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Resentencing (Re: Postrelease Supervision) of Defendants Who Have Completed Determinate Sentence But Are Still Serving Aggregate Sentence Does Not Violate Double Jeopardy

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined defendants who have completed the determinate sentence for which mandatory postrelease supervision was not imposed but have not completed their aggregated sentences under Penal Law 70.30 can be resentenced to postrelease supervision without violating the Double Jeopardy Clause:

In these unrelated cases, each defendant claims that the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.  People v Brinson… Nos 135, 136, CtApp 6-26-13

 

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Hospital Did Not Owe Intoxicated Patient a Duty to Prevent Him from Leaving Hospital

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital.  The patient was struck by a car an hour or two after leaving.

…Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain “a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . . in his or her body” (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person “who comes voluntarily or is brought without his or her objection” to a hospital or other treatment facility (§ 22.09 [d]) and one “who is brought with his or her objection” (§ 22.09 [e]). In the latter case, the person “may be retained for emergency treatment” if he or she is examined by a doctor and found to be incapacitated to such a degree that “there is a likelihood to result in harm to the person or others” (§ 22.09 [e]); a “likelihood to result in harm” to oneself must be “manifested by threats of or attempts at suicide or serious bodily harm or other conduct” that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category — people who, like plaintiff, come to the hospital voluntarily — the Mental Hygiene Law makes no provision for involuntary retention.

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case.  Kowalski v St Francis Hospital and Health Centers, et al, No 128, CtApp 6-26-13

 

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Starbuck’s Tip-Splitting Policy Analyzed

The Second Circuit asked the Court of Appeals to answer certified questions about how the Labor Law relates to a tip-splitting policy used by Starbucks.  Over two dissents, the Court of Appeals determined, under the Labor Law, limited supervisory duties did not mandate exclusion from the tip pool:

Starbucks maintains a written policy governing the collection, storage and distribution of customer tips. Pursuant to this policy, each Starbucks store places a plexiglass container at the counter where patrons may deposit tips. Once these tip canisters become full, Starbucks requires that they be emptied into a bag and the money is stored in a safe. At the end of each week, the tips are tallied and distributed in cash to two categories of employees — baristas and shift supervisors — in proportion to the number of hours each employee worked. Starbucks does not permit its assistant store managers or store managers to share in the weekly distribution of tips. The company’s decision to include shift supervisors in these tip pools was the impetus for the first lawsuit before us, while its exclusion of assistant store managers underlies the claims in the second action. * * *

…[A]n employee whose personal service to patrons is a principal or regular part of his or her duties may participate in an employer-mandated tip allocation arrangement under Labor Law § 196-d, even if that employee possesses limited supervisory responsibilities. But an employee granted meaningful authority or control over subordinates can no longer be considered similar to waiters and busboys within the meaning of section 196-d and, consequently, is not eligible to participate in a tip pool. * * *

…Starbucks’ decision to exclude assistant store managers from the tip pool is not contrary to Labor Law § 196-d.  Barenboim, et al v Starbucks Corporation, No 122, CtApp 6-26-13

 

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Closure of Railroad Crossing Did Not Constitute a Taking of Claimant’s Land

The Court of Appeals determined the closure of a railroad crossing did not constitute a regulatory taking of claimant’s land.  Claimant used the crossing to move equipment from one part of his land to another:

The basis for the claim is that the State Department of Transportation required the closure of a railroad crossing that claimant had used to move equipment from one part of its land to another. The record shows that the Department ordered the closure after it determined that the crossing presented a safety hazard. It found that fast moving trains passed by frequently; that a curve in the tracks limited the distance at which a train could be seen from the crossing; that heavy, slow-moving farm equipment was being transported over the tracks; and that there was a substantial grade at the approaches to the crossing, which made it necessary for crossing vehicles to reduce their speed. In an article 78 proceeding brought by claimant, the Department’s determination was upheld as being supported by substantial evidence….

On this record, the conclusion is inescapable that the closure of the crossing was a proper exercise of the State’s police power. Moreover, claimant has failed to show the extent to which the Department’s action diminished the value of its land, and has not argued that its easement to cross the railroad tracks should be treated for these purposes as an item of property separate from the land itself. Claimant’s claim of a regulatory taking is without merit.  Island Park, LLC v State of New York, No 132, CtApp 6-26-13

 

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No Standing to Contest Search of Guest Room

The Court of Appeals determined there was support in the record for the trial court’s finding that defendant did not have standing to contest the search of a room in his grandmother’s house where a weapon was found:

The judge credited the grandmother’s testimony that the bedroom where the gun was found was an extra or guest bedroom; and that defendant had a separate room and did not stay in the guest bedroom. Given these facts, Supreme Court held that defendant failed to meet his burden of establishing a reasonable expectation of privacy in “a room that wasn’t his, that was used by several other people.”  People v Leach, No 130, CtApp 6-25-13

