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Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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Case Sent Back to Suppression Court for Hearing to Determine Admissibility of Statements

The Fourth Department sent the case back to the suppression court for a hearing to determine the admissibility of statements that had not been included in the initial 710.30 notice provided in connection with a prior indictment that had been dismissed. The statements were included in the 710.30 notice provided in connection with the superseding indictment. The Fourth Department determined the defendant was entitled to a hearing on the admissibility of the statements:

…[W]e conclude that the court properly refused to preclude the additional statements included in the CPL 710.30 notice served by the People after the superseding indictment was filed … .  “Those [statements] were not referenced in the CPL 710.30 notice that was served in connection with the original indictment, but the record establishes that the People filed the superseding indictment out of necessity after the court dismissed . . . the original indictment” … .  We agree with defendant, however, that the court erred in determining the admissibility of the additional statements without reopening the Huntley hearing and affording defendant a further opportunity to contest their admissibility.  The court concluded that the statements were spontaneously made and therefore not subject to suppression.  At the time of the Huntley hearing conducted in conjunction with the initial indictment, however, the only issue before the court with respect to the additional statements was whether they should be precluded on the ground that they had not been included in the first CPL 710.30 notice.  Consequently, inasmuch as the voluntariness of the additional statements was not at issue at that time, defendant had no reason or opportunity to explore the issues of spontaneity or the effect of the previously-given Miranda warnings, or to raise any other issues regarding the admissibility of those statements.  Thus, “the hearing must be reopened” to afford him that opportunity… . People v Roberts, 945, 4th Dept 10-4-13

 

Restitution to Police Department Re: Expenses of Drug Bust Proper

The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered:

… [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a law enforcement agency ‘the amount of funds expended in the actual purchase’ of a controlled substance” … .  Section 60.27 (9) was amended in 1991 “to authorize restitution to law enforcement agencies for unrecovered funds utilized to purchase narcotics as part of investigations leading to convictions” … .  We therefore conclude … that the court properly directed defendant to pay restitution to the City of Oswego Police Department for the funds it expended in buying drugs from him.

The People correctly concede with respect to defendant’s further contention … that the court erred in imposing a surcharge on that restitution order.  Penal Law § 60.27 (9) further provides that “[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section . . . shall not include a designated surcharge.”  People v Boatman, 940, 4th Dept 10-4-13

 

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Case Sent Back to Suppression Court to Determine Whether Police Had Sufficient Reason for Asking About Drugs and Weapons After Traffic Stop

The Fourth Department sent the case back for a determination whether the police had a founded suspicion of criminal activity to justify an inquiry about the presence of drugs of weapons after a traffic stop:

We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon the inevitable discovery doctrine.  The testimony at the suppression hearing established that, during a lawful traffic stop, one of the police officers asked defendant whether there were any drugs or weapons in the vehicle before instructing defendant to exit the vehicle.  After defendant admitted to having marihuana on his person, the police officer asked defendant to exit the vehicle and, following suspicious behavior by another occupant of the vehicle, searched the vehicle and found a gun in plain view.  Notably, the court did not address whether the officer had the requisite founded suspicion of criminal activity to justify an inquiry concerning the presence of drugs or weapons in the vehicle … . Instead, the court refused to suppress the gun on the ground that the police “could” have taken various actions after the traffic stop that would have inevitably led to the discovery of the gun.  The People, – however, did not raise the inevitable discovery doctrine as a ground for denying suppression of the gun, nor did they meet their burden of “demonstrat[ing] a very high degree of probability that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source”… . People v Sykes, 849, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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Erroneous Molineux Rulings Required Reversal

The Fourth Department reversed defendant’s conviction, finding error in the trial court’s ruling evidence of prior bad acts was admissible:

Before the trial, the court granted the People’s motion to present Molineux evidence for the limited purpose of proving the absence of mistake in defendant’s possession of the forged checks (see People v Molineux, 168 NY 264, 293-294).  Pursuant to the court’s ruling, the People presented evidence on their direct case concerning three of defendant’s prior convictions as well as one investigation that did not result in criminal charges, arising from defendant’s conduct in writing checks on his accounts with knowledge that those accounts either were closed or had insufficient funds.  The court erred in ruling that such evidence was relevant to establish the absence of mistake.  The disputed issues at trial were whether defendant knew that the checks were forged and whether defendant was a knowing participant in, or an innocent victim of, a fraudulent check scheme.  Defendant’s prior bad acts were not “directly relevant” to the absence of mistake in defendant’s possession of the forged checks because those prior bad acts are not probative of defendant’s ability to recognize that the checks were forgeries or that he had become knowingly involved in a fraudulent check scheme … .  Contrary to the People’s contention, the Molineux evidence was not admissible to prove defendant’s “familiarity with check frauds and his ability to deceive individuals through banking schemes” inasmuch as such evidence “tends only to demonstrate the defendant’s propensity to commit the crime charged” .. .  Furthermore, the Court of Appeals has expressly declined to create a “ ‘specialized crime’ exception to Molineux” when the charged crime is one “that require[s] unusual skills, knowledge and access to the means of committing it” … .  We therefore conclude that evidence of defendant’s prior bad acts was inadmissible as a matter of law … .

We further conclude in any event with respect to the court’s Molineux ruling that the probative value of the evidence did not outweigh its prejudicial effect … .  The evidence was “of slight value when compared to the possible prejudice to [defendant]” and therefore should not have been admitted … .  We further conclude that the error in admitting the evidence is not harmless …, even in view of the court’s limiting instruction.  People v Mhina, 871, 4th Dept 10-4-13

 

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Mode of Proceedings Error Re: Jury Note Required Reversal, Molineux Rulings Flawed

The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant.  In addition, the Fourth Department found fault with the procedure used by the trial court to address the admission into evidence of defendant’s prior bad acts, as well as some of the rulings that such evidence was admissible:

We agree with defendant that County Court committed a mode of proceedings error when it responded to a jury note off the record, in the jury room, and outside the presence of defendant, with no indication that defendant had waived his right to be present.  CPL 310.30 provides that, upon receiving a request for further instruction or information from the jury during deliberations, “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.”  It is beyond cavil that “[a] defendant has a fundamental right to be present at all material stages of a trial . . . [and] CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” … .  The court properly read the jury note on the record in the presence of defendant, defense counsel, and the prosecutor, and it then obtained a clear stipulation from both attorneys concerning the accuracy of its intended response to the jury’s request for information.  We nevertheless conclude that the court committed reversible error by subsequently instructing the jury off the record, in the jury room, and outside the presence of defendant (see CPL 310.30…).

Because there must be a retrial, we deem it appropriate to address defendant’s contention that the court abused its discretion by permitting testimony concerning defendant’s prior bad acts in the days, months, and years preceding the subject arson.  “[A] defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264) or to a pretrial hearing on the admissibility of such evidence” ….  Nevertheless, “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ . . . and . . . any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies’ ” … .

Here, that procedure was not followed.  Instead, the court improperly afforded defense counsel a standing objection with respect to testimony concerning defendant’s prior bad acts while affording the prosecutor the opportunity to ask one of the victims of the arson, who was defendant’s neighbor, about defendant’s prior bad acts over a period as long as 10 years before the arson.  It was particularly improper to allow that witness to testify that, as a result of defendant’s prior bad acts, he had concerns about the safety of his children and pets.  “It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged” … .  Although defendant’s bad acts within a few days of the arson could be deemed relevant to such issues as motive and intent, testimony concerning defendant’s bad acts in the preceding weeks, months or years was irrelevant to any issue in the case and only could have prejudiced defendant by suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue … . People v Cornell, 870, 4th Dept 10-4-13

 

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Stay of Arbitration Properly Denied, Collective Bargaining Agreement Allowed Issue to Be Determined in Arbitration

In affirming Supreme Court’s dismissal of an Article 75 petition seeking a permanent stay of arbitration (with respect to a collective bargaining agreement [CBA]), the Fourth Department explained the operative analysis:

In determining whether an issue is subject to arbitration under a collective bargaining agreement (CBA), a court must apply the two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 513).  “First, a court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … .  If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must determine whether that authority was in fact exercised, i.e., whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration … .  With respect to the second step, where there is a broad arbitration clause such as the one in the CBA at issue, “[a] determination of arbitrability is limited to ‘whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … .  “Succinctly, the test centers on two distinct inquiries as to the public parties’ purported entry into the arbitral forum:  may they do so and, if yes, did they do so” … .  Here, with respect to the issue whether petitioner properly followed the procedures mandated by the CBA in terminating the employee in question, we conclude that the court properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.  Matter of Arbitration…, 1019, 4th Dept 10-4-13

 

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Right of First Refusal Not Triggered by Partition Action

In a partition action, the Fourth Department determined the agreement between the parties was a right of first refusal, not an option to purchase, which was not triggered by the partition action.  The court explained the operative law:

Plaintiff and Waite [one of the defendants] are tenants in common and acquired the property at issue by an executor’s deed pursuant to the settlement of their mother’s estate.  In settling that estate, plaintiff, Waite and the other named defendants signed a settlement agreement providing that plaintiff and Waite “agree to grant to [each of the other named defendants] the option to purchase the . . . property, in the event that [plaintiff and Waite], either jointly or severally, determine to sell, assign or transfer the . . . property to someone other than each other.  The option price shall be [$120,000] plus the costs of any improvements made by [plaintiff and Waite] to the premises subsequent to [their] purchase of the premises.  Said option may be prepared in recordable form by any or all of the [other named defendants] at their own cost and expense, and [plaintiff and Waite] will execute any said recordable option.  Upon receipt of an offer to purchase the premises, except from [each other], [plaintiff and Waite] shall notify each of the [other named defendants] then living, in writing of the proposed sale of the premises, and the [other named defendants] shall have sixty (60) days to exercise their option as granted herein.” * * *

We conclude that the right bestowed by the settlement agreement … is a right of first refusal, not an option to purchase, despite the use of the term “option” therein …, and thus that Supreme Court mistakenly treated the contractual right as an option to purchase.  “A right of first refusal is a dormant right that is triggered when an owner decides to sell the property to a third party at an agreed-upon price” …, and those are the applicable facts set forth in the settlement agreement.

We agree with Waite on her appeal that the court erred in determining that the contractual right was triggered upon plaintiff’s commencement of the instant action, for partition and sale.  It must first be determined in a partition action whether the property may be partitioned, i.e., divided among the owners in some fashion, without great prejudice to them, and “partition sale” is a secondary consideration only in the event that partition greatly prejudices the owners (see RPAPL 901 [1]…).  Thus, commencement of the partition action did not trigger the right of first refusal inasmuch as a partition, as opposed to a partition sale, would not result in a transfer of the property to a third party.  Furthermore, no offer of purchase from a third party triggered either the right of first refusal or the contractual obligation of plaintiff or Waite pursuant to the settlement agreement or recorded document. Tuminno v Waite…, 915, 4th Dept 10-4-13

 

 

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Statutory Moratorium On Rate Appeals Applied Retroactively to All Appeals Prior to April, 2015

The Fourth Department reversed Supreme Court and determined that a 201/2011 statutory moratorium on Medicaid reimbursement rate appeals filed by nursing homes applied retroactively to all appeals filed before April, 2015:

We agree with respondents that section 2808 (17) (b) and (c) [Public Health Law] apply retroactively to petitioners’ rate appeals.  The seminal case on whether statutes are to be applied retroactively is Majewski v Broadalbin-Perth Cent. Sch. Dist. (91 NY2d 577, 584), which provides, in relevant part, that “[i]t is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b]).  We conclude that the language of the statute requires that it be applied retroactively.  Public Health Law § 2808 (17) (b) states that, for the period from April 1, 2010 through March 31, 2015, “the [C]ommissioner shall not be required to revise certified rates of payment . . . for rate periods prior to April [1, 2015], based on consideration of rate appeals filed by residential health care facilities” in excess of the monetary cap.  While there is no explicit statement that the moratorium and cap shall apply to rate appeals filed before April 1, 2010, the statute specifically states that no revisions are required for any period before April 1, 2015 where the revision would emanate from a rate appeal filed by a residential health care facility.  In our view, the necessary implication of that language is that the statute applies to any rate appeal seeking a revision for any period before April 1, 2015, including any revisions resulting from rate appeals filed before the statute took effect. * * *

Inasmuch as the moratorium applies retroactively to petitioners’ rate appeals, petitioners do not have a clear legal right to relief, and their [Article 78 mandamus] petition must be denied… . Matter of Woodside Manor Nursing Home… v Shah…, 862, 4th Dept 10-4-13

 

Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action

[Reversed by the Court of Appeals]

Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:

“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….

We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .

Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with syracuse.com:  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”

We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boeheim…, 836, 4th Dept 10-4-13

 

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