Fourth Department – Page 146 – New York Appellate Digest

HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on defendant’s motion to vacate his conviction, even though the issues were raised or could have been raised in a prior motion to vacate. The defendant presented evidence that defendant’s cell phone was pinged, not defendant’s girlfriend’s cell phone. Therefore defendant had standing to challenge the pinging of the cell phone. The defendant’s motion raised the issue whether a police officer lied when he testified the girlfriend’s cell phone was pinged, and whether evidence that the girlfriend’s phone was broken at the relevant time (presented to the grand jury) was withheld from the defendant:

… [D]efendant submitted police reports wherein the officer who had testified at the suppression hearing (testifying officer) stated that law enforcement officers were “pinging” a phone that belonged to defendant. Defendant further submitted affidavits from the minor [his girlfriend] and her grandmother, who had sought the aid of law enforcement, indicating that the minor’s phone had broken days before the police action and that they had informed the testifying officer and prosecutor of that fact either the day on which the police pinged the cell phone or, at the very least, at some date before the suppression hearing. Indeed, the minor averred that she had testified before the grand jury that her phone had broken and that defendant’s cell phone was the only phone that she and defendant had used during the relevant time period. Defendant contends that the minor’s grand jury testimony constituted exculpatory evidence that was not disclosed to the defense despite a specific request therefor.

It is well settled that prosecutors have the duty “not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness”… . Defendant has submitted credible documentary evidence establishing that the testifying officer’s testimony at the suppression hearing was false and that the prosecutor knew or should have known that the testimony was false … . Moreover, defendant has submitted credible documentary evidence establishing that the prosecutor failed to disclose material, exculpatory evidence … . People v Reed, 2018 NY Slip Op 02068, Fourth Dept 3-23-18

CRIMINAL LAW (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/FALSE TESTIMONY (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/POLICE OFFICERS (CRIMINAL LAW, FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/PROSECUTORS (FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))

March 23, 2018

Attorneys, Criminal Law, Evidence

DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

The Fourth Department determined Supreme Court should not have required defendant to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing:

We … agree with defendant that the court erred in requiring him to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing … . Contrary to the People’s contention, the court’s error cannot be deemed harmless, inasmuch as the evidence apart from the DNA evidence is not overwhelming, and there is a reasonable possibility that the error contributed to the conviction … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings on the People’s motion following the assignment of counsel to represent defendant thereon. People v Pressley, 2018 NY Slip Op 02114, Fourth Dept 3-23-18

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, BUCCAL SWAB, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/BUCCAL SWAB (CRIMINAL LAW, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/DNA (CRIMINAL LAW, BUCCAL SWAB, ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))

March 23, 2018

Appeals, Criminal Law

DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant’s statements denying he sold cocaine and describing the proceedings as corrupt mandated further inquiry by the court. The failure to preserve the error by a postallocution motion did not, under the facts, prevent the court from reaching the issue on appeal:

During the plea colloquy, defendant admitted to possessing cocaine with the intent to sell, but he denied that he sold the cocaine. After County Court stated that it would not accept his plea, it again asked defendant whether he sold the cocaine, and defendant answered “yes.” Defendant informed that court, however, that he was pleading guilty only because he could “no longer go forward to proceed to trial with the level of corruption and maliciousness being used to prosecute” him. The court nevertheless accepted his plea.

Although defendant never moved to withdraw his guilty plea, this case falls within the exception to the preservation requirement that was carved out by the Court of Appeals in People v Lopez (71 NY2d 662, 666 [1988]), which permits appellate review of the sufficiency of a plea allocution despite the absence of such a motion, where the recitation of facts elicited during the plea allocution “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea.” Under such circumstances, if the court fails to conduct “further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered . . . , the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made” … . People v Daniels, 2018 NY Slip Op 02094, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/PLEA COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))

March 23, 2018

Appeals, Criminal Law

MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT).

The Fourth Department noted that the matter must be sent back for resentencing, despite the failure to raise the issue on appeal, because the length of probation was not specified:

Although not raised by the parties, we note that the judgment must be modified by vacating the sentence and the matter must be remitted to County Court for resentencing because the court did not specify the length of the term of probation … . People v Petrangelo, 2018 NY Slip Op 02074, Fourth Dept 3-23-18

CRIMINAL LAW (SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/SENTENCING (MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/PROBATION (CRIMINAL LAW, SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))

March 23, 2018

Appeals, Criminal Law

PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

The Fourth Department determined the plea to attempted sex trafficking charged in an amended indictment count must be vacated because the count which was purportedly amended had been previously dismissed. The court further held that the waiver of appeal was invalid:

… [W]e conclude … that the court erred in eliciting defendant’s plea of guilty to attempted sex trafficking under the purported amended count 3 of the second indictment because of the previous dismissal of the underlying count… . Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , and the court lacked authority to amend a previously dismissed count and elicit defendant’s plea thereto, the judgment of conviction … must be reversed and the plea vacated … .

We agree with defendant … that his purported waiver of the right to appeal is not valid inasmuch as “the perfunctory inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” … . Although “[a] detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, . . . a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal”… . Here, although defendant signed such a written waiver, “the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant’s understanding thereof” … . We thus conclude that, “despite defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver” … . People v Wilson, 2018 NY Slip Op 02060, Fourth Deptp 3-23-18

CRIMINAL LAW (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/INDICTMENTS (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))

March 23, 2018

Criminal Law

DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant could not be sentenced to more prison time for a violation of probation in this driving while intoxicated case. Defendant had served the full four years of his 1 1/3 to 4 year sentence when he violated probation by driving while intoxicated, unlicensed operation, refusal of a breath test and operating without an ignition interlock device

[In People v Coon, 156 AD3d 105, the] [3rd] Department held that, “where [the defendant] has already served and completed the one-year definite sentence imposed for the DWI conviction, County Court was not authorized to impose an additional term of imprisonment upon his violation of the conditional discharge terms” … . In reaching that conclusion, the [3rd] Department noted that “[t]he statutory framework governing sentencing does not cover these factual circumstances,” and there were “no corresponding statutes or amendments to already existing statutes that delineated the types of sanctions that courts could impose in a case such as this one” … .

