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THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT).

The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper:

“[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified at the suppression hearing that the search of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9 search of the vehicle revealed “hits” at both the center console and the driver’s seat. According to the trooper, during the transport of defendant to the State Police barracks, the smell of marihuana was “overwhelming.” At the barracks, defendant was handcuffed to a bench and the trooper continued to smell marihuana. Each time the trooper asked defendant if he had marihuana on him, he denied it. After defendant was advised that he was to be strip-searched, he was taken to a private interview room and the search was conducted by two male officers. Defendant was asked to remove one article of clothing at a time; when he was down to his underwear, defendant handed over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence, a reasonable suspicion existed that defendant was concealing evidence and we find that the search was conducted in a reasonable manner … . People v Hightower, 2020 NY Slip Op 04513, Third Dept 8-13-20

 

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THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined defendant’s assertion that he was not adequately informed of the rights he was giving up by pleading guilty was not preserved for appeal. The dissent argued the court should consider the appeal under its interest of justice jurisdiction and reverse the conviction:

Defendant also asserts that his guilty plea was not knowing, voluntary and intelligent because County Court did not fully advise him of the rights that he was giving up by pleading guilty. This claim was not preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion … , and we decline to exercise our interest of justice jurisdiction to take corrective action.

From the dissent:

… County Court engaged in a limited and brief exchange with defendant in which it explained that, by pleading guilty, defendant was giving up the “right to remain silent and not to incriminate yourself,” the “right to a jury trial” and “any other rights you have on a trial.” County Court failed to advise defendant of his right to be confronted by witnesses. Additionally, and significantly, when asked if he had discussed the plea and its consequences with counsel, defendant merely stated, “She told me about violating, would be like 90 days. I understand.” The record does not establish that defendant understood and affirmatively waived the trial-related rights that he was automatically forfeiting by pleading guilty and, thus, defendant’s plea is invalid … . People v Cruz, 2020 NY Slip Op 04514, Third Dept 8-13-20

 

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FAMILY COURT RESOLVED CONFLICTING EVIDENCE AND CREDIBILITY ISSUES WITHOUT A HEARING, FAILED TO ACCEPT ALLEGATIONS IN A PRO SE MODIFICATION OF CUSTODY PETITION AS TRUE, IMPOSED A SANCTION FOR A VIOLATION OF A CUSTODY ORDER WHICH IS NOT ALLOWED BY THE CONTROLLING STATUTES, AND FAILED TO TAKE THE BEST INTERESTS OF THE CHILDREN INTO ACCOUNT (THIRD DEPT).

The Third Department, reversing Family Court, noted several errors in these proceedings which began with father’s violation of custody petitioner followed by two modification of custody petitions by mother. All the petitions were brought pro se. Family Court erred: (1) in dismissing mother’s modification petitions without a hearing; (2) in failing to accept as true and liberally construe mother’s pro se allegations; (3) in making factual findings and credibility determinations in the absence of a hearing on the modification petitions; (4) and in imposing an impermissible sanction on mother for an alleged violation of a custody order:

Family Court did not liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. …

… [R]ather than accept the mother’s allegations as true, Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father … . …

… [T]he only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753 [A]; Family Ct Act § 156 …). However, Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children. Matter of Gerard P. v Paula P., 2020 NY Slip Op 04515, Third Dept 8-13-20

 

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LOCAL RESIDENTS OPPOSING THE USE OF A HOTEL AS A HOMELESS SHELTER RAISED A QUESTION OF FACT ABOUT WHETHER THE CONFIGURATION OF THE BUILDING WOULD ALLOW ADEQUATE ACCESS BY FIREFIGHTERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a concurring opinion by Justice Oing, determined that the old Park Savoy Hotel was properly classified as a nontransient apartment hotel for use as a shelter for 150 employed or job-seeking men. However local residents, who brought an Article 78 proceeding objecting to the shelter, raised a question of fact about whether the configuration of the building would allow adequate access by firefighters:

We are asked to decide whether respondents properly permitted the opening of an employment shelter for homeless men in midtown Manhattan. We find that respondents rationally determined that the subject building is a Class A multiple dwelling in the “R-2” occupancy group which represents a continuation of a preexisting use group classification and is grandfathered from compliance with the current New York City Building Code (Administrative Code of City of N.Y. [Building Code] § 310.1). However, we conclude that petitioners have rebutted the presumption that the building as currently configured will not endanger the general safety and welfare of the public. Accordingly, we remand this matter to Supreme Court for further proceedings. Matter of West 58th St. Coalition, Inc. v City of New York, 2020 NY Slip Op 04521, First Dept 8-13-20

 

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QUESTION WHETHER A CONTRACT WHICH IS SILENT ABOUT ITS DURATION WAS PROPERLY TERMINATED REQUIRED CONSIDERATION OF THE INTENT OF THE PARTIES AND COULD NOT BE RESOLVED BASED UPON THE PLEADINGS ALONE; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Goldman Sachs’) motion to dismiss the complaint in this breach of contract action should not have been granted. The issue is whether a contract with is silent about its duration was properly terminated by Goldman. The issue requires consideration of the intent of the parties and could not be resolved based upon the pleadings:

… Supreme Court failed to examine the surrounding circumstances as well as the intent of the parties in discerning the original intent of the parties …. It improperly determined, as a matter of law, that a “reasonable time” justifying termination of the contract had elapsed and plaintiffs had not made any persuasive arguments to the contrary. In doing so, it relied upon its conclusion that Goldman was no longer receiving a meaningful benefit from the agreement, thus rejecting out of hand plaintiff’s allegations in the amended complaint to the contrary.

As this is a motion to dismiss pursuant to CPLR 3211(a)(7), Supreme Court should have afforded the pleadings a liberal construction (see CPLR 3026), taken the allegations of the complaint as true, and afforded plaintiff[s] the benefit of every possible favorable inference. A motion court must only determine whether the facts as alleged fit within any cognizable legal theory … . Whether a plaintiff can ultimately establish its allegations should not be considered in determining a motion to dismiss … . “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . Charles Schwab Corp. v Goldman Sachs Group, Inc., 2020 NY Slip Op 04520, First Dept 8-13-20

 

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THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT PRESERVED FOR APPEAL BY AN OBJECTION AND THE INTEREST OF JUSTICE APPELLATE JURISDICTION WILL NOT BE INVOKED WHERE THERE WAS AMPLE OPPORTUNITY TO OBJECT (FIRST DEPT).

The First Department determined defendant did not preserve the issue concerning the adequacy of the verdict sheet which did not mention the justification defense. Defendant was acquitted of the top counts (attempted murder and assault first) and convicted of assault second. The jury was instructed not to consider the lesser counts if the justification defense applied. But the verdict sheet was silent on the justification defense. The First Department refused to exercise its interest of justice jurisdiction because there was ample opportunity to interpose an objection to the jury instructions and verdict sheet:

… [D]efendant contends that his conviction on the lesser count of second-degree assault must be vacated since the verdict sheet made no mention of justification. Verdict sheets in criminal cases, however, may not include substantive instructions absent authorization by CPL 310.20(2) … . Here, defense counsel made no objections when the verdict sheet was reviewed and discussed by the court with the parties.

In prior cases, we reversed convictions in the interest of justice where defendants interposed no objections to jury instructions that failed to comply with Velez [131 AD3d 129], even though the claim was unpreserved … .

In People v Davis (176 AD3d 634 [2019], lv denied 34 NY3d 1157 [2020]), we changed course. The jury in that case similarly found defendant not guilty of the top count, but guilty of the lesser count. Although defendant interposed no objections to the verdict sheet or the jury instructions that were given, defendant appealed on the basis that both the initial and supplemental charges and the verdict sheet did not comply with Velez. We “decline[d] to exercise our interest of justice jurisdiction to review these unpreserved claims” … .

