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Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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Criteria for Court Review of Agency Action Explained

In affirming the town’s approval of a subdivision plan, the Third Department explained its review powers:

…”[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” … . Moreover, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives” … . Matter of Dugan v Liggan, 2014 NY Slip Op 07404, 3rd Dept 10-30-14

 

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Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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Failure to Inform Defendant of Period of Post-Release Supervision Before Sentencing (Based On a Guilty Plea) Required Vacation of the Sentence, Even in the Absence of Preservation of the Error

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined the defendant’s guilty plea must be vacated because defendant wasn’t informed of the period of post-release supervision (PRS) until sentencing (in the absence of preservation of the error):

The primary issue presented by this appeal is whether defendant was required to preserve her claim that her plea was not knowingly and voluntarily entered where she first received notice of the imposition of a term of postrelease supervision (PRS) at sentencing, and submitted to sentencing with the PRS addition. We reverse, vacate the plea, and remit for further proceedings, holding that the court must notify defendant of a term of PRS sufficiently in advance of its imposition that defendant has the opportunity to object to the deficiency in the plea proceeding. In the absence of such an opportunity, preservation is unnecessary. * * *

We held in People v Catu that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (4 NY3d 242, 244-245 [2005]). To meet due process requirements, a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” (id. at 245). Without such procedures, vacatur of the plea is required (id.). People v Turner, 2014 NY Slip Op 07200, CtApp 10-23-14 

 

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Review Criteria Re: Nonjury Trials Explained/Violation of Vehicle and Traffic Law, Including the Provision Requiring the Exercise of Care to Avoid Colliding with Bicyclists, Constituted Negligence Per Se

The Third Department affirmed a verdict in a nonjury trial finding a state trooper 70% responsible for injuries caused when the trooper’s car collided with plaintiff bicyclist.  The court explained its review powers re: a nonjury trial and noted that the trooper’s violations of Vehicle and Traffic Law, including the provision requiring the exercise of care to avoid colliding with a bicyclist, constituted negligence per se:

When reviewing a determination after a nonjury trial, this Court independently considers the weight of the evidence and may grant whatever judgment is warranted by the record, all while deferring to the trial judge’s factual findings, especially where those findings are based on credibility determinations … . * * *

After weighing the eyewitness and expert testimony and considering it along with the physical evidence, the court determined that the collision occurred in claimant’s lane of travel, meaning that the trooper crossed at least somewhat into claimant’s lane in violation of Vehicle and Traffic Law § 1120 (a). “[A]n unexcused violation of the Vehicle and Traffic Law constitutes negligence per se” … . The court also reasonably determined that the trooper was negligent in cutting the corner while making his left turn, in violation of Vehicle and Traffic Law § 1160 (b)… . Considering the trooper’s testimony that he never saw claimant until the moment of impact, along with evidence regarding the ample sight distance at the intersection and the legal concept that every driver has a duty to see what is there to be seen through the proper use of his or her senses …., the court properly found that the trooper was additionally negligent for violating Vehicle and Traffic Law § 1146 (a), which requires drivers to “exercise due care to avoid colliding with any bicyclist” … . Smith v State of New York, 2014 NY Slip Op 07229, 3rd Dept 10-23-14

 

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Failure to Strictly Comply with Notice Rules of the Real Property Tax Law Required Dismissal of the Challenge to the Tax Assessment/Criteria for Review of Competing Expert Evidence of Valuation Explained

The Third Department determined that proceedings challenging three yearly tax assessments were properly dismissed. Failure to comply with the notice requirements of the Real Property Tax Law (RPTL) was the basis for the dismissal one of the actions and the court explained the relevant law.  The court also explained its review powers re: competing expert evidence of valuation:

Supreme Court properly dismissed the 2010 proceeding for failure to comply with RPTL 708 (3). It is undisputed that petitioner failed to serve a copy of the 2010 notice of petition and petition upon the superintendent of SCCSD [South Colonie Central School District], the school district within which the subject property is located, within 10 days of service of the petition upon the Assessor, as required by RPTL 708 (3). Failure to strictly comply with the statute’s notice requirements “shall result in the dismissal of the petition, unless excused for good cause shown” (RPTL 708 [3]). No such showing has been made here. Petitioner was aware that SCCSD was the proper school district, having previously served SCCSD with the 2008 petition and engaged in litigation with it in connection with that proceeding, and “[t]he mistake or omission of . . . petitioner’s attorney does not constitute ‘good cause shown’ within the meaning of RPTL 708 (3) to excuse . . . petitioner’s failure to comply” … . Nor may noncompliance with the statute be excused on the ground that SCCSD has not been prejudiced thereby … . * * *

At trial [re: the 2008 and 2009 tax assessments], petitioner offered the expert appraisal reports and testimony of a certified real estate appraiser, who utilized the sales comparison methodology to value the property at $1.3 million for the 2008 tax year and $1.4 million for the 2009 tax year. This evidence was sufficient to rebut the presumption of validity and establish a credible dispute between the parties regarding valuation … . Supreme Court was then required to “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . “Our review of such a determination must necessarily defer to Supreme Court in its resolution of any credibility issues that have been generated by the conflicting expert opinions[,] and is limited to whether the court’s determination of the fair market value of the subject property is supported by or against the weight of the evidence” … . Highbridge Dec BR LLC v Assessor of the Town of Niskayuna, 2014 NY Slip Op 07216, 3rd Dept 10-23-14

 

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Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied

The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:

 …[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable … .

Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid … . * * *

Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence … . Further, an agency’s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational … .

Here, the Supreme Court properly determined that the DEC’s issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC’s use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper… . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14

 

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Fugitive Disentitlement Doctrine Applied to Dismiss Appeal of Wife Whose Child Support Payments Were In Arrears and Who Had Moved to Nigeria

The Second Department, in a full-fledged opinion by Justice Roman, applied the fugitive disentitlement doctrine where the wife, whose child support payments were in arrears, had left the jurisdiction and was living in Nigeria.  The Second Department determined the criteria for fugitive disentitlement had been met and dismissed the wife's appeal on that ground:

“It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his [or her] appeal” … . The “fugitive disentitlement doctrine,” which has its origin in criminal law, is based upon the inherent power of the courts to enforce their judgments, and has long been applied to those who evade the law while simultaneously seeking its protection … . * * *

To apply the fugitive disentitlement doctrine, there must be a “connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response” … . The doctrine has been extended to the dismissal of appeals in civil cases provided there is likewise a nexus between the appellant's fugitive status and the appellate proceedings … . The nexus requirement is satisfied in civil cases “where the appellant's absence frustrates enforcement of the civil judgment” … . * * *

Applying these principles here, we find that dismissal of the appeal is warranted pursuant to the fugitive disentitlement doctrine. The record reveals that the mother deliberately removed herself from the jurisdiction of the New York courts concomitant with the filing of the October 2011 violation petition, which alleged that she had willfully failed to obey the December 2009 child support order. She thereafter failed to personally appear before the Family Court, and a bench warrant was issued to secure her return. However, the mother continued to evade the court, rendering her a fugitive … .

Additionally, there is a nexus between the mother's fugitive status and the appellate proceedings, since her fugitive status related to her failure to comply with the Family Court's prior orders and her refusal to personally appear before that court. Indeed, “by her default and absence,” the mother is “evading the very orders from which she seeks appellate relief” … . Further, the mother's absence from New York has frustrated the father's efforts to enforce the prior child support orders … . Matter of Allain v Oriola-Allain, 2014 NY Slip Op 07151, 2nd Dept 10-22-14

 

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