While here defendant was sentenced to an indeterminate term of imprisonment followed by probation instead of a definite jail term followed by a conditional discharge, we conclude that those distinctions are immaterial. Defendant served the maximum term of imprisonment imposed, i.e., four years on his sentence of 1⅓ to 4 years, and we conclude that he cannot be subjected to additional prison time under the guise of a sentence based on a probation or conditional discharge violation when, in fact, he was resentenced for the initial offense. People v Zirbel, 2018 NY Slip Op 02064, Fourth Dept 3-23-18

CRIMINAL LAW (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/SENTENCING (DWI, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/DRIVING WHILE INTOXICATED (SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/PROBATION, VIOLATION OF (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))

March 23, 2018

Criminal Law

ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT).

The Fourth Department, sending the case back to Supreme Court, found that a hearing was necessary to determine whether the police officers engaged in identification procedures at the police station and, if so, whether the identifications were confirmatory. The People did not notify the defendant of any identification procedures in their CPL 710.30 notice:

… [T]he People provided a blank CPL 710.30 notice to defendant and, in response to that part of his omnibus motion seeking preclusion, asserted that “[t]here were no identification procedures which would require a CPL 710.30 notice.” The record before us establishes … that the officer and his partner may have engaged in showup identification procedures undertaken “at the deliberate direction of the State” that required notice pursuant to CPL 710.30 … . The evidence at the suppression hearing established that defendant fled from the front passenger seat of the parked vehicle and was unsuccessfully pursued by the officer, and that the officer knew defendant was apprehended because the officer saw defendant after he was later taken into custody by a third officer. The record further indicates, and the People do not dispute, that, after defendant was arrested and brought to the police station by the third officer at the officer’s direction, the officer identified defendant as the front seat passenger who fled from the parked vehicle. …

Although the People contend that any police station identifications were merely confirmatory, and it appears from the record that the officer and his partner may have been familiar with defendant prior to the subject incident, we are precluded from affirming on that ground inasmuch as the court did not rule on that issue … . People v Davis, 2018 NY Slip Op 02051, Fourth Dept 3-23-18

CRIMINAL LAW (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/710.30 NOTICE (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/PRECLUSION (CRIMINAL LAW, IDENTIFICATION, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))

March 23, 2018

Court of Claims

NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined sexual harassment and employment discrimination claims against a former NYS Assemblyman were properly dismissed because the notice of intent were insufficiently specific:

… [T]he statute requires that a “claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained[,] . . . [and a] notice of intention to file a claim shall set forth the same matters” (Court of Claims Act§ 11 [b]). “With regard to the requisite specificity as to the place where the claim arose, we note that [w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable [defendant] to be able to investigate the claim promptly and to ascertain its liability under the circumstances” … . Here, the relevant notice of intention did not set forth … the place where any of the alleged misconduct occurred … . We reject claimants’ contention that the claims … should not have been dismissed because the alleged misconduct occurred wherever they were working at any particular time and defendant could easily ascertain such information from its records. “The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . Snickles v State of New York, 2018 NY Slip Op 02042, Fourth Dept 3-23-18

COURT OF CLAIMS (NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT))/NOTICES OF INTENTION (COURT OF CLAIMS, NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT))

March 23, 2018

Civil Procedure, Judges

SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that lack of standing is not a jurisdictional defect and held that the court’s sua sponte dismissal of an Article 78/declaratory judgment petition was an abuse of discretion:

We agree with petitioners that the court improvidently exercised its discretion in sua sponte dismissing the petition. “[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances”… . No such extraordinary circumstances are present in this case. Contrary to the court’s determination, “a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint” … . We therefore reverse the judgment insofar as appealed from in the exercise of discretion and reinstate the petition … . Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth., 2018 NY Slip Op 02075, Fourth Dept 3-23-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/STANDING (CIVIL PROCEDURE, SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/JUDGES (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/SUA SPONTE (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))

March 23, 2018

Civil Procedure, Land Use, Municipal Law, Zoning

ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the town respondents violated General Municipal Law 239-m by not referring an application for an area variance by respondent mining operation to the planning board. The violation was a jurisdictional defect that did not trigger the 30-day statute of limitations:

“General Municipal Law § 239-m requires that a municipal agency, before taking final action on an application for [land use] approval, refer that application to a county or regional planning board for its recommendation”… . It is undisputed that the ZBA (zoning board of appeals) did not refer the initial application for an area variance to the Cayuga County Planning Board (County Planning Board) before taking final action on that application. Contrary to the contention of the Town respondents, area variances are proposed actions for which referral is required under the statute … . “The alleged failure to comply with the referral provisions of the statute is not a mere procedural irregularity but is rather a jurisdictional defect involving the validity of a legislative act” … . Thus, the ZBA’s failure to refer the initial application for an area variance to the County Planning Board renders the subsequent approval by the ZBA “null and void” … . Matter of Fichera v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 01843, Fourth Dept 3-16-18

ZONING (VARIANCES, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/VARIANCES (ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/GENERAL MUNICIPAL LAW (ZONING, VARIANCES, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, ZONING, ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT))

March 16, 2018

Tag Archive for: Fourth Department

DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT).

MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT).

PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT).

ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT).

NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT).

SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT).

ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT).

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