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DEFENDANT SHOULD HAVE BEEN ALLOWED TO EXPLAIN WHY HE WANTED TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, remitting the matter to Supreme Court to allow defendant to explain his desire to withdraw his plea, determined the sentencing court should not have prevented defendant from giving his reasons:

The court convened for sentencing, at which time defense counsel stated that defendant wanted to withdraw the plea, explaining that defendant had done his own legal research and determined that the appeal waiver encompassed issues that he wanted to raise on appeal. Defense counsel asked to be relieved due to an unspecified conflict of interest. Defense counsel, speaking in hypothetical terms, argued that withdrawal of the plea may be justified if defendant did not receive meaningful representation. The court questioned defendant directly. Defendant confirmed that he wanted to withdraw his plea. The prosecutor then asked the court to inquire into defendant’s grounds for the motion. Defense counsel objected, and the court ruled in defense counsel’s favor, apparently on the ground that such questioning might impermissibly intrude on privileged conversations. “[T]hat’s something you’d have to talk to a lawyer about,” the court explained, “[b]ut I’m going to deny that request.” The court added that defendant had executed a written appeal waiver. Defendant began to explain why he had executed the waiver, but the court stopped him from doing so, stating, “It’s not your turn to talk right now.” …

Although we agree with our dissenting colleagues that defense counsel did not take a position adverse to defendant, under the circumstances of this case, we conclude that the court erroneously deprived defendant of a reasonable opportunity to present his contentions in support of his motion to withdraw the plea … . People v Ramos, 2020 NY Slip Op 03364, Fourth Dept 6-12-20

 

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QUESTION OF FACT RAISED ABOUT WHETHER THE HOSPITAL DEFENDANTS MADE A REASONABLE AND SUFFICIENT EFFORT TO LOCATE THE NEXT OF KIN OF THE DECEDENT IN THIS RIGHT-OF-SEPULCHER CASE; THE PUBLIC ADMINISTRATOR, HOWEVER, ENJOYED GOVERNMENTAL FUNCTION IMMUNITY AND NO SPECIAL DUTY WAS OWED PLAINTIFFS (FOURTH DEPT).

The Fourth Department determined plaintiffs had raised a question of fact whether the hospital defendants made reasonable and sufficient efforts to locate the decedent’s next of kin in this right-of-sepulcher case alleging defendants interfered with plaintiffs right to immediate possession of decedent’s body. After the hospital defendants failed to locate the next of kin, the investigation was turned over to the County Public Administrator (PA). After the PA failed to locate the next of kin the decedent was buried. After plaintiffs learned of decedent’s death, the body was exhumed and a memorial service was held at the PA’s expense. The suit against the County PA was properly dismissed because the PA enjoyed governmental function immunity and no special duty was owed plaintiffs:

The common-law right of sepulcher “affords the decedent’s next of kin an absolute right to immediate possession of a decedent’s body for preservation and burial . . . , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . “To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish” … . * * *

… [P]laintiffs identified certain records of the hospital defendants, which indicated that decedent had resided, on some occasions, at a local homeless shelter. Those documents were available to the hospital defendants at the time they conducted their search for decedent’s next of kin, and there is no dispute that the hospital defendants did not attempt to contact that homeless shelter during their search.

Plaintiffs also submitted deposition testimony from a person employed by the homeless shelter, who testified that decedent was a frequent resident there and that she knew members of decedent’s family and could have contacted them if she had been notified of decedent’s death. Green v Iacovangelo, 2020 NY Slip Op 03363, Fourth Dept 6-12-20

 

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED; DEFENSE COUNSEL DID NOT ATTEMPT TO SECURE THE TESTIMONY OF A WITNESS WHO WOULD TESTIFY THAT HER BOYFRIEND, WHO USED TO BE THE BOYFRIEND OF THE MURDER VICTIM, CONFESSED TO KILLING THE VICTIM (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant’s motion to vacate his murder conviction on ineffective assistance grounds should have been granted. Defendant demonstrated that a witness was willing to testify that her boyfriend had confessed to the murder. When the witness did not show up to testify, defense counsel did not attempt to secure her attendance:

