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STATUTORY AMENDMENTS REPEALING MANDATORY SURCHARGES AND CRIME VICTIM ASSISTANCE FEES FOR YOUTHFUL OFFENDERS WERE REMEDIAL IN NATURE AND THEREFORE SHOULD BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the statutory amendments which went into effect while the appeal was pending were remedial and therefore should be applied retroactively. The amendments repealed the imposition of mandatory surcharges and crime victim assistance fees for youthful offenders:

Permitting juveniles whose direct appeals were pending when the amendments were enacted to benefit from them would further the legislative purpose of removing unreasonable financial burdens placed on juveniles and enhancing their chances for successful rehabilitation and reintegration. … [P]rospective application would undermine the legislative goals by continuing the recognized inequity created by imposition of the surcharges and fees and leaving youth at risk for future “devastating” consequences should they be unable to pay. Indeed, the Legislature conveyed “a sense of urgency” in correcting these problems by providing that the amendments would take effect immediately … .

… [R]etroactive application of the amendments would not result in unfairness or impair substantive rights … . The subject surcharges and fees, which are “nonpunitive,” were enacted strictly as a revenue raising measure … . People v Dyshawn B., 2021 NY Slip Op 04487, Second Dept 7-21-21

 

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THE DEFENDANT’S STATEMENTS MADE TO A CHILD PROTECTIVE SERVICES CASEWORKER SHOULD HAVE BEEN SUPPRESSED; THE CASEWORKER, UNDER THE FACTS, ACTED AS AN AGENT OF LAW ENFORCEMENT DURING THE INTERVIEW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statements made by defendant to a Child Protective Services (CPS) caseworker should have been suppressed because, under the facts, she was acting as an agent of law enforcement at the time of the interview:

… [T]he CPS caseworker testified at the Huntley hearing that, at the time she interviewed defendant, she was aware that defendant was being held on criminal charges and that he was represented by counsel. She further testified that she worked on a multidisciplinary task force composed of social services and law enforcement agencies, through which she received training on interviewing individuals accused of committing sexual offenses. Additionally, in keeping with task force protocol directing her to report to law enforcement any inculpatory statements made during CPS interviews, the CPS caseworker called the investigating officer immediately following the interview with defendant and promptly went to his office to report defendant’s statements. Under the circumstances of this case as reflected at the hearing, although the police did not specifically direct the CPS caseworker to conduct the interview on a specific date or time or accompany her to the interview … , we conclude that the CPS caseworker here had a “cooperative working arrangement” with police such that she was acting as an agent of the police when she interviewed defendant and relayed his incriminatory statements … . The statements were thus obtained in violation of defendant’s right to counsel, and the court erred in refusing to suppress them … . Further, because defendant’s statements to the CPS caseworker were the only statements in which he admitted to having sexual contact with the victim, we cannot say that there is “no reasonable possibility that the error contributed to the plea” … . People v Desjardins, 2021 NY Slip Op 04465, Fourth Dept 7-16-21

 

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SUPREME COURT DID NOT WEIGH THE CONFLICTING EXPERT TESTIMONY ABOUT WHETHER PETITIONER SEX-OFFENDER SUFFERED FROM A MENTAL ABNORMALITY REQUIRING CONFINEMENT PURSUANT TO THE MENTAL HYGIENE LAW; MATTER SENT BACK FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sex-offender Mental-Hygiene-Law proceeding, determined the court did not base its decision to discharge and release the petitioner on the expert evidence presented at the hearing. The matter was sent back for a new hearing before a different judge:

The State’s expert here diagnosed petitioner with ASPD [antisocial personality disorder] with narcissistic features and the condition of psychopathy, and the expert testified that those diagnoses, together with petitioner’s enduring hostility towards women, collectively constitute a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i). She acknowledged that the scientific community has been debating for decades whether psychopathy is a distinct condition from ASPD, but she opined that they were indeed separate conditions. Petitioner’s expert, on the other hand, diagnosed petitioner with ASPD but testified that petitioner had no other conditions in addition to that diagnosis that would render him a sex offender within the meaning of Mental Hygiene Law article 10. He further testified that psychopathy was simply an extreme variant of ASPD and should not be considered a condition separate from ASPD.

The court determined that a diagnosis of psychopathy or psychopathic features is still only a diagnosis of ASPD alone and thus, under Donald DD. (24 NY3d at 190), could not constitute an “other condition” to provide a basis for a finding of a mental abnormality. … [I] so holding, the court did not resolve the conflict between the experts regarding ASPD and psychopathy by weighing their testimony but rather made a determination that, generally speaking and without regard to petitioner’s specific case, a finding of ASPD and psychopathy can never provide a basis for a finding of mental abnormality. Contrary to the court’s apparent conclusion, “the Court of Appeals in Donald DD. did not state that diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality” … . When supported by expert testimony, a diagnosis of ASPD and psychopathy is legally sufficient to provide a basis for a finding of mental abnormality Inasmuch as there was conflicting expert opinion on the matter, the court should have weighed the testimony of the experts in rendering its determination whether petitioner suffers from a mental abnormality … . Matter of Application for Discharge of Doy S. v State of New York. 2021 NY Slip Op 04456, Fourth Dept 7-16-21

 

PROBATION CONDITIONS PROHIBITING POSSESSION OF A COMPUTER AND A CELL PHONE WERE NOT ENFORCEABLE UNDER THE FACTS OF THE CASE; DEFENDANT HAD PLED GUILTY TO ATTEMPTED SEXUAL ABUSE FIRST DEGREE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of the conditions of probation prohibiting defendant from possessing a computer and cell phone were not warranted. Defendant pled guilty to attempted sexual abuse first degree:

In addition to prohibiting defendant from maintaining an account on a social networking site, condition 34 also prohibits defendant from purchasing, possessing, controlling, or having access to any computer or device with internet capabilities and from maintaining any “internet account,” including email, without permission from his probation officer. Condition 35 prohibits defendant from owning, renting, or possessing a cell phone with picture taking capabilities or cameras or video recorders for capturing images. In light of defendant’s lack of a prior criminal history and the lack of evidence in the record linking defendant’s use of technology to the underlying offense, we conclude that those parts of condition 34 and the entirety of condition 35 do not relate to the goals of probation and thus are not enforceable on that ground … . People v Blanco-Ortiz, 2021 NY Slip Op 04447, Fourth Dept 7-16-21

 

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PLAINTIFF WAS BROUGHT TO THE HOSPITAL PURSUANT TO THE MENTAL HYGIENE LAW AFTER THREATENING FAMILY MEMBERS AND KILLING A DOG; DEFENDANTS RELEASED PLAINTIFF THE SAME DAY AND PLAINTIFF KILLED THE FAMILY MEMBERS; PLAINTIFF ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL ILLNESS; THE RULE PROHIBITING A PLAINTIFF FROM TAKING ADVANTAGE OF HIS OWN WRONG DID NOT APPLY AND DEFENDANTS’ MOTION TO DISMISS THIS MEDICAL MALPRACTICE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined plaintiff’s medical (psychiatric) malpractice action properly survived a motion to dismiss. Plaintiff was treated by defendants after he was brought to the hospital by the police pursuant to Mental Hygiene Law 9.41. Plaintiff had threatened family members and killed a dog. Plaintiff was released the same day and shortly thereafter killed the three family members he had threatened. Ultimately plaintiff entered a plea of not responsible by reason of mental illness or defect. The courts refused to apply the rule prohibiting a plaintiff from taking advantage of his own wrong because plaintiff was not responsible for his conduct:

With respect to the ground for dismissal asserted here, “as a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . The rule derives from the maxim that “[n]o one shall be permitted to profit by his [or her] own fraud, or to take advantage of his [or her] own wrong, or to found any claim upon his [or her] own iniquity, or to acquire property by his [or her] own crime” … . In cases in which the doctrine applies, “recovery is precluded ‘at the very threshold of the plaintiff’s application for judicial relief’ ” … . Notably, the Court of Appeals has applied the doctrine with caution to avoid overextending it inasmuch as the rule “embodies a narrow application of public policy imperatives under limited circumstances” … . * * *

… [A]ccepting the facts as alleged in the complaint as true, we conclude that the criminal court’s acceptance of plaintiff’s plea of not responsible by reason of mental disease or defect demonstrates that, at the time of his conduct constituting a serious violation of the law, plaintiff lacked substantial capacity to know or appreciate either the nature and consequences of his conduct or that such conduct was wrong … . Thus, unlike cases applying the rule to preclude recovery, the record here establishes that plaintiff’s illegal conduct was not knowing, willful, intentional, or otherwise sufficiently culpable to warrant application of the rule … . Bumbolo v Faxton St. Luke’s Healthcare, 2021 NY Slip Op 04429, Fourth Dept 7-16-21

