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Imposition of Harsher Sentence After Appeal Was Vindictive

The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote:

“In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences . . . than were imposed after their initial convictions’ ” … .  “The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed” … .  In order to justify an increased sentence, a court must set forth its reasons, and “ ‘[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” … . * * * In our view, “[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction”… . People v Rhodes, 847, 4th Dept 9-27-13

 

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Question of Fact About Whether Horse Owner Liable for Injuries to Novice Rider

The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider.  The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to trees, the general release signed by plaintiff was void as against public policy, and the defendants did not establish as a matter of law that plaintiff had assumed the increased risk of horseback riding alleged here:

It is well settled that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … .  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447).  In support of their motion, defendants submitted the deposition testimony of plaintiff, wherein she testified that defendant and a guide employed by the Ranch instructed plaintiff to push off of the trees if the horse walked too closely to the trees on the single-file woodland trail.  * * *

Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy… .* * *

Finally, defendants failed to establish as a matter of law that plaintiff assumed the risk of horseback riding.  Horseback riding “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  Here, defendants submitted evidence that raised a question of fact whether they unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which did not provide plaintiff with the ability to control the horse, and by failing to give plaintiff, who was a novice rider, adequate instructions on how to control the horse … .  Vandeerbrook v Emerald Springs Ranch…, 855, 4th Dept 9-27-13

 

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City Code and Charter Not Unconstitutionally Applied Re: Searches Related to Certificates of Occupancy

The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy.  In reversing that determination, the Fourth Department wrote:

We have previously upheld as constitutional the City’s CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants … .  Petitioner concedes that the laws at issue are valid on – their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines.  That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 AD3d 1610, 1611-1612), which involved facts nearly identical to those herein.  The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610).  In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.).  Specifically, petitioners contended that the City’s CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612).  We rejected that contention and stated that, “[u]nder the City’s ordinance, . . . an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11).  On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties” (id. at 1612).  Matter of Capon v Carballada…, 858, 4th Dept 9-27-13

 

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Criteria for County’s Immunity from Village Ordinances Explained

In remitting the matter to create a more complete record, the Fourth Department explained the criteria for determining whether the county is immune from the requirements of village ordinances prohibiting the use of the village sanitary system for a county jail within the village limits:

We agree with the Village that the record is inadequate to make a determination, based upon a “balancing of public interests,” whether the County is immune from the requirements of those amendments with respect to its siting of the proposed Facility … .  The factors to be weighed in making that determination are “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests[,] . . . the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, . . . alternative methods of providing the needed improvement[,] . . . intergovernmental participation in the project development process and an opportunity to be heard” … .  Here, inasmuch as the record is inadequate to permit the appropriate balancing of those factors, we remit the matter to Supreme Court for a determination, based upon a more complete record, whether the County is immune from the requirements of the Village zoning ordinance… . Matter of County of Herkimer v Village of Herkimer, 937, 4th Dept 9-27-13.

 

Candidate’s Failure to File Certificate of Declination Re: His Accepted Candidacy for Town Councilman Precluded His Running for County Legislator

The Fourth Department, over a substantial dissent, reversed Supreme Court and determined a candidate (Irish) for town council was disqualified from running for county legislator.  Irish was first designated a candidate for town council but later was designated a candidate for the county legislature when a vacancy opened up. No certificate of declination of for the town council position was filed by Irish. The Fourth Department explained its role in overseeing election matters and the appropriate review under Article 78.  The court wrote:

It is firmly settled that we “cannot interfere unless there is no rational basis for [respondent’s] exercise of discretion or the action complained of is arbitrary and capricious” …and, here, we conclude that respondent had a rational basis for voting to certify a ballot naming Irish as a candidate for Town Councilman.  We note, first, that the failure of Irish to file a declination of the designation as a candidate for Town Councilman within the time prescribed by Election Law § 6-158 (2), is a “fatal defect” (Election Law § 1-106 [2]..,.).  Thus, his name must remain on the ballot as a candidate for that position … . Second, contrary to petitioner’s contention and the view of our dissenting colleague, we conclude that Irish was not disqualified from the designation for Town Councilman by virtue of his subsequent designation for County Legislator.  Indeed, “[a] candidate who ‘seeks to disqualify himself or herself . . . must present a legal basis for doing so’ ” … and Irish has presented no such legal basis here.  Moreover, petitioner has presented no authority for his position that the subsequent designation of Irish as a candidate for County Legislator disqualified him from being designated as a candidate for Town Councilman.  Rather, we conclude that, based on the designation of Irish as a candidate for Town Councilman, he was ineligible to be designated by the Committee as a candidate for County Legislator (see § 6-122; see generally County Law § 411).  We agree with the [2nd] Department’s conclusion … that, “[d]espite the unique circumstances of this case, ‘the judiciary is foreclosed from fashioning any exceptions to th[at] requirement, however reasonable they might appear’ ” … .  We conclude that there was a rational basis for respondent’s refusal to certify the ballot naming Irish as a candidate for County Legislator, and that such action was not arbitrary and capricious … . Matter of Ward v Mohr, 821, 4th Dept 8-16-13

 

Rules Prohibited Interim County Organization of Erie County Independence Party from Authorizing the Designation of Candidates

The Fourth Department determined the applicable rules stripped the power to authorize the designation of candidates from the Interim County Organization (ICO) of the Erie County Independence Party:

Election Law § 6-120 permits a county committee to exercise the powers of nomination and designation “unless the rules of the party provide for another committee” (§ 6-120 [3]…).  Here, inasmuch as the Executive Committee is vested “with the authority to issue authorizations in Erie County,” we agree …that the ICO is “thereby stripp[ed] .. . of that authority”… .  Matter of NYS Committee of the Indepence Party v Mohr, 822, 4th Dept 8-15-13

 

Conservative Party’s Executive Committee Had Authority to Designate Candidates for County Executive and County Clerk in Chautauqua County

The Fourth Department rejected the argument that the Conservative Party’s Executive Committee did not have the authority to designate candidates for county executive and county clerk in Chautauqua County:

It is undisputed that, pursuant to the Election Law, the County Committee is the default “party committee” empowered to issue … certificates for the county offices at issue (Election Law § 6-120 [3]…) .  Petitioner, however, contends that the rules and regulations of the County Committee of the Conservative Party (County Committee rules) did not effectively delegate that authority to the Executive Committee and thus that the Executive Committee lacked the power to issue the …certificates.  We reject that contention and conclude that, under these circumstances, the County Committee rules delegated to the Executive Committee the power to authorize the designation of the Unenrolled Candidates as candidates for the relevant county offices in the upcoming Conservative Party primary election… . Matter of Bankoski v Green, 820, 4th Dept 8-15-13

 

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In Sex-Offense Trial, Discovery of the Victim’s Psychiatric Records Properly Denied and Cross-Examination About Psychiatric History Properly Prohibited

In a sexual-offense case, the Fourth Department affirmed the trial court’s refusal to allow the defense access to the victim’s psychiatric records and the court’s preculsion of cross-examination of the victim about her psychiatric history:

Mental health records are discoverable “where a defendant can demonstrate a good faith basis for believing that the records contain ‘data relevant and material to the determination of guilt or innocence,’ a decision which will rest ‘largely on the exercise of a sound discretion by the trial court’ ”… ..  Here, the court reviewed the records in camera before ruling that defendant was not entitled to any portion of that victim’s mental health counseling records, and the court did not abuse its discretion in reaching that conclusion.

We reject defendant’s further contention that the court abused its discretion by precluding cross-examination of the same victim regarding her psychiatric history.  “A defendant has a constitutional right to confront the witnesses against him through cross-examination.  With respect to the psychiatric condition of a witness, ‘the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition’ ”… .  Here, defendant was permitted to question that victim about any medications that she was presently taking and whether those medications impaired her memory or affected her testimony.  However, defendant failed to show that her psychiatric history “would bear upon her credibility or otherwise be relevant”  … .  People v Tirado, 486, 4th Dept 8-15-13

 

Conspiracy to Commit Tort Not Recognized in New York

In reversing Supreme Court’s grant of a default judgment, the Fourth Department noted that “New York does not recognize civil conspiracy to commit a tort as an independent cause of action.”  Piatt, PA…v Horsley…, 652, 4th Dept 7-19-13 

 

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Court in Contract Action Does Not Have Power to Vary 9% Interest Rate

In a case with counterclaims sounding in contract and Labor Law 191-c (1) (re: payment of earned sales commissions after a contract is terminated), the Fourth Department noted that the court does not have discretion to vary the statutory 9% interest rate in a contract action:

…[W]e conclude that the court lacked discretion to vary the statutorily-prescribed interest rate of 9% per annum (see CPLR 5004). As this Court has previously recognized, interest at the rate of 9% per annum is mandatory for “sum[s] awarded because of a breach of performance of a contract” (CPLR 5001 [a]…).  Polyfusion Electronics, Inc v Promark Eletronics, Inc…, 635.1, 4th Dept 7-19-13

 

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