Davis is applicable here. The defendant, although afforded multiple opportunities during the two-and-a-half to three-day charge conference, during trial and prior to deliberations, interposed no objections, and thus, failed to preserve his claims. People v Macon, 2020 NY Slip Op 04519, First Dept 8-13-20

 

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THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate mechanism for review is a CPL 440.10 motion. The dissenters argued the record was sufficient to send the matter back for a motion to vacate the plea:

We do not agree with defendant’s attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel’s statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered. To reiterate, counsel’s statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of “all possible consequences” was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel’s statement establishes “irrefutably” … that the advice given was inaccurate, as is required to render a CPL 440.10 motion unnecessary. People v Gomez, 2020 NY Slip Op 04518, First Dept 8-13-20

 

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ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).

The Second Department, remitting the matter, determined that, although it was demonstrated the inmate lTyrone) lacked the capacity to make a reasoned decision about his treatment for schizophrenia, the petitioner did not demonstrate the proposed treatment was narrowly tailored to the inmate’s needs:

When seeking to administer a course of medication to a patient without that patient’s consent, a petitioner bear  the burden of demonstrating, by clear and convincing evidence, (1) the patient’s incapacity to make treatment decisions … , and (2) that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” … . “Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference” … . … [T]e petitioner demonstrated by clear and convincing evidence that Tyrone lacks the capacity to make a reasoned decision with respect to the proposed treatment. …

However, the petitioner failed to demonstrate by clear and convincing evidence that the proposed treatment is narrowly tailored to preserve Tyrone’s liberty interest. Matter of Tyrone M., 2020 NY Slip Op 04478, Second Dept 8-12-20

 

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IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding that the flat-rate pay did not violate the Minimum Wage Order (Wage Order) was not irrational or unreasonable:

On March 26, 2019, the Court of Appeals reversed this Court’s decision and order, concluding that the DOL’s interpretation of the Wage Order did not conflict with the promulgated language and was not irrational or unreasonable … . The Court of Appeals remitted the matter to this Court to determine whether the plaintiffs’ class certification motion was properly denied, considering the DOL’s interpretation of the Wage Order as well as alternative bases for class certification asserted by the plaintiffs.

The proponent of a motion for class certification bears the burden of establishing the requirements of CPLR article 9 … . CPLR 901 sets forth five prerequisites to class certification. “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “A class action certification must be founded upon an evidentiary basis” … .

… [I]n light of the DOL’s interpretation of the Wage Order, the plaintiffs have failed to demonstrate entitlement to class certification on the question of whether the defendants violated the law by failing to pay them for all hours of a 24-hour shift. Although a worker must be paid minimum wage for the time he or she is “required to be available for work at a place prescribed by the employer,” under the DOL interpretation of the Wage Order, a worker is not considered to be “available for work at a place prescribed by the employer” during designated meal and sleep breaks, totaling 11 hours of a 24-hour shift … . Moreno v Future Health Care Servs., Inc., 2020 NY Slip Op 04473, Second Dept 8-12-20

 

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DEFENDANT OFFERED MORE TO SETTLE THE ACTION THAN WAS AWARDED PLAINTIFF AFTER TRIAL; DEFENDANT WAS THEREFORE ENTITLED TO ATTORNEY’S FEES PURSUANT TO CPLR 3220 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to attorney’s fees pursuant to CPLR 3220 in this breach of contract action. The defendant offered $950,000 to settle the action before trial and the plaintiff was awarded about $525,000:

CPLR 3220 provides, in relevant part, that, in an action to recover damages for breach of contract, at any time at least 10 days prior to trial, a defendant may make “a written offer to allow judgment to be taken against [it] for a sum therein specified, with costs then accrued, if the [defendant] fails in his defense.” If the plaintiff rejects the offer and thereafter “fails to obtain a more favorable judgment, [the plaintiff] shall pay the expenses necessarily incurred by the [defendant], for trying the issue of damages from the time of the offer” (CPLR 3220 … ). Here, since the defendant’s offer of $950,000 exceeded the plaintiff’s award of $524,253.92 and the plaintiff rejected that offer, the court should have awarded the defendant its expenses, including attorneys’ fees, incurred in trying the issue of damages from the date of its offer pursuant to CPLR 3220 … . Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 2020 NY Slip Op 04468, Second Dept 8-12-20

 

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