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STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE.

The Fourth Department, over a two-justice dissent, determined a statement alleged to have been made during a search, but which was not part of the 710.30 notice, should not have been admitted at trial. The defendant was charged and convicted of constructive possession of drugs found in the searched residence. The statement indicated where defendant’s “own room was.” There was little or no other evidence defendant lived at the searched residence. The court rejected the argument that the statement was “pedigree information” and further rejected the argument that the search consent form, signed by the defendant, was an admission of his dominion and control of the residence:

The People served on defendant a CPL 710.30 notice of their intent to offer defendant’s admissions as evidence at trial and attached a police report to the notice. The police report referenced defendant’s statement to the deputies, during the search, that one of the bedrooms belonged to another person. At trial, however, the court permitted an investigator to testify that defendant “explained where his [own] room was,” referring to another of the bedrooms. Inasmuch as the CPL 710.30 notice did not cover that statement, the court’s ruling on that point was error (see CPL 710.30 [1]…). That error permitted the court to conclude that defendant was an occupant of the residence and, consequently, to find that defendant had constructive possession of the drugs found therein … . People v Buza, 2016 NY Slip Op 07423, 4th Dept 11-10-16

 

CRIMINAL LAW (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)/710.30 NOTICE (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT.

The Fourth Department determined holding the Sandoval hearing in the defendant’s absence required dismissal of the indictment (without prejudice to file another charge):

We agree with defendant that Supreme Court erred in conducting the Sandoval hearing in his absence … . The court’s Sandoval ruling in this case was not wholly favorable to defendant, and thus “it cannot be said that defendant’s presence at the hearing would have been superfluous” … . Contrary to the People’s contention, although the court placed its Sandoval ruling on the record in defendant’s presence the morning after the hearing, “[a] mere repetition or recitation in the defendant’s presence of what has already been determined in [the defendant’s] absence is insufficient compliance with the Sandoval rule” … . People v Gardner, 2016 NY Slip Op 07469, 4th Dept 11-10-16

CRIMINAL LAW (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)/SANDOVAL HEARING (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)

ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTION PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDERED.

The Fourth Department affirmed the grant of defendant’s motion to vacate her conviction based on newly-discovered evidence. Defendant, a daycare provider, was convicted in the death of a toddler. Medical testimony at trial attributed the death to shaken baby syndrome. In the motion to vacate her conviction, defendant argued that advances in medicine and science have called into question the prior opinions about shaken baby syndrome, and indicate a short-distance fall can mimic the shaken baby symptoms:

In general, advancements in science and/or medicine may constitute newly discovered evidence … , and we conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that “a significant and legitimate debate in the medical community has developed in the past ten years over whether infants [and toddlers] can be fatally injured through shaking alone, . . . and whether other causes [such as short-distance falls] may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome” … .

We further conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that the newly discovered evidence would probably change the result if a new trial were held today. “A motion to vacate a judgment of conviction upon the ground of newly discovered evidence rests within the discretion of the hearing court . . . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial’ ” … . Here, the cumulative effect of the research and findings on retinal hemorrhages, subdural hematomas or hemorrhages and cerebral edemas as presented in SBS/SBIS cases and short-distance fall cases supports the court’s ultimate decision that, had this evidence been presented at trial, the verdict would probably have been different … . People v Bailey, 2016 NY Slip Op 07490, 4th Dept 11-101-6

 

CRIMINAL LAW (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)/VACATE CONVICTION, MOTION TO (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)/SHAKEN BABY SYNDROME (ADVANCES IN MEDICINE AND SCIENCE CALL INTO QUESTIONS PREVIOUS OPINIONS ABOUT SHAKEN BABY SYNDROME, MOTION TO VACATE DEFENDANT’S CONVICTION GRANTED AND NEW TRIAL ORDER)

RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED.

The Fourth Department determined a mode of proceedings error required reversal of a murder conviction. The record was silent about whether defense counsel was apprised of the contents of a jury note requesting further instruction:

… [A] mode of proceedings error occurred and reversal is required because the record fails to show that defense counsel was advised of the contents of a jury note requesting, inter alia, further instruction on reasonable doubt, murder in the second degree and manslaughter in the first degree … . Moreover, because the record does not establish that the court advised defense counsel of the contents of the note, we cannot assume that the court complied with its core responsibilities pursuant to CPL 310.30 and People v O’Rama (78 NY2d 270) … . People v Owens, 2016 NY Slip Op 07431, 4th Dept 11-10-16

 

CRIMINAL LAW (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/JURY NOTE (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)/MODE OF PROCEEDINGS ERROR (RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED)

UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA.

