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Detention by Immigration Officials Did Not Disqualify Claimant from Receiving Workers’ Compensation Benefits

The Third Department determined detention by immigration officials did not disqualify claimant from receiving Workers’ Compensation benefits.  Claimant had been convicted of a felony sex offense, but was sentenced to probation, not incarceration:

We cannot agree with the employer’s argument that claimant’s detention by immigration officials amounts to incarceration “upon conviction of a felony,” thereby rendering him ineligible to receive benefits pursuant to Workers’ Compensation Law § 10 (4). That statutory language was enacted in 2007 to codify existing case law (see L 2007, ch 6, § 37; Governor’s Program Bill Memo, Bill Jacket, L 2007, ch 6…). In our view, giving plain meaning to each of the words used, the statute reflects an intent that benefits should not be paid if a sentence of incarceration is imposed as punishment for a felony conviction. While claimant was convicted of a felony, his punishment did not include incarceration. Rather, he was sentenced to 10 years of probation. His confinement for immigration purposes, on the other hand, was civil and nonpunitive in nature, and its purpose was to determine whether he should be deported (see 8 USC § 1226…). Accordingly, we are unpersuaded that claimant was “incarcerated upon conviction of a felony” as that phrase is used in the statute. Matter of Islam v BD Constr & Bldg, 2014 NY Slip Op 02474, 3rd Dept 4-10-14

 

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No Justification for Handcuffing Defendant/Handcuffing Constituted an Arrest Before Officer Had Probable Cause to Arrest

The First Department determined probable cause for defendant’s arrest did not exist when defendant was handcuffed and the act of handcuffing constituted an arrest, not a detention pending information providing probable cause:

During a buy and bust operation, a ghost undercover detective issued a radio transmission identifying defendant as a participant in a drug sale, made to another undercover officer. Based on that radio transmission describing defendant and his location, a third officer approached defendant on the sidewalk, identified himself, and asked defendant to put his hands up. When defendant acted “a little resistant,” the officer attempted to handcuff him. Defendant then resisted, and the police forcibly handcuffed him.

The suppression court [ruled] that although when the officer stopped the defendant, he did not have probable cause to arrest him based on the information that he had received from the radio transmission, the officer obtained probable cause to arrest defendant after the purchasing undercover officer subsequently radioed his confirmatory identification. …[By] finding that there was no probable cause to arrest defendant until the confirmatory identification, the court implicitly found that the initial apprehension, which preceded that identification, was a proper temporary detention based on reasonable suspicion and that the application of handcuffs on defendant did not transform the detention into a full-scale arrest.

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances … . In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. People v Blanding, 2014 NY Slip Op 02508, 1st Dept 4-10-14

 

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Unauthorized Use of Another’s Credit Card Number Is Not Identity Theft Where the Card Owner’s Identity Is Not Otherwise Assumed/Unauthorized Use of Another’s Credit Card Number Can Constitute Possession of Stolen Property

The First Department, in a full-fledged opinion by Justice Acosta, determined: (1) the use of another’s credit card number does not constitute identity theft unless the person using the number assumes the other’s identity; and (3) the use of another’s credit card number constitutes possession of stolen property: THIS CASE HAS BEEN REVERSED

This appeal raises questions about the elements of identity theft and whether intangible property can be criminally possessed, where a defendant used his associate’s credit card number to pay for hotel expenses without authorization. Specifically, we are called upon to determine, first, whether assumption of identity is a discrete element of identity theft or whether it occurs automatically when a person uses another’s personal identifying information, and second, whether criminal possession of stolen property includes intangible property, namely a credit card number. Regarding the first issue, we find that to secure a conviction for identity theft the People must prove not only that a defendant used another’s personal identifying information, but that he or she consequently assumed the identity of that person. Because the hotel was aware of defendant’s identity, he did not assume the identity of his associate by charging the credit card and, accordingly, the evidence was legally insufficient to support his conviction of identity theft. As to the second issue, we have determined that the legislature intended intangibles, including credit card numbers, to fall within the ambit of criminal possession of stolen property. Defendant constructively possessed his associate’s stolen credit card number, and thus he was properly convicted of the latter offense. People v Barden, 2014 NY Slip Op 02527, 1st Dept 4-10-14

 

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Courtroom Properly Closed During Testimony of Undercover Office

The First Department determined the trial court properly closed the courtroom and excluded defendant’s sister from the courtroom during the testimony of  the undercover officer:

…[T]he evidence established the type of overriding interest warranting the limited closure of the courtroom that has been upheld … . The undercover officer’s testimony at the hearing supported the court’s finding that testifying at trial in an open courtroom would compromise his undercover work and jeopardize his and his family’s safety … . The officer testified that he had been working undercover for four years, that he was on active duty and bought drugs for buy and bust arrests three or four times per week, and that he had made about 10 purchases near where he bought the drugs from defendant. The officer further testified that several of his investigations were ongoing, that certain targets remained at large, that he had been verbally threatened while working undercover, and that he took numerous precautions to conceal his identity when he had to testify in court. The court’s decision to exclude defendant’s sister, who lived within two blocks of the location where the officer bought drugs from defendant and where he continued to work undercover, is consistent with our prior holdings … . The officer testified that he was concerned that defendant’s sister might expose his identity. * * *

…[A]s the Court of Appeals has held, where the record in a buy-and-bust case “makes no mention of alternatives but is otherwise sufficient to establish the need to close the particular proceeding . . . it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” … . People v Johnson, 2014 NY Slip Op 02510, 1st Dept 4-10-14

 

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Intent Must Exist Simultaneously with the Act/Accidental Discharge of a Firearm, Even Where the Shooter Intends to Assault the Victim, Does Not Constitute Intentional Assault/Loss of Police Officer’s Handwritten Notes Did Not Mandate Adverse Inference Jury Charge—Insufficient Showing of Prejudice

The First Department determined the trial court did not give the right response to a question from the jury and reversed the intentional assault conviction.  The jury asked whether a person who intends to commit assault is guilty of intentional assault if the gun goes off accidentally.  The trial court answered “yes.”  The First Department determined the answer should have been “no” because the intent must be simultaneous with the act.  The First Department further determined that the loss of the police officer’s handwritten notes was a Brady/Rosario violation, but the defendant failed to demonstrate prejudice flowing from the loss:

We agree with defendant that the court’s response erroneously allowed the jury to find defendant guilty of intentional assault without finding that the intent element of that crime existed beyond a reasonable doubt. “It is a well-established rule of law that the intent to commit a crime must be present at the time the criminal act takes place” … . The intent element is not satisfied if, as in the jury’s hypothetical, the individual does not intend to pull the trigger at the moment the gun discharges. While those facts might have supported liability for a crime requiring a lesser mens rea than acting intentionally, defendant here was not charged with such a crime. Because the court’s response to the jury’s note incorrectly signaled that an accidental firing of the gun could support a conviction for intentional assault, the conviction on that count must be reversed. People v Lee, 2014 NY Slip Op 02507, 1st Dept 4-10-14

 

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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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Plaintiff Did Not Establish It Was the Lawful Holder of the Note on the Date the Action Was Commenced

The Second Department determined plaintiff did not demonstrate entitlement to summary judgment because it did not establish it had standing as the lawful holder or assignee of the underlying note.  The court explained the applicable law, noting that the assignment of a mortgage without an assignment of the note is a nullity, but the where a note is transferred, the mortgage securing the debt passes as an incident to the note:

Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing to be entitled to relief … . In a mortgage foreclosure action, a plaintiff has standing where it is both the holder of the subject mortgage and of the underlying note at the time the action is commenced … . Where a note is transferred, a mortgage securing the debt passes as an incident to the note … . By contrast, an assignment of a mortgage without assignment of the underlying note or bond is a nullity … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” … .

Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing as the lawful holder or assignee of the subject note on the date it commenced this action… .  MLCFC 2007-9 Mixed Astoria LLC v 36-02 35th Ave Dev LLC, 2014 NY Slip Op 02416, 2nd Dept 4-9-14

 

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