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Convictions Based Entirely Upon Confession Reversed; Error to Allow Experiment in Evidence; Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

We find that defendant’s convictions of criminal sexual act in the first degree must  be  reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed”  (CPL 60.50). While this additional proof “need  not corroborate every detail of the confession” …, both  of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

 

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Fact that Defendant Was Seen With a .25 Caliber Handgun Two and a Half Months Before Charged Shooting Allowed In Evidence to Prove “Identity”

The defendant was convicted of shooting the victim with a .25 caliber handgun.  Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun.  The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter.  The Third Department affirmed with a strong dissent.  The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:

[THE FOLLOWING QUOTATION IS FROM THE DISSENT]

The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a “distinctive repetitive pattern”  … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant’s mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered “‘so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'” … .  People v Myers, 104004, 3rd Dept, 4-25-13

 

 

 

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Independent Reason for Incarceration Precludes Habeas Corpus Relief

In affirming the dismissal of a habeas corpus petition, the Third Department noted that even where the basis for the petition is valid (here there was no preliminary hearing for a parole violation) habeas relief is not available if there is an independent basis for continued incarceration (here an indictment for the offense underlying the parole violation):

Regardless of the merits of petitioner’s claim that he was deprived of a preliminary hearing, an independent basis for his parole revocation exists given his conviction upon the count charged in the indictment (see Executive Law § 259-i [3] [d] [iii]…). Petitioner is thus not entitled to immediate release, rendering habeas corpus relief unavailable … .  People ex rel Wiggins v Schiff, 515008, Third Dept 4-25-13

 

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Denial of Benefits Affirmed In Spite of Conflicting Medical Evidence

In affirming the denial of (World Trade Center) accidental disability retirement benefits to a police officer, the Third Department explained how to deal with conflicting medical opinion.  Here the officer presented evidence he suffered from post traumatic stress disorder stemming from the World Trade Center attacks, and the state presented evidence he suffered from treatable mild depression:

“In situations where, like here, there are conflicting opinions as to whether  petitioner is permanently  disabled, it is well  settled that  [the  Comptroller]  is vested with  the  authority to resolve conflicts in the medical evidence and to credit one expert’s opinion over that of another” ….   Inasmuch as the Retirement System’s expert provided a rational and fact-based opinion, founded upon an examination of petitioner and a review of his medical records, the Comptroller’s determination is supported by substantial evidence and will not be disturbed, despite evidence in the record that might support a contrary result … .  Matter of Cantelmo v NYS Comptroller, 515641, 3rd Dept, 4-25-13

 

 

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Verdict In Favor of Physician Set Aside in “Breach of Implied Covenant of Trust and Confidence” Case

The Third Department set aside a jury verdict in favor of defendant, plaintiff’s former physician.  The lawsuit alleged a cause of action for “breach of the implied covenant of trust and confidence inherent in the patient-physician relationship” based upon defendant’s breach of “her duty of confidentiality” when she reported the details of a hospital visit with plaintiff to plaintiff’s wife.  The confidential information apparently at least implied plaintiff posed a danger to plaintiff’s wife [Juric].  In setting aside the verdict, the Third Department wrote:

In our view, the record does not contain proof establishing that defendant had a reasonable basis to believe that plaintiff posed an actual, current, imminent  threat to Juric as required to sustain her affirmative defense pursuant to Supreme  Court’s jury charge [the affirmative defense was “justification”]. Thus, even according defendant every favorable inference and considering the facts in the light most favorable to her …, we agree with plaintiff that there was “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence  presented  at trial” … Juric v Bergstraesser, 515333, 3rd Dept, 4-25-13

 

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Empire Zone Status Can Be Revoked; No Vested or Actionable Right

The petitioner, the owner of a shopping mall, was certified as an empire zone business enterprise in 2002, and was thereby afforded certain tax benefits.  In 2009 the Empire Zone Designation Board revoked petitioner’s certification.  On appeal from an Article 78 proceeding, the Third Department affirmed the lower court’s determination that the respondents were not estopped from revoking the empire zone status because tax legislation is not a governmental promise:

Because “tax legislation is not a governmental promise,  [taxpayers  have]  no  vested  or  actionable right . . . to the benefit of a tax statute or regulation” … .   A claim of estoppel may only be asserted against a government agency in the rarest of situations and may not be invoked to prevent an agency from discharging its statutory duties … .  After the Legislature amended the Empire Zones Act, the Board discharged its statutory duty to review appeals of the … decisions to decertify empire zone business enterprises (see General Municipal Law §  959  [w]). Under these circumstances, where petitioner did not have  a vested right to continue receiving tax credits and  the Board  was  fulfilling its duty under the law, the court properly held that estoppel may not be invoked.  Matter of Greece Town Mall, LP v New York State, et al, 515207, Third Dept 4-25-13

 

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Slander Per Se Complaint Not Based Upon “Serious Crime” (Trespass) ​

In affirming the dismissal of a complaint alleging slander per se based upon the accusation defendant had committed trespass, the Third Department explained:

A statement will fall into one of the four categories of slander per se when  it is so noxious and injurious by nature that the law presumes that pecuniary damages will result and, thus, special damages need not be alleged ….  As relevant here, “slander per se” includes “statements . . . charging [a] plaintiff with a serious crime,” but “the law distinguishes between  serious and  relatively minor offenses, and  only statements regarding the former are actionable without proof of damage” … .  * * *

In any event, even construing the complaint liberally and according plaintiff the benefit of every favorable inference, it does not set forth the allegedly defamatory statement with sufficient particularity to satisfy the requirement of CPLR  3016… .  Martin v Hayes, 515024, 3rd Dept, 4-25-13

 

 

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NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

…[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13

 

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Role of Appellate Court in Reviewing an Arbitral Award Which Has Been Confirmed in a Judgment Explained

In a full-fledged opinion by Justice Acosta (with a dissent), the First Department held that payment, by the respondent investment fund, of an arbitral award in stocks as opposed to cash required a hearing to determine the value of the stocks.  The First Department outlined its role where the satisfaction of an arbitral award which has been confirmed in a judgment is before them:

As a threshold matter, we begin by observing that a party may oppose an arbitral award either by motion pursuant to CPLR 7511(a) to vacate or modify the award within 90 days after delivery of the award or by objecting to the award in opposition to an application to confirm the award notwithstanding the expiration of the 90-day period … . Here, respondent did neither. Indeed, it was petitioner who appealed the lower court’s refusal to enforce the judgment. Under such circumstances, contrary to our dissenting colleague, we do not have the authority to grant a non-appealing party relief that it did not seek by vacating a judgment entered against it …. Moreover, we are not empowered to remit the matter to the arbitrator for clarification ….

Where a dispute exists as to the meaning of an arbitration award that has been confirmed in a judgment, it becomes “the Court’s function to determine and declare the meaning and intent of the arbitrator []” …. To that end, a court may review the text of the arbitrator’s award in conjunction with whatever findings, if any, the arbitrator has made …. In so doing, a court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result .. . Furthermore, the award must be interpreted in the light most favorable to the prevailing party … .  Matter of Pine St Assoc, LP v Southridge Partners, LP, 2013 NY Slip Op 02854, 1st Dept, 4-25-13

 

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Accident Unforeseeable as a Matter of Law

The First Department reversed Supreme Court’s denial of summary judgment and held that the accident was unforeseeable as a matter of law.  The plaintiff fell off a “setback roof” which was accessible only by climbing through the window of plaintiff’s friend’s apartment:

An accident is unforeseeable as a matter of law where the conduct or chain of events was so extraordinary that the defendant’s duty did not extend to preventing it … . Here, given the nature and location of the setback, it was unforeseeable that individuals would choose to access it, and thus defendant had no duty to guard against such an occurrence … . Powers v 32 E 31 LLC, 2013 NY Slip Op 02846, 1st Dept, 4-25-13

 

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