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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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NEWSPAPER ARTICLES ABOUT JUDICIAL PROCEEDINGS ENTITLED TO ABSOLUTE PRIVILEGE (CT APP)

The Court of Appeals determined the newspaper articles about plaintiff and plaintiff’s corporation were entitled to absolute privilege in this defamation action:

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The Appellate Division affirmed … .We now affirm as well.

… [T]he publication must be considered in its entirety when evaluating the defamatory effect of the words”… . … [V]iewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” … . Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74. Alf v Buffalo News, Inc., 2013 NY Slip Op 04843 [21 NY3d 988], CtApp 6-27-13

 

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THOSE WHO WORK ON MUNICIPAL VESSELS ARE ENTITLED TO THE PREVAILING WAGE PURSUANT TO LABOR LAW 220 (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a municipal vessel is public work entitling those who work on a municipal vessel to the prevailing wage pursuant to Labor Law 220:

We hold that a municipal vessel is a public work within the meaning of Labor Law § 220 and article I, § 17 of the State Constitution—so that workers involved in its construction, maintenance or repair must be paid prevailing wages—if the vessel’s primary objective is to benefit the general public. * * *

We …. conclude that a three-prong test should be applied to determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution. First, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public. …

… Plaintiffs worked on such vessels as the Staten Island Ferry boats, city fireboats, and municipal garbage barges. A ferry boat is, of course, made for the use of the general public, as is a bus or train. While we recognize that a fireboat, tug or barge is not made to be used by the public, there is no doubt that its function is to serve the general public. For example, a New York City fireboat is used by firefighters for the … benefit of the entire City’s public. There is no justification for making fine distinctions between vessels according to whether or not members of the public have access to them. We have not differentiated buildings used by public employees according to whether there is public access … . The dispositive question is whether their primary function is to serve the general public. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 2013 NY Slip Op 04842 [21 NY3d 530], CtApp 6-27-13

 

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THE SEARCH WARRANT APPLICATION AND SUPPORTING AFFIDAVIT DID NOT DEMONSTRATE THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, MATTER SENT BACK FOR REVIEW OF THE TRANSCRIPT OF THE CONFIDENTIAL INFORMANT’S STATEMENT MADE BEFORE THE ISSUING MAGISTRATE (CT APP)

The Court of Appeals, over a dissent, determined the motion court should have looked at the transcript of the confidential informant’s statements before the magistrate before ruling on whether the search warrant was supported by probable cause. The application and affidavit did not demonstrate the reliability of the informant:

… Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with … . …

The search warrant and supporting affidavit do not by themselves establish probable cause in this case … . A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” … . There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant … . The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past … , and it is not evident that the informant was under oath when information was given to the officer … .

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause … , “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” … . People v Chisholm, 2013 NY Slip Op 04841 [21 NY3d 990], CtApp 6-27-13

SUPPRESSION

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JUDGE MUST DECIDE WHETHER TO TREAT AN ELIGIBLE YOUTH AS A YOUTHFUL OFFENDER, EVEN WHEN THE DEFENDANT DOES NOT ASK THE JUDGE TO DO SO (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a concurring opinion and a two-judge dissent, determined that a judge must consider whether an eligible youth should be treated as a youthful offender, even where the defendant makes no request to do so:

CPL 720.20 (1) says that, where a defendant is eligible to be treated as a youthful offender, the sentencing court “must” determine whether he or she is to be so treated. We hold that compliance with this statutory command cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to [*2]make such a request. In so holding, we overrule People v McGowen (42 NY2d 905 [1977]). * * *

We read the legislature’s use of the word “must” in this context to reflect a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain. Ordinarily, of course, defendants may choose to give up their rights, even very important ones, and indeed are deemed to have done so if they do not timely assert them. But this right—not a right to receive youthful offender treatment, but to have a court decide whether such treatment is justified—is different. To disable a court from making that decision is effectively to hold that the defendant may not have the opportunity for a fresh start, without a criminal record, even if the judge would conclude that that opportunity is likely to turn the young offender into a law-abiding, productive member of society.

The judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining. Of course there will be many cases in which the interests of the community demand that youthful offender treatment be denied, and that the young offender be sentenced like any other criminal; indeed, there will be cases in which that is obviously the right course—but the court must make the decision in every case. Where the court’s ruling is a foregone conclusion, no purpose is served by a plea bargain that takes the decision out of the court’s hands. People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497], CtApp 6-27-13

 

 

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DOCTOR INTENTIONALLY LEFT A GUIDE WIRE USED DURING SURGERY INSIDE PLAINTIFF’S BODY WHEN HE WAS UNABLE TO FIND IT, RES IPSA LOQUITUR DID NOT APPLY, COMPLAINT PROPERLY DISMISSED (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the medical malpractice action was properly dismissed after plaintiff’s proof was put in. Defendant doctor intentionally left a guide wire (used during a surgical procedure) inside plaintiff’s body after he was unable to locate it. The guide wire was later removed with the aid of a special x-ray machine. The “foreign object” was not left plaintiff’s body unintentionally, which is a requirement of the res ipsa loquitur doctrine. And plaintiff was unable to show that it was the defendant doctor, and not someone else involved in the surgery, who exercised control over the guide wire:

Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice … after he failed to remove a localization guide wire during a biopsy of an area on plaintiff’s lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.

In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.

Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully … located and removed the wire with the use of a special X-ray machine known as a C-arm. * * *

To the extent counsel argued that res ipsa loquitur applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Dr. Wormuth had exclusive control … . Dr. Wormuth testified that there were other medical personnel involved in the process of inserting the wire and transporting the plaintiff prior to the doctor’s discovery that the wire had dislodged. Plaintiff did not produce any evidence to the contrary. Instead, plaintiff’s counsel appears to have … believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that “eliminate[s] within reason all explanations for the injury other than the defendant’s negligence,” the control element clearly has not been satisfied … . James v Wormuth, 2013 NY Slip Op 04839 [21 NY3d 540] CtApp 6-27-13

 

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STATE’S USE OF A GPS DEVICE TO TRACK STATE EMPLOYEE’S MOVEMENTS DID NOT REQUIRE A WARRANT, BUT THE SEARCH WAS UNREASONABLE BECAUSE ALL OF THE EMPLOYEE’S MOVEMENTS, EVEN WHEN THE EMPLOYEE WAS ON VACATION, WERE TRACKED, THE GPS EVIDENCE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Smith, over a three-judge concurrence, determined the evidence obtained about a state employee’s movements by placing a GPS device on the employee’s car should have been suppressed in the Labor Department’s hearing (after which the employee was terminated). The Court of Appeals found that the use of the GPS device did not require a warrant, but the search in this case was unreasonable in scope:

The State of New York, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee’s car. Under People v Weaver (12 NY3d 433 [2009]) and United States v Jones (565 US —, 132 S Ct 945 [2012]), the State’s action was a search within the meaning of the State and Federal Constitutions. We hold that the search did not require a warrant, but that on the facts of this case it was unreasonable. * * *

While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search. We conclude that the State has failed to demonstrate that this search was reasonable. * * *

Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings .. . . Matter of Cunningham v New York State Dept. of Labor,
2013 NY Slip Op 04838 [21 NY3d 515], CtApp 6-27-13

 

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Chronic Nonpayment Not Subject to 15-Day Cure Period; Chronic Nonpayment is Treated Differently from Occasional Nonpayment

The First Department explained the legal principles which apply to chronic nonpayment of rent as follows:

…[P]laintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease…, and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease …. Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure….  Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment. Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment….  Definitions Personal Fitness Inc v 133 E 58th St LLC, 2013 NY Slip Op 04892, 1st Dept 6-27-13

 

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Finding that No Environmental Impact Statement (EIS) Needed for Proposed Wind Turbines Reinstated; But Denial of Special Use Permit Upheld

The Third Department reversed Supreme Court’s annulment of a negative declaration with respect to the need for an environmental impact statement (EIS) for a proposed wind turbine installation, but upheld Supreme Court’s denial of a special use permit based on violations of the Town Law’s public hearing and notice requirements (among other grounds).  In describing the review standards for the respondent planning board’s determination an EIS was not required, the Third Department wrote:

….[W]e begin our analysis by noting that an environmental impact statement (hereinafter EIS) is required “‘on any action . . . which may have a significant effect on the environment'”….   A  type I action, such as the project here, “carries with it the presumption that it is likely to have a significant adverse impact on  the environment” (6  NYCRR  617.4 [a] [1];…).   However,  when  a lead agency  “‘determine[s] either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant,'” it may  issue a negative declaration and, in such instance, no  EIS is required…. “Although the threshold triggering an EIS is relatively low”…, judicial review of a negative declaration is limited to whether “the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination”….  In this regard, “[i]t is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence”…. Matter of Frigault v Town of Richfield Planning Board, et al, 515528, 3rd Dept 6-27-13

 

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Plaintiffs Demonstrated They Acquired Title to Property with Cabin by Adverse Possession

The Third Department affirmed Supreme Court’s grant of summary judgment to plaintiffs in their RPAPL article 15 action to quiet title under the doctrine of adverse possession.  The owner of the property, which included a cabin, died intestate and plaintiffs, who allegedly were close personal friends with the owner’s brother (who used the cabin and also died intestate), took possession of the property.  The Third Department wrote:

…[T]o successfully acquire title by adverse possession, plaintiffs must establish by clear and convincing evidence that their occupation of the property was “(1) hostile and under a claim of right . . ., (2) actual, (3) open and notorious, (4) exclusive, and  (5) continuous for the statutory period (at least ten years)” … .  Additionally, because plaintiffs’ “claim was not founded upon a written instrument describing the boundaries of the property,” they were required to “establish that the land was usually cultivated or improved or protected by  a substantial inclosure….In support of their motion for summary judgment, plaintiffs submitted evidence that, since the time of [the owner’s brother’s] death in 1976, they have enjoyed the exclusive use and possession of the property, have paid the taxes and made repairs upon the property, and have permitted various family members to use and reside upon the property.  In 1990, plaintiffs improved the cabin to make it suitable for year-round use, and have used it throughout the year since that  time.  According to plaintiffs, no one  else has had  possession or control of the property since they first took it more than 35 years ago.  Quinlan v Doe, 516140, 3rd Dept 6-27-13

 

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