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Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel

The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:

On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided … . Without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel’s performance was governed by the rule that “the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” … . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15

 

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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

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Even Though the Landlords Maintained Offices Adjacent to the Leased Property (a Restaurant), the Plaintiff Was Not Able to Raise a Question of Fact About Whether the Landlords Retained Control Over the Leased Premises Such that the Landlords Would Be Liable for an Assault by Employees and Patrons of the Tenant-Restaurant

The Second Department determined that out-of-possession landlords (AYT and 6010) could not be held liable for an assault by employees and patrons of the tenant restaurant, even though the landlords maintained offices adjacent to the rented property:

An owner is obligated to take reasonable precautionary measures to minimize the risk of criminal acts and make the premises safe for visitors when the owner is aware, or should be aware, that there is a likelihood of conduct on the part of third parties that would endanger visitors (…see generally Restatement [Second] of Torts: Negligence § 344). To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

However, an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security … .   Here, the defendants … established, prima facie, that they were out-of-possession landlords, and that they did not retain control over the premises and were not contractually obligated to provide security. The mere fact that Sam Fridman, the principal of AYT, had an office “right next door” to the subject premises for approximately 15 years prior the incident, and Abraham Sprei, the principal of 6010, maintained a plumbing business adjacent to the premises, was not sufficient to create a triable issue of fact as to whether AYT and 6010 retained control of the premises  Tambriz v PGK Luncheonette Inc, 2015 NY Slip Op 00356, 2nd Dept 1-14-15

 

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Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable

Plaintiff’s child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the evidence submitted by the NYCTA demonstrated that Clay’s conduct clearly was not in furtherance of the NYCTA’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . * * *

The Supreme Court properly denied that branch of the NYCTA’s motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff’s child. The standard for determining whether a duty to supervise a minor was breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision” … . “Where third-party criminal acts intervene between defendant’s negligence and plaintiff’s injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable’ consequence of circumstances created by the defendant” … . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15

 

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Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent—Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed—Error Deemed Harmless

The Second Department determined defendant’s pre-Miranda statements, as well as his post-Miranda written statement, should have been suppressed because the defendant was in custody and interrogated before he waived his right to remain silent.  Defendant had been stopped by two police cars, one of which cut off defendant’s lane of travel. Defendant then consented to going to the police station where he was placed in a locked room and subjected to accusatory questioning.  (The court ultimately determined the error was harmless, however):

Contrary to the suppression court’s determination, the statements made by the defendant at the police station should have been suppressed as the product of custodial interrogation conducted without the benefit of Miranda warnings. “Miranda warnings need not be given until both the elements of police custody’ and interrogation’ are present” … . The issue of whether a suspect is in custody is generally a question of fact … . In deciding whether a defendant was in custody before receiving Miranda warnings, “the subjective beliefs of the defendant are not to be the determinative factor” … . Nor does the determination turn on the subjective intent of the police officer … . Rather, the test is “what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant’s position” … . “[T]he term interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” … .

Here, a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements to the police … . Moreover, the questions by the police were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . Accordingly, the oral statements made by the defendant at the police station were the product of custodial interrogation without Miranda warnings and should have been suppressed. Furthermore, the written statement by the defendant, although created after Miranda warnings were issued, also should have been suppressed, as there was no attenuation between the statements that were obtained unlawfully and the written statement … . People v Reardon, 2015 NY Slip Op 00394, 2nd Dept 1-14-15

 

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Detective’s Testimony About a Non-Testifying Witness’ Description of the Perpetrator Properly Admitted to Explain Detective’s Subsequent Actions and Complete the Narrative

The Second Department, over an extensive dissent, determined a detective’s testimony about a non-testifying witness’ (Anderson’s) description of the perpetrator was admissible for the non-hearsay purpose of explaining the detective’s subsequent actions, and completing the narrative of events:

The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” … . Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson’s description and subsequent police conduct. Anderson’s general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant … . Thus, the Supreme Court did not err in admitting Anderson’s description of the perpetrator for a limited nonhearsay purpose … . People v Speaks, 2015 NY Slip Op 00396, 2nd Dept 1-14-15

 

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Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment

The Second Department applied a “vicarious consent” theory to reject the defendant’s argument that the father’s recording of the defendant berating and threatening the father’s child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother’s cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant’s words.  In addition to the “vicarious consent” discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the “vicarious consent” to the recording, the court wrote:

While … Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, “out of concern for the bests interests of their minor child, they record that child’s conversations” … . Given the similarity between the federal wiretap statute and New York’s eavesdropping statute, and recognizing that the “vicarious consent” exemption is rooted on a parent’s need to act in the best interests of his or her child …, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.

Here, the People sufficiently demonstrated that the father had a “good faith, objectively reasonable basis to believe” that it was necessary for the welfare of the infant to record the conversation …, such that he could consent to the recording on the infant’s behalf … . Accordingly, the “vicarious consent” exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15

 

First Degree Burglary Conviction Upheld Even though the Residential Portion of the Building Was Not Accessible from the Basement of the First-Floor Store Where the Defendant Entered the Building

The First Department, over a two-justice dissent, determined that defendant was properly convicted of first degree burglary even though the residential portion of the building could not be accessed from the the basement of the first-floor store, where defendant entered the building.  The majority found that the exception fashioned for “large” buildings where the residents could not be aware of the defendant’s presence in the non-residential portion of the building did not apply:

In McCray, the Court of Appeals reaffirmed the rule, established in Quinn v People (71 NY 561 [1878]), that “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist” (McCray, 23 NY3d at 624). Although the inaccessibility requirement appears to have been met, the other condition for application of the exception  – namely, that the building in question be “large” – has not.

Stating that the decision in McCray did not turn on the size of the building, and that the critical factor is whether there is close contiguity between the residential and nonresidential elements of the building such that the residents of the building would be aware of the burglar’s presence, the dissent would reverse the conviction for second-degree burglary because the basement was entirely sealed off and inaccessible from the residences above. However, in Quinn, which is the foundation on which McCray stands, there also was no “internal communication” between the shop that was broken into and the living quarters above, and a person had to go into the yard and then up stairs to get from one to another (Quinn at 565). Nevertheless, the Court of Appeals affirmed the conviction of first-degree burglary because the shop “was within the same four outer walls, and under the same roof” (id.). The Court reasoned that “the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation. It is plain that both of these may arise, when the place entered is in close contiguity with the place of the owner’s repose, though the former has no relation to the latter by reason of domestic use or adaptation” (id. at 567). People v Joseph, 2015 NY Slip Op 00299, 1st Dept 1-13-15

 

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Right to Counsel Not Invoked by Defendant’s Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

The Third Department, in reversing (in part) County Court’s suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 “does not mandate summary denial of defendant’s motion even if the factual allegations are deficient” and the hearing was properly granted in this case under “principles of judicial economy;” (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant’s spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant’s responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the “non-communicative” portions of the video, the court wrote:

With a few exceptions, the video reveals that defendant’s statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression … . However, at three points following defendant’s successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant’s responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes “a communicative act that disclose[s] the contents of defendant’s mind” … . Generally, a defendant’s physical characteristics and appearance are not considered to be communicative in nature … . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements … . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

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Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examinated about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

The People sought the court’s permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant’s physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant’s credibility. Despite defendant’s objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant’s previous assault was “relevant” to “show that [defendant] can be physically aggressive” and, additionally, that such proof would speak to defendant’s anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

Based upon County Court’s authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant’s prior assault bore no relation to defendant’s credibility, but rather served solely to illustrate defendant’s propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries … . Accordingly, as defendant’s guilt was not overwhelmingly established by the proof presented at trial and we “cannot say that there is no reasonable possibility that the error might have contributed to defendant’s conviction,” the judgment must be reversed and the matter remitted for a new trial … . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

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