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Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

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Owner of Rental Vehicle May Be Liable Based Upon Failure to Maintain the Vehicle

The Second Department, reversing Supreme Court, determined the Graves Amendment (which immunizes owners of rental vehicles from liability for the use of vehicles) did not apply where the complaint alleged a failure to maintain the vehicle. Because the defendant, PV Holding, did not demonstrate the alleged failure to maintain the vehicle did not result in the accident, the defendant’s summary judgment motion should have been denied:

Pursuant to the Graves Amendment (49 USC § 30106), generally, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (see 49 USC § 30106[a]…). The Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle … . The PV defendants failed to establish, prima facie, PV Holding’s entitlement to judgment as a matter of law. Although the PV defendants submitted evidence showing that PV Holding was engaged in the business of renting vehicles and that regular maintenance was performed on the subject vehicle, the PV defendants failed to submit any admissible evidence to demonstrate that the accident was not caused by the condition of the vehicle as a consequence of PV Holding’s allegedly negligent failure to maintain it … . Olmann v Neil, 2015 NY Slip Op 07483, 2nd Dept 10-14-15

 

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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Ornaments Hanging from Rear-View Mirror Justified Vehicle Stop

The Second Department, over a dissent, determined the police officer had probable/reasonable cause to believe defendant had committed a traffic infraction.  Therefore, the vehicle stop and the subsequent search of the vehicle (which turned up a weapon) were proper. There was an ornamental sandal and necklace hanging from the rear-view mirror. The court held the officer had reasonable cause to believe the sandal and necklace obstructed the driver’s view in violation of Vehicle and Traffic Law 375 (30):

Under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, a police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction … . In this case, the credible evidence adduced at the suppression hearing established that the police had probable cause to stop the Altima. The officer who stopped the Altima testified that when he stopped his patrol car behind the Altima, he saw an ornamental sandal on a string and a necklace hanging from the Altima’s rearview mirror. The officer further testified that the sandal was four to five inches long and “[p]ossibly about [two] inches in width,” and that it was hanging about four to five inches beneath the rearview mirror. Contrary to the defendant’s contention and to our colleague’s dissent, this testimony demonstrated that the officer had reasonable cause to believe that the sandal was hung “in such a manner as to obstruct or interfere with the view of the operator through the windshield” (Vehicle and Traffic Law § 375[30]…). Accordingly, the officer’s stop of the Altima was not improper .. . Probable cause does not require certainty, and the officer’s testimony about the size and location of the ornaments was sufficient to establish probable cause. People v Bookman, 2015 NY Slip Op 07037, 2nd Dept 9-30-15

 

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Department of Motor Vehicles Did Not Exceed Its Powers In Promulgating Regulations Re: Lifetime Revocation of Driver’s Licenses, Five-Year Stay of Relicensure, and Subsequent Five-Year Restricted License/Ignition Interlock Period for Alcohol-Related Convictions

The Third Department, in a full-fledged opinion by Justice Peters, over a two-justice dissent, determined that petitioner’s challenges to Department of Motor Vehicles’ (DMV’S) regulations re: (1) the lifetime revocation of a driver’s license for alcohol-related convictions, (2) the five-year stay of relicensure for persons with three alcohol-related convictions, and (3) the subsequent five-year period with the imposition of a restricted license and installation of ignition interlock device, were properly dismissed as nonjusticiable (petitioner not yet affected by any of them). The court went on to determine the DMV, by promulgating these regulations, did not encroach upon the powers of the legislature. The dissenters argued that some of the challenges were justiciable and the DMV in fact exceeded its powers by mandating a five-year stay of relicensure for anyone with three alcohol-related convictions within a 25-year lookback, as well as the subsequent five-year period allowing only a restricted license with the installation of an ignition interlock device. The majority explained the general principles for analyzing whether an agency has exceeded its powers:

