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MOTION TO VACATE DEFENDANT’S JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; SUPREME COURT MAY HAVE IMPROPERLY RELIED ON CPL 440.30 (d) WHICH ONLY APPLIES IF THE MOTION IS BASED SOLELY ON AN ALLEGATION BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his judgment of conviction should not have been denied without a hearing. There was a question of fact whether defense counsel was aware he could call an expert to testify defendant, who had ingested drugs, did not have the required mental state (depraved indifference). The First Department noted Supreme Court may have improperly relied on Criminal Procedure Law (CPL) 440.30 (d) which applies only if the motion is based solely on an allegation by the defendant (not the case here):

While the motion court had a sound basis for its conclusion that there was “no reasonable possibility” that defendant’s trial counsel “was unaware that he could call an expert to testify about the defendant’s state of mind,” we find that this was not an adequate basis for denying the motion without a hearing in these circumstances. First, to the extent the court may have been relying on CPL 440.30(d), that section permits summary denial when “there is no reasonable possibility that such an allegation is true,” but it applies only when the allegation “is made solely by the defendant.” That is not the case here, where the allegation at issue regarding trial counsel’s statements was made by defendant’s motion counsel based on his own knowledge.

Nor do we believe that this is a case such as People v Samandarov (13 NY3d 433 [2009]), where the lack of merit of a CPL 440.10 motion could be determined on the parties’ submissions, despite it being “theoretically possible that a hearing could show otherwise” (id. at 440). Here, while the court’s perception may well be borne out, there are issues of fact sufficient to warrant a hearing … . People v Martin, 2020 NY Slip Op 00067, First Dept 1-7-20

 

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THIRD-PARTY PLAINTIFFS WERE NOT REQUIRED TO AND DID NOT PARTICIPATE IN THE WORKERS’ COMPENSATION PROCEEDINGS; THEREFORE THE WORKERS’ COMPENSATION BOARD’S FINDING THAT THIRD-PARTY DEFENDANT WAS PLAINTIFF’S EMPLOYER WAS NOT BINDING ON THE THIRD-PARTY PLAINTIFFS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Workers’ Compensation Board’s finding that third-party defendant I & G Group was plaintiff’s employer was not binding on the third-party plaintiffs because the third-party plaintiffs did not participate in the Workers’ Compensation proceedings. Therefore the matter has to be litigated and I & G Group’s motion for summary judgment should should not have been granted:

The Court of Appeals has … recognized that a decision by the worker’s compensation board may not be binding on parties who do not participate in its hearings. * * * “[U]nless the Legislature expands the definition of parties in interest, the unfortunate result will be that a duplicative proceeding must be held and the issue of compensability adjudicated anew because defendants never had a full and fair opportunity’ to litigate the question” … .

Here, because it is undisputed that appellants [third-party plaintiffs] were not given notice of the worker’s compensation hearing, and were not afforded the opportunity to present evidence or cross-examine witnesses, their third-party claims, in which they challenge the identity of plaintiff’s employer, should not have been dismissed as precluded by the board’s prior determination of that issue … . Martinez v 250 W. 43 Owner, LLC, 2020 NY Slip Op 00058, First Dept 1-7-20

 

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THE INDICTMENT CHARGING PROMOTING PRISON CONTRABAND WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT POSSESSED LESS THAN 25 GRAMS OF MARIJUANA WHICH DOES NOT MEET THE DEFINITION OF ‘DANGEROUS CONTRABAND,” AN ELEMENT OF THE OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment, charging defendant with promoting prison contraband in the first degree was jurisdictionally defective because it alleged possession of less that 25 grams of marijuana:

