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THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT PRECISELY IDENTIFY WHICH OF TWO UNDERLYING OFFENSES IT DESCRIBED AND DID NOT PROTECT AGAINST DOUBLE JEOPARDY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and the waiver of indictment, determined the waiver of indictment was jurisdictionally defective because it was not clear which of two charged rapes it referred to and there was no language that the plea would be in full satisfaction of all charges:

… [T]he underlying felony complaint alleged four offenses predicated on defendant’s purported violation of three Penal Law provisions: two separate acts of rape in the first degree that occurred in September and October 2016, respectively (Penal Law § 130.35 [4]), an act of criminal sexual act in the first degree that occurred in November 2016 (§ 130.50 [4]), and acts that constituted endangering the welfare of a child (§ 260.10 [1]). In contrast, the waiver of indictment listed only a single count to be charged in the SCI [superior court information]: a count of rape in the first degree that allegedly occurred sometime between July and November 2016. Inasmuch as the sole charge in the waiver of indictment and SCI could plausibly refer to either of the acts of rape in the first degree alleged in the felony complaint, the waiver of indictment failed to put defendant on notice of the precise crime for which he was waiving prosecution by indictment and was thus jurisdictionally defective. …

In addition to impeding defendant’s ability to prepare a defense … , the defect in the waiver of indictment—i.e., the indeterminancy of the precise rape offense for which defendant was agreeing to waive indictment—implicates double jeopardy concerns because there was no language in the waiver form, SCI, or at the plea colloquy informing defendant that his plea to one count of rape in the first degree would be in full satisfaction of the offenses alleged in the felony complaint. Consequently, defendant could potentially be subjected to a subsequent prosecution for the offenses not identified in the waiver of indictment or charged in the SCI … . People v Meeks, 2021 NY Slip Op 01925, Fourth Dept 3-26-21

 

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ALTHOUGH THE ARTICLE 78 PROCEEDING WAS PROPERLY TRANSFERRED TO THE APPELLATE DIVISION, THE RELATED DECLARATORY JUDGMENT ACTION WAS NOT TRANSFERABLE (FOURTH DEPT).

The Fourth Department determined Supreme Court properly transferred the Article 78 proceeding to the appellate division because there was a quasi-judicial hearing before an administrative law judge at which evidence was taken. The court noted that the aspect of the underlying action which sought a declaratory judgment could not be transferred to the appellate division:

… [A]lthough petitioner also contends that she is entitled to declaratory relief, we do not “have jurisdiction to consider the declaratory judgment action as part of this otherwise properly transferred CPLR article 78 proceeding” … . The transfer of a declaratory judgment action to this Court is not authorized by CPLR 7804 (g) … and we “lack[] jurisdiction to consider a declaratory judgment action in the absence of a proper appeal from a court order or judgment” … . We therefore vacate the order insofar as it transferred the declaratory judgment action, sever the declaratory judgment action and CPLR article 78 proceeding, and remit the declaratory judgment action to Supreme Court for further proceedings … . Matter of Blue v Zucker, 2021 NY Slip Op 01924, Fourth Dept 3-26-21

 

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THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VEHICLE IN WHICH DEFENDANT WAS A PASSENGER WHEN AN OFFICER ENTERED THE VEHICLE TO RETRIEVE THE REGISTRATION AND SAW A HANDGUN; THE DEFENDANT HAD STANDING TO CONTEST THE SEIZURE BECAUSE OF THE PEOPLE’S RELIANCE ON THE STATUTORY AUTOMOBILE PRESUMPTION; THE HANDGUN SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the handgun seized from the vehicle in which defendant was a passenger should have been suppressed. The police arrived after an accident and defendant was standing outside the car. When an officer asked for the vehicle registration, defendant offered to retrieve it, but a police officer standing near the car said he would retrieve it. The officer then saw a handgun that had been hidden from view by the deployed air bag. The court noted defendant had standing to contest the search and seizure because of the People’s reliance on the statutory automobile presumption:

As an initial matter, there is no dispute that defendant has standing as a passenger of the vehicle to challenge its search by virtue of the People’s reliance on the statutory automobile presumption … . … [U]nder the circumstances of this case, we agree with defendant that the officer who conducted the search lacked probable cause to do so … . In reaching that conclusion, we reject the People’s assertion that, based on the holdings of People v Branigan (67 NY2d 860 [1986]) and People v Philbert (270 AD2d 210 [1st Dept 2000] … ), the officer was entitled to enter the vehicle for the purpose of obtaining the vehicle’s registration certificate. Unlike in Branigan, there were no ” ‘safety reasons’ ” in this case preventing the officer from allowing defendant to retrieve the registration himself … . and, here, defendant did not initially fail to produce the registration when prompted to do so by law enforcement (cf. id. at 861-862). Unlike in Philbert … , the officer here, as he confirmed at the suppression hearing, lacked probable cause to search the vehicle and had no reason to believe that the vehicle contained evidence of a crime. People v Lawrence, 2021 NY Slip Op 01921, Fourth Dept 3-26-21