To determine whether an administrative agency has usurped the power of the Legislature, courts must consider whether the agency: (1) “operat[ed] outside of its proper sphere of authority” by balancing competing social concerns in reliance “solely on [its] own ideas of sound public policy”; (2) engaged in typical, “interstitial” rulemaking or “wrote on a clean slate, creating its own comprehensive set of rules without the benefit of legislative guidance”; (3) “acted in an area in which the Legislature has repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”; and (4) applied its “special expertise or technical competence” to develop the challenged regulations (Boreali v Axelrod, 71 NY2d at 12-14 …).  Matter of Acevedo v New York State Dept. of Motor Vehs., 2015 NY Slip Op 06467, 3rd Dept 8-6-15

 

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The Prejudicial Effect of the Result of the Portable Breath Test (PBT) Outweighed Its Probative Value—New Trial Ordered

The Second Department determined defendant’s DWI conviction must be reversed because evidence of the result of the portable breath test (PBT), which is generally inadmissible as unreliable, was allowed in evidence. The defendant had subsequently agreed to the chemical breath test, which can be admissible evidence at trial, but his breaths were so shallow during repeated attempts to administer the test that no results were obtained. The result of the PBT (which showed the presence of alcohol) was deemed admissible, not as proof of intoxication, but as evidence of defendant’s state of mind when the chemical breath test was administered (the People’s position was that defendant deliberately sabotaged the chemical test with shallow breaths).  Although the PBT was ostensibly not admitted as proof of intoxication, the Second Department determined the jury would have taken it as such and, therefore, the probative value of the test result was outweighed by its prejudicial effect:

On appeal, the defendant contends that he was deprived of his right to a fair trial based on the County Court’s admission of the PBT results into evidence. We agree. Under the circumstances of this case, the probative value of the PBT evidence was outweighed by its prejudicial effect and, accordingly, should have been excluded … .

Generally, the result of a PBT “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Here, although the PBT evidence was not introduced for the purpose of proving intoxication, since the jurors were permitted to hear that the PBT detected the presence of alcohol, the County Court created an unacceptable risk that the jurors would improperly consider the PBT evidence for this impermissible purpose. This risk was enhanced both by the County Court’s determination to take judicial notice that the PBT was on the Commissioner’s conforming list and the State Trooper’s trial testimony that he was trained in the operation of the PBT device. The trooper’s testimony in this regard, which was directed towards the issue of whether the PBT was reliable for its intended purpose—the assessment of the defendant’s level of intoxication—was irrelevant to the defendant’s state of mind at the time he submitted to the chemical breath test at the State Police barracks. Thus, this testimony increased the risk that the jury would be unable to avoid considering the PBT evidence as proof of the defendant’s intoxication. People v Palencia, 2015 NY Slip Op 06373, 2nd Dept 7-29-15

 

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Police Vehicles Are Excluded from the Meaning of “Motor Vehicle” in the Insurance Law—Passenger-Police-Officer Injured In a Police Vehicle by an Uninsured/Underinsured Driver Is Not Covered Under the Uninsured/Underinsured Motorist Provision of the Police-Officer-Driver’s Personal Policy

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined that a police vehicle is not a motor vehicle within the meaning of the Insurance Law. Therefore a police officer, who was injured in a police vehicle driven by another police officer, could not recover under the police-officer-driver’s uninsured/underinsured motorist coverage in the driver’s personal insurance policy:

… Insurance Law §§ 3420 (e) and 3420 (f) (1) do not directly define “motor vehicle” in so many words, but Insurance Law § 3420 (e) does refer to “a motor vehicle or a vehicle as defined in [VTL 388 (2)].” VTL 388 is the sole provision of VTL article 11, which governs civil liability for negligence in the operation of vehicles. VTL 388 (2) states, “As used in this section, ‘vehicle’ means a ‘motor vehicle’, as defined in [VTL 125], except fire and police vehicles,” and certain other vehicles not relevant here (see VTL 388 [2]).  * * *