 

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ALTHOUGH THE ARGUMENT THAT THE INDICTMENT WAS DUPLICITOUS WAS PRESERVED FOR APPEAL, THE ISSUE WAS NOT RULED ON BY COUNTY COURT AND THEREFORE CAN NOT BE CONSIDERED ON APPEAL; MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that it can not consider an issue which was preserved for appeal but was not ruled upon by County Court. The matter was remitted:

Although defendant did preserve his contention concerning facial duplicity by seeking dismissal of the indictment on that ground in the pretrial omnibus motion … , we are unable to address that contention because County Court failed to rule on that part of defendant’s omnibus motion (see CPL 470.15 [1] …).

The Court of Appeals “has construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” … , “and thus the court’s failure to rule on the motion cannot be deemed a denial thereof” … . We therefore hold the case, reserve decision and remit the matter to County Court for a ruling on that part of defendant’s omnibus motion. People v Baek, 2021 NY Slip Op 04424, Fourth Dept 7-16-21

 

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IN A MATTER OF FIRST IMPRESSION, THE APPELLATE COURT DETERMINED COUNTY COURT DID NOT CORRECTLY APPLY THE DOMESTIC-VIOLENCE-SURVIVOR’S-ACT CRITERIA IN SENTENCING DEFENDANT FOR THE MURDER OF HER ABUSIVE HUSBAND; SENTENCES SIGNIFICANTLY REDUCED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, reversed County Court’s application of the Domestic Violence Survivor’s Act (social Services Law 459-a) and significantly reduced the sentences for murder and possession of a weapon. Defendant shot and killed her husband. The jury rejected defendant’s “battered women’s syndrome” defense. But the Second Department found that the criteria for sentence reduction under the DV Survivor’s Act had been met by the evidence:

… [W]e hold that the County Court did not properly apply the DV Survivor’s Act when sentencing the defendant. Upon considering the plain language of the DV Survivor’s Act, the legislative history of the statute, and the particular circumstances of this case, we modify the judgment, on the facts and as a matter of discretion in the interest of justice, by reducing (1) the term of imprisonment imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 19 years to life to a determinate term of imprisonment of 7½ years to be followed by 5 years of postrelease supervision, and (2) the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree from a determinate term of imprisonment of 15 years to be followed by 5 years of postrelease supervision to a determinate term of imprisonment of 3½ years to be followed by 5 years of postrelease supervision, which terms shall run concurrently with each other. * * *

Upon consideration of the nature and circumstances of the crime, as well as the history, character, and condition of the defendant, we conclude that a sentence in accordance with the DV Survivor’s Act is warranted. The defendant is a 32-year-old mother of two young children, and has no known prior arrests or convictions. The defendant testified that she was repeatedly physically and sexually abused by Grover, as well as by other men in her past, and reportedly was sexually assaulted at the age of five. However, our examination under this factor does not end there. We also consider, among other things, the details of the crimes, including that the defendant shot Grover in the head as he was lying on the couch. Grover’s fatal injury was described as a hard contact wound in which the gun fired by the defendant was pressed against Grover’s skin, leaving a muzzle imprint. People v Addimando, 2021 NY Slip Op 04364, Second Dept 7-15-21

 

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DEFEFNDANT’S STATEMENTS WERE ADMISSIBLE PURSUANT TO THE PUBLIC SAFETY EXCEPTION TO THE MIRANDA REQUIREMENT (THIRD DEPT).

The Third Department determined the statements defendant made while handcuffed were admissible because the statements were made in response to questions posed for safety reasons and not to elicit an incriminating response:

County Court also properly denied defendant’s motion to suppress the statement that he made to law enforcement while being patted down. Although defendant was handcuffed, in custody and had not been advised of his Miranda rights when he was asked by Haven whether the handgun that was retrieved from his back pocket was loaded, said inquiry was not made to elicit an incriminating response, but was made for the purpose of alleviating the inherent risk of securing a potentially loaded weapon and protecting the safety of defendant, responding officers and those other individuals present during the execution of the warrant … . Accordingly, [the] question fell squarely within the public safety exception to the Miranda requirement and, therefore, suppression of defendant’s statement was appropriately denied … . People v Rashid, 2021 NY Slip Op 04390, Second Dept 7-15-21

 

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THE OPENING OF A CARTON OF CIGARETTES AS PART OF A SEARCH OF THE CARGO IN PETITIONER’S TRUCK WAS NOT SUPPORTED BY PROBABLE CAUSE; THE TAX TRIBUNAL’S ASSESSMENT OF A $1,259,250 PENALTY FOR POSSESSION OF CIGARETTES WITHOUT TAX STAMPS ANNULLED (THIRD DEPT).