 

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THE COURT LACKED AUTHORITY TO DEEM A NOTICE OF CLAIM TIMELY FILED MORE THAN ONE YEAR AND 90 DAYS AFTER THE CAUSE OF ACTION (SLIP AND FALL) ACCRUED, EVEN THOUGH THE SUMMONS AND COMPLAINT WAS SERVED WITHIN THAT TIME PERIOD; A NOTICE OF CLAIM FILED MORE THAN 90 DAYS AFTER THE CAUSE OF ACTION ACCRUES WITHOUT LEAVE OF COURT IS A NULLITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the notice of claim served more than 90 after the slip and fall without leave of court was a nullity. The court further determined that the request for an order deeming the notice of claim timely served made more than one year and 90 days after the slip and fall could not be authorized by the court, even where the summons and complaint was served within that time period:

It is well settled that an “application for the extension [of time within which to serve a notice of claim] may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled” .. . Where that time expires before the application for an extension is made, “the court lack[s] the power to authorize late filing of the notice [of claim]” … .

Here, we conclude that “[p]laintiff’s service of the summons and complaint within the limitations period does not excuse the failure to serve a notice of claim within that period,” and we further conclude that “plaintiff’s earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted” … . Thus, because plaintiff’s cross motion seeking an order deeming her notice of claim to be timely filed “was made after the expiration of the maximum period permitted” for seeking such relief, i.e., one year and 90 days, Supreme Court should have denied plaintiff’s cross motion, granted defendant’s motion, and dismissed the complaint … . Bennett v City of Buffalo Parks & Recreation, 2021 NY Slip Op 01920, Fourth Dept 3-26-21

 

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EVIDENCE THE CHILD WAS OFTEN ABSENT FROM SCHOOL WARRANTED A HEARING ON FATHER’S PETITION FOR A MODIFICATION OF CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition for modification of custody should not have been dismissed without holding a hearing. There was evidence the child, now in third grade, was often absent from school:

In seeking to modify the stipulated custody order, the father was required to show “a change in circumstances ‘since the time of the stipulation’ ” … . Here, the father and respondent mother entered into the stipulated order shortly after the child’s fifth birthday, before she would have entered kindergarten. At the hearing on the petition, the court received the child’s third-grade school attendance records in evidence. Although we cannot discern the precise number of absences from our review of the appellate record, the court expressed that it was “concerned” with the number of absences up to that point in the school year, of which there were approximately 30. Thus, we conclude that the father established a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child because the child’s school records demonstrate that she had excessive school absences in the third grade … . Therefore, we reverse the order, reinstate the petition, and remit the matter to Family Court for a hearing on the best interests of the child … . Matter of Myers v Myers, 2021 NY Slip Op 01916, Fourth Dept 3-26-21

 

SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was unduly harsh and directed that all but one of the sentences run concurrently:

For the kidnapping and murder counts, defendant was sentenced to concurrent terms of incarceration of 25 years to life. For the burglary and robbery counts, related to the crimes committed at the victim’s residence, defendant received determinate terms of incarceration of 15 years. Although those sentences run concurrently with each other, they were directed to run consecutively to the kidnapping and murder sentences. In addition, defendant received an indeterminate term of incarceration of 1⅓ to 4 years for the count of tampering with physical evidence, which was to run consecutively to all other counts.

It is well settled that this Court’s “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … and that “we may ‘substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ ” … . Here, the record establishes that defendant, who was 22 years old and gainfully employed at the time of the crimes, had no prior criminal history. In addition, although she was an accessory to the crimes committed at the victim’s residence, the evidence establishes that she was one block away during that incident and did not physically participate in those crimes. There is also evidence suggesting that defendant was the victim of repeated acts of domestic abuse perpetrated by one of the codefendants.

Under the circumstances, we conclude that the sentence imposed is unduly harsh and severe. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that all sentences except the sentence imposed on the count of tampering with physical evidence run concurrently with each other … . People v Colon, 2021 NY Slip Op 01652, Fourth Dept 3-18-21

 

SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence, finding it unduly harsh. The defendant was several hours late in surrendering to the jail and the sentence initially promised was increased. The Fourth Department imposed the lesser sentence initially promised:

… [T]his Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and we may exercise that power, “if the interest of justice warrants, without deference to the sentencing court” … . Here, the court initially promised to sentence defendant to a concurrent eight-year determinate term of imprisonment on each count of the indictment and agreed to release him until 9:00 a.m. on the ensuing Monday to allow him to attend his mother’s wedding on the intervening weekend. Defendant accepted the plea offer and was released as promised but did not surrender himself to the jail until 5:30 p.m. on the appointed date. Nevertheless, the record establishes that he surrendered voluntarily and that he called the jail prior to the appointed time and reported that he was having transportation difficulties. In addition, the record establishes that defendant has a lengthy record, but no violent felonies, and that he had not been arrested in the 10 years preceding these incidents, which involve sale and possession of small amounts of cocaine. Under these circumstances, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence of imprisonment imposed under each count of the indictment to a determinate term of eight years, to be followed by the three years of postrelease supervision imposed by the court, and directing that the sentences run concurrently with each other. People v Brinson, 2021 NY Slip Op 01648, Fourth Dept 3-19-21

 

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PETITIONER SOUGHT ATTORNEY’S FEES AS THE PREVAILING PARTY PURSUANT TO NEW YORK’S EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY;” THE 4TH DEPARTMENT REJECTED THE CATALYST THEORY, FINDING PETITIONER WAS NOT THE PREVAILING PARTY UNDER THE TERMS OF THE STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the so-called “catalyst theory” did not apply to New York’s Equal Access to Justice Act (EAJA). The EAJA, in certain circumstances, allows a prevailing party to recover attorney’s fees against the state. Here petitioner argued that petitioner’s seeking reconsideration of a determination by the NYS Office for People with Developmental Disabilities (OPWDD) prompted the OPWDD to grant petitioner’s application. Petitioner argued the request for reconsideration was the “catalyst” for the OPWDD’s granting the application and petitioner was therefore entitled to attorney’s fees. The Fourth Department determined petitioner was not a “prevailing party” within the meaning of the NYS EAJA:

This Court has yet to address the issue, but we now reject application of the catalyst theory in State EAJA cases. Where, as here, litigation is rendered moot by an administrative change in position, the petitioner or plaintiff has not prevailed “in the civil action” (CPLR 8602 [f]). Matter of Criss v New York State Dept. of Health, 2021 NY Slip Op 01642, Fourth Dept 3-19-21

 

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MENTAL HEALTH TREATMENT PROVIDERS, WHO WERE TREATING MOTHER, DID NOT OWE A DUTY OF CARE TO HER SON, WHO WAS STABBED AND KILLED BY MOTHER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant medical/mental health facilities and psychiatrist, who were treating plaintiff’s wife, did not owe a duty to plaintiff’s son, who was killed by plaintiff’s wife. Plaintiff had called defendant Unity Mental Health (UMH) several times seeking additional care because his wife’s condition was worsening. Plaintiff was told his wife should keep her psychiatric appointment which was two weeks away. Two days later plaintiff’s wife stabbed their son (decedent):

Generally, medical providers owe a duty of care only to their patients, and courts have been reluctant to expand that duty to encompass nonpatients because doing so would render such providers liable “to a prohibitive number of possible plaintiffs” … .The scope of that duty of care has, on occasion, been expanded to include nonpatients where the defendants’ relationship to the tortfeasor ” ‘place[d] [them] in the best position to protect against the risk of harm,’ ” and “the balancing of factors such as the expectations of the parties and society in general, the proliferation of claims, and public policies affecting the duty proposed herein . . . tilt[ed] in favor of establishing a duty running from defendants to plaintiffs under the facts alleged” … . Under the circumstances of this case, however, we conclude that those factors do not favor establishing a duty running from defendants to decedent. The complaint herein does not allege that plaintiff’s wife sought treatment specifically in order to prevent physical injury to decedent or her family, that defendants were aware whether she had threatened or displayed violence towards her family in the past, or that defendants directly put in motion the danger posed by the patient … . Cardenas v Rochester Regional Health, 2021 NY Slip Op 01641, Fourth Dept 3-19-21

 

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DEFENDANT’S SUPPRESSION MOTION PAPERS RAISED A FACTUAL ISSUE REQUIRING A HEARING, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined defendant had raised a factual issue requiring a suppression hearing:

“When made before trial, suppression motions must be in writing, state the legal ground of the motion and contain sworn allegations of fact made by defendant or another person” … . A hearing may be denied “unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” … .

Here, defendant specifically alleged that officers “responded to [the scene] after . . . defendant, or someone at his behest, called 911” and that defendant, upon their arrival, told them that he “found [the victim] on the stairs bleeding and was trying to help him.” Defendant alleged that, based on that information, “[t]he police removed [him] from the scene and placed him in the back of a police vehicle, and took his personal cell phone from him” without reasonable suspicion or probable cause justifying the intrusion. Although the People contended that defendant made other statements to the officers that heightened their level of suspicion and justified the intrusion, defendant’s motion papers disputed this assertion, alleging instead that, at the time of the intrusion, “the police knew nothing more than [that the victim] appeared to have been shot, and [that defendant] . . . had discovered him and summoned help while trying to give assistance at the scene.” Indeed, at oral argument on the motion, defendant further explained that he specifically disputed what information the police had at the time of the intrusion. We conclude that, under these circumstances, defendant sufficiently raised a factual issue necessitating a hearing … . People v White, 2021 NY Slip Op 01639, Fourth Dept 3-19-21

 

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