… [A]t the time of the trial, defense counsel explicitly informed the court, on the record, that his strategy was to call the witness and present her exculpatory testimony. In this regard, defense counsel stated, “[t]here’s one other issue that may or may not come up . . . [that has] to do with [the witness]. [The witness] had a conversation with her then-boyfriend . . . who had been the boyfriend of [the victim] where [the boyfriend] made a tape recording of his voice, identifying his name, his date of birth and his social security number, and indicated there that he killed [the victim]. His words were I killed the bitch. I killed the bitch. I killed the bitch.’ And that is the substance of a police report that I received from [the prosecutor].” When the court asked how defense counsel intended to introduce this testimony, he responded, “[w]ell, I intend to call [the witness], should she appear in court. She was subpoenaed. She appeared on Thursday pursuant to the subpoena as well and told me this information for the first time. I don’t know whether she’s going to be here when we need to call her, which is why I thought maybe we’d wait and see if she showed up and not take the Court’s time to do extra research on this issue. But since you’ve asked me to bring up any possible issues, I would put her on the witness stand and make an offer of proof to the Court and attempt to prove her reliability of the information that she’s giving under the Settles case relating to a statement against [the boyfriend’s] penal interest.” When the court then asked whether “[the witness’s] testimony would relate to this particular homicide,” defense counsel responded, “Oh yes. Yes.” Nevertheless, and consistent with defense counsel’s representation that he would pursue the testimony only if the witness appeared as directed, defense counsel took no further action to secure the witness’s presence when she did not appear … . We agree with defendant that the failure to secure the witness’s attendance was deficient conduct and that the record discloses no tactical reason for defense counsel’s actions … . People v Borcyk, 2020 NY Slip Op 03359, Fourth Dept 6-12-20

 

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DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR FAILING TO COMPLY WITH DISCOVERY SCHEDULING ORDER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the dismissal of the complaint was too severe a sanction for plaintiff’s failure to comply with the court’s scheduling order:

Defendants merely alleged that plaintiff’s failure to comply with the discovery deadlines set forth in the scheduling order was due to the representations of plaintiff’s attorney that he was engaged in settlement negotiations with a claims adjuster. Plaintiff’s attorney apparently believed that settlement of the case was imminent and, thus, that depositions would not be necessary. There is also nothing in the record to indicate that plaintiff ignored any warnings from the court that continued noncompliance with discovery orders could lead to the court striking the complaint … , or that defendants were prejudiced by the delay in conducting discovery … .

Although plaintiff’s dilatory conduct may have reasonably prompted defendants to seek the court’s guidance, the drastic sanction of dismissing the complaint with prejudice provided more relief than was necessary to protect defendants’ interests … . In short, plaintiff’s conduct was not the type of “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay” that would justify the penalty of dismissal of the complaint … . Windnagle v Tarnacki, 2020 NY Slip Op 03355, Fourth Dept 6-12-20

 

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FINDING THAT MOTHER DID NOT MEDICALLY NEGLECT HER CHILDREN LACKED A SOUND AND SUBSTANTIAL BASIS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the finding that mother did not medically neglect her children lacked a sound and substantial basis:

A neglected child is defined, in relevant part, as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate . . . medical . . . care, though financially able to do so” … . “The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … .

A parent’s failure to provide medical care as required by [Family Court Act § 1012 (f) (i) (A)] may be interpreted to include psychiatric medical care where it is necessary to prevent the impairment of the child’s emotional condition’ ” … . Here, upon our review of the record, we conclude that DSS established a prima facie case of medical neglect by presenting evidence that the mother failed to follow mental health treatment recommendations upon the daughter’s discharges from psychiatric hospitalizations for suicidal and homicidal ideation and that the mother failed to rebut DSS’s prima facie case … .

We further agree with the AFC that the evidence of neglect with respect to the daughter ” demonstrates such an impaired level of . . . judgment as to create a substantial risk of harm for any child in [the mother’s] care,’ ” thus warranting a finding of derivative neglect with respect to the younger children … . Matter of Olivia W. (Courtney W.), 2020 NY Slip Op 03296, Fourth Dept 6-12-20

 

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THE SECTION OF THE VEHICLE AND TRAFFIC LAW RELIED ON BY THE POLICE FOR THE VEHICLE STOP MAY NOT HAVE BEEN APPLICABLE AND THE STOP THEREFORE MAY HAVE BEEN ILLEGAL; DEFENSE COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS ON THAT GROUND CONSTITUTED INEFFECTIVE ASSISTANCE; PLEA VACATED AND MATTER REMITTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the initial stop of the vehicle in which defendant attempted to flee from a public housing complex parking area may not have been justified and the defense attorney was ineffective for failing to move to suppress on that ground. The vehicle stop was based on the alleged violation of Vehicle and Traffic Law 1211 (unsafe backing). But the statute does not apply to parking areas as opposed to parking lots. The Fourth Department held the application of the law to a parking area would not constitute an objectively reasonable mistake of law which could justify the stop. On the record before it, however, the Fourth Department could not determine whether the area in question met the statutory definition of a parking lot:

… [D]efendant had a valid argument that the initial vehicle stop was unlawful because the parking area in which the police purportedly observed unsafe backing was not a “parking lot” within the meaning of Vehicle and Traffic Law § 129-b … . …

Defendant also had a valid argument that the initial vehicle stop could not be justified due to the police officers’ objectively reasonable, yet mistaken, belief that the parking area was a “parking lot” as defined by Vehicle and Traffic Law § 129-b … ….

Although contentions that defense counsel was ineffective survive only to the extent that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that . . . defendant entered the plea because of [defense counsel’s] allegedly poor performance” … , the court’s consideration of the aforementioned arguments here would likely have resulted in suppression of the handgun and, concomitantly, dismissal of some or all of the indictment … . We therefore conclude that defendant demonstrated that “there is a reasonable probability that, but for counsel’s error[], [defendant] would not have pleaded guilty” … . People v Allen, 2020 NY Slip Op 03295, Fourth Dept 6-12-20

 

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COMPLAINT AGAINST THE DIOCESE OF BUFFALO ALLEGING SEXUAL ABUSE BY A PRIEST DID NOT STATE A CAUSE OF ACTION FOR PUBLIC NUISANCE (FOURTH DEPT).

The Fourth Department determined the complaint seeking damages and injunctive relief against the Diocese of Buffalo NY stemming from alleged sexual abuse by a priest did not state a cause of action for public nuisance based on common law and Penal Law 240.45 (criminal nuisance). The court noted that a nuisance suit in this context would conflict or compete with the classification system under the Sex Offender Registration Act and, to the extent plaintiff seeks damages, a suit pursuant to the Child Victims Act is available:

“Conduct does not become a public nuisance merely because it interferes with . . . a large number of persons. There must be some interference with a public right. A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured” … . Here, the complaint alleges the infringement of, at most, a common right of a particular subset of the community, i.e., a group of Roman Catholic parishioners in the area of the Diocese who attended or were active in the priest’s parishes. The complaint does not allege that the general public was exposed to the priest’s conduct, nor does it otherwise allege interference with a collective right belonging to all members of the public … . …

Penal Law § 240.45 does not imply a private right of action under the circumstances presented here. “Where a penal statute does not expressly confer a private right of action on individuals pursuing civil relief, recovery under such a statute may be had only if a private right of action may fairly be implied’ ” … . Three essential factors are considered in determining whether a private right of action may fairly be implied: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” … . Golden v The Diocese of Buffalo, NY, 2020 NY Slip Op 03354, Fourth Dept, 6-12-20

 

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ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER JUDGMENT AND THEREFORE CANNOT BE SUBSUMED IN THE JUDGMENT, THE ORDER IS APPEALABLE; PRECEDENT TO THE CONTRARY OVERRULED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, overruling precedent, determined that an order issued after judgment, here an order on a motion to set aside the verdict, can be appealed:

… [W]e must consider whether a party may appeal directly from an order denying a CPLR 4404 motion when that order was entered after entry of a final judgment. In some of our previous cases, we have concluded that such an order is “subsumed in the judgment and the right to appeal directly therefrom terminated” (Paul Revere Life Ins. Co. v Campagna, 233 AD2d 954, 955 [4th Dept 1996] …). We now conclude that the rule set forth in Paul Revere Life Ins. Co. is inconsistent with the statutory framework and with Court of Appeals precedent, and should no longer be followed. Accordingly, we hold that an order otherwise appealable as of right (see CPLR 5701 [a]) entered after the entry of a final judgment is not subsumed in the judgment, but is independently appealable.

An appeal may be taken as of right from an order that, inter alia, “involves some part of the merits,” “affects a substantial right,” or “refuses a new trial” (CPLR 5701 [a] [2] [iii]-[v]). If, however, a court enters an “intermediate order” and subsequently enters a final judgment, the Court of Appeals has held that the entry of the judgment terminates the right to appeal from the order … . Although the right of appeal terminates, the order is not beyond review. There is a statutory remedy. An appeal from the final judgment “brings up for review,” inter alia, “any non-final judgment or order which necessarily affects the final judgment” or “any order denying a new trial” (CPLR 5501 [a] [1], [2]). Thus, CPLR 5501 (a) salvages the ability of aggrieved parties to seek review of the intermediate order on appeal.

