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People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily—Convictions Reversed, Some Charges Dismissed and New Trial Ordered

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant’s statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant’s interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant’s excessively compliant nature, the defendant did not make his statements voluntarily:

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People’s expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant’s IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant’s verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant’s “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing. * * *

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” … . “A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” … . A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” …, i.e., “how the Miranda rights affected the custodial interrogation” (id. at 289). It must therefore be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” … . * * *

As the defense expert testified at trial, “[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know.” Many, although not all, of defendant’s responses consisted of “mmm-hmm,” yes, and a parroting back of the detective’s statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was “not lying,” and that the medical examination was going to show that “something happened” between defendant and the victim. The defense expert testified that such tactics “would lead [defendant] to question his own memory of the situation which isn’t good to begin with. He’s got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer.” People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

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Conviction Overturned for the Second Time Because of Misconduct by the Same Prosecutor

In reversing defendant’s conviction for the second time (after the retrial) because of the same prosecutor’s misconduct, the Fourth Department also concluded there was insufficient evidence of the value of stolen items (cost of items when purchased not enough)) and there was insufficient evidence of possession of a controlled substance (statement that cocaine was smoked by the defendant on a particular day not enough). With respect to the prosecutorial misconduct, the court wrote:

Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper.  The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury .. .  In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] . . . It is not about who isn’t sitting at the defense table, it is about who is.  Are you buying it? Because that’s what they’re selling.  Theories disguised as arguments and posturing as evidence.  And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence.  They all have something in common.  These theories, they’re noise, they’re nonsense.  They want you to be distracted.  Do not be distracted.”

In addition, the prosecutor misstated the evidence and the law…, made an inappropriate “guilt by association” argument …, and improperly characterized the case as “about finding the truth and it is as simple as that” … .  Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s office into the case … .  With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated:  “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that’s what you have to do, and she was released on her own recognizance by the judge.  And let me be very clear here when we talk about promises to witnesses or benefits that they received.  Let me be very clear. Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony” … .  The Court of Appeals condemned similar comments by the prosecutor… . People v Morgan, 942, 4th Dept 11-8-13

 

Petitioner Did Not Have Standing to Contest Negative SEQRA Finding/”Alienation of Parkland” and “Public Trust” Arguments Rejected

The Fourth Department determined petitioner did not have standing to contest the negative finding pursuant to State Environmental Quality Review Act (SEQRA)  The finding concerned a storage facility to be built for the Maid of the Mist excursion boats on state-park land along the Niagara River.  The petitioner, Niagara Preservation Coalition, Inc., was formed to challenge the project.  In the course of the decision, the Fourth Department rejected the “alienation of parkland” and “public trust” arguments:

We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, ” interest’ and injury’ are not synonymous . . . A general—or even special— interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case” … . “Appreciation for historical and architectural [artifacts] does not rise to the level of injury different from that of the public at large for standing purposes” … . Here, petitioner failed to establish an injury distinct from members of the public who use the gorge trail to access the ruins of the former hydroelectric plant … , and thus it lacks standing to contest the SEQRA determination. * * *

Even assuming, arguendo, that petitioner has standing to allege alienation of parkland …, as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents …were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park. It is well established “that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes” … . It is undisputed, however, that there is no case law in New York applying the “public trust” principle to state parks. The cases apply only to municipal parks … . Even assuming, arguendo, that [state] parks …are governed by the ” public trust doctrine’ ” … , which respondents dispute …, “what [petitioner] show[s here] is a dispute with public authorities about what is desirable for the park[,] . . . not a demonstration of illegality” … . Matter of Niagara Preserv Coalition Inc v New York Power Auth, 2014 NY Slip Op 06694, 4th Dept 10-3-14

 

Sentence Greater than that Promised in a Plea Bargain Did Not Constitute Punishment for Exercising the Right to Go to Trial

The Fourth Department rejected defendant’s argument that his sentence was increased as punishment for going to trial:

” [T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant’s exercise of the right to a trial’ ” …, or that the court ” placed undue weight upon defendant’s ill-advised decision to reject [a] favorable plea bargain and proceed to trial’ ” … . People v Odums, 2014 NY Slip OP 06692, 4th Dept 10-3-14

 

Cleaning Clogged Drain Was Routine Maintenance, Not Covered by Labor Law 240(1)

The Fourth Department determined plaintiff was engaged in routine maintenance, not repair, and therefore his injury from a fall from a ladder was not covered under Labor Law 240(1):