The Fourth Department, in a full-fledged opinion by Justice Centra, determined defendant General Motors (GM) did not violate the Dealer Act (Vehicle and Traffic Law 463(2)(ff)(1)) by failing to notify plaintiff Chevrolet dealership of GM’s approval of the relocation of another Chevrolet dealership to an area about four miles from plaintiff’s dealership. The opinion focuses on statutory interpretation principles, the terms of the plaintiff’s dealership agreement with GM, and the application of federal and Michigan law:

We reject plaintiff’s contention that GM’s approval of Sharon’s relocation request ipso facto results in a modification of plaintiff’s franchise for which notice may be required under section 463 (2) (ff) (1). To construe section 463 (2) (ff) (1) to require notice to a dealer when a franchisor approves a relocation request of another dealer would essentially render section 463 (2) (cc) (1), which requires notice to certain dealers of relocations of other dealers, superfluous. It is well settled that “[a] court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent . . . , and, where possible, should harmonize[] [all parts of a statute] with each other . . . and [give] effect and meaning . . . to the entire statute and every part and word thereof’ “… . Courts should construe a statute “to avoid rendering any of its language superfluous” … . Van Wie Chevrolet, Inc. v General Motors, LLC, 2016 NY Slip Op 06583, 4th Dept 10-7-16

VEHICLE AND TRAFFIC LAW (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)/DEALER ACT (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)

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APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES.

The Fourth Department determined claimant’s application for leave to file a late notice of claim should not have been granted. Apparently plaintiff’s daughter was injured by a student from defendant school district who was subject to an order of protection requiring the student to stay away from the school attended by claimant’s daughter. Although claimant demonstrated defendant had timely knowledge of the order of protection but not demonstrate the defendant had timely knowledge of any injuries resulting from the violation of the order:

 

Supreme Court abused its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) approximately one year after the incident in which her daughter was injured occurred. “It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” … . “While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner” … . It is well established that “[k]nowledge of the injuries or damages claimed . .. , rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e (5)” … , and the claimant has the burden of demonstrating that the respondent had actual timely knowledge … . Matter of Turlington v Brockport Cent. Sch. Dist., 2016 NY Slip Op 06572, 4th Dept 10-7-16

EDUCATION-SCHOOL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/NOTICE OF CLAIM (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)

LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined a lawsuit brought by a charter school network and students (infant plaintiffs), alleging deficient funding for charter-school facilities violated the Education Article and equal protection, should have been dismissed in its entirety. Although the network was deemed to have the capacity to sue under the Education Article, it did not have standing to sue because the article protects students not schools. The infant plaintiffs’ cause of action under the Education Article was deficient because it did not plead a district-wide funding problem. The disparity in facilities funding between charter and public schools was deemed to have a rational basis. The “disparate impact” cause of action failed to allege discriminatory intent.  Brown v State of New York, 2016 NY Slip Op 06566, 4th Dept 10-7-16

 

EDUCATION-SCHOOL LAW (LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY)/CHARTER SCHOOLS (LAWSUIT ALLEGING CONSTITUTIONALLY DEFICIENT FUNDING FOR CHARTER SCHOOL FACILITIES SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY)

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CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The Fourth Department determined defendant’s sexual abuse conviction, which was based solely on defendant’s confession, was against the weight of the evidence:

CPL 60.50 requires corroboration of such a confession: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Here, there is no such corroboration. The People assert that defendant’s confession “was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense.” The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant’s penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant’s confession to support defendant’s conviction of sexual abuse. Although it is well settled that “additional proof need not corroborate every detail of the confession,’ ” we conclude that defendant’s conviction of sexual abuse in the first degree was “based solely on [defendant’s] uncorroborated [confession]” … . Since there was “no corroborating proof of whatever weight,’ [count two of the indictment] must be dismissed” … . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

The Fourth Department reversed defendant’s conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel’s failure to object constituted ineffective assistance:

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?” In our view, the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case … . In light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation … . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

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STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS.

The Fourth Department, reversing the Court of Claims, determined the Court of Claims did not have the power to order the state to pay for liability insurance to allow claimant’s expert to test soil and water for contamination by highway deicing agents. Under the Court of Claims Act, the state cannot be required to pay fees for claimant’s witnesses:

In this real property tort action, claimants assert that deicing agents have run off of the Thruway and onto their farm located adjacent to the Thruway, thereby contaminating the soil and water. In order to prove their claim, claimants sought to inspect, test, and sample the Thruway shoulder and median adjacent to their farm. The testing would include, among other things, air, soil, and water testing and would involve “six visits to the site during the winter and early spring.” Claimants located a professor who agreed to perform the testing as their expert in exchange for permission to use the tests in his research and teaching; however, neither claimants nor the professor could afford the liability insurance routinely required by defendant in connection with inspections performed on its property.

Defendant moved for a protective order “requiring [c]laimants to provide satisfactory liability insurance in connection with proposed testing.” The Court of Claims issued an order stating, inter alia, that “[d]efendant shall be required to obtain or pay the costs of the insurance necessary to cover the anticipated testing activities” and that “the amount of insurance necessary shall be as determined by [d]efendant.” * * *

Under Court of Claims Act § 27, “costs, witnesses’ fees and disbursements shall not be taxed . . . by the court to any party.” Frederick v New York State Thruway Auth., 2016 NY Slip Op 06585, 4th Dept 10-7-16

COURT OF CLAIMS ACT (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/ENVIRONMENTAL LAW (HIGHWAY DEICING AGENTS, STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/REAL PROPERTY (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/HIGHWAYS (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/DEICING AGENTS  (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)

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