You are here: / Court of Appeals

Tag Archive for: Court of Appeals

,

THE SUPPRESSION COURT DID NOT ABUSE ITS DISCRETION BY REOPENING THE SUPPRESSION HEARING AFTER THE PEOPLE HAD RESTED TO ALLOW THE PEOPLE TO PRESENT AN ADDITIONAL WITNESS; THE “ONE FULL OPPORTUNITY” DOCTRINE DOES NOT APPLY IN THE “PRE-RULING” STAGE OF A SUPPRESSION HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissenting opinion, held the suppression court did not abuse its discretion by allowing the People to reopen the suppression hearing to present another witness after the People had rested. The court subsequently denied the motion to suppress. The Court of Appeals framed the issue around the “one full opportunity” rule which precludes reopening a hearing in other contexts and decided not to extend the rule to the “”pre-ruling” stage of a suppression hearing:

In Havelka [45 NY2d 636], we applied the “one full opportunity” rule to a holding by an appellate court overturning the decision of the suppression court. In Kevin W [22 NY3d 287}. we applied the same rule to the suppression court’s decision to reopen the hearing after its ruling on the merits of the motion. Defendant now asks us to apply the rule at a point still earlier in the process, similarly restricting the suppression court’s discretion before any decision is made. This we decline to do.

A basic concern underlying both Havelka and Kevin W. is finality, described as the “haunt[ing] . . . specter of renewed proceedings” after the defendant initially has prevailed … . We explained in Havelka that allowing the People to present additional evidence at a new hearing would render success at the original suppression hearing “nearly meaningless” … . The People, we said, should not get “a second chance to succeed where once they tried and failed” … . However, that concern is absent where no decision on the motion has been rendered by the hearing court: no victory will be rendered “nearly meaningless.”

The second issue of concern weighing in favor of the “one full opportunity” rule — the risk of improperly tailored testimony at the reopened proceedings — is significantly lower where the People do not have a formal decision from either an appellate court or the hearing court. People v Cook, 2019 NY Slip Op 09059, CtApp 12-19-19

 

,

LOAN FUNDED BY THE PROCEEDS OF ILLEGAL GAMBLING IS ENFORCEABLE (CT APP).

The Court of Appeals determined that the loan agreement between plaintiff and defendant was enforceable despite the fact that the loan was funded by illegal gambling:

Neither the terms of the agreement nor plaintiff’s performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties’ illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as “malum in se, or evil in itself” … and the source of funds used for a loan is not typically a factor in determining its validity. Defendant argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, defendant receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward “a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'” … . Although we do not condone plaintiff’s illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet. Centi v McGillin, 2019 NY Slip Op 09058, CtApp 12-19-19

 

, ,

DEFENDANT, A NONCITIZEN, WAS TOLD DURING HIS PLEA COLLOQUY THAT HE DID NOT HAVE THE RIGHT TO A JURY TRIAL ON THE DEPORTATION-ELIGIBLE B MISDEMEANOR; WHILE THE LEAVE APPLICATION WAS PENDING THE LAW WAS CHANGED TO AFFORD A PERSON IN DEFENDANT’S POSITION THE RIGHT TO A JURY TRIAL; THE MAJORITY UPHELD THE GUILTY PLEA; THE DISSENT ARGUED THE PLEA SHOULD NOT STAND (CT APP).

The Court of Appeals, in a brief memorandum, over an extensive dissenting opinion, determined the accusatory instrument accusing defendant of criminal contempt was sufficient and defendant’s guilty plea was voluntary. During the plea colloquy defendant, an noncitizen, was told he did not have the right to a jury trial on the deportation-eligible B misdemeanor. While defendant’s leave application to the Court of Appeals was pending, the court decided People v Suazo, 32 NY3d 491, affording persons in defendant’s position the right to a jury trial. The dissent argued the guilty plea should be vacated:

From the dissent:

In accordance with the law at the time of defendant Sixtus Udeke’s plea allocution, the trial court told defendant, a noncitizen, that he had no right to a trial by jury for a deportation-eligible Class B misdemeanor. While defendant’s leave application to this Court was pending, we issued a new rule in People v Suazo (32 NY3d 491 [2018]), recognizing precisely the right defendant was told he did not have during the plea colloquy: that noncitizens like defendant have the right to a trial by jury for crimes carrying the potential penalty of deportation. That rule applies retroactively to defendant’s appeal, and it leads to the conclusion that his guilty plea is invalid because he could not have knowingly and intelligently waived a right the court said he did not have. Therefore, I dissent from the majority decision that the guilty plea should stand. People v Udeke, 2019 NY Slip Op 09057, CtApp 12-19-19

 

FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WAS HANDLED PROPERLY, THERE WAS NO NEED FOR FURTHER INQUIRY OF THE JUROR TO OBTAIN AN UNEQUIVOCAL ASSURANCE THE JUROR COULD BE FAIR (CT APP).

The Court of Appeals, in a brief memorandum, over a three-judge partial dissent, determined the trial court properly handled a for cause challenge to a prospective juror:

The trial court did not abuse its discretion in denying defendant’s challenge for cause to a prospective juror pursuant to CPL 270 (1) (b). When defense counsel directly asked the prospective juror, “if you don’t hear from [defendant], you don’t hear him speak, are you going to hold that against him,” she responded, “I don’t believe that I would.” This response directly refuted any notion that the prospective juror would “hold” defendant’s failure to testify “against him,” i.e., that she would be biased in rendering a decision. Viewing this statement “in totality and in context” … , the exchange did not, in the first instance, demonstrate “preexisting opinions that might indicate bias” … . Thus, the trial court was not required to inquire further “to obtain unequivocal assurance that [the juror] could be fair and impartial” … . People v Patterson, 2019 NY Slip Op 08982, CtApp 12-17-19

 

ALTHOUGH THE INITIAL COMPLAINT WAS FILED BUT NEVER SERVED, THE CAUSES OF ACTION IN THE COMPLAINT WERE TIMELY INTERPOSED AND THERE WAS NO NEED TO APPLY THE RELATION-BACK DOCTRINE TO THE AMENDED COMPLAINT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, held, in a brief memorandum, that the claims were timely asserted in a complaint which was filed but never served. The amended complaint included the same claims. Therefore the relation-back doctrine did not apply. The claims should not have been dismissed under CPLR 306-b because the defendants waived that objection:

… [W]e … conclude that plaintiff’s first and second causes of action should be reinstated. Those claims, asserted in identical form in both the original and amended complaints, were timely interposed when plaintiff filed the original summons and complaint, i.e., “when the action [was] commenced” (see CPLR 203 [c]; 304 [a]). The relation-back doctrine is therefore inapplicable (see CPLR 203 [f]). Although plaintiff failed to serve the original complaint, on this record, the claims should not have been dismissed under CPLR 306-b because defendants did not properly raise such an objection and thus waived it (see CPLR 320 [b]; 3211 [e]).

From the dissent:

Defendants each moved to dismiss the complaint—referring to the amended complaint—under CPLR 3211 (a) (5) and (7), claiming, amongst other things, that the first and second causes of action are untimely … . Plaintiff opposed the motion, asserting that these causes of action were timely interposed based on the filing of the unserved complaint. In its reply, the [defendant] requested dismissal of the unserved complaint pursuant to CPLR 306-b for lack of service within the statutory time period.

… [P]laintiff responded by filing a motion under CPLR 306-b to extend the time to file the unserved complaint and deem it timely served nunc pro tunc. * * *

Supreme Court,  … denied plaintiff’s CPLR 306-b motion, and … granted defendants’ motions to dismiss and dismissed “the complaint” with prejudice. The Appellate Division affirmed … .. The dispositive point of contention … was whether the first two causes of action were timely … . Vanyo v Buffalo Police Benevolent Assn., Inc., 2019 NY Slip Op 08980, CtApp 12-17-19

 

,

CPLR 3122 DOES NOT REQUIRE THE STATE COMPTROLLER TO ACQUIRE PATIENT AUTHORIZATIONS BEFORE SUBMITTING SUBPOENAS FOR MEDICAL RECORDS IN CONNECTION WITH AUDITS OF PRIVATE HEALTHCARE PROVIDERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the Comptroller of the State of New York, in auditing private health care providers, has the power to subpoena medical records without patient authorizations:

The Comptroller of the State of New York has a constitutional and statutory duty to audit payments of state money, including payments to private companies that provide health care to beneficiaries of a state insurance program. Here, the Comptroller carried out that obligation by means of investigatory subpoenas duces tecum directed to a medical provider, seeking patients’ records. We hold that CPLR 3122 (a) (2) does not require that the Comptroller’s subpoenas be accompanied by written patient authorizations, as the requirements set out in that paragraph apply only to subpoenas duces tecum served after commencement of an action. Matter of Plastic Surgery Group, P.C. v Comptroller of the State of N.Y., 2019 NY Slip Op 08979, CtApp 12-17-19

 

HARMLESS ERROR ANALYSIS APPLIES TO A JUDGE’S FAILURE TO CHARGE THE JURY IN ACCORDANCE WITH A RULING MADE PRIOR TO SUMMATION, CONVICTIONS AFFIRMED IN THE FACE OF OVERWHELMING EVIDENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion and an extensive two-judge dissenting opinion, determined that, in the two cases before the court, the trial court’s reversing, after summation, its pre-summation position on a jury instruction was error, but in both cases was harmless error. The opinion is fact-specific and cannot not be fairly summarized here. In Mairena the judge, after agreeing to do so before summation, failed to charge the jury that defendant could not be convicted of manslaughter unless the jury found the fatal injury was caused by a box cutter or a knife. And in Altamirano, after denying the defense request for a jury charge on the innocent possession of a weapon prior to summation, the judge so charged the jury after summation:

In short, Miller [70 NY2d 903] , Greene [75 NY2d 875] and Smalling [29 NY3d 981] have consistently been applied by the appellate courts of this state and continue to be entitled to full precedential force. In those decisions, this Court meant what it expressly stated: a trial court’s error in reversing a prior charging decision after summations have been completed is subject to harmless error analysis. …

We conclude that the evidence of guilt in both of the instant cases was overwhelming. Thus, as in Miller, Greene and Smalling, whether the error was harmless turns on the question of whether defendants were prejudiced. Although those cases do not clarify whether the constitutional or nonconstitutional standard applies in evaluating prejudice, we need not resolve that question today because, under either standard, the error in each case was harmless. People v Mairena, 2019 NY Slip Op 08978, CtApp 12-17-19

 

, , , ,

AN ATTORNEY, A PRINCIPAL IN THE CORPORATIONS OWNING SEVERAL BUILDINGS, WAS PROPERLY FOUND TO BE IN THE “OUTDOOR ADVERTISING BUSINESS” WITHOUT A LICENSE BECAUSE HE ADVERTISED HIS LAW PRACTICE IN SIGNS ON THE BUILDINGS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the corporations which owned the buildings were separate from the attorney, a principal in the corporations, who advertised his law office in signs on the buildings. Therefore the attorney was making space available for outdoor advertising to “others” within the meaning of the NYC Administrative Code regulating outdoor advertising. The code requires “outdoor advertising companies” engaged in the :outdoor advertising business” to be licensed. The attorney (Ciafone) was fined for outdoor advertising without a license:

Contrary to the position of the Appellate Division dissent, preserving the distinction between the corporate entities and Mr. Ciafone does not “penalize him for forming corporate entities to own the buildings for tax and liability purposes”… . Myriad statutes and regulations apply to corporations, but not natural persons; those are not “penalties” for creating a corporate legal entity, but consequences of choosing that form of ownership. The New York City Council could rationally conclude that a corporation engaged in the provision of advertising to others, even others who have an ownership interest in the corporation, should be subjected to greater financial disincentives for violating signage laws than natural persons who are advertising themselves. Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd., 2019 NY Slip Op 08976, CtApp 12-17-19

 

, , ,

CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A SUIT ALLEGING THE OFFICER’S USE OF EXCESSIVE FORCE WAS NOT ARBITRARY AND CAPRICIOUS; HIS CONDUCT CONSTITUTED “INTENTIONAL WRONGDOING” WHICH WAS NOT WITHIN THE SCOPE OF HIS EMPLOYMENT (CT APP).

