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Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed.  After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test.  However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant.  The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:

In People v Gursey (22 NY2d 224 [1968])… we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'” … . Violation of this right to legal consultation generally requires suppression of the scientific evidence …. Because time is of the essence in obtaining accurate chemical test evidence …, we further observed in Gursey that a suspect's communication with a lawyer regarding “the exercise of legal rights should not [] extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” … .

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” … . In other words, conferring with counsel is permissible only if “'such access does not interfere unduly'” with timely administration of the test … . * * *

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of alcohol test … . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194 [2] [b], 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf … . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, CtApp 5-6-14

 

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Names of Retired Teachers Not Protected from Disclosure by Public Officers Law 89

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined Public Officers Law 89 (7) did not exempt from disclosure the names of retirees who receive benefits from public employees' retirement systems.  The question boiled down to statutory interpretation:

The answer to the question before us — are retirees' names exempt from disclosure? — is plain from the face of the statute. It exempts “the home address . . . of a retiree,” but not the retiree's name. By contrast, it exempts both the name and home address of “a beneficiary of a public employees' retirement system.” A “beneficiary” of a retirement system, as the term is commonly used, is a family member of an employee or retiree who is entitled to benefits after the employee's or retiree's death; it is so used on the website of one of the retirement systems in this case (NYSTRS,”Glossary of Benefit Terms,” at http://www.nystrs.org/main/glossary/html [last visited April 21, 2014]). In some contexts, “beneficiary” might be read more broadly to include a retiree, for retirees do benefit from retirement systems. But “beneficiary” was obviously not used in that sense in this statute, because the statute provides a separate and more limited exemption for a “retiree.” Matter of Empire Ctr for NY State Policy v New York State Teachers' Retirement Sys, 2014 NY Slip Op 03193, CtApp 5-6-14

 

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Comptroller Has Authority to Audit Private Health Care Providers Who Are Paid through an Insurance Company Under Contract with the State for Health Care Provided to State Employees

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the state comptroller had constitutional and statutory authority to audit the billing records of private health care providers (Handler and South) who receive state funds for care provided to state employees through an insurance company under contract with the state. The underlying audit concerned the health care providers' waiver of patients' co-payments which effectively reduced the cost of the care provided by 20%.  Because the state was obligated to pay only 80% of the cost of the care, the comptroller determined the health care providers who waived the copayment were effectively overpaid by the state.  The health care providers argued the comptroller did not have the power to audit them because they were paid by the insurance company, not the state:

Handler and South Island receive State insurance funds in exchange for services rendered to State insurance beneficiaries. The fact that the State relies on a third-party conduit, United [the insurance company], does not change the character of the funds. They remain State dollars directed to pay health care costs incurred by State beneficiaries and charged by Handler and South Island.  Matter of Martin H Handler MD PC v DiNapoli, 2014 NY Slip Op 03191, CtApp 5-6-14

 

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Although Picketing by Teachers Was Protected Speech, the Manner in which the Picketing Was Carried Out Endangered the Safety of Students—Therefore the Teachers Were Properly Disciplined

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school.  The court applied the so-called Pickering test (Pickering v Board of Educ…391 US 563 [1968]) which addresses the free speech rights of public employees (which are somewhat curtailed).  Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:

Under Pickering, the determination whether a public employer has properly disciplined a public employee “for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'” … . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively …, but also that “[v]igilance is necessary” to ensure public employers do not use their authority “to silence discourse[] not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech” … . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, CtApp 5-6-14

 

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Lump Sum Payments for Pending Workers’ Compensation Claims Made by Municipalities Choosing to Withdraw from a Workers’ Compensation Self-Insurance Fund Must Be Discounted to Present Value

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a partial dissent, determined that the lump sum to be paid by municipalities for pending workers' compensation claims when withdrawing from a workers' compensation self-insurance fund should be discounted to present value.  The court noted that the lump sum was to be used to pay out workers' compensation benefits for years to come:

Generally, discounting future damages to their value at some point in the past is appropriate because it takes into account the time value of money. “[W]hen an amount intended to compensate for a future loss is discounted back to a particular time, the discounted amount represents the sum which, if invested at that time at reasonable rates of return, would theoretically produce the intended amount at the future time when the loss is incurred” .. . We are perhaps most familiar with discounting in wrongful death, personal injury, and medical malpractice actions, where discounting is required by statute (see CPLR 5031; 5041). In those contexts, it is often the future earning power of the injured party, or a similar measure of future damages, that must be reduced to its value on the date of injury. However, there is no material difference between the value of a decedent's future income in a wrongful death case and the value of workers' compensation benefits to be paid out over the life of a disability claim. In both cases, some or all of the losses will be incurred in the future. Here, the injury in question is a breach of contract, and the future losses manifest themselves in the form of contract damages. Village of Ilion v County of Herkimer, 2014 NY Slip Op 02873, CtApp 5-1-14

 

Notations Added by Judge to Verdict Sheet to Help Jurors Differentiate the Counts Did Not Violate CPL 310.20

The Court of Appeals, in a full-fledged opinion by Judge Pigott, with a concurring opinion, determined that the notations added to the verdict sheet by the judge to aid the jury in differentiating the counts did not violate the Criminal Procedure Law. The defendant was charged with making purchases at several different stores with forged credit cards.  The judge added store names, dates and locations to the relevant counts on the verdict sheet.  The Court of Appeals determined the notations were of the type allowed by CPL 310.20 (2).  The Court further determined that the use of a GPS tracking device on defendant’s car constituted a warrantless search.  But the search-error was deemed harmless under the facts.  With respect to the notations on the verdict sheet, the Court wrote:

As we explained in Miller “[n]othing of substance can be included [on a verdict sheet] that the statute does not authorize” (Miller, 18 NY3d at 706 [emphasis supplied]). The verdict sheet in Miller violated section 310.20 (2) because it included a legal instruction relative to burden of proof, i.e., words or terms “of substance” (id. at 706-707 [verdict sheet asked the jury if the defendant had established by a preponderance of the evidence that he acted under extreme emotional disturbance]). Verdict sheets may not be utilized to provide legal instruction to a deliberating jury; such instruction is to be provided by the trial court in its jury charge (see CPL 310.30 [stating that during deliberations “the jury may request the court for further instruction or information with respect to the law” and the court, upon notice to and in the presence of the People and the defense, “must give such requested information or instruction as the court deems proper”]). Inclusion of legal instructions on a verdict sheet runs contrary to the statute’s intended purpose of “facilitat[ing] an orderly and intelligent deliberative process” because it enhances the risk that the jurors will perceive the annotation as having special significance as opposed to merely assisting them in distinguishing among the counts.

The annotations here could not have been interpreted by the jury as being intended for any purpose other than identifying the individual stores defendant and his codefendant were alleged to have frequented or the banks relative to certain identity theft counts. Given the number of counts, coupled with the fact that the offenses occurred at different locations at different times (and, in some instances, on different dates), the trial court appropriately included the annotations so that the jury could distinguish the submitted counts. Under the circumstances, the names of the stores clearly fall within the term “complainant” delineated in the statute. People v Lewis, 2014 NY Slip Op 02969, CtApp 5-1-14

 

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Presumption of Validity of Town’s Property Tax Assessment Not Rebutted by Objective Data

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, reversed the 4th Department’s determination that the Board of Managers of a condominium had rebutted the presumption of validity which attached to the Town’s property tax assessment. The Board’s appraisal was not based upon objective data which substantiated the calculations:

In an RPTL article 7 tax certiorari proceeding, “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” … . Consequently, a taxpayer challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor. In the context of tax assessment cases, we have explained that the substantial evidence standard requires the taxpayer to “demonstrate the existence of a valid and credible dispute regarding valuation” … . If the taxpayer satisfies this threshold burden, the presumption disappears and the court “must 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” … . But where a taxpayer fails to rebut the presumption, the municipality’s assessor has no obligation to go “forward with proof of the correctness of [its] valuation,” and the petition is to be dismissed … .

…[T]he appraiser did not provide the sources of the income or expense figures related to each comparable (…[“Data on each property’s sale price, income, expenses, financing terms, and market conditions at the time of sale are needed.”]).

More importantly, the hearing testimony of the Board’s appraiser revealed that he had little to no confirmable data to support the income and expense numbers he employed to derive the capitalization rate. During his direct examination, the appraiser asserted that he relied on “very good” and “very strong” data that came from “certified sources.” On cross-examination, however, he conceded that he had no certified expense or income information and instead had relied on “forecasted economic indicators” with respect to the apartment buildings. In fact, he could identify only two documents in the record that provided any “limited historic operating expenses,” and this information was for only two comparables and did not correlate to the numbers used in the appraisal report. He admitted that he had no documents supporting his analysis as to the other two comparable properties. When pressed, he proffered that the relevant figures were based on his “personal exposure” to the complexes, i.e., his own unverifiable knowledge. But as the Appellate Division dissenters aptly recognized, “[a]n appraiser cannot simply list financial figures of comparable properties in his or her appraisal report that are derived from alleged personal knowledge; he or she must subsequently ‘prove’ those figures to be facts at trial” … . Simply put, the record before us affords no basis to check or test whether the net operating incomes for these four properties — and the capitalization rates adduced from them — were valid, or even in the ballpark. Matter of Board of Mgrs of French Oaks Condominium v Town of Amherst, 2014 NY Slip Op 02971, CtApp 5-1-14

 

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Rape-Complainant’s Mental Health Records Raised a Brady, Not a Confrontation, Issue—Trial Judge Properly Ruled that Most of the Records Would Not Be Turned Over to the Defense Because There was No Reasonable Possibility Disclosure Would Have Led to Defendant’s Acquittal

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a forceful dissent by Judge Rivera, determined the trial court had properly refused to turn over to the defense most of the complainant’s mental health records.  The 18-year-old complainant called 911 to report she had just been raped by the 40-year-old defendant.  The defendant claimed that they had consensual sex but that he struggled with the complainant after she started to run away with his pants and money. The case came down to the credibility of the defendant and the complainant.  The complainant suffered from “Bipolar, Tourettes, post-traumatic-stress disorder, [and] epilepsy.”  She had visualized the presence of dead people, had cut herself, had been violent, had attempted suicide and had made an allegation of sexual assault against her father which one record referred to as “unfounded.” She also suffered from attention deficit disorder and hypersexuality. The trial judge disclosed only a few of complainant’s mental health records.  The majority determined the mental health records raised a Brady issue, not a confrontation issue (as was argued by the defendant and the dissent):

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed … .

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed … .

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion. People v McCray, 2014 NY Slip Op 02970, CtApp 5-1-14

 

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There Was Sufficient Evidence Defendant Was Responsible for a Witness’ Refusal to Testify to Allow the People to Present the Witness’ Grand Jury Testimony at Trial

In a full-fledged opinion by Judge Abdus-Salaam, with a concurring opinion, the Court of Appeals determined the trial court properly ruled a witness' grand jury testimony could be presented at trial because there was sufficient evidence the defendant was responsible for the witness' asserting her Fifth Amendment privilege against self-incrimination and refusing to testify:

Under the Sixth Amendment of the Federal Constitution and article one, section six of the State Constitution, a criminal defendant has the right to be confronted with the witnesses against him or her (see U.S. Const. Amend. VI; NY Const, art I, § 6…). The confrontation right is critical to the fairness of a trial because it “'ensur[es] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact'” … . Given this important right, an unavailable witness's grand jury testimony, which by definition has not been subjected to confrontation, generally may not be admitted at trial on the People's direct case … . However, “where it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery,” the defendant “may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations,” including the witness's grand jury testimony… .  People v Smart, 2014 NY Slip Op 02972, CtApp 5-1-14

 

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Reversal Due to Ineffective Assistance Affirmed Over Forceful Dissent

The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day.  Judge Pigott wrote a long and detailed dissent.  People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15

 

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