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REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED.

The Fourth Department, over a two-justice dissent, determined the selection of a juror by the defendant, a selection with which defense counsel apparently disagreed, deprived defendant of his right to counsel:

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal” … . “The selection of particular jurors falls within the category of tactical decisions entrusted to counsel, and defendants do not retain a personal veto power over counsel’s exercise of professional judgments” … .

Here, during the part of the jury selection process when the attorneys were exercising peremptory challenges, defense counsel stated “[f]or the record, my client is insisting over my objection to keep juror number 21. So, jurors 20 and 21 will be on the jury.” We agree with defendant that, contrary to the People’s contention, defense counsel “never acceded’ or acquies[ed]’ to defendant’s decision” … . … Consequently, the court denied defendant the “expert judgment of counsel to which the Sixth Amendment entitles him,” and “we cannot say that the error here was harmless beyond a reasonable doubt” … . People v Mckenzie, 2016 NY Slip Op 06288, 4th Dept 9-30-16

CRIMINAL LAW (REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/ATTORNEYS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)/JURORS (CRIMINAL LAW, REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED)

JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, DEFENSE COUNSEL MAY HAVE HAD A STRATEGIC REASON FOR NOT OBJECTING, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL.

In a case reversed by the Court of Appeals and remitted, the Fourth Department, over a two-justice dissent, refused to exercise its interest of justice jurisdiction to address an unpreserved “jury note” error. The jury sent out two notes which the trial judge read into the record. But before the judge responded to the notes, the jury rendered a verdict. Defense counsel did not object to the failure to address the notes. The Fourth Department had reversed, finding the failure to respond to the notes a mode of proceedings error (not requiring preservation). The Court of Appeals reversed the Fourth Department, finding the error needed to be preserved:

… [T]he only remaining issue to be decided is whether we should exercise our power to review defendant’s unpreserved contention regarding the unanswered jury notes as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We decline to do so. As the Court of Appeals noted, defense counsel “may have made a strategic choice not to challenge the trial court’s procedure,” and “may have decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further” … . Such a strategic decision, if made, would have been entirely reasonable considering that the jury had asked for, among other things, a readback of testimony from the key prosecution witness.

Because defense counsel may have had a legitimate, strategic reason for not objecting to the court’s procedure, we respectfully disagree with the dissent that defendant was “seriously prejudiced” by the court’s taking of the verdict. People v Mack, 2016 NY Slip Op 05825, 4th Dept 8-17-16

 

CRIMINAL LAW (JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)/ATTORNEYS (JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, ATTORNEY MAY HAVE HAD STRATEGIC REASON FOR NOT OBJECTING, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)/JURY NOTES (CRIMINAL LAW, JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)

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NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.

The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:

Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .

* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16

 

NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)

CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS.

The Fourth Department, reversing Family Court, determined the children in the neglect proceeding did not receive effective assistance of counsel from the attorney for the child (AFC). The AFC took positions contrary to the wishes of two of the children (Brian and Alyssa):

The Rules of the Chief Judge provide that an AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]), even if the AFC “believes that what the child wants is not in the child’s best interests” … . There are two exceptions to this rule: (1) where the AFC is convinced that the “child lacks the capacity for knowing, voluntary and considered judgment”; or (2) where the AFC is convinced that “following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . Here, there is no dispute that the trial AFC took a position contrary to the position of two of the subject children … . * * *

Inasmuch as the trial AFC failed to advocate Brian and Alyssa’s position at the fact-finding hearing, he was required to determine that one of the two exceptions to the Rules of the Chief Judge applied, as well as “[to] inform the court of the child[ren]’s articulated wishes” … . Here, the trial AFC did not fulfill either obligation … . Indeed, the record establishes that neither of the two exceptions applied. Matter of Brian S. (Scott S.), 2016 NY Slip Op 05464, 4th Dept 7-8-16

 

FAMILY LAW (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/ATTORNEYS (FAMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/NEGLECT (CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)/EFFECTIVE ASSISTANCE OF COUNSEL (FAMMILY LAW, CHILDREN DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN NEGLECT PROCEEDINGS)

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RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE.

The Fourth Department reduced defendant sex offender’s risk level from three to two, finding that the assessment of 25 points for sexual contact with the victim overassessed the defendant’s risk to public safety. Defendant and the victim were close in age and the victim’s lack of consent was solely due to her age:

In light of the totality of the circumstances, particularly the relatively slight age difference between defendant and the victim, as well as the undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age, we conclude in the exercise of our own discretion that the assessment of 25 points under the second risk factor, for sexual contact with the victim, results in an overassessment of defendant’s risk to public safety … . People v George, 2016 NY Slip Op 05482, 4th Dept 7-8-16

CRIMINAL LAW (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SEX OFFENDER REGISTRATION ACT (SORA) (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)/SORA (RISK LEVEL REDUCED FROM THREE TO TWO; DEFENDANT AND VICTIM WERE CLOSE IN AGE AND THE LACK OF CONSENT WAS SOLELY BY VIRTUE OF THE VICTIM’S AGE)

DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET.