The Third Department, reversing the Tax Appeals Tribunal, determined the search of petitioner’s truck which led to the discovery of cigarettes with no tax stamp was not supported by probable cause. Therefore the determination that petitioner owed a $1,259, 250 penalty was annulled:

Petitioner is a member of the Seneca Nation of Indians, a Native American tribe recognized by the US Bureau of Indian Affairs. ERW Wholesale is petitioner’s tobacco wholesale business, licensed by the Seneca Nation of Indians operating on the Cattaraugus Reservation. In December 2012, ERW sold 150 cases (9,000 cartons) of Native American brand cigarettes to Oien’Kwa Trading, a Native American-owned business located on the St. Regis Mohawk Reservation. Oien’Kwa Trading immediately sold the cigarettes to Saihwahenteh, a Native American-owned business located on the Ganienkeh territory. Oien’Kwa Trading hired ERW to deliver the cigarettes directly to Saihwahenteh. Sean Snyder, an ERW employee, was employed as the truck driver. * * *

… [T]he validity of a search is subject to a two-prong test — arrest and probable cause — neither of which is satisfied here. As to the first prong, the record reveals that Snyder, the driver and sole occupant of the truck that was searched, was never arrested. With respect to probable cause, the record demonstrates a complete lack thereof. When Snyder was stopped, he was completely cooperative with the trooper and forthrightly explained that he was transporting cigarettes from a Native American reservation to a Native American territory, and he immediately gave the trooper an envelope containing the pertinent documents, namely the registration, invoices and bill of lading. Although the trooper testified that Snyder appeared nervous when he was initially pulled over, this conduct in and of itself is insufficient to justify a search … . Once back at the vehicle inspection checkpoint, Snyder readily exited his vehicle and turned his keys over to the trooper; he was never asked if the cigarettes were stamped. When the trooper employed the bolt cutters and the investigator entered the cargo area, the investigator found that the cargo was exactly as Snyder had told them — cases of cigarettes. The investigator’s search of the cargo area, including opening a case and then a carton, in order to inspect a single pack of cigarettes for a tax stamp was not precipitated by a complaint, tip, investigation or statements from Snyder, any of which might have provided probable cause. On the contrary, the investigator testified that the search proceeded only after he conferred with the trooper who believed that the cigarettes were Native American brand and, as such, were not stamped. The transportation of cigarettes from a Native American reservation to a Native American territory does not, in and of itself, give rise to a reasonable inference of criminality … . Matter of White v State of N.Y. Tax Appeals Trib., 2021 NY Slip Op 04394, Third Dept 7-15-21

 

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THE TRIAL JUDGE SHOULD HAVE PROCEEDED WITH BATSON INQUIRIES FOR THREE BLACK PROSPECTIVE JURORS; BASED ON THE JUDGE’S REMARKS THE MATTER WAS REMITTED FOR A HEARING AND REPORT BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Supreme Court should have conducted a Batson inquiry with respect to the prosecutor’s exercise of peremptory challenges to three black prospective jurors. The appeal was held in abeyance and the matter was sent back for a hearing and report before a different judge. The trial judge’s remarks about the number of black jurors being representative of the community (“this is not the Bronx”) and the fact that three black jurors served were deemed irrelevant:

Contrary to the trial court’s finding that the number of black prospective jurors to actually serve on the jury (three in total) was fairly representative of the community, as represented by the court’s remark that “[t]his is not the Bronx,” such consideration is “irrelevant” to the issue of whether the People’s exercise of peremptory challenges was discriminatory … . Similarly, to the extent the People emphasize that three black prospective jurors served on the jury, that fact does not obviate the defendant’s prima facie showing of discrimination … .

Accordingly, we find that the defendant satisfied the first step of the Batson inquiry with respect to the prosecution’s exercise of peremptory challenges to each of the three black prospective jurors at issue. Thus, the trial court should have proceeded with the second step and, if applicable, the third step with respect to each of the Batson challenges … . People v Brissett, 2021 NY Slip Op 04366, Second Dept 7-15-21

 

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