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DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT.

The Court of Appeals determined Supreme Court erred when it held petitioner (Henry, an inmate charged with participating in an assault) had not preserved evidentiary issues for review. Henry had requested certain documents and witness-testimony which were not provided. The Court of Appeals found the denial of Henry’s requests was preserved despite his failure to specifically object during the hearing:

An inmate charged with violating a prison regulation is entitled to due process protections which include a right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals” … . Contrary to the conclusion of the Appellate Division, Henry cannot be deemed to have waived his challenges simply because he failed to make specific objections at the hearing.

In sum, the record shows that Henry plainly requested access to specific documents and witnesses, and the Hearing Officer denied some of those requests. In light of the denial of Henry’s requests, the courts below erred in determining that Henry’s failure to specifically object to the Hearing Officer’s unfavorable rulings constituted a failure to preserve those rulings for judicial review. Matter of Henry v Fischer, 2016 NY Slip Op 08395, CtApp 12-15-16

 

DISCIPLINARY HEARINGS (INMATES) (DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/APPEALS (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)

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THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES.

The Court of Appeals determined the trial court did not err when it admitted the three-year-old victim’s statements (and gestures) made within half an hour of the sexual abuse as excited utterances. The same statements made at the hospital three hours later may not have been admissible as excited utterances, but any error in admitting them was deemed harmless:

We discern no error in the admission of the child’s initial statements to her mother and father as excited utterances. The evidence established that the child was in a highly emotional state when she first stepped off the bus and that she continued to cry inconsolably as she uttered the phrase “Señor Bus” to her mother and father at home and made a licking gesture with her tongue. Those statements were made within a half hour of the startling event, while the child was still under the stress of excitement, and therefore were properly admitted at trial … .

The child repeated the same phrase and gesture to her parents three hours later at a hospital and also pulled her mother’s hand to the child’s genital area. Even accepting defendant’s contention that the stress of excitement had sufficiently abated by the time the child made those later statements, any error in their admission was harmless … . Forensic testing confirmed the presence of defendant’s DNA in the child’s underwear, and the bus matron provided unrefuted testimony that defendant had altered his bus route in such a way that the child was alone with defendant for approximately thirty minutes on the day of the incident. Additionally, the child’s mother testified that the child ran into the house screaming and crying as soon as she got off the bus, and that the child’s underwear had been pulled down and were bunched up inside the leg of her pants. The emergency room doctor found redness and a sore on the child’s genital area that he believed were the result of external trauma, i.e., touching. People v Hernandez, 2016 NY Slip Op 08396, CtApp 12-15-16

 

CRIMINAL LAW (THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EVIDENCE (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/HEARSAY (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EXCITED UTTERANCES (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)

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NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA.

The Court of Appeals determined defendant’s failure to move to withdraw his plea or object precluded review:

Defendant’s challenges to the validity of his guilty plea are unpreserved and unreviewable by this Court. Defendant had “an opportunity to seek relief from the sentencing court” by moving to withdraw his plea based on his alleged justification defense, and therefore the “narrow exception to the preservation requirement” does not apply … . Defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense, and therefore People v Lopez (71 NY2d 662, 666 [1988]) is inapplicable.

Defendant’s further contention that the court failed to advise him of the immigration consequences of his plea is also unpreserved for appellate review. The court informed defendant during the plea colloquy that if he was not a citizen, he could face deportation as a result of his guilty plea. Defendant therefore was informed before he pleaded guilty of the possibility that he could be deported as a result of his plea, and if he was confused about that issue, he was obligated to move to withdraw his plea on that ground before the sentencing court … . People v Pastor, 2016 NY Slip Op 08399, CtApp 12-15-16

 

CRIMINAL LAW (NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)

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DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT’S INVOLUNTARY DEPORTATION.

The Court of Appeals determined defendant's direct appeal should not have been dismissed based upon defendant's deportation, even though there was no relationship between the matter on appeal and the deportation:

We recently … held “that [People v] Ventura [(17 NY3d 675 [2011])] prohibits intermediate appellate courts from dismissing pending direct appeals due to the defendant's involuntary deportation, regardless of the contentions raised by the defendant on appeal” … . We further explained that “[o]ur holding in Ventura did not depend upon any causal relationship between the defendant's conviction and deportation” … .

Here, the Appellate Term erred as a matter of law insofar as it granted the People's motion to dismiss defendant's direct appeal from his judgment of conviction because he was involuntarily deported. This error requires reversal. People v Morales, 2016 NY Slip Op 08397, CtApp 12-15-16

CRIMINAL LAW (DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/APPEALS (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/DEPORTATION (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)

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NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT.