Defendant asserts that the indictment is jurisdictionally defective based on the Court of Appeals’ decision in People v Finley (10 NY3d 647 [2003]). In that case, the Court held that the possession of a small amount of marihuana, specifically less than 25 grams, did not, absent aggravating circumstances, constitute dangerous contraband within the meaning of Penal Law §§ 205.00 (4) and 205.25 as is necessary to support the charge of promoting prison contraband in the first degree … . Defendant contends that there is no valid basis in the indictment for this charge because he possessed less than 25 grams of marihuana. The People concede that this is a jurisdictional defect warranting reversal of the judgment of conviction. In addition, defendant requests that the indictment be dismissed in its entirety, and the People consent to such relief given that defendant’s guilty plea satisfied both charges contained therein. Accordingly, based upon our review of the record, the case law and the parties’ submissions, we conclude that the judgment of conviction must be reversed, thereby vacating the plea and sentence, and that the indictment must be dismissed in its entirety. People v Lawrence, 2020 NY Slip Op 00004, Third Dept 1-2-20

 

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COUNTY COURT DID NOT ISSUE A WRITTEN ORDER RE THE DEFENDANT’S RISK ASSESSMENT PURSUANT TO THE SEX OFFENDER REGISTRATION ACT (SORA); THEREFORE THE APPEAL WAS NOT PROPERLY BEFORE THE APPELLATE DIVISION AND WAS DISMISSED (THIRD DEPT).

The Third Department determined Count Court had not issued a written order with respect to the defendant’s risk assessment under the Sex Offender Registration Act (SORA) and therefor the appeal was not properly before the court:

Following a hearing at which the People advocated for an upward departure, County Court granted the request and classified defendant as a risk level three sex offender with a sexually violent offender designation. Defendant appeals.

It is a statutory requirement that County Court “render an order setting forth its determinations and findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n [3] … ). That written order then must be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a] …).

Although the record before us contains a decision of County Court that sets forth its findings of fact and conclusions of law, the court did not issue a written order and the risk assessment instrument does not contain the “so ordered” language so as to constitute an appealable order. Absent any order by the court, this appeal is not properly before us and must be dismissed … . People v Johnson, 2020 NY Slip Op 00006, Third Dept 1-2-20

 

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UPON LEARNING THE STATE, BY EFFECTIVELY MISLEADING THE COURT, OBTAINED A JUDGMENT DETERMINING IT OWNED LAND IN THE ADIRONDACK PARK, THE COURT PROPERLY EXERCISED ITS DISCRETION TO VACATE THE JUDGMENT PURSUANT TO CPLR 5015 (THIRD DEPT).

The Third Department determined Supreme Court properly vacated a judgment pursuant to CPLR 5015 in the interests of substantial justice because plaintiff (the State of New York) had misled the court in proceedings leading to the judgment that it owned land in the Adirondack Park:

Plaintiff argued at trial that, although it could not identify the specific instrument that gave it a superior claim to the parcel at issue, several instruments granted it title to most of Township 40 and that the parcel “was not included within the bounds of any exception” …  Plaintiff was aware that the success of this argument would threaten the claims of hundreds of individuals to land in Township 40, and misrepresented to Supreme Court that it would rely upon a judgment in this action to bring RPAPL article 15 actions against those individuals. Upon succeeding, plaintiff instead enforced the 2001 judgment against defendants alone … . It … became evident that plaintiff sought the 2001 judgment despite the doubts … regarding its ownership claims in Township 40 … . Plaintiff subjected defendants to selectively harsh treatment under a judgment about which it harbored doubts, in other words, and Supreme Court stated that it would not have granted the judgment had plaintiff taken the legal position it later adopted. Supreme Court did not abuse its discretion in finding that these circumstances afforded sufficient reason to vacate the 2001 judgment in the interest of substantial justice … . State of New York v Moore, 2020 NY Slip Op 00008, Third Dept 1-2-10

 

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DEFENDANT NEED NOT BE INFORMED AT THE TIME OF THE PLEA TO A SEX OFFENSE THAT HE OR SHE MAY BE SUBJECT TO A MENTAL HYGIENE LAW ARTICLE 10 CIVIL ACTION AS THE RELEASE DATE APPROACHES (THIRD DEPT).

