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Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

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County Could Not Shift Obligation to Pay Property Tax Refunds to Taxing Districts

In a full-fledged opinion by Judge Abdus-Salaam, which includes extensive historical, theoretical, constitutional and statutory discussions of the issues involved, the Court of Appeals determined Nassau County could not shift its obligation to pay real property tax refunds from the county to its individual taxing districts. The county’s attempt to supersede a special state tax law exceeded its statutory and constitutional authority:

As limited by the State and Federal Constitutions' protection of individual rights and restriction of State power, the State Constitution establishes the State government as the preeminent sovereign of New York, and the three coordinate branches of the State government may exercise the entire legislative, executive and judicial power of the State, as entrusted to them by the people … .Given that the authority of political subdivisions flows from the State government and is, in a sense, an exception to the State government's otherwise plenary power, the lawmaking power of a county or other political subdivision “can be exercised only to the extent it has been delegated by the State”… .. Furthermore, because the Constitution expressly imbues the State government, rather than any locality, with “[t]he power of taxation” (NY Const art XVI, § 1), State law governs the tax field unless the State Legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision… . Matter of Baldwin Union Free School District v County of Nassau, 9, CtApp 2-18-14

 

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No Prejudice from Loss of Hand-Written Police Report (Rosario Material)/Trial Judge Did Not Abuse Discretion In Denying Request for Adverse Inference Jury Charge

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the trial judge did not abuse his discretion by failing to give the adverse inference charge with respect to a hand-written police report (“scratch 61”) which could not be located. The opinion explains the history of the sanctions appropriate when Rosario material is not turned over to the defense. With respect to nonwillful loss or destruction of Rosario material, the court explained the defendant must demonstrate prejudice, not demonstrated under the facts here:

…[O]ur rule is clear: nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice … . If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault … . The focus, though, is on the need to eliminate prejudice to the defendant … . Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. … The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction. Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61, as the defense attorneys and the judge all no doubt knew. A scratch 61 is a handwritten complaint report that [was] placed in a bin for typing, likely by a civilian employee of the police department. Defendants were provided the typewritten complaint report, which would have differed from the scratch 61 only if the typist made a mistake — i.e., the handwritten scratch 61 is not subject to editing before typing. People v Martinez…, 13, 14, CtApp 2-18-14

 

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Contradictory Information in Disclaimer Letters Did Not Invalidate the Disclaimer of Assault and Battery Coverage

Over a dissent, the Court of Appeals determined the insurance company, QBE, properly disclaimed coverage for an assault and battery claim against the insured bar, Jinx-Proof, despite contradictory language in the two disclaimer letters:

The courts below properly determined that QBE effectively disclaimed coverage for the assault and battery claims asserted in the underlying action. The first letter sent to Jinx-Proof stated that QBE would not defend or indemnify Jinx-Proof “under the General Liability portion of the policy for assault and battery allegations” and that Jinx-Proof did not have liquor liability coverage. The second letter stated that Jinx-Proof did have liquor liability coverage but that the policy excludes coverage for assault and battery claims. Specifically, the second letter stated:

“[W]e are defending this matter under the Liquor Liability portion of the [general commercial liability] coverage, and under strict reservation of rights for allegations of Assault and Battery. Your policy excludes coverage for assault and battery claims . . . Therefore, should this matter proceed to verdict, any awards by the Court stemming from allegations of Assault and Battery will not be covered under your Commercial General Liability policy.”

Although the letters contain some contradictory and confusing language, the confusion was not relevant to the issue in this case. The letters specifically and consistently stated that Jinx-Proof's insurance policy excludes coverage for assault and battery claims. These statements were sufficient to apprise Jinx-Proof that QBE was disclaiming coverage on the ground of the exclusion for assault and battery, and this disclaimer was effective even though the letters also contained “reservation of rights” language … . QBE Insurance Corporation v Jinx-Proof Inc, 25, CtApp 2-18-14

 

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Disclaimer Based Upon Insured’s Non-Cooperation Was Timely—Must Allow Longer Period to Demonstrate Diligence In Seeking Cooperation