The Fourth Department, over an extensive, two-justice dissent, determined defendant, when he was in custody, consented to the search of the premises and a duffel bag in a closet:

Testimony at the suppression hearing established that, although defendant was in custody at the time he gave consent, he cooperated with the police and assisted them in gaining entry by indicating which of his keys opened the front door … . Once inside the home, the police observed marihuana in plain view and immediately read defendant his Miranda rights. After defendant waived those rights, he voluntarily consented, both verbally and in writing, to a search of the premises.

We reject defendant’s further contention that any voluntary consent he may have given did not encompass a search of a duffel bag inside of his closet. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” … . Where an officer informs a suspect of the specific items the officer is searching for, ” [t]he scope of a search is generally defined by its expressed object’ ” … . Here, defendant responded affirmatively when the officer asked him whether he “could have permission to search both the room and the house for drugs or any other weapons or illegal contraband in the house.” Additionally, defendant signed a written consent that included the “premises” and his “personal property.” People v Freeman, 2016 NY Slip Op 05472, 4th Dept 7-8-16

 

CRIMINAL LAW (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/CONSENT SEARCH (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)/SUPPRESSION (DEFENDANT, DESPITE BEING IN CUSTODY AT THE TIME, VALIDLY CONSENTED TO THE SEARCH OF THE PREMISES AND A DUFFEL BAG FOUND IN A CLOSET)

GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.

The Fourth Department, over an extensive dissent, reversing County Court, determined defendant’s Georgia burglary conviction could not serve as a predicate felony in New York. The corresponding New York burglary statute required that a defendant knowingly enter or remain in a building with the intent to commit a crime. The knowledge element was not part of the Georgia statute:

Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglary statute provided that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another” (Ga Code Ann former § 16-7-1 [a]). The equivalent New York burglary statute provides that “[a] person is guilty of burglary . . . when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, the Georgia statute is lacking an essential element—knowledge that the entry or decision to remain is unlawful. Because New York law requires proof of an element that Georgia law does not, defendant’s Georgia conviction cannot serve as a predicate … . People v Helms, 2016 NY Slip Op 05463, 4th Dept 7-8-16

CRIMINAL LAW (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SENTENCING (PREDICATE FELONY, GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)/SECOND FELONY OFFENDER (GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY)

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COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS.

The Fourth Department, reversing County Court, reinstated three indictment counts which County Court had dismissed. The Fourth Department explained the criteria for sufficient evidence in grand jury proceedings and the court’s sufficiency-review powers. Here it was determined County Court improperly weighed the evidence:

“The standard for reviewing the legal sufficiency of the evidence before the grand jury is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury” … . “On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy” … . ” In the context of the [g]rand [j]ury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt’ ” … . Further, the fact “[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand [j]ury could rationally have drawn the guilty inference” … .

Here, we conclude that the evidence, viewed in the light most favorable to the People … , is legally sufficient to support the counts that were dismissed by County Court, and that the court improperly weighed the evidence … . People v Roth, 2016 NY Slip Op 05257, 4th Dept 7-1-16

CRIMINAL LAW (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/EVIDENCE (GRAND JURY, COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/GRAND JURY (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)

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ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED.

The Fourth Department, affirming Supreme Court, determined the arbitrator exceeded his powers vacation of the award was therefore proper. The arbitration concerned the termination of a deputy sheriff for driving while intoxicated and related charges. The arbitrator refused to consider some of the evidence (finding it inadmissible) and reinstated the deputy:

“Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party’s rights were impaired by an arbitrator who exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made’ ” … . “It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … .

Here, we conclude that the arbitrator clearly exceeded his authority as provided by the CBA [collective bargaining agreement]. The CBA mandated that “[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence.” Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award … . Matter of O’Flynn (Monroe County Deputy Sheriffs’ Assn., Inc.), 2016 NY Slip Op 05261, 4th Dept 7-1-16

 

ARBITRATION (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/MUNICIPAL LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/EMPLOYMENT LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)

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TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD.

The Fourth Department upheld the state's ability to impose a tax on the sale of cigarettes to non-Indians and non-members of the Seneca Nation:

It is well established that “the States have a valid interest in ensuring compliance with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes on reservations . . . States may impose on reservation retailers minimal burdens reasonably tailored to the collection of valid taxes from non-Indians” … . Although plaintiffs are obligated to pay the amount due as tax from non-Indians who have the tax liability, and from whom the amount is collected at the time of the sale, “this burden is not, strictly speaking, a tax at all” … . White v Schneiderman, 2016 NY Slip Op 04533, 4th Dept 6-18-16

TAX LAW (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)/INDIAN LAW (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)/CIGARETTES (TAX ON CIGARETTE SALES TO NON-INDIANS UPHELD)

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