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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Cause of Action for Breach of “Sharing Assets” Agreement Entered Into During an 18-Year “Committed Same-Sex Relationship” Reinstated

In a full-fledged opinion by Justice Austin, over a dissent, the Second Department determined plaintiff had stated a cause of action for breach of contract based upon an agreement made during an 18-year “committed, same-sex relationship.” The complaint alleged that the partners had entered an oral “joint venture/partnership” agreement involving sharing assets, including retirement contributions and earnings, in exchange for plaintiff’s leaving her full-time job to care for the partners’ children. Supreme Court had dismissed the complaint. The Second Department reinstated the breach of contract cause of action but affirmed the dismissal of the constructive trust, unjust enrichment and accounting causes of action.  With respect to breach of contract, the court wrote:

[The] factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties’ children, in exchange for a one-half share in the defendant’s retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.

The alleged contractual agreement between the parties was supported by consideration. “Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]” … . The consideration here for the alleged contract is the forbearance of the plaintiff’s  career, the inability to continue to save toward her retirement during that forbearance, and her maintenance of the household in return for a share in the defendant’s retirement benefits and other assets earned during the period of forbearance … . Since the plaintiff also alleged that the defendant breached the alleged agreement and that she has sustained damages as a result of that breach, at this pleading stage, the eighth cause of action must survive dismissal … .

The fact that the alleged agreement was made by an unmarried couple living together does not render it unenforceable. “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together, provided only that illicit sexual relations were not part of the consideration of the contract'” … . “[W]hile cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law” … . Dee v Rakower, 2013 NY Slip Op 07443, 2nd Dept 11-13-13

 

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Allegations of Economic Injury Not Sufficient to Establish Standing to Challenge Governmental Action Under State Environmental Quality Review Act

The Second Department affirmed Supreme Court’s dismissal of a petition brought by the National Oil Recyclers Association (NORA) challenging the NYC Department of Environmental Protection’s (DEP’s) finding that proposed amendment s to the NYC rules regarding emissions from use of grade numbers 4 and 6 fuel oils would lead to reduced emissions and would have no significant adverse impacts on the quality of the environment.  The court explained that NORA did not have standing to challenge the finding and the DEP’s failure to provide an explanation for not publishing the proposed rules in its yearly regulatory agenda did not invalidate the rules:

To establish standing to challenge governmental action under the State Environmental Quality Review Act (ECL art 8, hereinafter SEQRA), the petitioners must show (1) that they will suffer an environmental injury that is in some way different from that of the public at large, i.e., that there is an “injury in fact,” and (2) that the alleged injury falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken … .

Allegations of potential economic injury alone are insufficient to confer standing under SEQRA … . Here, the first and second causes of action allege the potential of economic harm, but they do not sufficiently allege that the petitioners will suffer an environmental injury that is in some way different from that of the public at large. Such allegations are insufficient to confer standing to assert the first and second causes of action … . Matter of County Oil Co Inc v NYC Dept Envtl Protection, 2013 NY Slip Op 07474, 2nd Dept 11-13-13

 

State Pollutant Discharge Permit Properly Approved by DEP

The Second Department reversed Supreme Court and determined the NYS Department of Environmental Conservation properly approved the issuance of a state pollutant discharge elimination system general permit for stormwater discharges from municipal separate storm sewer systems.  Supreme Court held “the General Permit created an impermissible self-regulatory system that failed to ensure that small municipalities reduced their pollutant discharges to the “maximum extent practicable,” as required by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c), that the General Permit failed to specify compliance schedules with respect to effluent limitations and water quality standards, as required by 6 NYCRR 750-1.14, and that the General Permit unlawfully failed to provide an opportunity for a public hearing on proposed notices of intent before they were submitted to the DEC, in violation of 33 USC § 1342(a)(1) and ECL 17-0805(1)(a)(ix).”  The Second Department disagreed, discussing its reasoning in detail:

…[T]he “[m]aximum extent practicable . . . is the statutory standard that establishes the level of pollutant reductions that operators of regulated MS4s must achieve” (64 FR 68722, 68754; see 40 CFR 122.34[a]). The “EPA has intentionally not provided a precise definition of [maximum extent practicable] to allow maximum flexibility in MS4 permitting” (64 FR 68722, 68754). It has determined that “MS4s need the flexibility to optimize reductions in storm water pollutants on a location-by-location basis” (id.). The “EPA envisions that this evaluative process will consider such factors as conditions of receiving waters, specific local concerns, . . . MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance”… . * * *

Contrary to the petitioners’ contention, the General Permit does include a variety of enforcement measures that are sufficient to comply with the maximum extent practicable standard, as described in state and federal statutes (see 33 USC § 1342[p][3][B][iii]; ECL 17-0808[3][c]). * * *

It was not arbitrary and capricious for the DEC to limit the opportunity for public hearings to those situations in which a new general permit is proposed or an existing general permit is renewed, since any modifications to a draft general permit resulting from public comment and hearings will extend to all covered entities … .  Matter of Natural Resources Defense Council Inc v NYS Dept of Envtl Conservation, 2013 NY Slip Op 07488, 2nd Dept 11-13-13

 

Prosecutor’s Circumvention of the Bruton Rule Required Reversal

The Second Department reversed defendant’s conviction because of the misconduct of the prosecutor.  In spite of the pre-trial ruling redacting the confession of the co-defendant pursuant to the Bruton rule (prohibiting the use of a non-testifying codefendant’s confession), the prosecutor repeatedly indicated to the jury that the codefendant had implicated the defendant:

…[D]uring opening statements, the prosecutor told the jury that, after the nontestifying codefendant was arrested, the police learned of the involvement in the crime of someone called “Live,” i.e., the defendant. Thus, the prosecutor improperly implied that the codefendant implicated the defendant in the crime … . In denying the defendant’s mistrial motion based on this conduct, the court nonetheless admonished the prosecutor, … telling him that the court was “not happy with the remarks.”

Despite this admonishment, in summation, the prosecutor again implied that the codefendant had implicated the defendant. Specifically, he unequivocally suggested that the unnamed accomplice referred to in the “question and answer” portion of the statement, whom the codefendant stated had a 9 millimeter gun, was the defendant. Further, the prosecutor projected for the jury, on a video screen, a copy of the codefendant’s statement, with the word “we” highlighted in red, and directly suggested that the jury should draw the inference that “we” in the codefendant’s statement referred to the codefendant and the defendant. Under the circumstances of this case, this conduct constituted “an unjustifiable circumvention” of the Bruton rule …, and deliberate defiance of the pretrial order. People v Singleton, 2013 NY Slip Op 07509, 2nd Dept 11-13-13

 

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Newly Discovered Evidence Required Vacation of Murder Conviction

The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence.  At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting:

CPL 440.10(1)(g) provides that a court may vacate a judgment of conviction upon the ground that: “New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.” The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6]…). The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion of the hearing court … . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial … .

Contrary to the People’s contention, the Supreme Court properly determined that the defendant satisfied his burden of proof and that the likely cumulative effect of the newly discovered evidence, including the evidence of the broad conspiracy to pay the eyewitnesses to implicate the defendant as the shooter, would have been a verdict more favorable to the defendant … . People v Singh, 2013 NY Slip Op 07508, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

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Statutory 9% Interest Rate, Not Contractual 18% Rate, Should Have Been Applied to Breach of Contract Damages (Even Though the Monthly Payments Were Deposited in an Escrow Account During Litigation)

The Second Department determined plaintiff should have been awarded prejudgment interest on the principal amount of the damages awarded for breach of contract at the statutory 9% rate, not the contractual 18% rate which was included in the agreed monthly installment payments:

…CPLR 5001(a) mandates an award of prejudgment interest on the principal amount of the damages awarded for its breach of contract even though the monthly payments due were deposited in an escrow account during the pendency of this action, and [defendant] received no benefit from the disputed payments while they were held in escrow … . However, the Surrogate’s Court improperly applied interest on the monthly payments due at the rate of 18% per annum. “When a claim is predicated on a breach of contract, the applicable rate of prejudgment interest varies depending on the nature and terms of the contract” … . The contract rate of interest will be “used to calculate interest on principal prior to loan maturity or a default in performance,” and in the absence of “a provision in the contract addressing the interest rate that governs after principal is due or in the event of a breach, New York’s statutory rate will be applied as the default rate” … . Under the terms of the agreement at issue here, each monthly payment includes interest at the rate of 18% per annum. Since the contract rate has already been applied to each monthly payment prior to its maturity, and the agreement does not include a provision addressing the interest rate that governs after each monthly payment is due or in the event of a breach, the Surrogate’s Court should have applied interest upon each monthly payment from the date it became due at the statutory rate of 9% per annum (see CPLR 5004…). Ross v Ross Metals Corp, 2013 NY Slip Op 07466, 2nd Dept 11-13-13

 

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