SUPPRESSION

 

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Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal

In reversing defendant’s assault conviction, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined a defendant with a conviction pending appeal may not be cross-examined about the underlying facts of that conviction until direct appeal has been exhausted.  Judge Lippman wrote:

At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts, and the sentence he received. After the People rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant’s constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records…. Defendant was retried and acquitted.  * * *

…[I]n ruling that the prosecution could cross-examine defendant about the underlying facts of his rape conviction, presumably the court was not implying that defendant could not assert his Fifth Amendment privilege in response to those questions. However, “taking the Fifth,” is highly prejudicial as to both the instant case and the conviction pending appeal. To a jury, it appears as though defendant is admitting the truth of the leading questions posed by the prosecutor; “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf” …. More problematic, defendant must invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself; otherwise he might waive the privilege… .  People v Cantave, No 129, CtApp 6-25-13

 

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Illegal Arrest Did Not Taint Identification Procedure – Attentuation Doctrine Applied

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the defendant’s identification in a line-up, after an admittedly illegal arrest, was not tainted by the arrest under the doctrine of “attenuation.”  The operative legal principles were described as follows:

The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule…. Instead, the People “must have ‘somehow exploited or benefitted from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police”….

Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order to counter that challenge, the People were required to demonstrate that the identification was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” …, i.e., that the taint of the illegal arrest was “attenuated” …. In order to determine whether attenuation exists, the court must “consider the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct”…. *  *  *

By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest. People v Jones, No 125, CtApp 6-25-13

 

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Attorney General’s Civil Suit Against Former Officers of AIG Survived Summary Judgment

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the Attorney General’s civil suit, seeking equitable relief (based upon allegations of fraud) against two former officers of AIG, survived summary judgment.  The Court explained the nature of the suit as follows:

The Attorney General began this civil suit against AIG, Maurice Greenberg and Howard Smith in 2005. Until shortly before the suit was brought, Greenberg was the Chief Executive Officer, and Smith the Chief Financial Officer, of AIG. AIG has settled the case; Greenberg and Smith remain as defendants.

The Attorney General alleges that Greenberg and Smith violated section 63(12) of the Executive Law and Article 23-A of the General Business Law (the Martin Act), and committed common law fraud. The statutes on which the Attorney General relies are broadly worded anti-fraud provisions, prohibiting among other things “repeated fraudulent or illegal acts” (Executive Law § 63[12]), “persistent fraud or illegality” (id.), and “fraud, deception, concealment, suppression [or] false pretense” (General Business Law § 352-c [1] [a]). It is not disputed that the Attorney General is empowered to sue for violation of these statutes.

The gist of the Attorney General’s claim, to the extent that it is now before us, is that Greenberg and Smith participated in causing AIG to enter into a sham transaction with General Reinsurance Corporation (GenRe) in which AIG purported to reinsure GenRe on certain insurance contracts. The Attorney General asserts that the transaction transferred no real risk from GenRe to AIG, and therefore should not have been treated as an insurance transaction on AIG’s books; and that the transaction’s sole purpose was to increase the insurance reserves shown on AIG’s financial statements, thereby creating the impression of a healthy insurance business and bolstering AIG’s stock price.  People v Greenberg, et al, No 63, CtApp, 6-25-13

 

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Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function

In a full-fledged opinion by Judge Graffeo, with two concurrences, the majority determined ambulance assistance rendered by first responders is a governmental, not proprietary, function.  The majority also concluded a question of fact had been raised about whether the city owed a “special duty” to the plaintiff, who suffered serious brain damage after going into anaphylactic shock.  Judges Smith and Abdus-Salaam disagreed with the majority and would have found that the ambulance service was a proprietary function.  The Court explained:

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties…. A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises”…. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” …. * * *

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “‘sustain liability against a municipality, the duty breached must be more than that owed the public generally'”… .  Applewhite, et al, v Accuhealth, Inc, et al, No 86, CtApp 6-25-13

 

Breach of Duty to Defend Precludes Reliance on Policy Exclusions

In a full-fledged opinion by Judge Smith, the Court of Appeals held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify the insured for a judgment against him.”  The Court wrote:

…”[A]n insurance company that has disclaimed its duty to defend “may litigate only the validity of its disclaimer.” If the disclaimer is found bad, the insurance company must indemnify its insured for the resulting judgment, even if policy exclusions would otherwise have negated the duty to indemnify. This rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain. It would be unfair to insureds, and would promote unnecessary and wasteful litigation, if an insurer, having wrongfully abandoned its insured’s defense, could then require the insured to litigate the effect of policy exclusions on the duty to indemnify.  K2 Investment Group, LLC v American Guarantee & Liability Insurance Company, No 106, CtApp, 6-11-13

 

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