Addressing … the Labor Law § 240 (1) cause of action, we conclude that plaintiff was not “repairing” the corrosion chamber at the time he was injured, and thus that he was not engaged in a protected activity under section 240 (1). Rather, defendants established as a matter of law that plaintiff was involved in “routine maintenance in a non-construction, non-renovation context” … . The court therefore properly granted that part of defendants’ motion with respect to that cause of action and denied plaintiffs’ cross motion. Neither the corrosion chamber nor the components of the “drainage system,” i.e., the floor drain and plastic piping, were in need of “repair.” Rather, the drain was clogged, at least in part as a result of the normal operation of the chamber. Plaintiff testified at his deposition that the clog consisted of “paper and what looked to be like pieces of wooden dowel from like Q-tips that they use,” i.e., parts of samples that had been placed in the chamber on prior occasions, as well as an unknown substance. Although plaintiff and his supervisor testified that dirty conditions in the chamber could potentially compromise test results, there is no evidence that the chamber was ” inoperable or malfunctioning prior to the commencement of the work’ ” … . Further, there is no evidence that plaintiff had to use specialized tools or any tools at all to take apart the plastic piping. Indeed, defendants’ expert averred that the PVC piping had no mechanical fasteners and was “merely a friction fit, therefore, it would be a routine task to remove.” Plaintiff then used an air hose, metal wire, and a water hose to remove the clog, all of which were readily accessible to and used by him in the course of his employment. Leathers v Zaepfel Dev Co Inc, 2014 NY Slip Op 06691, 4th Dept 10-3-14

 

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Parole Officer Was Not Acting “Merely as a Conduit” for the Police In Conducting a Search—The Search Was Related to the Parole Officer’s Duties

In rejecting the defendant’s argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer’s duties, the Fourth Department explained the relevant law:

A parolee’s right to be free from unreasonable searches and seizures is not violated if a parole officer’s search of the parolee’s person or property “is rationally and reasonably related to the performance of his duty as a parole officer” … . A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … . Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … .

Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer’s duties, and that suppression was therefore not warranted … . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14

 

Labor Law 200 Cause of Action Requires Supervisory Control Over How Plaintiff Carries Out the Injury-Producing Work

The Fourth Department, in affirming the dismissal of the common-law negligence and Labor Law 200 causes of action, explained the operative criteria:

Labor Law § 200 codifies “the common-law duty of a landowner to provide workers with a reasonably safe place to work” … , and it therefore encompasses the duty underlying plaintiff’s negligence cause of action. A precondition to the duty under Labor Law § 200 ” is that the party charged with that responsibility have the authority to control the activity bringing about the injury’ ” … . Thus, liability under Labor Law § 200 cannot be imposed on a defendant if “there is no evidence that [the] defendant exercised supervisory control or had any input into how” the plaintiff carried out the injury-producing work … .

Here, all three moving defendants met their initial burdens of establishing as a matter of law that they did not have supervisory control over plaintiff’s work and did not have input into how he performed his work. Jones v County of Erie, 2014 NY Slip Op 06726, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

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

 

Question Posed by the Prosecutor to Prospective Black Jurors About Whether They Felt Police Officers Unfairly Target Members of the Minority Community Required Reversal

The Fourth Department reversed defendant’s conviction, finding that the prosecutor’s explanation for excluding black jurors was not race-neutral.  The prosecutor asked the jurors whether they felt that police officers unfairly target members of the minority community:

Pursuant to Batson and its progeny, “the party claiming discriminatory use of peremptories must first make out a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more [prospective] jurors for an impermissible reason . . . Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory—–step two … The third step of the Batson inquiry requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented” … . * * *

With respect to step two of the analysis, we conclude that the People failed to meet their burden of setting forth a “race-neutral reason” for striking the challenged prospective jurors … . “A race-neutral reason naturally means an explanation based on something other than the race of the [prospective] juror’ ” …, and must be “related to the particular case to be tried” … . Although the burden on the nonmoving party at this stage of the analysis is relatively minimal, “[a] prosecutor’s explanation may not be sustained where discriminatory intent is inherent in the explanation” … .

Here, the People excluded the two prospective jurors at issue solely based upon their answers to a race-based question, i.e., whether they believed that police officers “unfairly target members of the minority community” … . Notably, that question was unrelated to the facts of this case, which does not involve any allegation of racial profiling . We are unpersuaded by the People’s assertion that the question was “designed to ensure that the jurors would not automatically accept or reject police testimony.”  People v Mallory, 2014 NY Slip Op 06728, 4th Dept 10-3-14

 

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