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined that the insurers disclaimer based upon the insured’s failure to cooperate with the investigation was timely and enforceable:

The question whether an insurer disclaimed as soon as reasonably possible is necessarily case-specific. In some cases, very different from this one, the justification for disclaimer is “readily ascertainable from the face of the complaint in the underlying action” … or “all relevant facts supporting . . . a disclaimer [are] immediately apparent . . . upon . . . receipt of notice of the accident” … . In such cases, a disclaimer must be made rapidly. The present appeal, on the other hand, involves disclaimer for noncooperation by an insured. A determination as to whether such a disclaimer was made within a reasonable time is more complex because “an insured's noncooperative attitude is often not readily apparent”… . We have emphasized that “insurers must be encouraged to disclaim for noncooperation only after it is clear that further reasonable attempts to elicit their insured's cooperation will be futile” … .The primary reason that we allow a longer period for disclaimer for noncooperation lies in a well-established principle of our case law, which is intended to facilitate the full compensation of injured victims suing for damages. This is the requirement that an insurer may not properly disclaim for noncooperation unless it has satisfied its burden, described in the precedent as “a heavy one indeed,” of showing “that it acted diligently in seeking to bring about the insured's co-operation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer's co-operation; and that the attitude of the insured, after his co-operation was sought, was one of willful and avowed obstruction”… . Country-Wide Insurance Company v Preferred Trucking Services Corp, 21, CtApp 2-18-14

 

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Reversing Its Prior Decision in this Case, the Court of Appeals Determined the “Servidone” Rule Is to Be Followed in New York/An Insurer Which Has Breached Its Duty to Defend the Insured May Rely On Policy Exclusions to Escape Its Duty to Indemnify the Insured

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals reversed itself on reargument and adhered to precedent—Servidone Const Corp v Security Ins Co of Hartford, 64 NY 2d 419. Under Servidone, an insurer which breached its duty to defend can still rely on policy exclusions to escape the duty to indemnify:

In Servidone — a case in which, as in this one, the insurer was relying on policy exclusions in defending against a suit for indemnification — we stated the question as follows:

“Where an insurer breaches a contractual duty to defend its insured in a personal injury action, and the insured thereafter concludes a reasonable settlement with the injured party, is the insurer liable to indemnify the insured even if coverage is disputed?”… .

We answered the question in Servidone no. In K2-I [the initial ruling in the instant case], we held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify the insured for a judgment against him” …. . The Servidone and K2-I holdings cannot be reconciled. * * *In short, to decide this case we must either overrule Servidone or follow it. We choose to follow it. K2 Investment Group LLC v American Guarantee & Liability Insurance Company, 6, CtApp 2-18-14

 

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A “Statutory Resident” of New York for Income Tax Purposes Must Actually Reside In New York, Not Merely Maintain Property in New York

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined that the residency requirement in the income tax law means the taxpayer must actually reside in the dwelling, not merely maintain it. Here the Tax Tribunal determined the petitioner, who had a business in New York to which he traveled from New Jersey each day, and who owned and maintained an apartment house in New York where his elderly parents lived, was not a “statutory resident” of New York within the meaning of the Tax Law:

The Tax Tribunal has interpreted “maintains a permanent place of abode” to mean that a taxpayer need not “reside” in the dwelling, but only maintain it, to qualify as “statutory resident” under Tax Law § 605 [b][1][B]. Our review is limited to whether that interpretation comports with the meaning and intent of the statutes involved … . We conclude there is no rational basis for that interpretation. Notably, nowhere in the statute does it provide anything other than the “permanent place of abode” must relate to the taxpayer. The legislative history of the statute, to prevent tax evasion by New York residents, as well as the regulations, support the view that in order for a taxpayer to have maintained a permanent place of abode in New York, the taxpayer must, himself, have a residential interest in the property. Matter of Gaied v New York State Tax Appeals Tribunal, 26, CtApp 2-18-14

 

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Attempted Kidnapping Charge Supported by Sufficient Evidence/Defendant Tried to Convince the 10-Year-Old Victim to Take His Keys and Go to His Apartment

The First Department, over a dissent, determined there was sufficient evidence to support the attempted kidnapping charge, in spite of the absence of force. The defendant tried to convince the 10-year-old victim to take his keys and go to his apartment:

The crime of attempted kidnapping in the second degree was established by evidence that defendant intended to secrete or hold the 10-year-old victim in his apartment, a place where she was not likely to be found; that he made efforts to move or confine the victim without consent (see Penal Law §§ 135.00; 135.20); and that defendant came dangerously near to achieving his objective.The evidence left no doubt that the victim was unlikely to be found had she succumbed to defendant’s pressure to take his keys and go to the apartment. Similarly, the evidence left no doubt that defendant, a “highly-fixated” pedophile, attempted to restrain the victim, i.e. to move her to a different location without the permission of her mother.The dissent, in arguing that the crime was not established because defendant did not grab or unsuccessfully attempt to grab the victim, misconstrues the statutory requirement of restraint. While, with respect to an adult, it is necessary to establish that the movement or confinement was accomplished by “force, intimidation or deception,” the definition of restraint, with respect to a child less than 16 years of age, encompasses movement or confinement by “any means whatever,” including the acquiescence of the child (Penal Law § 135.00[1][b]). In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement. People v Denson, 2014 NY Slip Op 01141, 1st Dept 2-18-14

 

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Questions of Fact Raised About Whether Insufficient Warnings On Flammable Floor Refinishing Materials Constituted the Proximate Cause of the Injuries

In a full-fledged opinion by Justice Gische, the First Department determined a lawsuit based upon failure to warn survived summary judgment. While plaintiff’s decedent [Carino] was using highly flammable floor refinishing materials, the materials caught fire and plaintiff’s decedent was burned. There were warnings about fire on the containers and plaintiff’s decedent had worked with the materials before. But questions of fact were raised about exactly what dangers plaintiff’s decedent was aware of and, therefore, whether defendants were relieved (by the level of his knowledge) of the duty to warn of the dangers not addressed on the labels:

A product may be defective due to inadequate warnings of the risks and dangers involved in its foreseeable use … . The duty also extends to forseeable product misuse … . To be actionable, however, the absence of warnings must be a proximate cause of the claimed injuries … . Even if a duty to warn otherwise exists, recovery may be denied to a knowledgeable user, i.e. one who was fully aware of the specific hazard without receiving the warning … . While in a proper case the court can decide as a matter of law that there is no duty to warn …, in most cases whether a party is a knowledgeable user is a factual question … . Even if a user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of the knowledge ….While there is evidence that Carino had some knowledge about general hazards associated with using floor refinishing products, it cannot be said, as a matter of law, that his knowledge base was sufficient to relieve defendants of any duty they may have had to provide adequate warnings. There is evidence that Carino had used floor refinishing products before and that he had been told by his employer that they were flammable and required certain safety precautions, such as shutting off the gas and electricity. There is no evidence, however, that he knew about the particular properties of each product he was using, including their flashpoints, the fact that one product was much more volatile than the other and the specifications for proper ventilation when using these products, or that he knew one product was prohibited for indoor use in the City of New York. Thus, it is for a jury to determine whether Carino had sufficient knowledge of the specific hazards attendant to the use of the floor finishing products to relieve defendants of any duty to warn of those hazards. Public Adm’r of Bronx County v 485 E 188th St Realty Corp, 2014 NY Slip Op 01142, 1st Dept 2-18-14

 

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No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

The Fourth Department determined the deputy sheriff did not have probable cause to arrest the defendant without a warrant because the defendant had not committed a crime in the deputy’s presence. Therefore all the charges stemming from the illegal arrest were not supported by legally sufficient evidence:

We conclude that the evidence is legally insufficient to establish that the deputy’s arrest of defendant was lawful inasmuch as the deputy lacked reasonable cause to believe that defendant committed an offense in her presence (see CPL 140.10 [1] [a]). Because the arrest was not authorized at its inception, the evidence is legally insufficient to support the conviction of assault, obstructing governmental administration, and resisting arrest …, and reversal therefore is required. People v LaBoy, 96, 4th Dept 2-14-14

 

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