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THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department, suppressing evidence seized under the “plain view” exception to the warrant requirement, held the police had to “manipulate” the checks which were in plain view to determine they were forged. Because the nature of the checks was not apparent until they were “manipulated,” the “plain view” exception was not applicable:

… [W]e conclude that the People did not meet their burden of establishing the third element of the plain view exception—i.e., that the incriminating nature of the seized items was immediately apparent. In making such a determination, we must consider whether “the facts available to the [police] officer would warrant a [person] of reasonable caution in the belief . . . that [the] items may be contraband or stolen property or useful as evidence of a crime” … . This is a probable cause standard—i.e., there need not be “certainty or near certainty” about the incriminating nature of the seized items … . That element is not satisfied, however, “where the object [to be seized] must be moved or manipulated before its illegality can be determined” … . Indeed, “[s]uch a search or seizure may not be upheld without proof that the [police] officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated” … . Still, “[a] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a search” … . People v Howard, 2024 NY Slip Op 05733, Fourth Dept 11-15-24

Practice Point: Here the fact the checks were forged was not apparent until the police “manipulated” them. Therefore the “plain view” exception to the search-warrant requirement was not applicable and the checks should have been suppressed.

 

PROSPECTIVE JUROR WHO SAID HE OR SHE WOULD HOLD THE REFUSAL TO TESTIFY AGAINST THE DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined a prospective juror’s indication he or she would hold defendant’s refusal to testify against the defendant required excusal “for cause:”

Here, the prospective juror gave “some indication of bias” … by stating that he “[a]bsolutely” might hold it against defendant if defendant chose not to testify … .

Contrary to the court’s determination, the prospective juror did not “give unequivocal assurance that [he could] set aside any bias and render an impartial verdict based on the evidence” … . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or ‘talismanic’ words . . . , [a prospective] juror[ ] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [the prospective juror] from reaching an impartial verdict” … . “If there is any doubt about a prospective juror’s impartiality, [the] trial court[ ] should err on the side of excusing the juror, since at worst the court will have ‘replaced one impartial juror with another’ ” … . We conclude that the prospective juror’s act of nodding his head affirmatively after the court gave an instruction and posed a question to the entire jury panel was “insufficient to constitute such an unequivocal declaration” … . People v Cheese, 2024 NY Slip Op 05712, Fourth Dept 11-15-24

Practice Point: Here the prospective juror indicated bias requiring excusal for cause by indicating he or she would hold the refusal to testify against the defendant.

 

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MOTHER SHOULD NOT HAVE BEEN DEEMED COLLATERALLY ESTOPPED FROM PRESENTING EVIDENCE OF HER MENTAL HEALTH IN THIS TERMINATION-OF-PARENTAL-RIGHTS ACTION; THE PRIOR MENTAL-HEALTH-BASED RULING WAS BASED ON THREE-TO-EIGHT-YEAR-OLD EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother should not have been prevented from presenting evidence of her mental health in this termination-of-parental-rights proceeding under the collateral estoppel doctrine. Although mother had previously been adjudicated unable to provide proper and adequate care of the children in 2018, there was no evidence of mother’s current mental health:

Neither the relied-upon 2018 order of disposition nor its supporting decision … contains a finding of fact or conclusion of law that the mother’s mental illness or intellectual disability permanently impaired the mother’s ability to provide adequate care for a child … . Instead, the prior judicial determination that the mother was “presently and for the foreseeable future” unable to provide adequate care was premised upon evaluations of the mother conducted in 2012 and 2017. Further, that determination was issued a year prior to the birth of the subject child in the present proceeding and, although the subject child was ordered into petitioner’s care almost immediately following her birth, the instant petition was nonetheless not filed for yet another two years. Thus, the 2018 judicial determination, premised on three- to eight-year-old evidence, is insufficient to establish by clear and convincing evidence, as a matter of law, that the mother was, at the time of this proceeding, “presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for [the subject] child” (Social Services Law § 384-b [4] [c] …). Matter of Juliet W. (Amy W.), 2024 NY Slip Op 05690, Fourth Dept 11-15-24

Practice Point: Here there was a prior ruling based on three-to-eight-year-old evidence that mother’s mental health prevented her from adequately caring for her children. The collateral estoppel doctrine should not have been applied to prevent her from presenting evidence of her current mental health.