… [B]ecause the liability insurance provision of Insurance Law § 3420 (e) had traditionally dovetailed with the coverage of VTL 388 and its predecessors, Insurance Law § 3420 (e) employed the phrase “of a motor vehicle or of a vehicle as defined in [VTL 388]” as an imprecise way of incorporating the limitations of VTL 388 into Insurance Law § 3420 (e). In other words, Insurance Law § 3420 (e) used VTL 388 (2) to redefine “motor vehicle” as exempting police vehicles from the automobile insurance sections of Insurance Law § 3420. Given that the uninsured motorist and SUM coverage sections of Insurance Law § 3420 had originated as outgrowths designed to simply fill the uninsured or underinsured motorist “gaps” in the compulsory insurance statute and Insurance Law § 3420 (e), rather than to expand the class of covered vehicles, the Court rightly decided that Insurance Law §§ (f) (1) and (f) (2) logically applied to the limited category of “motor vehicles” referenced in Insurance Law § 3420 (e), thus also excluding police vehicles. Since SUM coverage under Insurance Law § 3420 (f) (2) was just a variant of uninsured coverage under subsection (f) (1) of the same statute, the Court appropriately found that SUM coverage was likewise limited to non-police vehicles. Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 2015 NY Slip Op 05626, CtApp 7-1-15

 

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Only an “Unexcused” Violation of a Provision of the Vehicle and Traffic Law Constitutes Negligence Per Se—Damages May Include Cost of Demolition of a Building Which Has Been Deemed a Safety Hazard

In the course of a decision finding questions of fact precluded summary judgment, the Fourth Department explained the doctrine of negligence per se as it relates to a violation of the Vehicle and Traffic Law, and the recoverable damages when property damage requires demolition of a building which was rendered a safety hazard.  The defendant-driver here struck plaintiff’s building which was then destroyed by fire.  The cost of demolition, which the town had ordered because the building was a safety hazard, exceeded the fair market value of the building prior to the accident. The court noted that the demolition costs could be recoverable damages. The court further noted that only the “unexcused” violation of the Vehicle and Traffic Law constitutes negligence per se.  Therefore the defendant’s guilty plea to a Vehicle and Traffic Law violation could be excused by the jury if the jury determined the driver acted to avoid an object in the road. In that situation, the violation would only constitute “some evidence” of negligence:

It is well settled that “the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se” … . Rather, it is the “unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se” … . If a trier of fact accepts as true the position that the driver swerved to avoid an object in the road, the jury may excuse the driver’s alleged negligence, in which case defendant would not have any vicarious liability for the accident … . * * *

It is well settled that the standard for assessing damages to property is the lesser of replacement cost or diminution in market value … . Here, it is undisputed that the cost of the required demolition exceeds the fair market value of the property before the accident. Defendant contends that plaintiffs’ damages are limited to the market value of the property before the accident, with no consideration of demolition costs, inasmuch as the full market value of the property before the accident is less than the repair or replacement cost. We agree with plaintiffs, however, that demolition costs are recoverable where the property to be demolished constitutes a “safety hazard beyond repair” … . There are also situations in which a property may be deemed to have a negative market value, i.e., where the cost to remediate the property exceeds the market value of the property … . Shaw v Rosha Enters., Inc., 2015 NY Slip Op 05305, 4th Dept 6-19-15

 

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The County Was Negligent Per Se Due to Its Violation of the Provision of the Vehicle and Traffic Law Requiring Loads in Open Trucks be Covered—Plaintiff Was Struck by Debris Which Came Off an Uncovered Load—The Governmental Immunity Conferred by the Executive Law During a Response to an Emergency (the Truck Was Carrying Debris from the Clean-Up After Hurricane Irene) Did Not Extend to this Situation (Purpose and Scope of the Government’s “Emergency” Immunity Under the Executive Law Explained)

