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CPLR 5015 Power to Vacate a Final Judgment after Reversal of a Companion Case Is Discretionary

The Court of Appeals, in a full-fledged opinion by Judge Pigott (with a dissent), determined that Supreme Court had the discretion to vacate a final $4.4 million judgment against Port Authority based upon the subsequent Court of Appeals reversal of a companion case (Ruiz) holding Port Authority immune from lawsuits stemming from the 1993 bombing of the World Trade Center.  Supreme Court had vacated the judgment, but appeared to do so under the assumption the vacation was mandated by statute (CPLR 5015).  The Court of Appeals sent the matter back to Supreme Court, explaining that the court had the power to exercise its discretion:

Although a court determination from which an appeal has not been taken should “remain inviolate,” that rule applies “[a]bsent the sort of circumstances mentioned in CPLR 5015” ….  Moreover, as Professor Siegel has observed, “[i]f a judgment for which preclusive effect is sought is itself based on an earlier judgment . . ., and the earlier one has been vacated or reversed or otherwise undone, it is of course divested of its finality and the remedy to cancel the second judgment is a motion to vacate it on the ground of the undoing of the first” (Siegel, NY Prac § 444 at 776 [5th ed 2011] [emphasis supplied], citing CPLR 5015 [a] [5]).  Subdivision 5 of section 5015 (a) is applicable where the reversed, modified or vacated judgment or order is the basis for a later judgment – not where it merely compelled the result as a matter of collateral estoppel or stare decisis, but where it was actually entered in the same lawsuit as, and led directly to, the later judgment.  Thus, section 5015 (a) (5) applies in a case like this one where a joint trial on liability results in a single order entered in two cases, and where, after a separate trial on damages in one of the cases, that order is reversed on appeal.  * * *

Here, Supreme Court’s only finding was that this Court’s decision in Ruiz “eviscerate[d] any judgment, holding or finding of tortious liability on behalf of the Port Authority,” and therefore “require[d]” Supreme Court to find the Port Authority insulated from tortious liability pursuant to CPLR 5015 (a) (5).  It also appeared to believe that once the Port Authority had demonstrated that the Ruiz holding reversed the earlier liability determination to which Nash was a party, Supreme Court had no choice but to grant the Port Authority’s vacatur motion.  That was error. Nash v Port Authority, 238, CtApp 11-26-13

 

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Plea Allocution Negated Essential Element of Offense/Error, though Unpreserved, Required Reversal

The Court of Appeals reversed defendant’s conviction because the plea colloquy negated an essential element of the offense.  The defendant pled guilty to rape 3rd (Penal Law 130.25(3)), the so-called “date rape” statute. The statute requires a lack of consent by the victim, not a lack of capacity to consent (caused by drugs, for example). The plea allocution indicated only a lack of capacity to consent.  Even though the error was not preserved, the Court of Appeals determined the case fell within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666) where the court fails to ensure the guilty plea is knowing and voluntary:

Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” … .  Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” … .

Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated.  Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime.  In an apparent attempt to establish a causal relationship between thr complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?”  By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty.  People v Worden, 203, CtApp 11-21-13

 

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Defendant’s Waiver of His Right to Appeal, Which Included His Signing a Printed Form Used by Rockland County, Was Invalid

The Second Department determined defendant’s waiver of his right to appeal was invalid:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a Rockland County pre-printed form waiver, as we have previously stated, this form “contained erroneous statements with regard to the waiver of the right to appeal” and should not have been utilized … . The Supreme Court’s terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Further, the defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing … . Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.  People v Salgado, 2013 NY Slip Op 07755, 2nd Dept 11-20-13

 

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Harmless Error Rule Should Not Have Been Applied to Guilty Plea

In a full-fledged opinion by Judge Graffeo, the Court of Appeals, over a dissent, declined to apply the harmless error rule to a guilty plea.  In this driving-while-intoxicated case, the defendant moved to suppress an open bottle of rum and a crack pipe which were found in the car he was driving during an inventory search. The motion was denied. Defendant told the court he wanted to plead guilty because he “was not planning to go to trial if [he] got a negative ruling” on the motion.  On appeal, the inventory search was deemed invalid, but the Appellate Division ruled the error “harmless.”  In reversing, the Court of Appeals wrote:

The harmless error rule was “formulated to review trial verdicts” (People v Grant, 45 NY2d at 378).  It requires an appellate court to assess the quantum and nature of the People’s proof of guilt independent of erroneously admitted evidence and the causal effect, if any, that the introduction of that evidence had on the fact finder’s verdict … .  Harmless error therefore can be “difficult to apply to guilty pleas” — especially in cases involving “an improper denial of a pretrial motion to suppress” — since “a defendant’s decision to plead guilty may be based on any factor inside or outside the record” (People v Grant, 45 NY2d at 378379).  Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review (see id.).

The Grant doctrine is not absolute, however, and we have recognized that a guilty plea entered after an improper court ruling may be upheld if there is no “reasonable possibility that the error contributed to the plea” (id. at 379).  Although a failure to suppress evidence may detrimentally influence a defendant’s plea negotiations, a concession of guilt may be treated as valid if the defendant articulates a reason for it that is independent of the incorrect pre-plea court ruling (see id. at 379-380) or an appellate court is satisfied that the decision to accept responsibility “was not influenced” by the error… . * * *

Certainly, there may be instances where the failure to grant suppression does not affect a defendant’s decision to plead guilty because the challenged proof is cumulative or too trivial.  In this case, however, the denial of the motion to suppress could not be viewed as harmless and the guilty plea must be vacated. People v Wells, 188, CtApp 11-14-13

 

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Statutory Requirements for Recovery and Limits Imposed by Subrogation Explained; ”Law of the Case” Doctrine in Appellate Context Explained

In a full-fledged opinion by Justice Chambers, the Second Department determined plaintiff could not rely on the doctrine of the law of the case (a decision in a prior appeal) to prove the amount owed on its mechanic’s liens. The court used the opportunity to explain the “law of the case” doctrine (re: prior appellate decisions) and “review the statutory requirements for recovery under the Lien Law, and the limits on recovery imposed by the principle of subrogation:”

In addition to a lienor’s right to recover being limited by the contract price or reasonable value of the materials provided, it is further limited by the principle of subrogation (see 8-92 Warren’s Weed New York Real Property § 92.11[1], [4]; 34 New York Practice: Mechanics Liens in New York § 2:3. Lien Law § 4(1) provides, “If labor is performed for, or materials furnished to, a contractor or subcontractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter provided.” In other words, no individual mechanic’s lien can exceed the amount owed by the owner to the general contractor at the time of filing the lien … . Money still due and owing from the owner to the contractor at the time of the filing of the lien, plus any sums subsequently earned thereon, is known as the “lien fund”… .  The subcontractor’s right to recover is derivative or subrogated to the right of the general contractor to recover. Thus, if the general contractor is not owed any amount under its contract with the owner, then the subcontractor may not recover… .  Peri Formwork Sys Inc v Lumbermens Mut Cas Co, 2013 NY Slip Op 07461, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

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Review of Action Brought Under General Municipal Law Section 4 (Re: Unlawful Use of Tax, Water and Sewer Funds) Must Be by Article 78, Not Appeal

In an action brought pursuant to General Municipal Law section 4 for an order directing a summary investigation into the financial affairs of the respondents (village, fire department and water board), the Third Department determined the respondents could not appeal Supreme Court’s ordering of the investigation. The petitioners alleged the tax, water and sewer moneys collected may have been corruptly and/or unlawfully expended. The petitioners’ only avenue for court review is an Article 78 prohibition proceeding:

This appeal must be dismissed as there is no appeal as of right from Supreme Court’s order in this statutory special proceeding directing a summary investigation (see CPLR 5701 [a]; see also CPLR art 4…).   Although certain respondents contend, seemingly persuasively, that Supreme Court is not authorized by General Municipal Law § 4 to direct an investigation against them as they are not a “village” or “town,” this Court cannot grant their requested relief in the absence of an appealable order.  We note that respondents could have moved in Supreme Court to dismiss on this ground within the time allowed for an answer; having properly raised this defense as an objection in point of law in their answer, respondents are entitled to pursue summary dismissal of this special proceeding in that court, in the first instance (see CPLR 404 [a]; see also CPLR 7804 [f]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 7804:7 at 673-675).  At this juncture, those claims could only be addressed by this Court in a special proceeding pursuant to CPLR article 78 in the nature of prohibition, instituted in this Court (see CPLR 506 [b] [1]; 7803 [2]…).  Matter of Village of Victory…, 515205, 3rd Dept 11-7-13

 

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People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender—No Statute Allows Such an Appeal

In dismissing the People’s appeal, the Second Department explained that there was no statutory right for an appeal of the judge’s vacating defendant’s conviction and sentencing defendant as a youthful offender.  The only vehicle for the People was an article 78 prohibition proceeding:”

The Criminal Procedure Law expressly enumerates and describes the orders appealable by the People to the Appellate Division in a criminal case (see CPL 450.20…), and “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” … . As no statute authorizes an appeal by the People to the Appellate Division from an order, in effect, vacating a conviction and adjudicating a defendant a youthful offender (see CPL 450.20), the People’s appeal must be dismissed …. The proper vehicle for challenging the Supreme Court’s determination is a CPLR article 78 proceeding in the nature of prohibition… . People v Tony C, 2013 NY Slip Op 07055, 2nd Dept 10-30-13

 

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