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Sentencing Court Must Make Finding Whether Eligible Youth Should Be Afforded Youthful Offender Status

The Fourth Department sent the case back for a determination whether defendant should be afforded youthful offender status, a finding which must be made for every eligible youth:

Defendant, an eligible youth, pleaded guilty pursuant to a plea bargain that included a promised sentence and a waiver of the right to appeal. There was no mention during the plea proceedings whether he would be afforded youthful offender treatment.

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]). A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … . People v Scott, 293, 4th Dept 3-28-14

 

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Court Review of Sufficiency of Evidence Before a Grand Jury Explained

The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment.  The court explained how the sufficiency of evidence before a grand jury is analyzed:

On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” … . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” … . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” … .  People v Forsythe, 359, 4th Dept 3-28-14

 

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Error to Allow Prosecutor to Elicit Testimony that Defendant Invoked His Right to Counsel

Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel:

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[] might have contributed to defendant’s conviction” … .  People v Daniels, 360, 4th Dept 3-28-14

 

Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

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No Basis in Law for “Automatic Override” Based Upon a Prior Sex Crime Conviction to Raise Sex Offender Status Above the Presumptive Level (SORA)

The Fourth Department reversed County Court’s determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime.  The County Court described the authority for the upward departure as an “automatic override.”  The Fourth Department noted that an “automatic override” does not exist in this context and explained the criteria for an upward departure:

Based upon the total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified as a level two risk. County Court determined that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime. That was error. “[N]o basis in law exists for . . . an automatic override [to] increase[] defendant’s presumptive risk level two designation to risk level three” … . “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” … . “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ” … . People v Moore, 357, 4th Dept 3-28-14

 

Petitioners Failed to Show the Noise from a Train Affected Them Differently From the Public at Large/Therefore the Petitioners Did Not Have Standing to Raise a Challenge to the Source of the Noise Under the State Environmental Quality Review Act/Purpose of the Standing Requirement in this Context Explained

The Fourth Department determined the petitioners did not have standing to bring  a proceeding to raise a challenge under the State Environmental Quality Review Act (SEQRA) because the noise complaints stemming from a train running through town did not affect the petitioners differently from the public at large.  The train runs through the town pursuant to resolutions allowing the town to sell excess municipal water to a buyer in Pennsylvania.  The Fourth Department noted that the complaints related solely to the operation of the train, not to the operation of the “transloading facility” where the water is loaded onto the trains:

There is no dispute that “[c]ourts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which have functioned here. By contrast to those forums, a litigant must establish its standing in order to seek judicial review” … . “With the growth of litigation to enforce public values, such as protection of the environment, the subject of standing has become a troublesome one for the courts” … . “ ‘[I]njury in fact’ has become the touchstone” for standing …, because “[t]he existence of an injury in fact–an actual legal stake in the matter being adjudicated–ensures that the party seeking review has some concrete interest in prosecuting the action” … .

It is well established that “[s]tanding requirements ‘are not mere pleading requirements but [instead are] an indispensable part of the plaintiff’s case[,]’ and therefore ‘each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof’ ” … . Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise” a challenge under the State Environmental Quality Review Act ([SEQRA] ECL art 8) based solely on a party’s proximity … . In such a situation, the party seeking to establish standing must establish that the injury of which he or she complains “falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected” …, and that he or she “would suffer direct harm, injury that is in some way different from that of the public at large” … .

While we agree with petitioners that noise falls within the zone of interests sought to be protected by SEQRA (…see generally ECL 8-0105 [6]), we conclude that respondents met their burden of establishing as a matter of law that [petitioner] did not sustain an injury that was different from that of the public at large. Matter of Sierra Club… v Village of Painted Post, 202, 4th Dept 3-28-14

 

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Commissioner of Education Has Primary Jurisdiction Over Dispute About the Appropriate Pay for a School Principal Whose Position Was Abolished But Who Was Subsequently Assigned an Assistant Principal Position/Petition for Stay of Arbitration Pursuant to the Collective Bargaining Agreement Should Have Been Granted/Arbitration Prohibited by Public Policy

The Fourth Department determined Supreme Court should have granted petitioner’s application for a stay of arbitration.  A former principal whose position was abolished was hired as an assistant principal.  A grievance was filed by respondent on the former principal’s behalf contending that her new position warranted the same level of pay she had received in the abolished position. After the grievance was denied by petitioner, the respondent demanded arbitration pursuant to the collective bargaining agreement.  The Fourth Department determined the demand for arbitration should have been denied because the matter must be determined by the Commission of Education in the first instance:

It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim (see CPLR 7501…). In making the threshold determination of arbitrability, the court applies a two-part test. It first determines whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “If no prohibition exists,[the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” … .

