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Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

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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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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

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The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner’s property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

…[W]e agree with defendants that collateral estoppel does not apply here. “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party’ ” … . The doctrine “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action’ ” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs’ legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that “the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law” (id. at 142 [emphasis added]).

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions… . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances… .

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance … . Unlike the 2005 Law, the 2007 Law does not “regulate[] the location of certain facilities within particular zoning districts” but, rather, it “generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare” … . It is well established that “a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare” (id.) and “may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion” … . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14

 

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Inventory Search of Impounded Vehicle Proper

In upholding the validity of an inventory search of defendant’s vehicle, the Fourth Department explained the analytical criteria:

It is well settled that, “[w]hen the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to reasonable police regulations relating to inventory procedures administered in good faith’ ” … . Thus, “[h]aving arrested the defendant [in] a public [parking lot], the officers were thereafter entitled to impound the vehicle” … . Furthermore, “[i]t is settled law that the police may search an impounded vehicle to inventory its contents” … . “Such searches, conducted as routine procedures, are permitted to protect an owner’s property while it remains in police custody, to protect the police against false claims for missing property and to protect the police from potential danger” … . Here, the police officers properly impounded the vehicle that defendant drove to the scene of the crime and performed an inventory search of that vehicle pursuant to a reasonable Cheektowaga Police Department procedure, during which they discovered the handgun. Consequently, the court properly refused to suppress the evidence seized during that inventory search. People v Tardi, 2014 NY Slip Op 07880, 4th Dept 11-14-14

 

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Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed—Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant’s Protection Against Double Jeopardy

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

The extraordinary remedy of mandamus ” is never granted for the purpose of compelling the performance of an unlawful act’ ” …, and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant’s objection, a plea taken in contravention of CPL 220.10 or related statutory provisions … . Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court’s inherent [or statutory] power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” … . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy … . Contrary to petitioner’s contention, CPL 40.30 (3) “does not aid the analysis of the double jeopardy issue” … . The Court of Appeals has held that a plea taken without the People’s consent is not a nullity for purposes of that provision … .

Apart from the legal infirmities of petitioner’s position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner’s contention that his consent to defendant’s plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

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Abuse of Discretion to Entertain a Motion to Suppress Brought More than 45 Days After Arraignment (the Motion Had Been Granted and the People Appealed)

The Fourth Department determined defendant’s motion to suppress the results of a chemical blood test should not have been granted because the motion was made more than 45 days after arraignment:

The People appeal from an order granting defendant’s motion to suppress the results of a chemical test of defendant’s blood, which had been taken from defendant more than two hours after his arrest (see generally Vehicle and Traffic Law § 1194 [2] [a] [1]). The motion was made … more than 45 days after defendant’s arraignment …, and was therefore untimely as a matter of law (see CPL 255.20 [1]). We conclude that County Court abused its discretion in entertaining and granting the untimely motion because there was no good cause shown by defendant for an extension of time (see CPL 255.20 [3]…). People v Enright, 2014 NY Slip Op 07850, 4th Dept 11-14-14

 

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Relationship Between the “Open Repudiation [of Fiduciary Obligations] Rule” and the Laches Defense Explained/Allegations that Investments Made by the Fiduciary Underperformed Does Not State a Cause of Action for Breach of the Fiduciary Duty

In reversing Surrogate’s Court’s dismissal of objections to the fiduciary’s final accounting based on the laches defense, the Fourth Department explained the “open repudiation rule” and its relationship to laches.  To take advantage of the laches defense, the fiduciary must have openly repudiated his or her obligation or there must have been a judicial settlement of the fiduciary’s account, niether of which took place here.  The Fourth Department reached the same result as did Surrogate’s Court by concluding, pursuant to CPLR 3211(a)(7), that the numerous specific objections failed to state any cause of action against the fiduciary.  With respect to the “open repudiation rule” and the “underperforming investments” allegations, the court wrote:

… [T]he open repudiation rule applies to the defense of laches … . As the Court of Appeals stated in Barabash, “[a] fiduciary is not entitled to rely upon the laches of his beneficiary as a defense, unless he repudiates the relation to the knowledge of the beneficiary” … . Moreover, the open repudiation rule “requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries” … . * * * Inasmuch as petitioner’s repudiation of its role of fiduciary was a prerequisite to its assertion of the defense of laches, and because no such repudiation occurred, we conclude that the Surrogate erred in permitting petitioner to assert that defense and in dismissing the objections on the ground that the objections were barred thereby. * * *

The elements of a cause of action for breach of fiduciary duty are ” the existence of a fiduciary duty, misconduct by the [fiduciary] and damages that were directly caused by the [fiduciary’s] misconduct’ ” … . * * *

We reject objectants’ contention that they stated a cause of action for breach of fiduciary duty by filing an objection to petitioner’s refusal to consider investment in nonproprietary funds. Objectants correctly concede that the Prudent Investor Act permits petitioner to invest trust assets in proprietary funds (see EPTL 11-2.3 [d]). The Prudent Investor Act also requires a trustee such as petitioner with “special investment skills” to “exercise such diligence in investing and managing assets as would customarily be exercised by prudent investors of discretion and intelligence having special investment skills” (EPTL 11-2.3 [b] [6]). Even under this standard, however, ” it is not sufficient that hindsight might suggest that another course would have been more beneficial; nor does a mere error of investment judgment mandate a surcharge’ ” … . Thus, it is well settled that ” a fiduciary’s conduct is not judged strictly by the success or failure of the investment . . . In short, the test is prudence, not performance, and therefore evidence of losses following the investment decision does not, by itself, establish imprudence’ ” … . Here, objectants merely alleged that the proprietary funds were underperforming, which is insufficient to state a cause of action for breach of fiduciary duty … . Matter of JPMorgan Chase Bank NA, 2014 NY Slip Op 07799, 4th Dept 11-14-14

 

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The “Special Facts” Exception to the Retroactive Applicability of a Statute Does Not Apply/A Statute Cannot Be Interpreted to Render Language Superfluous/A Municipality Cannot Challenge the Constitutionality of a State Statute/Lack of Capacity to Sue Does Not Deprive the Court of Jurisdiction

The Fourth Department determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called “Overburden expenses”) incurred prior to 2006, when the medicaid “Cap Statute” was enacted.  The court dealt with several issues, including:  (1) the retroactive effect of the 2012 amendment; (2) the effect of the amendment cannot be avoided under the “special facts” exception; (3) the amendment cannot be interpreted to render language superfluous; (4) municipalities cannot challenge the constitutionality of statutes; and (4) the lack of the capacity to sue, unlike standing, does not go to the jurisdiction of the court:

Section 61 clearly states that no further claims for reimbursement of overburden expenditures will be paid, notwithstanding Social Services Law § 368-h. Thus, the unequivocal wording of section 61 retroactively extinguishes petitioner’s right to submit claims for reimbursement of overburden expenditures made prior to 2006. “The retroactivity of a statute which is expressly retroactive, as here, will generally be defeated only if such retroactivity would violate due process or some other specific constitutional precept” … .

Here, however, in granting the cross motion, Supreme Court ordered that petitioner’s claims be “treated under Social Services Law § 368-a as [they] existed at the time that Petitioner incurred the Overburden expenses on Respondents’ behalf, pursuant to the special facts exception.” We agree with respondents that the special facts exception does not apply in this situation. Insofar as relevant here, that exception provides that “a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on [a claim] until after the law had been amended to authorize denial of the” claim … . There is no indication that resolution of the claims at issue was delayed until section 61 was enacted. * * *

It is well settled that, in interpreting a statute, a court ” must assume that the Legislature did not deliberately place a phrase in the statute that was intended to serve no purpose’ ” …, and must avoid an interpretation that ” result[s] in the nullification of one part of [a statute] by another’ ” … . Thus, “[a] construction that would render a provision superfluous is to be avoided” … . * * *

In its cross motion for summary judgment, petitioner sought, inter alia, judgment declaring that section 61 is unconstitutional because the statute deprived petitioner of due process by removing its vested rights. “[T]he traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies–—counties, towns and school districts—–are merely subdivisions of the State, created by the State for the convenient carrying out of the State’s governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants” … .

It is equally well settled, however, that “[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived” … . Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14

 

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