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Criteria Not Met for “Special Facts” Exception to Rule that the Zoning Law in Effect at the Time a Site Plan Application is Decided Is Controlling

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the zoning law in effect at the time the applicant’s (Rocky Point’s) site plan application was decided, as opposed to the zoning law in effect when the application was first submitted, controlled. The criteria for the “special facts” exception to the general rule (general rule = applying the law at the time the application was decided) was not met. The court explained:

In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law … . Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the “special facts” exception to the general time of decision rule.Under the special facts exception, where the land owner establishes that they are entitled as a matter of right to the underlying land use application—here, a “site plan”–the application is determined under the zoning law in effect at the time the application is submitted …. In order for a land owner to establish entitlement to the request as a matter of right, the land owner must be in “full compliance with the requirements at the time of the application,” such that “proper action upon the permit would have given [the land owner] time to acquire a vested right” … . In addition to showing entitlement to the request as a matter of right, the land owner must also show “extensive delay indicative of bad faith,” …, “unjustifiable actions” by the municipal officials, …, or “abuse of administrative procedures” ….As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point Drive-In LP v Town of Brookhaven, 197, CtApp 11-14-13

 

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Pre-Closing Documents Can Not Be Used to Prove Conveyance or the Issuance of Title Insurance

The Court of Appeals determined that a third-party purchaser of mortgages in the secondary mortgage market could not “rely on pre-closing documents to establish that a proper conveyance and recording of the underlying property occurred or that title insurance for the property was issued.”  DLJ Mortgage Capital, Inc v Kontogiannis…, 253 SSM 29, CtApp 11-14-13

 

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Lease; Services Agreement Did Not Allow Building Owner to Recover for Condition of Property

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that plaintiffs, the building owners, could not recover damages related to the condition of the property upon the termination of the lease.  The property was used as a homeless shelter.  The City of New York entered into a Services Agreement with The Salvation Army to run the shelter.  The Salvation Army leased the property from the property owners. The City, in the Services Agreement, was required to pay The Salvation Army’s obligations to the property owners under the lease. The Court wrote:

The Lease is clear that, as a general proposition, The Salvation Army is not obliged to pay more to plaintiffs than it can recover from the City, and it is equally clear that The Salvation Army must do what it reasonably can to recover what the City owes it.  If The Salvation Army breached its duty to use commercially reasonable efforts to enforce a City obligation, it could not rely on the City’s non-payment of that obligation to defeat plaintiffs’ claim.  …[H]owever, … the complaint fails to allege any commercially reasonable step that The Salvation Army should have taken to recover money from the City. Plaintiffs do not identify any provision of the Services Agreement under which the City owes money to The Salvation Army that The Salvation Army failed to collect.  JFK Holding Company LLC v City of New York…, 196, CtApp 11-14-13

 

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German Museum Proved It Had Superior Title to Ancient Assyrian Gold Tablet in Decedent’s Estate/Doctrine of Laches Did Not Apply

In an estate proceeding, the Court of Appeals determined the doctrine of laches did not apply and the German Museum was entitled to the return of the Assyrian gold tablet, which was in decedent’s estate but had been missing from the museum since World War II:

We agree with the Appellate Division that the Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” …. .  While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet … .  As we observed …in a related discussion of the defense of statute of limitations, “[t]o place a burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would . . . encourage illicit trafficking in stolen art” … .

Additionally, the Estate failed to demonstrate “the essential element of laches, namely prejudice” … .  While the Estate argued that it had suffered prejudice due to the Museum’s inaction, there is evidence that at least one family member (decedent’s son) was aware that the tablet belonged to the Museum.  And, although the decedent’s testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity. Matter of Flamenbaum, 178, CtApp 11-14-13

 

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Harmless Error Rule Should Not Have Been Applied to Guilty Plea

In a full-fledged opinion by Judge Graffeo, the Court of Appeals, over a dissent, declined to apply the harmless error rule to a guilty plea.  In this driving-while-intoxicated case, the defendant moved to suppress an open bottle of rum and a crack pipe which were found in the car he was driving during an inventory search. The motion was denied. Defendant told the court he wanted to plead guilty because he “was not planning to go to trial if [he] got a negative ruling” on the motion.  On appeal, the inventory search was deemed invalid, but the Appellate Division ruled the error “harmless.”  In reversing, the Court of Appeals wrote:

The harmless error rule was “formulated to review trial verdicts” (People v Grant, 45 NY2d at 378).  It requires an appellate court to assess the quantum and nature of the People’s proof of guilt independent of erroneously admitted evidence and the causal effect, if any, that the introduction of that evidence had on the fact finder’s verdict … .  Harmless error therefore can be “difficult to apply to guilty pleas” — especially in cases involving “an improper denial of a pretrial motion to suppress” — since “a defendant’s decision to plead guilty may be based on any factor inside or outside the record” (People v Grant, 45 NY2d at 378379).  Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review (see id.).

The Grant doctrine is not absolute, however, and we have recognized that a guilty plea entered after an improper court ruling may be upheld if there is no “reasonable possibility that the error contributed to the plea” (id. at 379).  Although a failure to suppress evidence may detrimentally influence a defendant’s plea negotiations, a concession of guilt may be treated as valid if the defendant articulates a reason for it that is independent of the incorrect pre-plea court ruling (see id. at 379-380) or an appellate court is satisfied that the decision to accept responsibility “was not influenced” by the error… . * * *

Certainly, there may be instances where the failure to grant suppression does not affect a defendant’s decision to plead guilty because the challenged proof is cumulative or too trivial.  In this case, however, the denial of the motion to suppress could not be viewed as harmless and the guilty plea must be vacated. People v Wells, 188, CtApp 11-14-13

 

In Deciding the Sequence of Convictions, the Original Sentence Date Controls, Not the Date of Resentencing to Cure a Post-Release-Supervision Flaw

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that, with respect to New York’s sentence enhancement statutes, “the controlling date of sentence for the defendant’s prior conviction is the original date of sentence for that conviction… [not] the date of a later resentencing which rectifies the flawed imposition of post-release supervision (PRS) in accordance with … People v Sparber (10 NY3d 457 [2008]). … Therefore, at sentencing for a more recent crime, the defendant’s prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.”  People v Boyer…, 205, 206, CtApp 11-14-13

 

Consecutive Sentences for Possession of Weapon and the Crime Committed Later with the Weapon Okay

In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon.  [The defendants in these cases] completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.”  The court explained:

The mens rea for any crime “‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time'” … .  The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm.  So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible.  People v Brown… 199, 200, 201, CtApp 11-14-13

 

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Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13

 

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Recklessness Demonstrated In Operation of Vehicle

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s convictions for reckless manslaughter and reckless assault after defendant’s car struck another car head on.  There was evidence defendant was deliberately speeding (134 mph) in an area he knew to include a sharp turn.  The court explained the difference between recklessness and criminal negligence in this context:

The mental states of recklessness and criminal negligence share many similarities.  Both require that there be a “substantial and unjustifiable risk” that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law  § 15.05 [4] [Criminal Negligence]).  The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk … .

In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” … .  Here, there was ample proof that defendant did more than merely drive faster than the legal limit — indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour.  Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic.  Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car.  Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening … .  The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … .

Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly — by consciously disregarding the risk he created — as opposed to negligently failing to perceive that risk.  Defendant was familiar with the curve in the road …, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. People v Asaro, 158, CtApp 10-22-13

 

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Ineffective Assistance On Suppression Issues—Case Sent Back

The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing.  The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:

In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police.  At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.

And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant.  Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this prosecution.  People v Clermont, 166, CtApp 10-22-13

 

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