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VICTIM’S DEATH FIVE MONTHS AFTER THE ASSAULT WAS SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS.

In affirming defendant’s murder conviction, the Fourth Department concluded the victim’s death five months after the assault was sufficiently linked to defendant’s actions:

… [I]t has long been the rule in New York that ” [i]f a person inflicts a wound . . . in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible’ ” … . Thus, “[f]or criminal liability to attach, a defendant’s actions must have been an actual contributory cause of death, in the sense that they forged a link in the chain of causes which actually brought about the death’ ” … . Additionally, the “defendant’s acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide . . . By the same token, death need not follow on the heels of injury” … . People v Pratcher, 2015 NY Slip Op 09730, 4th Dept 12-31-15

CRIMINAL LAW (VICTIM’S DEATH FIVE MONTHS AFTER ASSAULT SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS)/MURDER (VICTIM’S DEATH FIVE MONTHS AFTER ASSAULT SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS)

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SHERIFF IS NOT VICARIOUSLY LIABLE FOR EMPLOYEES OF THE SHERIFF’S DEPARTMENT; SHERIFF, THEREFORE, IS NOT UNITED IN INTEREST WITH THE SHERIFF’S DEPARTMENT OR THE COUNTY; RELATION-BACK DOCTRINE DOES NOT APPLY; SHERIFF CANNOT BE ADDED TO THE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAS RUN.

Plaintiff sued the county alleging plaintiff’s decedent was not properly screened and supervised when placed in the Erie County Holding Center where plaintiff’s decedent committed suicide. After the statute of limitations had run, plaintiff was allowed to add the Erie County Sheriff as a defendant. The Fourth Department reversed, explaining that the Sheriff is not vicariously liable for the actions of the Sheriff’s Department and is therefore not “united in interest” with the County/Sheriff’s Department:

In order for the relation back doctrine to apply, a plaintiff must establish that “(1) both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant[s], and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” … .

…. [Plaintiff did not satisfy the second prong, i.e., unity of interest. “In [the] context [of this case], unity of interest means that the interest of the parties in the [subject matter] is such that they stand or fall together and that judgment against one will similarly affect the other . . . Although the parties might share a multitude of commonalities, . . . the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand . . . Indeed, unless the original defendant[s] and new [defendant] are vicariously liable for the acts of the other[,] . . . there is no unity of interest between them” … .

Here, defendant County of Erie (County) is not united in interest with the Sheriff inasmuch as the County cannot be held vicariously liable for the alleged negligent acts of the Sheriff or his deputies … . Nor is defendant Erie County Sheriff’s Department (Sheriff’s Department) united in interest with the Sheriff for purposes of the relation back doctrine. The Sheriff is not vicariously liable for the alleged negligent acts of the deputies employed at the Holding Center … . In addition, the Sheriff’s Department does not have a legal identity separate from the County … , and thus an “action against the Sheriff’s Department is, in effect, an action against the County itself” … . Given that the Sheriff and the County are not united in interest, it follows that the Sheriff and the Sheriff’s Department are not united in interest, and the court therefore erred in granting plaintiff’s motion for leave to amend the complaint to add the Sheriff as a party. Johanson v County of Erie, 2015 NY Slip Op 09736, 4th Dept 12-31-15

CIVIL PROCEDURE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/RELATION-BACK DOCTRINE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/MUNICIPAL LAW  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/SHERIFF  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)

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CLASS ACTION PROPERLY CERTIFIED IN CASE ALLEGING NEGLIGENT DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE.

In an action alleging defendants negligently discharged chemicals into the atmosphere, resulting in a reduction of property values and quality of life, the Fourth Department determined a class action was properly certified. The court explained the criteria:

“[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” … . A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901 (a) and thus establish[ing] . . . entitlement to class certification” … .

Although the individual class members may have sustained differing amounts of damages, it is well settled that ” the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class’ ” … . * * *

… [B]ecause “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative’s] damages may differ from those of other members of the class is not a proper basis to deny class certification” … . DeLuca v Tonawanda Coke Corp., 2015 NY Slip Op 09739, 4th Dept 12-31-15

CIVIL PROCEDURE (CLASS ACTION PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/CLASS ACTION (PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/NEGLIGENCE (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)/ENVIRONMENTAL LAW (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)

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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

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EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED; JUDGE FAILED TO ELICIT UNEQUIVOCAL ASSURANCES OF IMPARTIALITY FROM FIVE PROSPECTIVE JURORS; NOTHING CAN BE INFERRED FROM THE PROSPECTIVE JURORS’ COLLECTIVE SILENCE IN RESPONSE TO THE JUDGE’S QUESTION WHETHER THEY COULD BE FAIR.

The Fourth Department ordered a new trial after finding that defendant’s motion to suppress statements and evidence should have been granted. The police entered defendant’s apartment without permission. The People argued that the entry was proper under the so-called emergency exception to the warrant requirement. However, the facts indicated the police entered the apartment solely because of defendant’s refusal to open the door. The Fourth Department further noted that five prospective jurors should have been excused for cause because they all indicated not hearing from the defendant would be problematic for them. The judge explained that the defendant had no responsibility to put on any proof, but failed to elicit an unequivocal assurance from each of the jurors that they could render an impartial verdict. The judge simply asked all the jurors collectively whether they had a problem sitting as fair and impartial jurors and the jurors remained silent:

… [B]ased on our review of the record, we conclude that “the evidence at the suppression hearing [did] not establish that the police had reasonable grounds to believe that there [was] an emergency at hand and an immediate need for their assistance for the protection of life or property’ ” … . Indeed, the People did not present any evidence that the police observed anything unusual once they arrived at defendant’s apartment. Although the record indicates that defendant and the victim may have been previously involved in domestic disputes, both police officers testified at the suppression hearing that they did not have direct, personal knowledge of any previous domestic violence or any indication that defendant and the victim were engaged in a domestic dispute at the time they arrived at the apartment. The police officers testified only that they knew that defendant was inside the apartment but would not answer the door. In our view, such testimony is insufficient to support a determination that the “emergency exception” applied to justify the warrantless entry.

… Here, the record establishes that five out of the six prospective jurors clearly expressed concerns that not hearing from defendant or someone on behalf of defendant would affect, inter alia, their ability to be fair and impartial. In response, the court instructed the jury panel that defendant has no responsibility to put on any proof, that he may or may not call witnesses, that he may or may not take the witness stand, and that it is the prosecution’s burden to prove the elements of the crimes of which defendant is accused. The court then asked the jury panel whether anyone had “a problem sitting as a fair and impartial juror in this case?” The five prospective jurors at issue remained silent.

In our view, the statements of the five prospective jurors cast serious doubt on their ability to render an impartial verdict … . The court erred in not obtaining thereafter an “unequivocal assurance . . . from each of those potential jurors” to the effect that he or she could render an impartial verdict … . Furthermore, “we can infer nothing from the [collective] silence of the challenged jurors” … . People v Casillas, 2015 NY Slip Op 09454, 4th Dept 12-23-15

CRIMINAL LAW (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED)/EVIDENCE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (MISAPPLIED)/SUPPRESSION (EMERGENCEY EXCEPTION TO WARRANT REQUIREMENT MISAPPLIED)/CRIMINAL LAW (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)/JURIES (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)

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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS.

The Fourth Department determined a 53-month delay between the incident and indictment did not constitute a denial of due process. Defendant was charged with burglary, robbery and criminal possession of a weapon. He was convicted of criminal possession of a weapon. The court explained the analytical criteria re: speedy trial/due process and went through the facts in support of each of the criteria:

“A defendant’s right to a speedy trial is guaranteed by both the Constitution … and by statute … . A defendant may also challenge, on due process grounds, preindictment delay …, and “the factors utilized to determine if a defendant’s rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution” … . The inquiry involves weighing the factors enunciated in Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (Taranovich, 37 NY2d at 445…). “Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . People v Johnson, 2015 NY Slip Op 09449, 4th Dept 12-23-15

CRIMINAL LAW (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/SPEEDY TRIAL (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/PRE-INDICTMENT DELAY (53-MONTH DELAY DID NOT DENY DEFENDANT DUE PROCESS)

FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A NOTE FROM THE JURY REQUIRED REVERSAL.

The Fourth Department determined the trial judge’s failure to apprise counsel of the specific, substantive contents of a jury note requesting a readback of testimony required reversal (in the absence of preservation):

As the court brought the jury into the courtroom to respond to the first two notes, the jury gave a third note to the court. The court told the jury that it would respond to the first two notes at that time, and would then discuss the issue raised in the third note with counsel after sending the jury back to the jury room. The court stated that the “third note [had] not yet [been] shown to counsel nor have we had an opportunity to discuss it.” The record further reflects that the jury resumed its deliberations after the court provided requested testimony and instruction in response to the first two notes, and then rendered a verdict of guilty. The third note, which is included in the record, indicates that the jury was seeking the testimony of a particular witness on a specific topic, but there is nothing in the record indicating that the note was shown to counsel, or that it was read into the record before the jury rendered its verdict. Where, as here, “the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required” … , and we conclude that the “[c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict” … . People v Brink, 2015 NY Slip Op 09450, 4th Dept 12-23-15

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF JURY NOTE CONTENTS REQUIRED REVERSAL)/JURY NOTE (FAILURE TO APPRISE COUNSEL OF CONTENTS REQUIRED REVERSAL)/ORAMA ERROR (FAILURE TO APPRISE COUNSEL OF CONTENTS OF JURY NOTE REQUIRED REVERSAL IN THE ABSENCE OF PRESERVATION)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

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Arbitrator’s Misapplication of Law Is Not Reviewable by a Court

In affirming the denial of an application to vacate an arbitrator’s award (in which petitioners were found to have wrongfully removed trees), the Fourth Department noted that the misapplication of law by an arbitrator is not reviewable by a court:

We reject, however, petitioners’ contention that the arbitrator’s alleged misapplication of RPAPL 861 is a sufficient ground to vacate the award in its entirety. “An arbitrator’s resolution of questions of substantive law or fact is not judicially reviewable” … . Thus, even assuming, arguendo, that the arbitrator misapplied RPAPL 861, we conclude that such error is beyond our review. Matter of Svenson v Swegan, 2015 NY Slip Op 08525, 4th Dept 11-20-15

 

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