 

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SUPREME COURT DISMISSED THE INDICTMENT ON SPEEDY-TRIAL GROUNDS, FINDING THAT THE PEOPLE HAD NOT COMPLIED WITH THEIR DISCOVERY OBLIGATIONS AT THE TIME THE PEOPLE INDICATED THEY WERE READY FOR TRIAL; THE DISMISSAL ORDER WAS NEVER SERVED ON THE PEOPLE SO THE 30-DAY APPEAL PERIOD NEVER STARTED RUNNING RENDERING THE PEOPLE’S APPEAL TIMELY; THE FAILURE TO TURN OVER “DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES” DOCUMENTS DID NOT VIOLATE THE PEOPLE’S DISCOVERY OBLIGATIONS BECAUSE THE PEOPLE DID NOT POSSESS THOSE DOCUMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the People’s appeal was timely because defendant never served the order dismissing the indictment on them so the 30-day appeal period never started running, and (2) the People were not obligated to turn over Department of Corrections and Community Supervision (DOCCS) documents to comply with their discovery obligations because the People did not possess those documents:

The Court of Appeals has “interpreted CPL 460.10 (1) (a) ‘to require prevailing party service’—not just the handing out of an order by the court—’to commence the time for filing a notice of appeal’ ” … . Here, the record establishes that the People received a copy of the original order, but there is “no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)” … . Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People’s 30-day period to appeal never began to run and the People’s appeal is therefore timely … . * * *

… [A]ssuming … that the parole officer’s disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto (see CPL 245.20 [1] …). “[F]or the purposes of discovery, DOCCS is not a ‘law enforcement’ agency” and is ” ‘outside of the legal or practical control of local prosecutors’ and, therefore, the People cannot be deemed to be in constructive possession of that which DOCCS possesses” … . People v Walker, 2024 NY Slip Op 05662, Fourth Dept 11-15-24

Practice Point: If the defendant wins a motion to dismiss the indictment, the defendant must serve the People with the dismissal order or the People’s 30-day appeal period does not start running.

Practice Point: The People do not violate their discovery obligations by failing to turn over documents which are in the possession of another agency, here the Department of Corrections and Community Services (DOCCS).

 

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THE COVID-19 TOLLS SUSPENDED THE RUNNING OF THE STATUTE OF LIMITATIONS IN THIS PERSONAL INJURY CASE RENDERING THE ACTION TIMELY COMMENCED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the COVID-19 tolls suspended the running of the statute of limitations in this personal injury case, rendering the action timely commenced:

Pursuant to CPLR 214 (5), a three-year statute of limitations applies to an action to recover damages for personal injury. Plaintiff’s cause of action accrued on June 27, 2019, the date of the accident … , and plaintiff did not commence this action until June 29, 2022. However … plaintiff established that the statute of limitations was tolled. On March 20, 2020, then-Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8, which tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules” … . Then-Governor Cuomo issued a series of nine subsequent executive orders that extended the tolling period, eventually through November 3, 2020 … . “A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action” … . Paul v Lyons, 2024 NY Slip Op 05661, Fourth Dept 11-15-24

Practice Point: Consult this decision for a concise explanation of how the COVID-19 tolls affect the running of a statute of limitations.

 

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DEFENDANT’S BIPOLAR DIAGNOSIS AND A STATEMENT INDICATING HIS FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE DID NOT JUSTIFY AN UPWARD DEPARTURE FROM SORA RISK-LEVEL TWO TO THREE; TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the People did not demonstrate that an upward departure from SORA risk-level two to three was warranted:

… [W]e conclude that the People failed to prove by clear and convincing evidence that defendant is more likely to reoffend based on his bipolar diagnosis. The only evidence offered by the People at the SORA hearing was the report prepared by defendant’s expert, who opined that “impaired judgment is a common disability in Bipolar Disorder, as is impulsiveness.” The expert further opined that defendant’s “judgment was impaired by his disorder” when he committed the crimes, and that he “acted impulsively because of his then undiagnosed (and inadequately treated) illness.” The fact that defendant’s bipolar condition may have impaired his judgment and decreased his ability to control impulsive sexual behavior when he committed the qualifying offenses does not mean, ipso facto, that he is at a greater risk of reoffending in the future as a result of his bipolar condition. Defendant’s mental illness was undiagnosed and untreated when he committed the qualifying offenses, and there is no evidence in the record indicating a reluctance or inability on defendant’s part to follow treatment recommendations and take prescribed medications now that he has been properly diagnosed.

