You are here: / Fourth Department

Tag Archive for: Fourth Department

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

 

,

Dissent Would Have Reversed Based Upon Prosecutor’s Mischaracterization of the Probative Force of the Particular Form of DNA Evidence Presented at Trial

Although the Fourth Department affirmed defendant’s conviction, two justices would have reversed on prosecutorial misconduct and ineffective assistance grounds.  The murder prosecution was based upon circumstantial evidence, including DNA evidence.  The DNA evidence, according to the dissenters, formed the crux of the People’s case. The dissent offers a detailed explanation of the different types of DNA evidence, and the probative scope of each. According to the dissenters, the prosecutor mischaracterized the DNA evidence in summation, ascribing to it more probative force than it really had. Defense counsel was deemed ineffective by the dissenters for failing to object.  From the dissent:

[FROM THE DISSENT:] In light of the circumstantial nature of all of the evidence against defendant, we cannot conclude that the jury would have reached the same result had not the prosecutor both mischaracterized and emphasized the DNA evidence on summation, which evidence the People made the linchpin of their case. Here, the testimony of the People’s forensic expert put defendant in only a statistically-undefined group of people whose DNA could have been found on the victim’s underwear, on the ligature, and in the sperm fraction from the vaginal swab. In other words, that evidence placed defendant in a class of people that could have contributed to the DNA, but the prosecutor argued to the jury that the analysis of the DNA established defendant as the DNA’s contributor. We conclude that the prosecutor’s willful and repeated mischaracterization of evidence of class as evidence of exactitude was misconduct that could have “ ‘tip[ped] the scales against defendant’ ” … . We cannot conclude that the same result herein “would undoubtedly have been reached” absent that misconduct …. . People v Wright, 1247, 4th Dept 3-21-14

 

,

City-Judge Pay Disparity Justified by Population of Cities

The Fourth Department reversed Supreme Court finding that the pay disparity between City of Buffalo and City of Tonawanda judges, as set forth in Judiciary Law 221-i, was constitutional:

It is undisputed that the disparate judicial salary schedule set forth in Judiciary Law § 221-i does not implicate a suspect class or a fundamental right, and thus it is subject to the rational basis standard of review… . Such rational basis review “is a paradigm of judicial restraint” … . “A statute subject to rational basis scrutiny is presumed to be constitutional, and the party challenging the statute bears the heavy burden of proving that there is no reasonably conceivable state of facts which rationally supports the distinction” … . Thus, “the State has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data” … .

Here, we conclude that there is a rational basis for the salary disparity between Tonawanda City Court and Buffalo City Court judges and, thus, that the disparity does not violate equal protection… . The cities of Buffalo and Tonawanda, although both located within Erie County and separated by only 12 miles, are very different municipalities. Buffalo is the largest city in Erie County and the second largest city in New York State. Tonawanda, by contrast, is “[o]ne of the smallest cities in Erie County.” Nearly one third of the residents of Erie County (28%) live in Buffalo, while only 1.5% of the county’s population resides in Tonawanda. In 2009, Buffalo’s population was 18 times the size of Tonawanda’s, i.e., 270,240 residents as compared to 14,766 residents. Tonawanda City Court has one full-time judge and one “half-time” judge, while Buffalo City Court has 13 full-time judges. Buffalo therefore has 20,787 residents per judge, which is more than twice the 9,844 residents per judge in Tonawanda.

We agree with defendants that it is rational for the State to pay a higher salary to judges who serve a larger population both as a proxy for caseload and as an indicator of potential future filings. Cassata v State of New York…, 183, 4th Dept 3-21-14

 

,

Conditioning Co-Defendant’s Plea on a Promise Not to Testify in Defendant’s Trial Is a Denial of the Right to Present a Defense

Although the Fourth Department affirmed defendant’s conviction, the court agreed with the defendant that the People improperly conditioned co-defendant’s plea upon his promise not to testify at defendant’s trial and threatened to increase the co-defendant’s sentence if he did testify.  The trial court eliminated the problem by permitting the co-defendant to testify without exposure to a more severe sentence:

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant’s trial and to threaten to increase the codefendant’s sentence should he violate that condition ….. As the United States Supreme Court wrote in Washington v Texas (388 US 14, 19), “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law.” Thus, “substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence” … . Here, however, defendant was not prejudiced by the improper plea condition inasmuch as the court granted his motion to permit the codefendant to testify on defendant’s behalf without exposure to a more severe sentence, and the court advised the codefendant of its ruling …. . People v Whitfield, 99, 4th Dept 3-21-14

 

, , ,

Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence

Over a two-justice dissent, the Fourth Department determined the finding that no accident occurred by the Workers’ Compensation Law Judge precluded plaintiff from suing under the Labor Law and common law negligence for an injury allegedly incurred while working on a house.  The court rejected the argument that the Workers’ Compensation proceeding dealt soley with the existence or non-existence of an employer-employee relationship:

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 or those in privity, whether or not the tribunals or causes of action are the same” … . Thus, “[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . “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, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” … .Here, defendant met his burden on his motion by establishing the “identicality and decisiveness of the issue” decided in the workers’ compensation proceeding… . Ridge v Gold, et al, 1300, 4th Dept 3-21-14

 

,

Probable Cause to Search Vehicle for a Weapon After Defendant’s Arrest Provided by Identified Citizen Informant

The Fourth Department determined a weapon was properly seized from a vehicle after defendant’s valid arrest based on information from an identified citizen informant:

It is well settled that, “ ‘where police have validly arrested an occupant of an automobile, and they have reason to believe that [it] may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein’ ” … .Here, as noted, there is no dispute that defendant was lawfully stopped and arrested. Rather, the issue before us is whether the police lawfully searched the vehicle defendant was driving. Even assuming, without deciding, that the police did not conduct a lawful inventory search, we conclude that a search was authorized because the police had probable cause to believe that a gun was inside the vehicle. Probable cause arose from the information provided to the police by the identified citizen informant, who stated that she observed one of the occupants of defendant’s vehicle in possession of what appeared to be a handgun used in the abduction of her boyfriend. “An identified citizen informant is presumed to be personally reliable” …  and, here, the informant had a sufficient basis of knowledge inasmuch as she personally observed the weapon in question… . People v Holmes, 95, 4th Dept 3-21-14

 

Grand Jury Proceedings Not Rendered Defective by Prosecutor’s Introduction of New Evidence After First True Bill Voted

The Fourth Department determined an indictment should not have been dismissed.  The grand jury proceedings were not rendered defective when the prosecutor reopened the proceedings to introduce more evidence after the grand jury voted the first true bill:

… [T]he court held that the grand jury proceedings were defective because the People, without seeking a formal vote of at least 12 members of the grand jury, submitted additional evidence after the grand jury had voted the first true bill, but before an indictment had been filed. Contrary to the court’s conclusion, Cade [74 NY2d 410] does not hold that a grand jury must vote to vacate a prior true bill that has not been filed as an indictment in order to reopen the proceedings and introduce additional evidence in support of proposed charges that were not previously considered by the grand jury … . Indeed, in Cade, the Court of Appeals noted that there are reasons, other than a prosecutor’s belief that the evidence before the grand jury was inadequate or that dismissal was likely, “why a prosecutor or a [g]rand [j]ury would choose to reopen the evidence. The prosecutor might, for example, supplement the evidence to bring additional or higher charges” … . Moreover, unlike the procedure that was in any event approved in Cade, here the prosecutor never requested that the grand jury reconsider the lower charge of assault in the second degree in light of the additional evidence … . Thus, inasmuch as there was no second presentment of that charge, the grand jury was not required to vacate its prior vote. We therefore conclude that the integrity of the grand jury was not impaired … . In view of our conclusion, we do not address the issue whether defendant was prejudiced by the procedure employed here. People v Grimes, 131, 4th Dept 3-21-14

 

, ,

Untimely Demand for Reinstatement Warranted Dismissal of Action to Compel Reinstatement

The Fourth Department determined petitioner’s action to compel reinstatement in his job as a policeman was untimely.  Petitioner should have made a demand for reinstatement within four months of learning he was not being held responsible criminally or civilly for the acts of misconduct alleged against him:

“Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee’s demand for reinstatement is refused” … . “[T]he demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [petitioner] becomes aware of the facts which give rise to his [or her] right of relief” … , and we note that the four-month limitations period of CPLR article 78 proceedings has been “treat[ed] . . . as a measure of permissible delay in the making of the demand” … . Here, we conclude that petitioner’s right to demand reinstatement to his position arose, at the latest, on or about December 6, 2011, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury … . Nevertheless, petitioner did not demand reinstatement to his position until approximately nine months later, on August 31, 2012, well over the four-month guideline applied in Devens … . Thus, “it was [well] within the court’s discretion to determine that petitioner unreasonably delayed in making the demand” … . Matter of Norton v City of Hornell…, 256, 4th Dept 3-21-14

 

, ,

Under the Unambiguous Terms of the Collective Bargaining Agreement, Plaintiff, a Retiree Who Was No Longer a Union Member, Was Not Subject to the Grievance-Filing Requirement and Could Sue Directly

The Fourth Department determined a retired employee was not required to go through the grievance procedure outlined in the Collective Bargaining Agreement because the unambiguous language of the CBA did not apply to retirees no longer union members:

In relevant part, the CBA defines the term “grievance” broadly as “a controversy, dispute or difference arising out of the interpretation or application of this contract.” The first step of the grievance procedure requires either the union or a “member” to present the grievance in writing. “It is well established that[,] when reviewing a contract, ‘[p]articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties manifested thereby’ ” … . Furthermore, we“must give the words and phrases employed their plain meaning” … . Elsewhere in the CBA, the word “member” is used interchangeably with the word “employee,” and several CBA provisions that apply to “members,” such as provisions for holiday pay and annual physicals, clearly affect only active employees. In addition, the CBA provides that the Village recognizes the union “as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees” (emphasis added).

Giving the word “member” its plain meaning, and interpreting the contract as a whole, we agree with plaintiff that the word “member” means a member of the union. It is undisputed that plaintiff ceased to be a member of the union after his retirement. Thus, according to the clear and unambiguous terms of the CBA, plaintiff, who was no longer a “member” of the union when he became aggrieved, could not file a grievance. Buff v Village of Manlius…, 37, 4th Dept 3-21-14

 

Construction Manager Not Liable Under Labor Law 241(6), Labor Law 200, or Under Common Law Negligence/No Control Over Work or Responsibility for the Premises

Over a dissent, the Fourth Department determined a construction manager was not liable as an agent of the owner under Labor Law 241(6) because the manager did not control the activity which resulted in the injury.  In addition the court determined the Labor Law 200 and common law negligence causes of action should hav been dismissed:

A construction manager may be liable as an agent of the owner if “the manager had the ability to control the activity which brought about the injury” … . “ ‘Defendant established as a matter of law that it was not an agent of the owner because the owner had not delegated to it the authority to supervise and control plaintiff’s work’ ” … . Pursuant to the express terms of the contract between defendant and the District, defendant “had no control over or responsibility for the safety of the workers at the construction site” … . The deposition testimony and affidavits submitted by defendant established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more. * * *

“Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . On the other hand, where the “ ‘plaintiff’s injuries stem not from the manner in which the work was being performed[ ] but, rather, from a dangerous condition on the premises, [an owner or] general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition’  … . Regardless of which theory applies here, defendant was not an agent of the owner and “was not responsible either for the performance of [plaintiff’s] work or the premises on which that work was undertaken” … . Hargrave…v LeChase Construction Services LLC, 1373, 4th Dept. 3-21-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy