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No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

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Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

The Second Department determined defendant’s motion to suppress jewelry taken from his pocket after pat-down search on the street should have been granted.  At the suppression hearing, the People did not argue that the officer who stopped the defendant had probable cause to arrest the defendant at the time of the pat-down search.  Therefore, the Second Department noted, that argument could not be raised by the People on appeal. At the suppression hearing, the People argued that the jewelry was admissible under the “inevitable discovery” exception to the warrant requirement. However, the “inevitable discovery” exception does not apply to “the very evidence obtained in the illegal search:”

At the suppression hearing, the People expressly disclaimed reliance on the theory that the search of the defendant and the seizure of the jewelry from his pants pocket was justified because the police had probable cause to arrest the defendant at the moment he was stopped, and the hearing court did not address that theory. Thus, the People may not assert this theory on appeal … . Instead, the People argued that the jewelry inevitably would have been discovered, and the Supreme Court relied on that theory in denying that branch of the defendant’s motion which was to suppress the jewelry. The court properly determined that the record does not support a finding that the police officer legitimately believed that the jewelry might be some kind of weapon … . However, as the People now correctly concede, the court erred in its determination that the jewelry inevitably would have been discovered through normal police procedures, as the inevitable discovery doctrine does not apply to primary evidence, that is, “the very evidence obtained in the illegal search,” such as the jewelry at issue here … . Accordingly, that branch of the defendant’s motion which was to suppress the jewelry should have been granted. People v Henagin, 2015 NY Slip Op 04864, 2nd Dept 6-10-15

 

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Although the Right to Appeal Could Have Been Defined More Fully, Defendant’s Waiver of Appeal In Response to a Colloquy Conducted by the Prosecutor Deemed Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined defendant’s waiver of appeal was valid, noting the nature of the right to appeal could have been defined more fully.  “Regarding the waiver of the right to appeal, the following exchange … took place between the prosecutor and defendant: ‘Q Do you understand that as a condition of this plea you are waiving the right to appeal your conviction and sentence to the Appellate Division [2nd] Department? A Yes. Q Have you discussed this waiver of the right to appeal with your attorney? A Yes. Q In consideration of this negotiated plea[,] do you now voluntarily waive your right to appeal your conviction and sentence under this indictment? A Yes.’ ” The Court of Appeals noted “County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea.” [The dissent pointed out that the responsibility for the colloquy re: the waiver of appeal was delegated to the prosecutor here:]

….[W]e conclude that the record before us sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. There is no meaningful distinction between the plea colloquy here and the colloquy upheld in Nicholson, in which defendant acknowledged his understanding that he was “giving up [his] right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case” (Nicholson, 6 NY3d at 254). As in Nicholson, the plea colloquy here was sufficient because County Court adequately described the right to appeal without lumping it into the panoply of rights normally forfeited upon a guilty plea. In fact, the People went even further in this case and obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea, as well as counsel’s confirmation that all motions pending or decided were being withdrawn. Thus, while the better practice would have been to define the nature of the right to appeal more fully — as the court did in Nicholson — the Appellate Division correctly determined that no further elaboration was necessary on the phrase “right to appeal your conviction and sentence to the Appellate Division [2nd] Department” in view of the whole colloquy, particularly given this defendant’s background, including his extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment. People v Sanders, 2015 NY Slip Op 04755, CtApp 6-9-15

 

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Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense—Proof Burdens for “Harmless Error” and the Justification Defense Explained

The Court of Appeals determined the Appellate Division properly found that the “unwarned” statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy’s apartment when a police officer asked him “what happened?”. Under the circumstances, “a reasonable 11 year old would not have felt free to leave” at the time the question was asked.  Therefore the question amounted to “custodial interrogation” in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy’s defense of justification. There was no question Delroy stabbed the 12-year-old complainant.  But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for “harmless error” and the justification defense, the Court of Appeals explained:

A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … . “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” … .

The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” … . The People bear the burden of disproving the defense of justification beyond a reasonable doubt … . * * *

…[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15

 

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Defendant Would Not Admit to the Commission of Certain Elements of the Offense to Which He Pled Guilty—Vacation of Plea as Involuntary Was Required, Despite Lack of Preservation and a Waiver of Appeal

The Third Department determined defendant’s guilty plea must be vacated, despite a failure to preserve the error and a waiver of appeal. During the plea allocution, defendant denied elements of the offense to which he was pleading guilty (strangulation in the second degree). Defendant denied that the victim experienced a loss of consciousness or any injury, and denied he had the intent to impede the breathing of the victim.  The guilty plea, therefore, was not knowing, intelligent and voluntary (constituting an exception to the “preservation of error” requirement):

Although defendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal …, it is unpreserved for our review in the absence of an appropriate postallocution motion … . Upon reviewing the record, however, we are persuaded that the narrow exception to the preservation requirement has been triggered here, as defendant made numerous statements during the course of the plea colloquy that negated essential elements of the crime, thereby calling into question the voluntariness of his plea … . * * *

Simply put, defendant’s responses to the questions posed during the plea colloquy negated more than one element of the charged crime, thereby casting doubt upon his guilt. Inasmuch as further inquiry by County Court neither resolved that doubt nor otherwise established that the resulting plea was knowing, intelligent and voluntary … , it should not have been accepted by the court and must now be vacated … . People v Mcmillan, 2015 NY Slip Op 04680, 3rd Dept 6-4-15

 

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Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error

The Third Department determined defendant’s waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” … . This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea … . While it is somewhat unclear as to the precise characterization of this type of error … , it is undoubtedly one serious enough to warrant reversal in the interest of justice … . …

… [A] trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea” …, nor engage in “a uniform mandatory catechism of pleading defendants” … . There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” … . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case”… . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15

 

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The Agency’s Determination Was Based Upon Its Own Precedents and Related Jurisprudence and Was Therefore “Rationally Based”—The Determination Should Not, Therefore, Be Disturbed by a Court—A Court May Not Substitute Its Own Judgment for that of the Agency

The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court’s denial of a motion to dismiss a petition to annul an agency-determination. The underlying proceedings involved two nurses accused of submitting false time sheets. In seeking a hearing allowed by the collective bargaining agreement, the union, on behalf of the nurses, requested certain documents relevant to the allegations from the New York City Human Resources Administration (HRA). HRA refused to turn over the documents, arguing that such “discovery” is not allowed in disciplinary actions (by the relevant regulations). The Board (of Collective Bargaining) ultimately ruled that some, but not all, of the requested documents (those kept in the regular course of business) should be turned over. HRA filed an Article 78 petition seeking to annul the Board’s determination. Supreme Court denied the union’s motion to dismiss the petition.  The 1st Department held the petition should have been dismissed. In reviewing an agency determination, the court looks only at whether the determination is rationally based. Here the Board’s determination was based upon its own precedents and related jurisprudence. Therefore, the determination must stand.  A court cannot substitute its own judgment for that of the agency:

“In reviewing an administrative agency determination, courts must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious” … . “A court cannot simply substitute its judgment for that of an administrative agency when the agency’s determination is reasonable” … . Moreover, “[i]t is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld” … . “Broad deference must therefore be accorded determinations of the Board, which … is the body charged with interpreting and implementing the [regulations] and determining the rights and duties of labor and management in New York City” … .

Given this deferential standard of review, we are compelled to hold that the petition should have been dismissed. The Board’s decision had a rational basis and was not arbitrary and capricious. To be sure, the Board engaged in a relatively expansive interpretation of the duty to furnish information embodied in [the regulations], when it determined that the duty applies in the context of these disciplinary proceedings instituted pursuant to the Agreement. But its interpretation was based on the holdings of some nine prior decisions and was not irrational … . The Board based its decision on its own precedents and related jurisprudence, and its interpretation of the [regulations], a statutory provision within its purview and expertise, was sufficiently reasonable to preclude our “substitut[ing] another interpretation” … . Matter of City of New York v New York State Nurses Assn., 2015 NY Slip Op 04437, 1st Dept 5-26-15

 

 

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Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15

 

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Deliberate Joinder of Claims for Legal and Equitable Relief Arising from the Same Transaction Constitutes a Waiver of the Right to Demand a Jury Trial

The Second Department noted that the deliberate joinder of claims for legal and equitable relief arising from the same transaction constitutes a waiver of the right to demand a jury trial. In addition, the court dismissed the aspect of the appeal for which the relevant portions of the record were omitted from the appendix. With respect to the contents of the appendix submitted on appeal, the Second Department wrote:

” An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'” … . “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]). Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court’s ability to render an informed decision on the merits of the appeal … . Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed. Zutrau v ICE Sys., Inc., 2015 NY Slip Op 04479, 2nd Dept 5-1715

 

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For Purposes of CPLR 205 (a) (Allowing the Commencement of a New Action within Six Months of the Termination of a Prior Action) a Prior Action Terminates When a Nondiscretionary Appeal Is “Exhausted,” Even If the Appeal Is Dismissed As Abandoned

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the six-month period for commencing a new action after the termination of a prior action afforded by CPLR 205 (a) runs from the termination of an appeal, even if the appeal is dismissed as abandoned. Here the plaintiff started an action in federal court which was dismissed by District Court.  Plaintiff then appealed as of right to the Second Circuit.  The appeal was dismissed for failure to file the brief and appendix.  Plaintiff, before the federal appeal was dismissed, started an action in state court. The state court action was started more than six months after the District Court had dismissed the federal action and defendants moved to dismiss the state action under CPLR 205 (a).  The Court of Appeals held that the CPLR 205 (a) six-month period did not start running until the federal appeal was dismissed.  Therefore the state action was timely commenced:

In its current form, CPLR 205 (a) provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” * * *

… [T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by … holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Malay v City of Syracuse, 2015 NY Slip Op 04164, CtApp 5-14-15