The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts. The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted). In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13
The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently. When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing sentence as authorized by law’ …, rather than imposition of a new sentence or of an additional term of imprisonment” [see Criminal Procedure Law 70.25]. Therefore the re-sentencing court does not have the power to issue concurrent sentences when the original sentences were consecutive. People v Norris, No. 39, CtApp 3-21-13
In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed. In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed People v McGee, No. 30, CtApp 3-21-13
In a lengthy opinion by Judge Read, the Court of Appeals determined that, where a purchase contract for real property has been breached, the measure of damages is the difference between the sale price and the market value of the property at the time of the breach. The price at which the property subsequently sells can be taken into consideration when determining what the value was at the time of the breach, but it is not the measure of damages. White v Farrell, et al, No. 43, CtApp, 3-21-13
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the prevailing wage requirement of Labor Law 220 did not apply to construction work for the Bath Volunteer Fire Department (BVFD) which had procured its own funding for a new firehouse:
After an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law. Once the subcontractors learned of the DOL’s determination, work on the project halted. In December 2006, BVFD agreed to indemnify [the contractor] and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed. …
The prevailing wage law covers contracts involving each of four specific public entities: the state, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law (see Labor Law § 220 [2]). It is undisputed that BVFD is a fire corporation as defined by the Not-For-Profit Corporation Law, and it is not one of the public entities named in the statute. Nevertheless, the Commissioner determined that BVFD could be deemed “the functional equivalent” of a “municipal department” within the meaning of the Labor Law. …
The “functional equivalent” test, however, was rejected by this Court in Matter of New York Charter School Assn. v Smith (15 NY3d 403 [2010]). There, the DOL deemed charter schools “public benefit corporations” because the schools serve a valuable public purpose and their existence is the result of a charter issued by a state or local municipal entity. Given those factors, the DOL determined that charter schools met the requirements established by the courts of this State for public work projects. We rejected that argument because while charter schools, like volunteer fire corporations, may be “quasi-public” in nature, they are not a specified public entity and thus, do not fit within the ambit of the statute (id. at 410).
Had the legislature intended to include volunteer fire corporations under the statute, it could easily have done so. Notably, in 2007, the legislature expanded the statute’s coverage to include contracts involving other types of entities, but only when it can be shown they were acting on behalf of the public entity … . Matter of M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017 [20 NY3d 469], CtApp 2-19-13
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification of the defendant by the victim at a particular time, they did not provide notice of a subsequent identification by the victim a few minutes later after defendant was in custody:
Assuming that there was a section 710.30 violation, it might not have resulted in exclusion of the evidence in question. CPL 710.30 (2) provides for the possibility of late notice, and a belated suppression hearing, when the People show “good cause.” The belated notice and hearing may occur during the trial …, and if the trial court thought the People had made an excusable error it might have granted such a remedy here.
In short, it is not obvious that defendant’s counsel could have successfully sought preclusion of the evidence of the victim’s post-arrest identification under section 710.30. An argument for preclusion could have been made, but not an argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” … . Counsel’s performance should not be “second-guessed with the clarity of hindsight” … . Any deficiency in her performance was not so great that it can support an ineffective assistance claim.
Nor has defendant shown any serious likelihood that he was prejudiced by trial counsel’s alleged error. Even if the trial court had precluded evidence of the victim’s post-arrest identification, the evidence against defendant would remain strong. People v Vasquez, 2013 NY Slip Op 01016 [20 NY3d 461], CtApp 2-19-13
The Court of Appeals, in a full-fledged opinion by Judge Read, determined the requirement that employees of the School District of the City of Niagara Falls reside in the City of Niagara Falls serves a legitimate purpose and is not related to job performance. Therefore, only notice and an opportunity to respond to the allegation of a violation of the requirement are necessary to comply with due process. Matter of Beck-Nichols v Bianco, 2013 NY Slip Op 01015 [20 NY3d 540], CtApp, 2-19-13
The Court of Appeals determined the “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. …[S]uch records are nontestimonial…” Judge Pigott agreed with that “Confrontation Clause analysis” but wrote a dissent about the nature of the vehicle stop that led to the DWI arrest. The suppression court had ruled that the stop was not supported by probable cause “but for … a Finger Lakes Community College sticker in the rear window…”. Apparently such a sticker violates Vehicle and Traffic Law section 375 (1)(b)(i). Judge Pigott noted that college stickers are common, the statute is rarely if ever enforced, and stopping a car because of a sticker is “not objectively reasonable.” Judge Pigott would have suppressed the evidence which arose from the stop. People vs Pealer, No. 9, CtApp 2-19-13
“The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the” Workers’ Compensation Board with respect to “findings of fact that are necessary for an administrative agency to reach.” Here the Workers’ Compensation Board’s determination of the duration of the work-related injury was given preclusive effect in a related personal injury action. Judge Pigott wrote a strong dissent, arguing in part that the finding was necessarily a mixture of fact and law, not subject to the collateral estoppel principle. Auqui v Seven Thirty One Ltd. Partnership, 2013 NY Slip Op 00950 [20 NY3d 1035], CtApp 2-14-13
A zoning measure that prohibited check cashing establishments in a town’s business district was invalid. Zoning is concerned with the use of the land, not with the identity of the user. The Town did not try to show and did not argue that check cashing services are in the same category as “adult entertainment” uses which have been found to have “negative secondary effects” on the surrounding community. The zoning measure could not be justified as a “public safety measure.” Sunrise Check Cashing and Payroll Services, Inc. vs Town of Hempstead, No. 12, CtApp 2-14-13
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