schenectady], unless such unit has a current and valid rental certificate or temporary rental certificate” (Code of City of Schenectady former § 167-59 [A]). Thus, “[w]henever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner [must] submit a written application for a rental certificate” (Code of City of Schenectady former § 167-60 [A] [1]) and, “within five working days of receipt of [such] application, the Building Inspector [must] inspect the rental unit to determine if [it] is in compliance with” certain enumerated housing standards (Code of City of Schenectady former § 167-60 [A] [2]). If the Building Inspector is unable to perform the necessary inspection within the five-day window, the property owner may apply for a temporary rental certificate, which “is valid for 30 days or until the unit is inspected . . . , whichever is less” (Code of the City of Schenectady former § 167-60 [B]). In the event that the property owner refuses to grant access to the premises, “the Building Inspector shall apply for a search warrant or court order in an appropriate court and upon a showing that there [are] reasonable grounds to believe that a building or rental unit within [the] building is rented and occupied in violation of” the RCO (Code of the City of Schenectady former § 167-61). A property owner’s violation of the RCO may result in the imposition of a fine or other civil or criminal penalties (see Code of the City of Schenectady former § 167-67).

“It is well established that the 4th Amendment protection against unreasonable searches and seizures extends to administrative inspections of private commercial premises. [Thus,] to the extent that the challenged ordinance directly or in practical effect authorizes or requires a warrantless inspection, it will not pass constitutional muster” … . Here, however, the RCO expressly required either the consent of the property owner or the issuance of a valid search warrant in order for the Building Inspector to conduct the administrative inspection. As the inclusion of the warrant requirement is sufficient to safeguard plaintiff’s constitutional rights, his challenge to the facial validity of the RCO must fail … . Wisoff v City of Schenectady, 2014 NY Slip Op 02479, 3rd Dept 4-10-14

 

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Question of Fact About Whether Golfer, Who Was Injured When the Golf Cart He Was Driving Tipped Over, Was Subject to More than the Normal Hazards Associated with Golfing

The Third Department determined there were triable issues of fact about whether the occupants of a golf cart were exposed to more than the usual hazards associated with golf.  The cart tipped over on an incline.  There was (disputed) evidence indicating wet leaves were on the ground and the tires of the cart were “bald:”

A person who chooses to participate in an athletic or recreational activity “‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . “[G]olfers are deemed to assume the risks of open topographical features of a golf course” …and they are “held to a common appreciation of the fact that there is a risk of injury from improperly used carts” … . Nevertheless, liability may be found where the participant proves “a dangerous condition over and above the usual dangers that are inherent in the sport” … .

Although plaintiff was an experienced golfer, he had not previously played on this particular course. He claimed that he was driving slowly and cautiously when the car simply slid out of control on wet leaves. Defendant acknowledged that the golf course path where the accident occurred was steep and winding. While defendant disputes the amount of wet leaves that plaintiff contends were on the path, it is uncontested that there were leaves present and that defendant’s employees had inspected the area earlier in the day. Significantly, plaintiff produced proof via the testimony of the person with whom he was golfing that, after the accident, he observed that the tires on the golf cart were “bald.” Rose v Tee-Bird Golf Club Inc, 2014 NY Slip Op 02481, 3rd Dept 4-10-14

 

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No Negligence Cause of Action Against Commissioner of Mental Health (Based Upon Alleged Statutory Violations)

The Third Department determined claimant, an insanity acquittee, could not bring a negligence cause of action against the Commissioner of Mental Health based upon alleged violations of Criminal Procedure Law 330.20.  The court explained the applicable law re: the liability of a governmental agency (special duty/special relationship):

The rule is well established “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . A special duty will only arise from a special relationship, which can be formed in three ways: “(1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Inasmuch as claimant asserts that CPL 330.20 creates a statutory duty for the benefit of the class of which he is a member, i.e., insanity acquittees, only the first of these categories is potentially applicable.

Significantly, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … . Because CPL 330.20 does not expressly confer upon insanity acquittees the right to seek civil damages for any failure by the Commissioner to follow the statute’s provisions, “recovery may be had only if a private right of action can be implied” … . A private right of action may be fairly implied when all of the prerequisites are fulfilled, namely: “(1) the [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . In our view, the legislative history supports the finding of the Court of Claims that CPL 330.20 was primarily enacted to benefit the public, rather than insanity acquittees … . Justice v State of New York, 2014 NY Slip Op 02483, 3rd Dept 4-10-14

 

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Service of a Notice of Claim on the City Did Not Constitute the Service of a Notice of Claim on the New York City Transit Authority

The First Department determined the service of a notice of claim on the City did not constituted the service of a notice of claim on the New York City Transit Authority:

It is well settled that service of a notice of claim on the City through the Comptroller’s Office is not service upon a separate public authority … . Since plaintiff did not comply with the condition precedent of service of a notice of claim upon the Transit Authority defendants, and they deny having received the notice of claim from the Comptroller’s Office, dismissal is required.  Glasheen v Valera, 2014 NY Slip Op 02512, 1st Dept 4-10-14

 

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