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Introduction of Statements Made to Police In Absence of Counsel When Defendant Was Represented by Counsel on a Another Matter Deemed Harmless Error

The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel:

While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. Defendant claims that his constitutional right to counsel was violated because he was represented by counsel on the VOP at the time, as evidenced by the notation made on an arraignment memorandum by the Town Justice who arraigned him on the VOP.

Assuming, without deciding, that defendant’s indelible right to counsel was violated, any error was harmless beyond a reasonable doubt…. There is no reasonable possibility that the introduction of the two challenged statements affected defendant’s conviction in view of the other evidence, including two counseled statements to police and testimony of numerous witnesses, that overwhelmingly established his guilt.  People v Augustine, No 109, CtApp, 6-6-13

 

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Failure to Investigate Constituted Ineffective Assistance of Counsel

In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel.  The People’s case rested on the defendant’s statement.  The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement.  Yet the defense attorney did not investigate critical documents relevant to the defendant’s mental condition. The Court of Appeals wrote:

The record reveals that trial counsel sought to build a defense based on defendant’s mental weakness undermining the voluntariness of his admissions of guilt. Despite the focus on defendant’s mental abilities, trial counsel chose to forgo any investigation of the critical documents concerning defendant’s mental condition, and instead, sought to present this defense through the testimony of defendant’s mother, an obviously biased witness. Regardless of whether the decision to present defendant’s condition through his mother’s testimony was a valid strategy, it was, as trial counsel admitted at the post-conviction hearing, a “strategy” “born in the blind.” One he admittedly pursued without benefit of the contents of defendant’s records.

This is not simply a case of a failed trial strategy …. Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits. People v Oliveras, No 105, CtApp, 6-6-13

 

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Motion to Resettle Explained

In determining petitioner’s motion was not a motion to resettle because it sought to amend, rather than merely clarify, a judgment, the Third Department explained:

[A motion to resettle] is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision”…. Such  motions  rest on  the inherent power  of courts to  “‘cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'”…. Here, petitioners’ motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court’s prior judgment … .  Matter of Torpey v Town of Colonie, 515902, 3rd Dept,. 6-6-13

 

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Supreme Court’s Annulment of Regulation Permitting Out-Of-Competition Drug Testing of Harness Racehorses Reversed

The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law.  In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein and peptide-based drugs” because it conflicted with the permitted-use regulation. Matter of Ford v NYS Racing and Wagering Board, 514622, 3rd Dept, 6-6-13

 

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No Investment Tax Credit for Company which Delivered Natural Gas, as Opposed to Processing or Manufacturing a Product

The Third Department upheld the NYS Tax Appeals Tribunal’s determination that the petitioner, Brooklyn Union Gas Company, was not entitled to an investment tax credit (ITC) because it was in the business of delivering natural gas, not producing or processing a product as those terms are construed for an ITC under the Tax Law:

The record amply supports, for purposes of our limited review, the Tribunal’s determination that petitioners’ integrated system  was  primarily one  of  distribution and  delivery  rather than processing or manufacturing.  The  vast  majority  of petitioners’ 11,000-mile system, both  in terms  of size and  cost, is comprised of pipes and  mains  through  which  natural gas  flows.  No material change occurs to the natural gas while in the pipes and mains, as these serve as the primary means for delivering the product. Viewing the system as a whole, the modifications made by petitioners to the gas  –  while important –  do  not  result in a significant change  in the product.  Matter of Brooklyn Union Gas Company v NYS Tax Appeals Tribunal, 514825, 3rd Dept, 6-6-13

 

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Lane Abutting Properties Was Not Owned by Property-Owners

The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:

Fiebelkorn [a leading case] and its progeny stand for the general proposition that “[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes”….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs’ deeds contain no reference to a map. * * *

Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation’s inventory of local roads lying within the Village’s jurisdiction, and (c) the  Village  “has  never  maintained”  it.  Plaintiffs’ dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13

 

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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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Disparaging Allegations in Complaint Protected by Judicial Privilege

In a defamation action, after finding that the disparaging allegations in a complaint were protected by judicial privilege, the Second Department criticized the use of invective in the pleadings:

The court properly concluded that the statements made in the underlying complaint were pertinent to the action and therefore absolutely protected by the judicial proceedings privilege… . The allegedly defamatory allegations were broadly pertinent to the tortious interference claim, as they bore on the mother’s intent, provided the context for the dispute, and supported the claim for punitive damages… . The pertinence of the statements negates any finding of abuse of the judicial proceedings privilege … . Moreover, the statements were expressions of opinion, not fact, or they constituted hyperbole, which are also absolutely protected… . *  *  * Nevertheless, although we affirm, we note our disapproval of defendants’ use of a filed pleading as a vehicle for offensive, albeit nondefamatory invective. Such conduct offends the dignity of judicial proceedings and should not be condoned.  Joseph v Joseph, 2013 NY Slip Op 04111, 1st Dept, 6-6-13

 

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Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action

The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13

 

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Wife Deemed Not Entitled to Maintenance

In reversing Supreme Court and determining the wife was not entitled to maintenance, the Third Department wrote:

While “[t]he amount and duration of [a maintenance] award are addressed to the sound  discretion of the trial court” (…see Domestic  Relations Law  §  236  [B] [6] [a]), “this Court’s authority is as broad as Supreme  Court’s in resolving questions of maintenance”….  Accordingly, we  find that under  the circumstances of this case – where  the marriage was not of particularly long duration, the parties had no  children, the wife has stable employment  that provides her a significant salary, the  wife  is not  losing  retirement  or  health benefits and  the parties’ predivorce standard of living was falsely inflated by  overextended lines of credit – the statutory factors do  not support an  award  of maintenance  (see Domestic Relations Law  §  236  [B] [6] [a] [1]-[20]…).  McCaffrey v McCaffrey, 515718, 3rd Dept, 6-6-13

 

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