We further conclude that an upward departure was not warranted based on defendant’s post-offense statement to one of the victims. Although the statement in question may show, as the People asserted, that defendant failed to accept responsibility for his crimes, an offender’s failure to accept responsibility is taken into account under risk factor 12 on the risk assessment instrument. Thus, an upward departure cannot be granted based on defendant’s statement … . People v Cohen, 2024 NY Slip Op 05658, Fourth Dept 11-15-24

Practice Point: Here defendant’s bipolar diagnosis and a statement to the victim indicating his failure to take responsibility for the offense did not justify an upward department from SORA risk-level two to three. The evidence did not demonstrate the bipolar disorder increased the risk of reoffending and the statement was already taken into account under risk factor 12.

 

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THE NEW YORK STATUTE DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER WOULD BE UNCONSTITUTIONAL AS APPLIED IF THE CALIFORNIA OFFENSE UPON WHICH THE DESIGNATION IS BASED WAS NON-VIOLENT; MATTER REMITTED FOR A RULING WHETHER THE CALIFORNIA OFFENSE WAS VIOLENT OR NON-VIOLENT (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, over a five-justice concurrence, determined County Court must rule on whether defendant’s California conviction involved a violent or a non-violent sexual offense. If the facts of the case indicate the California offense was non-violent, the New York statute which requires designation of the defendant as a sexually violent offender would be unconstitutional as applied:

Defendant appeals from an order insofar as it designated him a sexually violent offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Due to the designation, which is based on a felony conviction in California requiring defendant to register as a sex offender in that state, defendant is subject to lifetime registration as a sex offender in New York even though County Court determined that he is only a level one risk. The designation was made pursuant to Correction Law § 168-a (3) (b) insofar as it defines a sexually violent offense as including a “conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” Although defendant concedes that he qualifies as a sexually violent offender under the foreign registration clause of § 168-a (3) (b), he contends that the provision is unconstitutional on its face and as applied to him under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution (US Const, 14th Amend, § 1), inasmuch as his out-of-state felony conviction was for a nonviolent offense. Defendant further contends that the foreign registration clause violates the Privileges and Immunities Clause of the Federal Constitution … . * * *

If the felony of conviction, by virtue of its statutory elements … , involved sexually violent conduct, then the foreign registration clause of Correction Law § 168-a (3) (b) is not unconstitutional as applied to defendant inasmuch as he committed a violent sex offense even if it does not include all of the essential elements of one of the sexually violent offenses in New York enumerated in Correction Law § 168-a (3) (a). If, however, defendant was convicted of an out-of-state felony that is nonviolent in nature, we would conclude that the statute is unconstitutional as applied to defendant … . People v Grzegorzewski, 2024 NY Slip Op 05657, Fourth Dept 11-15-24

Practice Point: The statute which requires defendant be designated a sexually violent offender based upon an out-of-state conviction is unconstitutional as applied if the out-of-state offense was non-violent.

 

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DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, reversed defendant’s conviction on ineffective-assistance grounds. Defense counsel did not object to the prosecutor’s repeated statements to prospective jurors that he can sleep at night because he is a prosecutor and no longer a defense attorney. Defense counsel agreed to alter the statutory peremptory juror-challenge procedure, which requires that the People must exercise their peremptory challenges first. Defense counsel agreed to alternate which side went first:

The first error occurred during voir dire when defense counsel failed to object to patently improper comments from the prosecutor regarding his ability to sleep at night now that he is a prosecutor and no longer a defense attorney. Perhaps it was a legitimate strategy for defense counsel not to object to the first improper comment of that nature given that defense counsel may not have wanted to draw more attention to the prejudicial comment. For the same reason, defense counsel might be excused for not objecting when the prosecutor repeated the comment to the same group of prospective jurors. We can discern no legitimate strategy, however, for defense counsel to remain quiet when the prosecutor made the same comment for the third, fourth and fifth times during voir dire. At some point, defense counsel was obligated to protect defendant from the prejudice arising from the repeated acts of prosecutorial misconduct and, at the very least, request a curative instruction from the court.