The Court of Appeals determined there was insufficient evidence demonstrating defendant waived his right to be present at his resentencing:

A defendant has the right to be present at all material stages of trial … , including sentencing (see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” … . The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction … . Accordingly, defendant did not validly waive his right to be present. People v Stewart, 2016 NY Slip Op 08398, CtApp 12-15-16

CRIMINAL LAW (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/SENTENCING (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/WAIVER (CRIMINAL LAW, NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)

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FOREIGN DEFENDANTS’ USE OF A NEW YORK CORRESPONDENT BANK ACCOUNT IN A SWISS BANK PROVIDED JURISDICTION OVER A LAWSUIT AGAINST THE BANK BY A SAUDI NATIONAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent and a concurrence, reversing Supreme Court, determined money-laundering transactions using a correspondent bank account in a New York branch of a Swiss bank provided jurisdiction over a lawsuit involving foreign parties. The individual plaintiff is a Saudi resident and co-owner of plaintiff corporation which builds oil rigs. Plaintiffs alleged three of its employees received bribes and kickbacks which were then deposited in defendant-bank (Pictet, based in Geneva) using a correspondent bank account in New York State:

We conclude that defendants’ use of the correspondent bank accounts was purposeful and that plaintiffs’ aiding and abetting and conspiracy claims arise from these transactions. … [T]he requirements of CPLR 302 (a)(1) are satisfied where the quantity and quality of contacts establish a “course of dealing” with New York, and the transaction and claim are not “merely coincidental” … . * * *

… [T]he defendants actively used a correspondent bank to further a scheme that caused harm. … [T]he defendants’ use of the New York account to transfer money provided the employees with the “laundered” profits from the bribery and kickback scheme. Also, … defendants used the correspondent account in New York “to move the necessary” money … . * * *

Here, the money laundering could not proceed without the use of the correspondent bank account, and, as plaintiffs argue, their claims require proof that the bribes and kickbacks were in fact paid. Rushaid v Pictet & Cie, 2016 NY Slip Op 07834, CtApp 11-22-16

 

CIVIL PROCEDURE (FOREIGN DEFENDANTS’ USE OF A NEW YORK CORRESPONDENT BANK ACCOUNT IN A SWISS BANK PROVIDED JURISDICTION OVER A LAWSUIT AGAINST THE BANK BY A SAUDI NATIONAL)/JURISDICTION (FOREIGN DEFENDANTS’ USE OF A NEW YORK CORRESPONDENT BANK ACCOUNT IN A SWISS BANK PROVIDED JURISDICTION OVER A LAWSUIT AGAINST THE BANK BY A SAUDI NATIONAL)/BANKING LAW (FOREIGN DEFENDANTS’ USE OF A NEW YORK CORRESPONDENT BANK ACCOUNT IN A SWISS BANK PROVIDED JURISDICTION OVER A LAWSUIT AGAINST THE BANK BY A SAUDI NATIONAL)

SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT.

The Court of Appeals, reversing Supreme Court, determined the Workers’ Compensation carrier could seek a court order compelling the Special Disability Fund to consent to a settlement with a third-party.  Here the carrier agreed to the settlement and the carrier then sought retroactive consent from the Special Disability Fund, which refused:

Here, as required by section 29, the injured employee sought and obtained Ace Fire’s approval prior to entering the settlement of the third-party action. Ace Fire, however, did not seek the Special Disability Fund’s written approval prior to settlement. When Ace Fire sought the Special Disability Fund’s retroactive consent, the Fund refused, asserting that Ace Fire had forfeited its right to reimbursement. Ace Fire then commenced this proceeding asking Supreme Court to compel the Special Disability Fund’s consent nunc pro tunc under Workers’ Compensation Law § 29 (5).

We have repeatedly recognized “that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other” … . The language in section 29 (1) establishing what entities may be deemed lienors is essentially identical to the language in section 29 (5) referring to the entities whose consent to settlement is required and, if not obtained, can be compelled upon application to the court — i.e., the “person, association, corporation, or insurance carrier liable to pay” compensation benefits. Here, the parties do not dispute that the consent of the Special Disability Fund to settlement of the employee’s third party action was required. Thus, assuming, for purposes of this appeal, that the Special Disability Fund is a lienor whose consent to settlement is required under Workers’ Compensation Law § 29 (1), we conclude that the carrier may seek to obtain the Fund’s consent from Supreme Court nunc pro tunc under section 29 (5). There is no principled basis for concluding that the Special Disability Fund’s consent is required as a lienor under one portion of the statute, but that the failure to obtain it cannot be cured, as it can for other lienors, under the same statute. Ace Fire Underwriters Ins. Co. v Special Funds Conservation Comm., 2016 NY Slip Op 07833, CtApp 11-22-16

 

WORKERS’ COMPENSATION LAW (SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT)

IN AWARDING A COUNTY CONTRACT TO A PRIVATE BUS COMPANY, THE COUNTY’S DEVIATION FROM A FORMULA DESCRIBED IN ITS REQUEST FOR PROPOSALS WAS ARBITRARY AND CAPRICIOUS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing Supreme Court, over a two-judge dissent, determined that defendant county was required to use the formula outlined in its request for proposals (RFP) when evaluating bids for county contracts (here involving use of private bus services). The county included one formula in the RFP and used a different formula in awarding the contract:

Here, the County deviated from the criteria specified in its RFP when it evaluated the proposals received pursuant to its request. The emphatic language used in the RFP's paradigm of a percentage to points ratio — stating that if a 10% cost difference exists between the lowest offeror and the next lowest, then the latter “will have 2 points deducted from the maximum score of 20” — makes clear that the “example” was meant to explain that a percentage to points ratio is one in which a one percent cost difference translates to one percent of the total number of points allocated to cost. Instead, the County used a 2-point deduction for every 4% difference in price. Applying this new formula, a one percent cost difference corresponded to 2.5%, rather than one percent, of the number of points assigned to cost.

The County abandoned the cost formula it had promised to apply and instead created a new formula that disfavored ACME. This was arbitrary and capricious … . Matter of ACME Bus Corp. v Orange County, 2016 NY Slip Op 07835, CtApp 11-22-16

MUNICIPAL LAW (IN AWARDING A COUNTY CONTRACT TO A PRIVATE BUS COMPANY, THE COUNTY'S DEVIATION FROM A FORMULA DESCRIBED IN ITS REQUEST FOR PROPOSALS WAS ARBITRARY AND CAPRICIOUS)

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CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL, TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in an opinion by Judge Abdus-Salaam, resolving two appeals stemming from the same incident, over a three-judge dissent in the “sentencing” appeal, affirmed the defendant’s conviction, finding that the concurrent/consecutive sentencing rules were properly applied, and the Alford plea was not tainted by erroneous information provided by defense counsel. Defendant, during the course of an armed robbery of several victims in a park, discharged a weapon, grazing one of the victims. Defendant was charged with robbery, attempted robbery and attempted first degree felony murder. The court noted that the Appellate Division here (4th Department) found that consecutive sentences for felony murder and the underlying felony could have been imposed (not the case here). while two other departments have held such sentences must be concurrent. The Court of Appeals did not address that issue because it was raised in a reply brief:

In People v Laureano, we explained that when “determining whether concurrent sentences are required, the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (87 NY2d at 643). The court must then determine “whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (id.). The court must focus on actus reus rather than mens rea “[b]ecause both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission’ . . . that constitutes the offense” … .

If a defendant’s acts or omissions do not fit under either prong of the statute, “the People have satisfied their obligation of showing that concurrent sentences are not required” … . When there “is some overlap of the elements of multiple statutory offenses,” courts retain discretion to impose consecutive sentences “if the People can demonstrate that the acts or omissions committed by the defendant were separate and distinct acts” … , even “though they are part of a single transaction” … . * * *

We have not directly addressed whether the sentence on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony. At the time of defendant’s sentencing, the 4th Department had yet to address this issue, but the 2nd and 3rd Departments had, holding that a sentence for first-degree felony murder had to run concurrently with the sentence imposed on the underlying felony … . However, when faced with the issue in this case, the 4th Department affirmed the sentencing court’s conclusion that the sentences could run consecutively. Under these circumstances, we cannot say that defense counsel’s advice to defendant, even if erroneous, rendered him ineffective … . People v Couser, 2016 NY Slip Op 07831, CtApp 11-22-16

 

CRIMINAL LAW (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/SENTENCING (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONSECUTIVE SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONCURRENT SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/ATTORNEYS (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/FELONY MURDER (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined the failure to administer coordination tests in a DWI case because of a “language barrier,” did not violate equal protection or due process. In this case the defendant was of Hispanic origin and spoke Spanish. The requirement that the tests be administered in English was deemed facially neutral and not directed at a suspect class, and the state was deemed to have a substantial interest in avoiding the cumbersome requirement that an arresting officer administer the tests in the arrestee’s language:

The challenged policy withstands rational basis review. Both the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, and the clarity of the instructions is crucial to the reliability of the results. Indeed, the record makes clear that coordination tests are designed not only to assess a suspect’s “motor skills in completing the specific tasks,” but also to evaluate the suspect’s “capacity to [] follow instructions.” But coordination tests are uniquely ill-suited for administration via translation; they are generally lengthy — containing thirty lines of instructions — and require contemporaneous demonstration and explanation of the tasks to be performed. * * *

… [T]he implicated State interests are substantial. The State has a clear interest in avoiding the cumbersome and prohibitively expensive administrative and fiscal burdens of providing the requested translation services. The State also has a strong interest in ensuring the accuracy of physical coordination tests, and the use of translated instructions — either through qualified interpreters or through multilingual officers — could compromise the test’s reliability. Given the substantial State interests involved, defendant’s due process claim must be rejected … . People v Aviles, 2016 NY Slip Op 07836, CtApp 11-22-16

 

CRIMINAL LAW (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DWI (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/EQUAL PROTECTION (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DUE PROCESS (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)

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