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Court Could Not Require Parolee to Submit Psychological and Medical Proof In Support of Name-Change Petition

In this case the Fourth Department determined the court could not require petitioner, a parolee, to provide psychological and medical proof in support of a petition for a name change.  The Fourth Department wrote:

 …[W]e agree with petitioner that the court erred in requiring him to provide psychological and medical proof in support of the amended petition; such proof is irrelevant when the petitioner seeks only to assume a different name, “not a declaration of a gender ‘change[] from male to female’ ” …. Here, petitioner has not requested a declaration regarding gender, but by the amended petition has asked the court “only to sanction legally petitioner’s desire for a change of name, after satisfying itself that petitioner has no fraudulent purpose for doing so and that no other person’s rights are interfered with thereby” ….  Matter of Anonymous, CA 12-02056, 426, 4th Dept, 5-3-13

 

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Criteria for Non-Negligent Explanation for Striking Vehicle from Behind Described​​​​

In finding the defendant failed to demonstrate a non-negligent reason for his striking the plaintiff’s vehicle from behind (in defendant’s motion for summary judgment), the Fourth Department explained:

A rear-end collision with a vehicle that is stopped or is in the process of stopping ‘creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” …. We agree with plaintiff that defendant failed to establish as a matter of law that the accident was the result of unanticipated brake failure, a nonnegligent explanation alleged by defendant in support of his cross motion… “Where, as here, .. . defendant[] intend[s] ‘to lay the blame for the accident on brake failure, it [is] incumbent upon [him] to show that the problem with the brakes was unanticipated, and that [he] had exercised reasonable care to keep them in good working order’ ” … .  Lyons v Zeman, CA 12-02074, 479, 4th Dept, 5-3-13

TRAFFIC ACCIDENTS

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“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-Paint Injury Case Okay/But Not Okay for Non-Party Educators

In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers about the plaintiff’s injuries.  However, the Fourth Department did not agree with Supreme Court’s grant of the same motion with respect to non-party educators (two justices dissented on that issue):

In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers. The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an adverse party’s treating physician. Defendant made no showing that the discovery devices available under the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13

 

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Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to Lead Paint or Be Precluded from Introducing Such Evidence

In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants moved to preclude proof of plaintiff’s injuries in the absence of such medical reports.  Supreme Court granted the defendant’s motion and the Fourth Department affirmed.  In addition, the Fourth Department noted that Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because plaintiff was not “relying” on the statute.  Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13

 

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Suppression Should Have Been Granted—People Failed to Meet Their Burden of Going Forward at Suppression Hearing​

The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct.  The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:

We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. .  People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13

 

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Criteria for Specific Performance of Plea Agreement Explained

The Fourth Department noted the criteria for a defendant’s right to specific performance of a plea agreement (criteria not met in this case):
“ ‘The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement . . . , such that specific performance is warranted as a matter of essential fairness’ ” … Inasmuch as neither the prosecution nor the defense had taken any action on the second plea agreement …defendant was not placed in a “ ‘no-return position’ ” in reliance on the second plea agreement and is thus not entitled to specific performance of that agreement… . People v Weather, KA 11-01247, 482, 4th Dept, 5-3-13

 

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Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:

Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is “‘probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape’ “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … .  * * *

The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle’s occupants  acknowledged  ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had  been or was  being  committed,  which  justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant’s claim that the statements he made thereafter should have been suppressed as “fruit of the  poisonous  tree.”  People v Thompson, 104836, 3rd Dept, 5-2-13

SEARCH, SUPPRESSION, SUPPRESS

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Kicking In Window Satisfies Entry Element of Burglary

In this case, the Third Department determined kicking in a window satisfies the “entry” element of burglary and the recording by the police of a phone conversation between the defendant and his sister, although it may have violated the eavesdropping statute, was not an error preserved for appeal:

“[T]he entry element of burglary is satisfied ‘when a person intrudes within a building, no matter how slightly, with any part of his or her body'” …, and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building ….  *  *  *

Defendant contended  that he  had  a reasonable expectation of privacy during this conversation,  and  now  further asserts that  police committed the crime of eavesdropping by recording this conversation (see Penal Law § 250.05).  We agree with Supreme Court’s rejection of the privacy claim, and the unpreserved eavesdropping claim does not warrant modification in the interest of justice ….  People v McFarland, 104491, 3rd Dept, 5-2-13

 

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