Plaintiff was injured when a piece of lumber fell off an open truck owned by the county.  Plaintiff was driving her vehicle when the debris came off the county truck and struck her in the head. The county truck was being used to transport debris in the aftermath of Hurricane Irene. The Third Department determined that, by transporting unsecured debris in an open truck, the county had violated Vehicle and Traffic Law 380-a (1) and, therefore, the county was negligent per se.  The court interpreted Vehicle and Traffic Law 380-a to mean that a prima facie case of a violation of the statute is made out by proof a load in an open truck was not covered. Once that showing is made, the owner of the truck will not be deemed to have violated the statute, despite the lack of a cover, if the owner can show the load was secure such that no cover was required. No such showing was possible here.  The court rejected the county’s argument that the emergency-related immunity conferred by the Executive Law applied here. The court noted the purpose of the Executive-Law immunity is to allow the government to make decisions during an emergency—which roads to clear first, for instance—without fear of liability, but the “emergency” immunity did not insulate the county from liability for its negligence in every context:

Executive Law § 25 (1) provides that, “[u]pon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his [or her] political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.” To be sure, this statute, which vests a political subdivision’s chief executive “with the power to respond to a local disaster or the immediate threat of a disaster, . . . reflects an awareness by the . . . Legislature that in emergency situations prompt and immediate unilateral action is necessary to preserve and protect life and property” … . Consistent with that awareness, the statute further provides, as noted previously, that “[a] political subdivision shall not be liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of any officer or employee in carrying out the provisions of this section” (Executive Law § 25 [5]).

In our view, the scope of the immunity conferred by Executive Law § 25 is clear. When faced with a disaster, a political subdivision’s chief executive may, for example, decide where to set up a makeshift hospital or aid station, prioritize and determine which streets to clear or allocate supplies and personnel as he or she sees fit, and such discretionary determinations, in turn, will not serve as a basis upon which to expose the political subdivision to liability. In other words, a disgruntled homeowner who is confronted with a flooded basement and is living on an impassable residential street cannot seek to hold a locality liable for damages simply because its chief executive deemed it more important to first clear a path to the local hospital or to pump out the holding cells in the local police station. That said, the immunity conferred by Executive Law § 25 (5) does not, to our analysis, grant a political subdivision carte blanche to perform a discretionary function in any manner that it sees fit — particularly in a manner that poses a danger to the traveling public. Here, a valid — and discretionary — determination may well have been made that the removal of storm debris from, among other locations, the DPW garage was a priority and, further, that transporting such debris in open containers was the most efficient and expeditious way to do so. The discretionary nature of these broad, resource-based decisions, however, did not obviate the need for defendants to comply with the provisions of Vehicle and Traffic Law § 380-a (1) in terms of the actual transport of such debris. As the immunity conferred by Executive Law § 25 (5) does not, in our view, extend to the particular facts of this case, Supreme Court properly denied defendants’ cross motion for summary judgment dismissing plaintiff’s complaint. …

Vehicle and Traffic Law § 380-a (1), which provides that “[i]t shall be unlawful to operate on any public highway any open truck or trailer being utilized for the transportation of any loose substances, unless said truck or trailer has a cover, tarpaulin or other device of a type and specification . . . which completely closes in the opening on. . . said truck or trailer while said truck or trailer shall be so operated, so as to prevent the falling of any such substances therefrom. However, if the load is arranged so that no loose substance can fall from or blow out of such truck, the covering is not necessary.” * * *

In our view, in order to discharge her initial burden on her motion for summary judgment, plaintiff need only have shown that defendants failed to utilize a cover; at that point, the burden shifted to defendants to demonstrate that no statutory violation actually occurred because the load was arranged in such a manner that no cover was necessary. To hold otherwise would place a nearly insurmountable burden upon plaintiff, as the manner in which the container was loaded and the contents were arranged inevitably lies within the exclusive knowledge of defendants… . Pierce v Hickey, 2015 NY Slip Op 04914, 3rd Dept 6-11-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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