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Overruling Long-Standing Precedent, The Court of Appeals Determined It Has the Power to Review the Summary Denial of a 440 Motion for Abuse of Discretion/The Trial Court Abused Its Discretion in this Case/The Matter Was Sent Back for a Hearing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, overruling long-standing precedent, held that the Court of Appeals has the power to review the summary denial of a motion to vacate a conviction based upon newly discovered evidence [Criminal Procedure Law (CPL) 440.10(1)(g)]. The defendant had already completed his sentence for rape when he had trial evidence—hairs and fingernail scrapings—subjected to DNA analysis.  The DNA results excluded the defendant.  The trial court summarily denied the motion to vacate and the Appellate Division affirmed.  The Court of Appeals reversed and sent the matter back for a hearing:

…[T]his Court is empowered to conduct a review of the lower courts’ summary denial of a defendant’s CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a). Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our “power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law” because, in so doing, we are not “passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law” … . * * *

On this record, there is a dispute between defendant and the People concerning the reliability of the mtDNA testing, what the results of such testing actually mean and the weight to be given those results in light of the eyewitness identification. As such, defendant should have been afforded a hearing so he could have at the very least an opportunity of “proving by a preponderance of the evidence every fact essential to support [his] motion” (CPL 440.30 [6]), including his assertion that had such DNA evidence been presented at trial, he would have received a more favorable verdict. We reach this conclusion not by weighing the facts or the inferences drawn therefrom, but by examining the parties’ submissions and concluding that the People failed to counter defendant’s prima facie showing that he was entitled to a hearing. Not every CPL 440.10 motion brought by a defendant will warrant a hearing, nor will every summary denial of such a motion constitute an abuse of discretion, but where, as here, there is significant DNA evidence favorable to the defendant and the People proffer no admissible evidence in opposition to that evidence, defendant is, at the very least, entitled to a hearing on his motion. People v Jones, 2014 NY Slip Op 08760, CtApp 12-16-14

 

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Even Though Probable Cause for a DWI Arrest Existed, the Arresting Officer Testified He Was Not Going to Arrest the Defendant Until He Found a Switchblade Knife During a Pat-Down Search—Therefore the Search Could Not Be Justified As a Search Incident to Arrest and the Switchblade Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that a switch-blade found in a pat-down search of the defendant after a vehicle stop should have been suppressed. The way the defendant was driving and the officer’s observations of defendant after the stop provided probable cause for a DWI arrest.  However, at the suppression hearing, the arresting officer (Merino) testified that he was not going to arrest the defendant prior to the pat-down search and only arrested him because the knife was found.  The Court of Appeals held that the search, therefore, could not be a “search incident to arrest” and could not be otherwise justified:

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not … . People v Reid, 2014 NY Slip Op 08759, CtApp 12-16-14

 

In the Absence of Prejudice, a Notice of Lien May Be Amended to Correct a Misdescription of the True Property Owner

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined, in the absence of prejudice, a notice of mechanic’s lien can be amended nunc pro tunc to reflect the true owner of the property:

Here, the true owner is the sole shareholder of the listed owner, the conveyance of the property in question from the listed owner to the true owner was not at arm’s length, and the public and certainly the true owner here were on notice that a lien had been placed on the property. The subject notice of lien also provided means for third parties to contact the true owner. And, significantly, the true owner and listed owner consented to the underlying work that allegedly went uncompensated. Under the particular circumstances presented, the misnomer is a misdescription that does not constitute a jurisdictional defect and is curable by amendment. * * *

Article 2 of the Lien Law provides that it “is to be construed liberally to secure the beneficial interests and purposes thereof” (Lien Law § 23), which include “provid[ing] security for laborers and materialmen and . . . provid[ing] notice and a degree of certainty to subsequent purchasers” … . It states that “substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same” (Lien Law § 23) and “[a] failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien” (Lien Law § 9 [7]). The Lien Law also authorizes amendment provided it does not “prejudice . . . an existing lienor, mortgagee or purchaser in good faith” (Lien Law § 12-a [2]). Thus, read together, it explicitly provides that it should be construed liberally, states that a misdescription of the true owner shall not invalidate a lien, and allows amendment where a third party would not be prejudiced. Matter of Rigano v Vibar Constr Inc, 2014 NY Slip Op 08762, CtApp 12-16-14

 

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Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error—The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal

Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a “mode of proceedings” error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:

The [1st] and [2nd] Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review … . The [4th] Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary … .

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” … . Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14

 

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Successive Tenants of Same Apartment Limited to a Single Policy Limit Re: Recovery for Lead Paint Exposure

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the children in two families who were successive tenants of the same apartment were restricted to recovery for exposure to lead paint to a single policy limit, and not multiple policy limits based upon annual policy renewals.  The two families’ recoveries were limited to the single $500,000 policy limit:

In September 1991, Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-family house in Rochester. The policy was renewed annually for the years beginning September 1992 and September 1993. It stated on the declarations page a $500,000 limit for “each occurrence,” and contained the following noncumulation clause:

“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.”

Felicia Young and her children lived in one of the two apartments in the house from November 1992 until September 1993. In July 1993, the Department of Health notified the landlord that one of the children had been found to have an elevated blood lead level and that several areas in the apartment were in violation of State regulations governing lead paint. The Department listed the violations and directed the landlord to correct them. The landlord made some repairs, and the Department advised him in August 1993 that the violations “have been corrected.”

After the Young family moved out of the apartment in September 1993, Lorenzo Patterson, Sr. and Qyashitee Davis moved in with their two children. Again a child was found to have an elevated blood lead level, and the Department of Health sent another letter saying that violations had been found and instructing the landlord to correct them. (This letter was sent in December 1994, but the parties seem to assume that the elevated readings resulted at least in part from events on or before September 29, 1994, the last day of Allstate’s coverage.) * * *

Young’s children and Nesmith’s grandchildren were exposed to the same hazard, lead paint, in the same apartment. Perhaps they were not exposed to exactly the same conditions; but to say that the “general conditions” were not the same would deprive the word “general” of all meaning. Nesmith argues that, because the landlord made an effort to correct the problem after Young’s children were exposed and before Nesmith’s grandchildren moved in, the “conditions” that injured her grandchildren must have been new ones. But she makes no claim, and the record provides no basis for inferring, that a new lead paint hazard had been introduced into the apartment. The only possible conclusion from this record is that the landlord’s remedial efforts were not wholly successful, and that the same general conditions — the presence of lead paint that endangered children’s health — continued to exist. Because Young’s children and Nesmith’s grandchildren were injured by exposure to the same general conditions their injuries were part of a single “accidental loss,” and only one policy limit is available to the two families. Nesmith v Allstate Ins Co, 2014 NY Slip Op 08217, CtApp 11-25-14

 

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Motion to Amend Pleadings to Conform to the Proof Was Properly Granted by the Trial Court—Although the Counterclaim Was Not Pled, the Subject of the Counterclaim Was Central to the Trial—Amendment Did Not Prejudice the Plaintiffs

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the Appellate Division abused its discretion when it reversed Supreme Court’s grant of a motion to amend the pleadings to conform to the proof. Although not pled as a counterclaim, whether the defendant was entitled to payments under a settlement agreement, and whether the settlement agreement extinguished defendant’s liability under promissory notes held by the plaintiffs, were central to the lawsuit and were the subject of judicial admissions.  Therefore amending the pleadings to conform to the proof did not result in prejudice to the plaintiffs:

 This Court has in the past recognized that, absent prejudice, courts are free to permit amendment even after trial… . Prejudice is more than “the mere exposure of the [party] to greater liability” … . Rather, “there must be some indication that the [party] has been hindered in the preparation of [the party’s] case or has been prevented from taking some measure in support of [its] position” (id.). The burden of establishing prejudice is on the party opposing the amendment … .

Applications to amend pleadings are within the sound discretion of the court, and that of the Appellate Division … . Courts are given “considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law” … . Nevertheless, we have found such an abuse of discretion where the Appellate Division reversed a trial court’s grant of an amendment and the record established that the opposing party suffered “no operative prejudice” as a result of the mere omission to plead a defense … . Kimso Apts LLC v Gandhi, 2014 NY Slip OP 08219, CtApp 11-25-14

 

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Corporation Created by Seneca Nation to Operate a Golf Course Was Not Entitled to Sovereign Immunity—Contractor Hired to Build the Course Can Sue to Foreclose a Mechanic’s Lien

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that a corporation created by the Seneca Nation for the operation of a golf course (Lewiston Golf) was not entitled to sovereign immunity and, therefore, could be sued by the company with which the Seneca Nation contracted to build the golf course.  The contractor brought suit to foreclose on a mechanic’s lien:

Indian tribes possess the common law immunity from suit traditionally enjoyed by sovereign powers, unless waived. In Matter of Ransom, we set out several factors for courts to [*6]use to determine whether an entity, such as a corporation or agency, that is affiliated with an Indian tribe has the right to claim sovereign immunity against suit.

“Although no set formula is dispositive, in determining whether a particular tribal organization is an ‘arm’ of the tribe entitled to share the tribe’s immunity from suit, courts generally consider such factors as whether: [1] the entity is organized under the tribe’s laws or constitution rather than Federal law; [2] the organization’s purposes are similar to or serve those of the tribal government; [3] the organization’s governing body is comprised mainly of tribal officials; [4] the tribe has legal title or ownership of property used by the organization; [5] tribal officials exercise control over the administration or accounting activities of the organization; and [6] the tribe’s governing body has power to dismiss members of the organization’s governing body. More importantly, courts will consider whether [7] the corporate entity generates its own revenue, whether [8] a suit against the corporation will impact the tribe’s fiscal resources, and whether [9] the subentity has the power to bind or obligate the funds of the tribe. The vulnerability of the tribe’s coffers in defending a suit against the subentity indicates that the real party in interest is the tribe.” (Ransom, 86 NY2d at 559-560 [internal quotation marks, citations, and square brackets omitted; numbering added].) * * *

…[T]he primary purpose of creating the golf course in Lewiston was to act as a regional economic engine and thereby serve the profit-making interests of the Seneca Nation’s casino operations in the area. While this may result in more funds for government projects on the Seneca Nation’s reservations and elsewhere that benefit members of the tribe, … the purposes of Lewiston Golf were sufficiently different from tribal goals that they militate against Lewiston Golf’s claim of sovereign immunity. However, the purposes factor of Ransom is not determinative… . While some of the remaining Ransom factors favor the conclusion that Lewiston Golf is protected by sovereign immunity, the most important ones strongly support the opposite conclusion. Sue/Perior Concrete & Paving Inc v Corporation, 2014 NY Slip Op 08218, CtApp 11-25-14

 

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Anonymous Tip Alone, In the Absence of “Predictive Information,” Sufficient to Provide “Reasonable Suspicion” Justifying a Vehicle Stop

The Court of Appeals, in a short memorandum decision followed by lengthy concurring/dissenting opinions, determined that anonymous tips were sufficient to justify a vehicle stop in two cases (tips alleged possession of a weapon), but insufficient in a third case (tip alleged driver was sick or intoxicated). The concurring/dissenting opinions dealt with whether the “Aguilar-Spinelli” test or the “totality of the circumstances” test should be applied where reasonable suspicion (not probable cause) was required to justify a vehicle stop, and whether an anonymous tip alone, in the absence of so-called “predictive information,” could be sufficient to justify a vehicle stop.  The significance of the decision is that an anonymous tip alone was found sufficient, under both the “Aguilar-Spinelli” and “totality of the circumstances” tests, in two of the three cases:

Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), there is record support for the lower courts’ findings that the stops were lawful in People v Argyris and People v DiSalvo. The police had reasonable suspicion to stop defendants’ vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Specifically, because sufficient information in the record supports the lower courts’ determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants’ unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants’ vehicle is beyond further review. Furthermore, under these circumstances, the absence of predictive information in the tip was not fatal to its reliability … .

In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v DeBour …) . Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction (see CPL 140.10 [2] [a]), and defendant’s actions in committing the violation did not elevate the deputy’s suspicion sufficiently to justify the stop of defendant’s car. People v Argyris, 2014 NY Slip Op 08220, CtApp 11-25-14

 

Defendant’s Inability to Articulate a Reason for the Withdrawal of His Plea Was a Proper Basis for Refusal of His Request for An Adjournment of Sentencing to Consider Withdrawal of the Plea

The Court of Appeals, over a dissent, determined defendant’s request for an adjournment of sentencing to consider whether he should withdraw his plea was properly denied (despite the absence of prejudice to the People) because defendant was unable to articulate a reason for withdrawing the plea:

Whether to grant an adjournment is within Supreme Court’s discretion … . Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel’s inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning. People v Spears, 2014 NY Slip Op 08221, CtApp 11-25-14

 

Question of Fact Whether Residential Facility Exercised the Care a Reasonable Parent Would Have Provided In Supervising Infant Plaintiff Who Wandered Away from the Facility and Was Struck by a Car

Reversing the Appellate Division, the Court of Appeals determined there was a question of fact whether a residential facility (Saint Cabrini) in which infant plaintiff had been placed (as a neglected child) exercised reasonable care in supervising her. Plaintiff left the facility without permission and moved away when approached by staff members. She ultimately walked into the road where she was struck by a car:

The dissenting Justices concluded that Saint Cabrini had not “carried its initial burden of demonstrating the absence of triable issues of fact as to whether its staff met [the] duty to provide the degree of care to plaintiff that a reasonable parent would provide” (id.). Viewing the evidence in the light most favorable to plaintiff, we agree that Saint Cabrini has not met its threshold burden. It is up to the jury to decide if a parent of ordinary prudence in similar circumstances would have necessarily employed different means to protect plaintiff under the facts of this case.  DT v Rich, 2014 NY Slip Op 08223, CtApp 11-25-14

 

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