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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

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Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

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Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13

 

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County Court’s Jurisdiction Over Crimes Committed in Other Counties, Among Many Other Issues, Explained

In a full-fledged opinion by Justice Egan, the Third Department affirmed the conviction of the director of facilities for the Schenectady City School District for arson, criminal possession of a weapon, criminal mischief and other offenses.  Among the issues (all resolved against the defendant) addressed in substantive discussions: (1) whether Schenectady County Court had jurisdiction over the counts of the indictment which were alleged to have occurred in other counties; (2) whether the jurisdictional facts were sufficiently alleged and proven; (3) severance of counts; (4) suppression of evidence found in a briefcase in an area for which a search warrant had been issued; (5) whether questions amounted to impermissible interrogation; (6) the admission of Molineux evidence; (7) whether testimony relating to non-testifying chemist’s findings in a report was a Crawford violation (a violation of the right of confrontation); (8) and the admissibility of demonstrative evidence.  With respect to the jurisdiction issue, the court wrote:

…[I]n order for prosecutorial jurisdiction to lie in Schenectady County for the extraterritorial crimes, defendant’s conduct must have “had, or was likely to have, a particular effect upon [the] [C]ounty . . . or part thereof, and [have been] performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” ….To that end criminal conduct has a “particular effect” upon a county when the consequences thereof “have a materially harmful impact upon the governmental processes or community welfare” of that county (CPL 20.10 [4]) such that the defendant’s out-of-county conduct “expose[s] a large number of county residents to a specific harm”… .In this regard, the injury alleged must  be  “concrete and  identifiable” and of the type that can be demonstrated by proof… .  The People bear the burden of proving  that venue is proper by a preponderance of the evidence, and whether the subject county has geographic jurisdiction over each of the charged offenses presents a factual issue for the jury to resolve … .  People v Raucci, 103996, 3rd Dept 6-27-13

 

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Grand Jury Proceeding Not Tainted by Excused Juror’s Statements About Having Arrested and Having Been Threatened by Defendant

The Third Department reversed County Court’s dismissal of indictments based upon a finding the integrity of the grand jury had been impaired.  A potential grand juror was excluded after stating he had arrested the defendant at least once and the defendant had threatened his family.  The Third Department wrote:

The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor’s efforts in that regard to be inadequate, “the grand jury is presumed to have followed the prosecutor’s curative instructions, dispelling any prejudice to [] defendant”….  Furthermore, given the strength of the evidence supporting the indictments, the grand juror’s comment lacked the potential to prejudice the grand jury’s ultimate decision….   Accordingly, dismissal of the indictments was unwarranted.  People v Farley, 103105, 3rd Dept 6-27-13

 

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Resentencing (Re: Postrelease Supervision) of Defendants Who Have Completed Determinate Sentence But Are Still Serving Aggregate Sentence Does Not Violate Double Jeopardy

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined defendants who have completed the determinate sentence for which mandatory postrelease supervision was not imposed but have not completed their aggregated sentences under Penal Law 70.30 can be resentenced to postrelease supervision without violating the Double Jeopardy Clause:

In these unrelated cases, each defendant claims that the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.  People v Brinson… Nos 135, 136, CtApp 6-26-13

 

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Orange County Executive Did Not Have Authority to Terminate County Employees Before County Legislature Eliminated Positions

The Second Department reversed Supreme Court and determined the Orange County Executive did not have the authority to terminate county employees before the legislature acted to removed funding for the positions:

The doctrine of “[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act”…. Pursuant to section 2.02(1) of the Orange County Charter and Orange County Administrative Code, the Orange County Legislature possesses sole authority to “establish or abolish positions of employment and titles thereof.” Here, the County Legislature had not taken any action to abolish the subject positions at the time the County Executive terminated the subject employees’ employment. While the Orange County Charter and Orange County Administrative Code give the County Executive the authority to “supervise, direct and control and administer all departments” (Orange County Charter § 3.02[e]; Administrative Code § 3.02[e]), they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency…. Further, County Charter § 4.10(a) does not authorize the County Executive to undertake any “remedial action” constituting, inter alia, unilateral modification to the budget and/or abolition of legislatively created positions…. Therefore, under these circumstances, the County Executive did not have the authority to terminate the subject employees’ employment for economic reasons, effective October 29, 2010.   Matter of Civil Serv Empls Assn Inc v County of Orange, 2013 NY Slip Op 04798, 2nd Dept 6-26-13

 

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Hospital Can Be Vicariously Liable for Actions of Non-employee Physician Under Apparent or Ostensible Agency Theory

The Second Department explained when a hospital can be held vicariously responsible, under a theory of apparent or ostensible agency, for the actions of non-employee physicians who provide medical services at the hospital:

“A hospital [is] responsible to a patient who sought medical care at the hospital, . . . rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital”… . To create an apparent or ostensible agency, the plaintiff must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the plaintiff must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not on reliance on the agent’s skill…. In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating her were provided by the hospital or acted on the hospital’s… . In evaluating whether a doctor is the apparent agent of a hospital, a court should consider all attendant circumstances to determine whether the patient could properly have believed that the physician was provided by the hospital… .  Loaiza v Lam, 2013 NY Slip Op 04780, 2nd Dept 6-26-13

 

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Glass Plate in Wall Under Demolition Was Not a “Falling Object” within the Meaning of Labor Law 240 (1)

The Second Department determined injury caused by a glass plate that cracked and fell on plaintiff during demolition was not a “falling object” injury within the meaning of Labor Law 240 (1) because the glass did not requiring securing and the accident was not due to the absence of safety equipment:

The Supreme Court should have granted that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) ….. To recover, a plaintiff must show that, at the time the object fell, it was being hoisted or secured, or “required securing for the purposes of the undertaking”…. The plaintiff also must show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” …. Here, the glass pane that caused the plaintiff’s injuries was slated for demolition at the time of the accident, and the defendants established, prima facie, that the glass pane was not an object that required securing for the purposes of the undertaking, that is, the demolition… .  Maldonado v AMMM Props Co, 2013 NY Slip Op 04781, 2nd Dept 6-26-13

 

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