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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence

The Fourth Department vacated defendant’s enhanced sentence because defendant was not warned that his failure to appear at sentencing would result in a harsher sentence. The matter was remitted for imposition of the bargained-for sentence or the opportunity to withdraw the plea:

“Although defendant failed to preserve his contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction …, we nevertheless exercise our power to review defendant’s contention as a matter of discretion in the interest of justice” … . We agree with defendant that the court erred in imposing an enhanced sentence inasmuch as it did not advise defendant at the time of his plea that “a harsher sentence than he bargained for could be imposed if [he] failed to appear at sentencing” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea … . People v Donald, 2015 NY Slip Op 07399, 4th Dept 10-9-15

 

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Allegations In Motion to Suppress Insufficient to Warrant Hearing

In concluding a suppression hearing (re: statements by the defendant) was properly denied, the Fourth Department explained the relevant analytical criteria:

It is well settled that ” [h]earings are not automatic or generally available for the asking by boilerplate allegations’ ” … . Here, “[t]he allegations in defendant’s moving papers, when considered in the context of the detailed information provided to defendant, were insufficient to create a factual dispute requiring such a hearing . . . Defendant . . . did not address the specific allegations set forth in the felony complaint” and the other discovery materials provided to him …, which included the relevant grand jury testimony of the witness. Thus, the court properly denied the motion without conducting a hearing based on the insufficiency of the allegations and, under the circumstances of this case … . People v Mitchell, 2015 NY Slip Op 07411, 4th Dept 10-9-15

 

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Guilty Plea to Possession of a Weapon Charge in One County Precluded Prosecution for the Same Offense in Another County (Double Jeopardy)

The Fourth Department determined charges stemming from the possession of a weapon in two counties triggered the protection against double jeopardy:

Defendant was convicted, following a jury trial, of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of a weapon in the second degree (§ 265.03 [3]). The charges arose from an incident in which defendant discharged a firearm into the bedroom window of an occupied, residential home in Oswego County during the early morning hours of March 5, 2012. Defendant was apprehended by the police later that day at a motel in Onondaga County, where a handgun was found in his vehicle. Prior to his trial in Oswego County Court, defendant was charged with and pleaded guilty to, in Onondaga County Court, criminal possession of a weapon in the second degree for the handgun recovered from his vehicle. * * *

It is well settled that a defendant has “the right not to be punished more than once for the same crime” … . “When successive prosecutions are involved, the guarantee serves a constitutional policy of finality for the defendant’s benefit . . . and protects the accused from attempts to secure additional punishment after a prior conviction and sentence” … . This case presents a prototypical instance of a constitutional double jeopardy violation inasmuch as defendant was prosecuted and convicted of a crime in Oswego County to which he had pleaded guilty in Onondaga County. In both instances, the charge was the same: criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3).

We reject the People’s contention that double jeopardy did not attach because defendant was convicted in Oswego County before he was sentenced on his guilty plea in Onondaga County. “[T]ermination of a criminal action by entry of a guilty plea constitutes a previous prosecution for double jeopardy purposes” … . People v Gardner, 2015 NY Slip Op 07363, 4th Dept 10-9-15

 

Motion Papers Sufficient to Warrant a Probable Cause Hearing, Criteria Described

The Fourth Department, reversing Supreme Court, determined defendant’s motion papers were sufficient to warrant a probable cause hearing. No affidavit from the defendant is required. The Fourth Department explained the analytical criteria:

As the People correctly concede, the court erred in determining that defendant was not entitled to a hearing because his motion papers did not include an affidavit from defendant (see CPL 710.60 [1]…). The court also erred in determining that the factual assertions contained in defendant’s moving papers were insufficient to warrant a hearing.

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” … . Here, considering defendant’s limited access to information regarding the basis for the actions of the arresting officers, he “could do little more than dispute the circumstances surrounding his arrest . . . [D]efendant’s lack of access to information precluded more specific factual allegations and created factual disputes, the resolution of which required a hearing” … . People v Jones, 2015 NY Slip Op 07392, 4th Dept 10-9-15

 

Criteria for “Interest of Justice” Extension of Time to Effect Service Explained

The Fourth Department determined Supreme Court properly allowed plaintiff an extension of time to effect service on defendant in the interest of justice.  An “interest of justice” analysis in this context does not require a showing of good cause for the extension:

Pursuant to CPLR 306-b, if service is not timely made, “the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.” Even assuming, arguendo, that plaintiff failed to establish good cause for an extension, we conclude that the court properly granted plaintiff’s cross motion in the interest of justice. That standard “requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … .  Swaggard v Dagonese, 2015 NY Slip Op 07398, 4th Dept 10-9-15

 

Law Re: Liquidated Damages Explained

The Fourth Department concluded that defendant’s papers were not sufficient to warrant summary judgment invalidating a liquidated damages provision of an agreement, but noted that plaintiff may not be able to prove the validity of the provision at trial. Liquidated damages are valid only if they bear a reasonable relationship to the loss; otherwise they constitute an unenforceable penalty. Here plaintiff sold defendant a car with the condition that the car not be re-sold for one year. Defendant sold the car two weeks after purchase and plaintiff sued to enforce the $20,000 liquidated damages provision of the “agreement not to export.”  The court explained the relevant law:

Liquidated damages are enforceable only to the extent that they comprise ” an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement’ ” … . As a general rule, a liquidated damages clause is enforceable only if the stipulated amount of damages “bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” … . If, however, the clause provides for damages that are ” plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced’ ” … .