On the other hand, orders entered after the entry of a final judgment cannot conceptually merge into the judgment. The rule in Aho [39 NY2d 241] applies only to an “intermediate order” … , which the Court of Appeals has defined as an order “made after the commencement of the action and before the entry of judgment” … . Consequently, inasmuch as the right of appeal from a post-judgment order remains in effect, we conclude that the appeal from the order here is properly before us. Knapp v Finger Lakes NY, Inc., 2020 NY Slip Op 03353, Fourth Dept 6-12-20

 

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THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED BECAUSE RESPONDENTS ADDRESSED THE RELEVANT ISSUES AT ORAL ARGUMENT; THE MEDICAL RECORDS DEMONSTRATED RESPONDENTS HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM; ALTHOUGH THE EXCUSE FOR DELAY WAS NOT ADEQUATE, THE DEFECT DID NOT REQUIRE DENIAL OF THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; THE APPLICATION SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined claimant’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The court noted that the medical records submitted for the first time in a reply were properly considered because the respondents addressed the relevant issues at oral argument. Both the majority and the dissent noted that the excuse for failure to timely file the notice of claim was inadequate but that defect did not require denial of the application. The majority found claimant demonstrated respondents were not prejudiced by the delay. The dissent disagreed with the majority’s finding that the medical records demonstrated respondents had timely notice of the nature of the claim:

… [W]e reject the contention of respondents and the dissent that it is inappropriate under the circumstances of this case to consider the medical records submitted by claimant for the first time in his reply papers. In general, ” [t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion [or application]’ ” … . “This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party’s adversaries responded to the newly presented claim or evidence” … . …

… “[T]he medical records . . . evince that [respondents’] medical staff, by its acts or omissions, inflicted an[ ] injury on [claimant]’ ” … . The medical records indicate that, following the surgical skin graft procedure, claimant developed swelling beneath the dressings that became constrictive of blood flow to the leg and ultimately caused necrosis, and that respondents’ medical staff, for various reasons, had failed to recognize the ischemic nature of the leg and claimant’s development of compartment syndrome, thereby eventually necessitating partial amputation of the leg … . We thus conclude that respondents timely acquired actual knowledge of the essential facts constituting the claim … . Matter of Dusch v Erie County Med. Ctr., 2020 NY Slip Op 03351, Fourth Dept 7-12-20

 

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COCAINE IS NOT DANGEROUS CONTRABAND WITHIN THE MEANING OF PROMOTING PRISON CONTRABAND IN THE FIRST DEGREE; CONVICTION REDUCED TO PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE (PROHIBITING ‘CONTRABAND,’ AS OPPOSED TO ‘DANGEROUS CONTRABAND’) (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, in a full-fledged opinion by Justice Troutman, over a two-justice concurrence and a dissent, determined cocaine does not meet the statutory definition of dangerous contraband within the meaning of the offense of promoting prison contraband in the first degree. The defendant’s conviction, based upon the possession of three baggies of cocaine, was reduced to promoting prison contraband in the second degree:

“A person is guilty of promoting prison contraband in the first degree when . . . [that person] knowingly and unlawfully introduces any dangerous contraband into a detention facility” (Penal Law § 205.25 [1]). “Dangerous contraband” is defined as any contraband that is “capable of such use as may endanger the safety or security of a detention facility or any person therein” (§ 205.00 [4]). “[T]he test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . ” [W]eapons, tools, explosives and similar articles likely to facilitate escape or cause disorder, damage or physical injury are examples of dangerous contraband,’ ” whereas an ” alcoholic beverage is an example of [ordinary] contraband’ ” … . Drugs, unlike weapons, are not inherently dangerous, and thus general penological concerns about the drug possessed that “are not addressed to the specific use and effects of the particular drug are insufficient to meet the definition of dangerous contraband” … . * * *

Central to our dissenting colleague’s analysis is a distinction between narcotic and non-narcotic controlled substances. The unstated premise is that cocaine is classified as a narcotic because it is inherently dangerous. We respectfully disagree with that premise. Cocaine may be unhealthy, but it is not a narcotic, at least not from a scientific, medical, or pharmacological viewpoint … . People v Simmons, 2020 NY Slip Op 03350, Fourth Dept 6-12-20

 

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