The Third Department determined defendant, a sex offender who was found to suffer from a mental abnormality after Mental Hygiene Law Article 10 trial, was not entitled specific performance of his plea agreement, which made no mention of the of potential Mental Hygiene Law proceedings:

Respondent next challenges Supreme Court’s denial of his pretrial motion to dismiss the petition inasmuch as his 1997 plea agreement is a legal and binding contract — one that entitled him to specific performance. Proceedings pursuant to the Sex Offender Management and Treatment Act “are expansive civil proceedings, which are entirely separate from and independent of the original criminal action” … . Moreover, “[i]t is well settled that trial courts are required to advise defendants who plead guilty regarding the direct consequences of such plea, but they have no obligation to iterate every collateral consequence of the conviction” … . As relevant here, “the potential for either civil confinement or supervision pursuant to [the Sex Offender Management and Treatment Act] is a collateral consequence of a guilty plea and, therefore, the current state of the law does not require that defendants be informed of it prior to entering a plea of guilty” … . As such, we discern no error in Supreme Court’s denial of respondent’s request for specific performance. Nor are we persuaded by respondent’s assertion that specific performance is appropriate because the Mental Hygiene Law article 10 litigation ensued following the expiration of his sentence, as the article 10 proceeding commenced upon the date that the petition was filed, prior to respondent’s release date … . Matter of State of New York v Robert G., 2020 NY Slip Op 00009, Third Dept 1-2-20

 

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PENSION OF POLICE OFFICER CONVICTED OF MURDER AND ATTEMPTED MURDER CAN, UNDER THE SON OF SAM LAW, BE REACHED TO SATISFY A $1 MILLION JUDGMENT OBTAINED BY THE CRIME VICTIM (THIRD DEPT).

The Third Department determined the Son of Sam Law trumped the CPLR, the Retirement and Social Security Law, and the Administrative Code of the City of New York with respect to the pension of a former NYC police officer who was convicted of murder and attempted murder and against whom plaintiff obtained a personal injury judgment of more than $1 million:

“Executive Law § 632-a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime by allowing crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source and protecting those funds while litigation is pending” … . … [I]n 2001, the Legislature amended the [Son of Sam] law to allow a crime victim to seek recovery from “funds of a convicted person,” which includes “all funds and property received from any source by a person convicted of a specified crime,” but specifically excludes child support and earned income (Education Law § 632-a [1] [c]). * * *

This Court has found … that CPLR 5205 (c) is superseded by the Son of Sam Law … . Defendant’s assertions that Retirement and Social Security Law § 110 and Administrative Code of the City of New York § 13-264 protect his pension from assignment to satisfy plaintiff’s money judgment are similarly without merit due to the broad reach of the Son of Sam Law … . Prindle v Guzy, 2020 NY Slip Op 00011, Third Dept 1-2-20

 

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THE FACT THAT PETITIONERS OWN PROPERTY ADJACENT TO THE NATURE PRESERVE DID NOT GIVE THEM STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION UNDER SEQRA WITH RESPECT TO THE TOWN’S PURCHASE OF THE PRESERVE (THIRD DEPT).

The Third Department determined petitioners did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) allowing the town’s purchase of land held by a nature conservancy:

It is well settled that standing to challenge an alleged SEQRA violation by a governmental entity requires a petitioner to demonstrate “that it would suffer direct harm, injury that is in some way different from that of the public at large” … . Importantly, “[p]etitioners must have more than generalized environmental concerns to satisfy that burden and, unlike . . . cases involving zoning issues, there is no presumption of standing to raise a SEQRA or other environmental challenge based on a party’s close proximity alone” … .

Here, petitioners claim of standing is based upon the fact that they own property directly adjacent to the nature preserve and have asserted concerns that the Town, in conducting its SEQRA review, failed to consider the impact of increased motor vehicle and pedestrian traffic and/or the environmental effect that a newly proposed parking lot and hiking trail would have on the nature preserve. Initially, assuming, without deciding, that petitioners adequately established their ownership interest in the property directly adjacent to the nature preserve, their position as adjacent landowners does not automatically confer standing on them to challenge the Town Board’s negative declaration … . Moreover, petitioners’ asserted concerns fail to allege any unique or distinct injury that they will suffer as a result of the Town’s proposed land acquisition that is not generally applicable to the public at large … . Matter of Hohman v Town of Poestenkill, 2020 NY Slip Op 00013, Third Dept 1-2-20

 

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THE TRUST PROVISION IN THE WILL WAS INVALID FOR LACK OF A BENEFICIARY; SURROGATE’S COURT’S CONSTRUCTION OF THE WILL PROPERLY EXPRESSED THE DECEDENT’S INTENT (THIRD DEPT).

The Third Department determined Surrogate’s Court properly found that the trust in the will was invalid for lack of a beneficiary and the court’s construction of the will effectuated the decedent’s intent:

There is no dispute regarding Surrogate’s Court’s determination that the trust created in article six of decedent’s will is invalid due to the lack of a beneficiary. Thus, the issue turns on whether the court’s construction of the will, after striking the trust, effectuated decedent’s intent. In addition to creating the invalid trust, the purpose of which was to manage and continue the Dawe Family genealogical research, article six of decedent’s will provides, “I am mindful of my two brothers . . . and of my other relatives, all of whom I love dearly, but I do not make any other direct testamentary disposition for any of them.”… This language is unambiguous and manifests decedent’s intent that none of his family members was to receive direct testamentary gifts … . The language at the end of article six provides that, upon the termination of the trust, “all the assets of the trust . . . shall be distributed outright, free of future trust, to [respondent], a not-for-profit library . . . which promotes and facilitates genealogical research, it being my hope that said library will then preserve (and continue) the Dawe family genealogical research I have conducted (and my said related web site).” This language is similarly unambiguous, manifesting decedent’s intent that respondent receive the residuary of his estate with the hope that decedent’s genealogical research would be continued … . Matter of Dawe, 2020 NY Slip Op 00017, Third Dept 1-2-20

 

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THE JURY WAS PROPERLY INSTRUCTED ON THE DOCTRINE OF RES IPSA LOQUITUR; PLAINTIFF WAS INJURED WHEN AN AUDITORIUM RISER COLLAPSED WHEN SHE WAS WALKING ON IT (THIRD DEPT).

The Third Department determined the jury in this personal injury action was properly instructed on the doctrine of res ipsa loquitur. A riser used for a choral rehearsal collapsed as plaintiff was walking on it:

To be entitled to a res ipsa loquitur jury charge, a plaintiff must establish (1) that the injurious event is “of a kind that ordinarily does not occur in the absence of someone’s negligence,” (2) that the event was “caused by an agency or instrumentality within the exclusive control of the defendant” and (3) that the event was not “due to any voluntary action or contribution on the part of the plaintiff” … . …

… [A] jury could reasonably conclude that the collapse of a stage riser being put to its intended use qualifies as an event that would not ordinarily occur in the absence of negligence ,,, , …  [Plaintiff} … proffered expert testimony demonstrating that the collapse was most likely caused by a flaring of the riser’s locking mechanism, a condition caused by “wear and tear” and which allegedly could have been discovered with proper inspection and maintenance. [P]laintiff’s … expert evidence of negligence did not preclude her from also relying on the doctrine of res ipsa loquitur … .

The evidence established that the auditorium was locked whenever it was not in use and that defendant’s agents exclusively assembled, disassembled, maintained and repaired the risers. * * * [ P]laintiff was not required to “conclusively eliminate the possibility” that someone intentionally disengaged the locking mechanism … . Rather, all that was required was that the likelihood of an intentional act “be so reduced that the greater probability lies at defendant’s door” … . Elsawi v Saratoga Springs City Sch. Dist., 2020 NY Slip Op 00019, Third Dept 1-2-20

 

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