The Court of Appeals, in a brief memorandum decision, over a two-judge dissenting opinion, determined the City of Buffalo’s ruling that petitioner police officer was not entitled to defense and indemnification by the City in an action against the officer alleging use of excessive force. The facts were described in the dissent as follows: “Numerous Buffalo police officers, including Officer Corey Krug, were deployed to keep order at Chippewa Street, a popular location for late-night drunken revelry. In the course of doing his job, a 30-second excerpt of a video filmed by a local TV station crew shows Officer Krug performing his duties with what appears to be excessive force: asking an unarmed young man, Devin Ford, why he returned to the area, throwing him onto the hood of a car, striking him in the leg several times with a baton and stopping only when another officer saw the incident and told him to stop. Criminal charges were filed against Officer Krug for the use of excessive force, and Mr. Ford filed a civil suit against him.” The Court of Appeals upheld the determination that Officer Krug was not acting within the scope of his employment when he dealt with Mr. Ford:

Given the narrow question before us and under the circumstances presented here, we cannot say that the City’s determination was “irrational or arbitrary and capricious”… . Insofar as the record supports the City’s conclusion that petitioner was not “acting within the scope of his public employment” under Buffalo City Code § 35-28 because his conduct constituted “intentional wrongdoing” and violated the City’s rules regarding the use of force, the City’s determination was not “taken without regard to the facts” … . Matter of Krug v City of Buffalo, 2019 NY Slip Op 08546, CtApp 11-26-19

 

,

IN AN IMPORTANT CLARIFICATION OF THE LAW, THE WAIVERS OF APPEAL IN TWO OF THE THREE APPEALS BEFORE THE COURT WERE DECLARED INVALID BECAUSE THE DEFENDANT WAS GIVEN THE ERRONEOUS IMPRESSION THAT ALL AVENUES OF APPEAL AND COLLATERAL RELIEF ARE CUT OFF BY THE WAIVER; IN ADDITION THE COURT OF APPEALS RULED THAT THE OMISSION OF THE APPROXIMATE TIME AND PLACE OF AN OFFENSE FROM A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL ERROR (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge DiFiore, over several concurring and two dissenting opinions, determined that the waivers of appeal in two of the three appeals before the court were invalid. The opinion is an important clarification of the law and is too detailed to fairly summarize here. In a nutshell, a court should not give the defendant the impression that all appellate avenues, including the filing of a Notice of Appeal, collateral relief, and the availability of counsel, are cut off by the waiver of appeal. The court approved the Unified Court System’s Model Colloquy. In addition the Court of Appeals held that the omission of the approximate time and place of an offense from a superior court information (SCI) or a waiver of appeal is not a jurisdictional defect, an important clarification which contradicts many decisions in the lower courts:

… [T]he Model Colloquy for the waiver of right to appeal drafted by the Unified Court System’s Criminal Jury Instructions and Model Colloquy Committee neatly synthesizes our precedent and the governing principles and provides a solid reference for a better practice. The Model Colloquy provides a concise statement conveying the distinction missing in most shorthand colloquies — that: “[b]y waiving your right to appeal, you do not give up your right to take an appeal by filing a notice of appeal . . . within 30 days of the sentence. But, if you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error,[] and whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final” (NY Model Colloquies, Waiver of Right to Appeal [emphasis added]). There is no mention made of an absolute bar to the taking of an appeal or any purported waiver of collateral or federal relief in the Model Colloquy or to the complete loss of the right to counsel to prosecute the direct appeal … .

* * *

… “[A] purported error or insufficiency in the facts of an indictment or information to which a plea is taken does not constitute a nonwaivable jurisdictional defect and must be raised in the trial court” … . By parity of reasoning, the omission from the indictment waiver form of non-elemental factual information that is not necessary for a jurisdictionally-sound indictment is similarly forfeited by a guilty plea. As relevant here, the legislative history accompanying enactment of CPL article 195 makes plain that the purpose of the written waiver of indictment form is to ensure the defendant had notice of the charges upon which the prosecution by SCI would proceed … . Executed solemnly in open court, the waiver form must memorialize with sufficient specificity the charges for which a defendant waives prosecution by indictment. Here, the statutory notice was accomplished as the six counts of sexual abuse designated in the waiver form were identical to the crimes for which [defendant] was held for grand jury action and originally charged in the local court accusatory instruments. People v Thomas, 2019 NY Slip Op 08545, Ct App 11-26-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy