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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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Procedure for Resentencing Under Drug Law Reform Act Not Followed

County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46).  County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing.  The Third Department wrote:

Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by  the court informing a defendant of the sentence it will impose in the event of resentencing “must include written findings of fact and reasons for such order” (L 2004, ch 738, § 23 …). Defendant must also be notified that he  or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be  given an  opportunity to withdraw  the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13

 

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Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs.  The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant.  However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid.  In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent.  But because her statement was not “involuntary” it would be available for impeachment at trial should she testify.  People v Boler, 104092, 3rd Dept, 5-2-13

SUPPRESSION, SUPPRESS

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Failure to Allow Inmate to Observe Search of Cell Required Annulment​

In annulling a disciplinary determination because petitioner was not allowed to observe the search of his cell, the Third Department wrote:

Department of Corrections and  Community Supervision Directive No. 4910 [V] [C] [1] provides, as relevant here, that “[i]f the inmate is removed  from quarters prior to [a] search, he or she shall be  placed outside the immediate area to be  searched, but allowed to observe the search. However, if, in the opinion of a supervisory security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be  removed  from the area and  not allowed to observe the search.” At the disciplinary hearing, petitioner raised his objection that he  was  improperly removed  from the area of his cell despite his request to observe the search. Absent  any  indication that a  supervisory staff member determined  that petitioner posed  a  danger  to the security of the facility, we  cannot  conclude  that the Department  of Corrections and Community Supervision complied with Directive No. 4910.  Matter of Mingo v Chappius, 514655, 3rd Dept, 5-2-13

 

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Town Zoning Ordinances Prohibiting Exploration For and Production of Natural Gas (In Response to Concerns Over Hydrofracking) Upheld​

In a full-fledged opinion by Justice Peters, the Third Department held that a town zoning ordinance which banned “all activities which related to the exploration for, and the production or storage of, natural gas and petroleum,” passed in response to concern over “hydrofracking,”  was not preempted by New York’s Oil, Gas and Solution Mining Law (OGSML) (ECL 23-0301, et seq).  The opinion includes an extensive discussion of the legislative history of the preemption language in the OGMSL, as well as the concepts of express, implied and conflict preemption. Norse Energy Corp, USA v Town of Dryden, et al, 515227, 3rd Dept, 5-2-13

For identical reasons, a similar ordinance enacted by the Town of Middlefield was held valid by the Third Department.  Cooperstown Holstein Corp v Town of Middlefield, 515498, 3rd Dept, 5-2-13

 

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Normal Negligence Theories Apply to Injury Resulting from Animal Wandering Off (Cow Struck By Car)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the line of strict liability “knowledge-of-an-animal’s-vicious-propensities” cases did not apply to this case, where a cow was negligently allowed to wander off, causing injury to the plaintiff who struck the cow with her car.  In a case like this, normal negligence theories apply:

[Here the claim] … is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard — that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 NY3d at 599) — in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.  We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.  Hastings v Sauve, et al, No 78, CtApp, 5-2-13

 

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Normal Behavior of Horse (Jerking Head Back) Not Actionable​

The Court of Appeals affirmed the appellate division’s ruling that the plaintiff could not recover for injury to her hand resulting from a horse’s jerking its head back when plaintiff was holding the halter.  The Court of Appeals wrote:

Under the rule of Bard v Jahnke, (6 NY3d 592, 596-597 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s “vicious propensity” or “propensity to do any act that might endanger the safety of the persons and property of others” …. No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of “behavior that is normal or typical for the particular type of animal in question” … .  Bloomer v Shauger, No 79, CtApp, 5-2-13

 

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Limitation of Liability Clause in House-Design Contract Valid

he defendant designed plaintiffs’ residence and the first floor was built two feet below what the regulations required resulting in increased flood insurance premiums.  In the contract between the parties, it was agreed to limit defendant’s liability to the amount of the fees paid by plaintiffs.  After noting that contractual liability-limit clauses are valid and enforced except in cases of “gross negligence,” the Third Department determined “gross negligence” had not been demonstrated:  In describing “gross negligence,” the Third Department wrote:

In this context, it is settled  that  “gross negligence differs in kind, not only in degree, from claims of ordinary negligence.  It is conduct  that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing” … .  Soja v Keystone Tozze, LLC, 515422, 3rd Dept 5-2-13

 

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