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Charges Based On Information Learned by the Improper Opening of Inmate’s Mail Required Annulment of the Determination

The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities).  The Fourth Department wrote:

Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail so as “to determine that there are sufficient grounds for reading the mail, that the reasons for reading the mail are related to the legitimate interests of safety, security, and order, and that the reading is no more extensive than is necessary to further th[o]se interests.” Here, the evidence presented at the hearing did not establish that the superintendent complied with the above mandate before authorizing the opening of petitioner’s mail. Because evidence that was admitted at the hearing was seized in contravention of respondent’s rules and regulations, the Hearing Officer’s determination based on that evidence “must be annulled and all references thereto expunged from petitioner’s file”… . Matter of Singletary v Fischer, 167, TP 12-01564, 4th Dept. 3-22-13

 

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Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

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Choice of Forum; Choice of Law

The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law:

Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in any way from this Agreement shall be brought in the Courts of Common Pleas of Pennsylvania having jurisdiction.”  That forum selection clause is “ ‘prima facie valid and enforceable unless it is shown by the challenging party to be[, inter alia,] unreasonable, unjust, [or] in contravention of public policy’ ” … 

Contrary to plaintiff’s contention, the enforcement of the forum selection clause does not contravene New York public policy … .

The “Standard Terms and Conditions” also provide that “[t]he laws of the Commonwealth of Pennsylvania shall govern the validity of this Agreement, its interpretation and performance,” and plaintiff contends that the enforcement of the “limitation of legal liability” provision of the agreement pursuant to Pennsylvania law violates General Obligations Law §§ 5-322.1 and 5-324 and would thus contravene New York public policy. That contention, however, concerns choice of law, not choice of forum, and it may properly be raised before a court in the forum chosen by the parties in Pennsylvania … .“[O]bjections to a choice of law clause are not a warrant for failure to enforce a choice of forum clause” … .  Erie Insurance Company of New York, … v AE Design, Inc., 337, CA 12-01549, 4th Dept. 3-22-13

 

 

 

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Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper; The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507

The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507:

Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in connection with petitioner’s application for an area variance from a provision of the Town of Whitestone’s Zoning Ordinance. The proceeding was commenced in Supreme Court, Onondaga County, and by …order …that court, sua sponte, transferred the proceeding to Supreme Court, Oneida County, pursuant to CPLR 507. We agree with petitioner that the court erred in transferring the proceeding sua sponte. CPLR 509 provides that the place of trial may be changed to another county “by order upon motion, or by consent.” CPLR 510 provides the grounds for the change of the place of trial, upon a motion. A court “is authorized to change venue only upon motion and may not do so upon its own initiative” …. Additionally, a CPLR article 78 proceeding seeking to annul a determination denying a request for an area variance does not affect the title to, or the possession, use or enjoyment of, real property, and thus the court erred in relying on CPLR 507 in transferring the proceeding.  Matter of Mimassi v Town of Whitestone Zoning Board of Appeals, 189, CA 12-01652, 4th Dept. 3-22-13

 

 

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Procedure for Invalidation of a Stipulation to the Record

The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal:

It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … .  Once plaintiff stipulated to the record on appeal, he was no longer entitled to move to settle the record or, indeed, to seek leave to reargue or renew a motion to settle the record that preceded the stipulation.  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” …, and plaintiff made no such showing here.  Hale v Meadowood Farms of Cazenovia, LLC, et al, 351, CA 12-01192, 4th Dept. 3-22-13

 

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SORA Finding Reduced Twenty Points—No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

 

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Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

 

 

Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … . People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

 

 

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Notice of Intention to Offer Molineux Evidence During Jury Selection and Molineux Hearing Upon Completion of Jury Selection Are Timely

The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely:

According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the potential impact of that evidence on voir dire. It is well settled that “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 [1901]) or to a pretrial hearing on the admissibility of such evidence” … . People v Holmes, 258, KA 09-01281, 4th Dept. 3-22-13

 

 

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Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

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