Here, we agree with petitioner that the Commissioner of Education has primary jurisdiction over the parties’ dispute, and that arbitration is therefore prohibited by public policy. As we have previously noted, “ ‘the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the . . . former position and the new position are similar within the meaning of Education Law § [2510 (3) (a)]’ ” … . Based on his or her specialized knowledge and expertise, the Commissioner of Education should “resolve, in the first instance,” the issue of fact whether two positions are sufficiently similar under Education Law § 2510 … . Matter of Arbitration …, 285, 4th Dept 3-28-14

 

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Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench Trial and for Piercing the Corporate Veil Explained

The Fourth Department determined the trial court had properly pierced the corporate veil to find the defendant physician personally liable to the plaintiff landlord.  The defendant ceased paying rent when he joined another urology practice.  The court noted that the defendant (Roehmholdt) made no effort to continue his business (Northtown Urology) at plaintiff’s location, but rather took more lucrative employment, encouraged his patients to follow him, and used corporate funds to satisfy a personal debt.  In the course of upholding the piercing of the corporate veil, the Fourth Department explained how it reviews determinations made in a bench trial:

As a preliminary matter, we note that, “[o]n an appeal from a judgment rendered after a nonjury trial, our scope of review is as broad as that of the trial court … . Upon such a review, the record should be‘viewed in the light most favorable to sustain the judgment’ …, and this Court should evaluate ‘the weight of the evidence presented and grant judgment warranted by the record, giving due deference to the trial court’s determinations regarding witness credibility, so long as those findings could have been reached upon a fair interpretation of the evidence’ …. ‘[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ … .

With respect to piercing the corporate veil, we note that it is not “ ‘a cause of action independent of that against the corporation; rather it is an assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owners’ ” … . “ ‘A plaintiff seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff . . . Factors to be considered in determining whether [a corporation] has abused [that] privilege . . . include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use’ ” … .

The burden of establishing that the corporate veil should be pierced is a heavy one … but “ ‘[b]roadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity’ ” … . “A decision to pierce the corporate veil is a fact-laden [determination]” …, and “[n]o one factor is dispositive” … . A & M Global Management Corp v Northtown Urology Associates PC, 124, 4th Dept 3-28-14

 

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Trial Court Should Not Have Precluded Expert Testimony Based Upon Failure to Make Timely Disclosures— Rather, the Trial Should Have Been Adjourned

Noting that the appellate court has the power to make its own discretionary determinations about discovery and CPLR article 31 matters, even in the absence of the abuse of discretion by the trial judge, the Fourth Department, over a two justice dissent, found that the trial judge should not have granted the defendants’ motion to preclude testimony by plaintiffs’ experts based upon the failure to make timely disclosures:

“[W]e have repeatedly recognized that ‘[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion’ . . . We have also repeatedly noted, however, ‘that, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we] “[are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” ’ ” … . Under the circumstances of this case, we substitute our discretion for that of Supreme Court, and we conclude that the court should have adjourned the trial rather than granting defendants’ motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Smalley … v Harley-Davidson Motor Company Inc…, 372, 4th Dept 3-28-14

 

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“Labor or Services” Complaint Not Specific Enough to Trigger Specific-Answer Requirement Under CPLR 3016

The Fourth Department determined plaintiff nursing home’s motion for summary judgment pursuant to CPLR 3016 was properly denied.  Defendant’s late husband was in plaintiff nursing home for the last 15 months of his life.  Plaintiff sued for $125,265.54 in unpaid invoices. The court determined the complaint did not set forth with sufficient specificity the reasonable value and agreed price of each service provided.  Therefore the statutory requirement for a specific answer to each allegation of service was not triggered:

CPLR 3016 (f) provides that, in an action involving the -2- 205 CA 13-01681 “performing of labor or services,” the plaintiff “may set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each.” If the plaintiff does so, “the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price.” “To meet the requirements of CPLR 3016 (f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry” … . If the complaint lacks sufficient specificity, the defendant may serve a general denial answer … .Here, we conclude that the complaint failed to meet the specificity standards of CPLR 3016 (f) and thus “did not trigger a duty on defendant[’]s part to dispute each item specifically” … .  Waterfront Operations Associates LLC… v Candido, 205, 4th Dept 3-28-14

 

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