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Injury Caused by Movement and Toppling of a Dry Wall Cart Not Covered by Labor Law 240(1)

The Fourth Department determined an injury related to the toppling of a cart carrying drywall was not covered under Labor Law 240 (1):

At the time of the accident, plaintiff was standing on the ground, the drywall on the cart was not being hoisted or secured, and the cart was not being hoisted or otherwise moved vertically … . We conclude that plaintiff’s injuries were not the direct consequence of a failure to provide blocks or stays to protect against a risk arising from a physically significant elevation differential; here, the function of such devices would not have been to protect plaintiff from the effects of gravity … . In our view, defendants established as a matter of law “that the injuries resulted from a general hazard encountered at a construction site and were not the direct consequence of a failure to provide’ an adequate device of the sort enumerated in Labor Law § 240 (1)” … . Miles v Buffalo State Alumni Assn Inc, 2014 NY Slip Op 06732, 4th Dept 10-3-14

 

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Right to Counsel Did Not Attach When Community Activist Told Police Defendant’s Attorney Was On His Way to the Station

The Fourth Department determined that the right to counsel attaches only when the defendant or his attorney invokes it, not when someone informs the police defendant’s attorney is on his way to the station:

We reject defendant’s contention that his right to counsel indelibly attached when the community activist told the arresting police officers at the television station that defendant had an attorney who was on his way. “It is well settled that the right to counsel is personal’ to the accused… and thus cannot be invoked by a third party on behalf of an adult defendant” … . Thus, where, as here, a third party not affiliated with a lawyer or law firm indicates that defendant may have an attorney, “it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue’ ” … . Absent such direct communication, the police herein had no duty to investigate whether defendant was represented by counsel, and defendant’s right to counsel did not indelibly attach until an attorney later called the police directly. Inasmuch as all questioning ceased at that time, we conclude that the court properly refused to suppress the statements defendant made before that time.  People v McCray, 2014 NY Slip Op 06720, 4th Dept 10-3-14

 

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Out-of-Court Statements by Defendant and Unknown Woman with Whom Defendant Spoke on the Phone from Jail Admissible

The Fourth Department determined that out-of-court statements made by the defendant in phone calls from jail and a statement made by an unknown woman defendant was talking to were admissible because they were not offered for the truth of the matters asserted:

Defendant … contends that the court erred in admitting in evidence the recordings of two telephone calls he made from jail following his arrest. During the first call, defendant said to an unknown female, “Tell him [defendant’s father] what happened to my ID.” Defendant was referring to his claim that his jacket, containing his parole identification card, had been stolen from his father’s car. During the second call, an unknown female informed defendant that his father told the police that his car had not been running for “a long-ass time,” and in response defendant instructed the female to tell his father “not to mention” that the car was not running. We reject defendant’s contention that his own above-referenced statements constitute inadmissible hearsay. The statements in question were not offered for the truth of the matters asserted …; instead, they were offered to show that defendant appeared to be fashioning an innocent explanation for the fact that his parole identification card was found at the crime scene. Defendant failed to preserve for our review his contention that the statement made by the unknown female during the second call constituted inadmissible hearsay. In any event, that statement was admissible to put defendant’s responding statement into context by providing “necessary background information to the jury” … . People v Scarver, 2014 NY Slip Op 06713, 4th Dept 10-3-14

 

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In a Personal Injury Trial, Defense Counsel Should Have Been Permitted to Question Plaintiff About Possible Fraud in Income Tax Returns

The Fourth Department determined defense counsel in a personal injury trial should have been allowed to cross-examine plaintiff about possible fraud in plaintiff’s income tax returns.  A new trial was ordered.  The Fourth Department noted that defense counsel would have been bound by plaintiff’s answers and could not have introduced extrinsic evidence:

Here, based on his reading of IRS Publication 51 and plaintiff’s federal tax returns, defendant’s attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has “some tendency to show moral turpitude to be relevant on the credibility issue” …. Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant’s attorney would have been bound by plaintiff’s answers concerning her federal tax returns without “refuting [those] answers by calling other witnesses or by producing extrinsic evidence” (Prince, Richardson on Evidence § 6-305 [Farrell 11th ed]…), we nevertheless conclude that defendant’s attorney should have been allowed to ask the questions … . Young v Lacy, 2014 NY Slip Op 06417, 4th Dept 9-26-14

 

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Teacher’s Subpoena for School Records of a Student Who Testified at the Teacher’s Education Law 3020-a Proceeding Should Have Been Quashed

The Fourth Department determined a subpoena for a student’s school records should have been quashed. The subpoena was served on the school district on behalf of the respondent, a tenured teacher who was the subject of an Education Law 3020-a proceeding.  The alleged misconduct of the student (who testified at the proceeding) occurred outside the classroom and the teacher did not demonstrate the relevance of the requested records:

The record establishes that, following an initial prehearing conference in the section 3020-a proceeding, the Hearing Officer granted respondent’s request for production of the testifying high school students’ records, notwithstanding protections under the Family Educational Rights and Privacy Act of 1974 (FERPA), and thereafter limited production of students’ records to those from seventh grade forward. In connection with that request, the Hearing Officer issued a subpoena duces tecum ordering the production of those student records. Although the Hearing Officer had the authority to order the production of student records that were material and relevant to respondent’s defense (see § 3020-a [3] [c] [iii] [A], [C]), it is well established that, “[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence” … . Where, as here, “the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation,” to show “that the material sought bears a reasonable relation to the matter under investigation” … . Here, the allegations of misconduct against respondent involved activities outside of the classroom, and respondent stated only generally that the students’ records were “highly relevant” in asserting a defense and that the records are “necessary and relevant to the preparation of a defense to the charges on its face.” Thus, in light of respondent’s failure to indicate how the records are reasonably related to respondent’s defense and a factual basis establishing their relevance …, we conclude that the court abused its discretion in refusing to quash the subpoena duces tecum … . Matter of Watertown City Sch Dist v Anonymous, a Tenured Teacher, 2014 NY Slip Op 06444, 4th Dept 9-26-14

 

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Provision in Separation Agreement Which Called for Employment of the Wife by the Husband Deemed an Employment Contract Breached When Wife Opened a Competing Business

The Fourth Department reversed Supreme Court and determined that a provision in a separation agreement which was incorporated but not merged into the divorce decree constituted an employment contract breached when the plaintiff wife opened a competing business.  The reason for the agreement was to allow plaintiff wife to be paid maintenance by defendant husband’s business during the time when the husband was obligated to pay child support.  The wife was a consultant to defendant’s business:

It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” … , and “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . By entering into the Agreement, defendant agreed to employ plaintiff in the event his maintenance obligation terminated during the period of time in which he was still obligated to pay child support. Inasmuch as the language of the Agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence” … .

While we agree with plaintiff and the court that the clear and unambiguous intent of the Agreement was to provide a substitute source of monetary support for plaintiff after defendant’s maintenance obligation terminated, we conclude that the reason defendant agreed to employ plaintiff does not change the fact that the Agreement established an employment relationship with corresponding rights and obligations for both parties.

As we have previously stated, “[a]n employee may not compete with his [or her] employer’s business during the time of his [or her] employment” … . When plaintiff opened a business in direct competition with defendant’s business, plaintiff breached her duty of loyalty to her employer … , thereby permitting defendant to terminate the consultation fees and the employment relationship. Anderson v Anderson, 2014 NY Slip Op 06415, 4th Dept 9-26-14

 

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Court’s Failure to Inquire to Ensure Guilty Plea Was Knowing and Voluntary Required Vacation of the Plea (In the Absence of Preservation)

The Fourth Department determined Supreme Court’s failure make an inquiry to determine whether defendant’s guilty plea was knowing and voluntary required reversal (in absence of preservation).  The defendant stated during the plea colloquy that the weapon he used was a BB gun, not a handgun.  Defense counsel explicitly waived any related affirmative defense:

At the outset of the plea colloquy, defense counsel stated that, although defendant told the police that he used a .45 caliber handgun in the robbery, the weapon he had used was actually a BB gun. Defense counsel further stated, however, that defendant would waive the affirmative defense set forth in Penal Law § 160.15 (4), which applies where the weapon used in the robbery “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” During the ensuing plea colloquy, defendant stated that the gun he had used was a BB gun that looked like a revolver, not a .45 caliber handgun as he had told the police. At the end of the plea colloquy, defense counsel, in response to concerns expressed by the prosecutor, again stated that defendant was waiving the affirmative defense set forth in section 160.15 (4). The court then accepted defendant’s plea.

Although “no catechism is required in connection with the acceptance of a plea” …, it is well established that, “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure that [the] defendant’s guilty plea is knowing and voluntary” … . “Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal,” despite having failed to make that challenge in a “postallocution motion” directed to the plea court … . People v Dukes, 2014 NY Slip Op 06454, 4th Dept 9-26-14

 

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Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available

The Fourth Department determined Supreme Court should have allowed discovery of documents from MREC which included trade secrets because the documents were indispensable to the defense and were otherwise unavailable:

We agree … that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff’s execution of a confidentiality agreement … . We therefore modify the order accordingly. “Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]”… . Here, MREC met its burden of establishing that the documents sought by plaintiff contained information “not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated” … . We nevertheless conclude that plaintiff established that the documents sought “were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]”  … . Conley & Son Excavating Co Ltd v Delta Alliance LLC, 2014 NY Slip Op 06468, 4th Dept 9-26-14

 

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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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Explicit Verbal Waiver of Miranda Rights Not Required

The Fourth Department determined that the absence of an express waiver of defendant’s Miranda rights did not require suppression of his statement:

…[D]efendant contends that the evidence at the Huntley hearing demonstrates that he did not waive his Miranda rights, but that he asked the arresting officer “[w]hat’s going on” after the arresting officer read him the Miranda warnings. Contrary to defendant’s contention, the court properly refused to suppress those statements. It is well settled that “an explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances” … . Thus, “[w]here, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights’ ” … . People v Jones, 2014 NY Slip Op 06452, 4th Dept 9-26-14

 

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