Defense counsel also erred in not objecting—and, indeed, consenting—to the court’s unlawful procedure of having the parties alternate which side went first in declaring whether they wished to exercise a peremptory challenge to a particular prospective juror. CPL 270.15 (2) provides that the People “must exercise their peremptory challenges first and may not, after the defendant has exercised [the defendant’s] peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.” After the court stated that its practice was to have parties alternate their exercise of peremptory challenges, defense counsel, evidently unaware of the statute’s mandate, said, “I’ll go first. He can go first. I don’t care.” As a result, on numerous occasions during voir dire defense counsel stated whether or not she was peremptorily challenging a prospective juror before the prosecutor was required to state his position.

Although the court’s violation of CPL 270.15 (2) does not constitute a mode of proceedings error, it was certainly prejudicial to defendant and we can conceive of no legitimate strategy for defense counsel’s acquiescence to the unlawful procedure. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, “[o]ur review of this record indicates that defendant was not afforded meaningful representation and was therefore deprived of a fair trial” … . People v Stewart, 2024 NY Slip Op 04863, Fourth Dept 10-4-24

Practice Point: Although it is not a mode of proceedings error to alternate which side goes first in exercising peremptory challenges to prospective jurors in violation of the criminal procedure law, here defense counsel’s agreement to the procedure was deemed ineffective assistance of counsel and a new trial was ordered.

 

CRITERIA FOR AN EASEMENT BY NECESSITY EXPLAINED, NOT MET HERE; THE NECESSITY MUST EXIST AT THE TIME THE LANDLOCKED PARCEL WAS SEVERED; PROOF OF A FUTURE INTENT TO USE THE PARCEL FOR PERSONAL PARKING WAS DEEMED INSUFFICIENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff did not satisfy the criteria for an easement by necessity for access to a landlocked parcel:

“[T]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and . . . that at the time of severance an easement over [the servient estate’s] property was absolutely necessary” … .

… [P]laintiff established that he had common ownership of the subject parcels at the time of severance. We agree with defendant, however, that, “inasmuch as the existence and extent of an easement by necessity is determined based on the circumstances as they existed at the time of severance” … , plaintiff failed to establish by clear and convincing evidence that the use and extent of a right-of-way he now seeks was “absolutely necessary” upon separation of title … . While plaintiff generally averred in his affidavit in support of his motion that he retained his landlocked parcel “for purposes of utilizing [the] space for personal parking needs,” any such statement of future intentions failed to establish the nature and extent of the access over the conveyed property that was “indispensable to the reasonable use for the [retained] property” upon severance of title … . Trusso v Brev519, LLC, 2024 NY Slip Op 04880, Fourth Dept 10-4-24

Practice Point: The “necessity” for an easement by necessity must be demonstrated to have existed at the time the landlocked parcel was severed. Proof of a future intent to use the parcel for personal parking was therefore deemed insufficient to support an easement by necessity.

 

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THE ARBITRATOR’S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WAS NOT IRRATIONAL; THE AWARD MUST BE CONFIRMED EVEN WHERE THE COURT DISAGREES WITH THE INTERPRETATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently:

“[J]udicial review of arbitration awards is extremely limited” … . “The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA [collective bargaining agreement]” … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one” … .

Here, the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do … . We are powerless to set aside that interpretation even if we disagree with it … . Contrary to respondent’s urging, the arbitrator’s determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination … . Matter of Local 32, Intl. Assn. of Fire Fighters, A.F.L.-C.I.O.-C.L.C. (City of Utica), 2024 NY Slip Op 04878, Fourth Dept 10-4-24

Practice Point: The appellate courts are making it clear that an arbitrator’s award should not be tampered with by the courts as long as the arbitrator has not exceeded his or her powers.

 

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