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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

SUPPRESS

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Motion for SORA Downward Departure Requires Hearing​

The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing:

By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act (Correction Law article 6-C). The Supreme Court denied the defendant’s motion without holding a hearing. Because the requisite procedures set forth in Correction Law § 168-o were not followed, we reverse.  As the People correctly concede, the Supreme Court failed to conduct a hearing on the defendant’s motion, as it was required to do pursuant to Correction Law § 168-o(4) …. Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant’s motion. People v Runko, 2013 NY Slip Op 02555, 2012-07328, 2nd Dept, 4-17-13

 

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Court’s Explanation of Lien Law Presumption (Where Money Held In Trust by Contractor and Allegedly Misused Can Be Deemed Larceny) Was Determined to Impermissibly Switch the Burden of Proof to the Defendant​

In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant:

Pursuant to Lien Law article 3-A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny (see Lien Law §§ 70, 71, 79-a[1][b]…). The trial court instructed the jury, in accordance with Lien Law § 79-a(3), that “[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied . . . trust funds . . . for purposes other than a purpose of the trust.” Like all statutory presumptions in New York, the presumption in Lien Law § 79-a(3) is permissive … . The trial court’s failure to instruct the jury that the presumption “was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, was bound to result in misleading the . . . jurors into believing that the presumption is conclusive and binding upon them'” …. Such a mandatory presumption is unconstitutional, as it relieves the People of their burden of proving every element of the crime and undermines the jury’s ” responsibility at trial, based on evidence adduced by the [People], to find the ultimate facts beyond a reasonable doubt'” .. . People v Cioffi, 2013 NY Slip Op 02588, 2012-00966, 2013-03689, Ind No 11-00174, 2nd Dept, 4-17-13

 

Trial Court’s Batson Ruling Re: Pretextual Reasons for Exclusion of White Jurors Upheld

In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote:

In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories …. In step one, the moving party must make a prima facie case of purposeful discrimination by “showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason” … . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party “offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome” … . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and ” the trial court must determine whether the proffered reasons are pretextual'” …, including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others … . Here, the trial court’s determination that the proffered reasons for challenging certain white jurors were pretextual is entitled to great deference on appeal and is supported by the record… . People v Carrington, 2013 NY Slip Op 02587, 2006-09951, Ind No 369/05, 2nd Dept 4-17-13

 

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Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: 

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines” … . Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

 

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In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

“Special Relationship” Between Insured and Broker Allowed Insured to Rely on Broker’s Duty to Advise

The Second Department affirmed the motion court in finding that a question of fact had been raised about whether there was a “special relationship” between the insured and the insurance broker such that the insured could rely on the broker’s expertise and duty to advise:

“While it is certainly better practice for an insured to read its policy, an insured should have the right to look to the expertise of its broker with respect to insurance matters’… . Additionally, where the insured relied on the expertise of the agent, or there was a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on, the agent could be found to have a duty to advise because of a special relationship with the insured … .  South Bay Cardiovascular Assoc, PC v SCS Agency, Inc, 2013 Slip Op 02564, 2012-01964, 2012-05203, Index No 37328/07, 2nd Dept 4-17-13

 

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Proof Requirements for “Breach of Employment Contract” and “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of the contract, and resulting damages …. “The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'” …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” … .  * * *

…”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'” …. To recover under that article, “a plaintiff must first demonstrate that he or she is an employee entitled to its protections” … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, “[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 2nd Dept, 4-17-13

 

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Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 

A forum-selection clause in a stipulation required any action necessary to enforce the terms of the stipulation be brought in Surrogate’s Court, Queens County.  When a proceeding to discharge a mortgage, which was related to the stipulation, was brought in Supreme Court, Queens County, the court dismissed the proceeding with leave to renew in Surrogate’s Court pursuant to the forum-selection clause. In affirming, the Second Department wrote:

 “Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract” … . “A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court” … . Matter of Chiantella v Lucy Chiantella Revocable Trust of 2002, 2013 NY Slip Op 02575, 2012-01935, Index No 1853/11, 2nd Dept 4-17-13

 

No “Civil Conspiracy” Tort in New York; However Conspiracy-Theory Can Link Participants to Underlying Substantive Tort

The plaintiff sued the defendant alleging the defendant conspired with plaintiff’s former husband to file a false report with the police, resulting in plaintiff’s arrest and criminal prosecution (civil conspiracy).  In determining the motion court should have granted defendant’s motion for summary judgment, the Second Department wrote:

“Although an independent cause of action for civil conspiracy is not recognized in this State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” … . “The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives” … . Therefore, under New York law, “[i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” …. “A bare conclusory allegation of conspiracy is usually held insufficient” … . Faulkner v City of Yonkers, 2013 NY Slip Op 02538, 2011-11173, Index No 20679/08, 2nd Dept 4-17-13