Here, defendant failed to meet his initial burden of establishing as a matter of law that the amount of liquidated damages does not bear a reasonable relation to plaintiff’s actual damages. In support of his motion, defendant relied on affidavits from himself and his attorney, both of whom asserted, upon information and belief only, that plaintiff sustained no actual damages, and that the liquidated damages clause is therefore unenforceable. Defendant offered no evidence in support of those conclusory assertions, and therefore failed to meet his initial burden of proof … . Thus, the court properly denied defendant’s motion, “regardless of the sufficiency of the opposing papers” … . Although defendant may be correct in contending that plaintiff cannot establish at trial that it sustained any actual damages as a result of defendant’s breach of the Agreement, it is well settled that a party moving for summary judgment must affirmatively establish the merits of its cause of action or defense “and does not meet its burden by noting gaps in its opponent’s proof” … . Great Lakes Motor Corp. v Johnson, 2015 NY Slip Op 07394, 4th Dept 10-9-15

 

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Termination for Insubordination Proper

The Fourth Department determined that petitioner, the former chief operator of a city water treatment plant, was properly terminated for insubordination. Petitioner complained directly to the NYS Department of Health about a supervisor’s decision, thereby allegedly violating directives concerning the chain of command. Matter of Gaffney v Addison, 2015 NY Slip Op 07372, 4th Dept 10-9-15

 

Criteria for Class Certification Explained (Not Met Here)

The Fourth Department determined that an action by about 1900 patients who received insulin injections at defendant hospital was properly denied class certification. The patients were notified they may have been administered insulin by insulin pens shared by more than one patient and all were offered free testing for possible blood borne disease. No one tested positive for disease. The court concluded that whether a particular patient was actually exposed and whether exposure resulted in damages would have to be determined on a case by case basis. Therefore issues common to the class did not predominate:

“[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” … . The class representative “bears the burden of establishing compliance with [*2]the requirements of both CPLR 901 and 902” … .

Where, as here, no plaintiff has tested positive for the blood-borne disease to which he or she allegedly was exposed as a result of defendant’s negligence, a prerequisite to recovery is proof of actual exposure to the blood-borne disease … . The issue of actual exposure will require individualized determinations with respect to each plaintiff. Further, even if members of the proposed class could establish such actual exposure, “the extent of the damages resulting therefrom [is a] question[] requiring individual investigation and separate proof as to each individual claim” … . Thus, we conclude that, “even if there are common issues in this case, those issues do not predominate” …, and “[t]he predominance of individualized factual questions . . . renders this case unsuitable for class treatment” … . Westfall v Olean Gen. Hosp., 2015 NY Slip Op 07396, 4th Dept 10-9-15

 

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The Absence of Plaintiff’s (Buyer’s) Attorney’s Explicit Unconditional Approval of the Purchase Contract Invalidated the Contract, Despite Plaintiff’s Desire to Go Through with the Purchase

The Fourth Department, reversing Supreme Court, determined that an explicit (not implied) unconditional attorney approval of a real estate contract is a necessary pre-requisite for a valid contract. Here plaintiff’s attorney had approved the contract on the condition that an environmental warranty be provided by the sellers, a condition which was never met or explicitly waived. Despite plaintiff’s desire to go through with the purchase, defendant-sellers’ attorney correctly determined there was no valid contract of sale because plaintiff’s attorney never explicitly unconditionally approved it:

As the Court of Appeals has stated, “[c]larity and predictability are particularly important” in the area of law dealing with attorney approval of real estate contracts … . Here, we conclude that, although plaintiff could have unilaterally waived the environmental conditions that [his attorney] placed on his approval of the contract inasmuch as those conditions benefitted only him …, neither [of plaintiff’s attorneys] clearly and unequivocally did so. Thus, the contract was never unconditionally approved by plaintiff’s attorneys. * * *

“[C]onsiderations of clarity, predictability, and professional responsibility weigh against reading an implied limitation into the attorney approval contingency” … . If [plaintiff’s attorney] intended to waive the conditions placed … on … approval of the contract, he should have done so expressly and not left anything for inference, or he should have stated that he, as plaintiff’s counsel, unconditionally approved the contract as proposed by defendants. Because he failed to do so, we conclude that there was not a valid contract between the parties and that the court erred in directing defendants to sell the property to plaintiffs. Pohlman v Madia, 2015 NY Slip Op 07379, 4th Dept 10-9-15

 

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