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DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RISKS OF CONTINUING TO BE REPRESENTED BY DEFENSE COUNSEL IN THE PLEA PROCEEDINGS AFTER THE JUDGE AND DEFENSE COUNSEL WERE INFORMED DEFENSE COUNSEL’S FORMER AND CURRENT CLIENTS WOULD BE WITNESSES AT DEFENDANT’S TRIAL, DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined the judge did not adequately inform defendant of the risks of continuing to be represented by defense counsel in the plea proceedings after defense counsel and the judge had been informed of a conflict of interest should the matter go to trial. Several persons who would be called as witnesses by the People were former or current clients of defense counsel:

Once informed of the conflict, County Court had a duty to inquire whether defendant understood the risks of defense counsel’s continued representation and, knowing those risks, was choosing to waive the conflict … . However, the court did not make such an inquiry. Rather, the court merely informed defendant, while simultaneously reiterating the plea agreement that defense counsel had secured for him, that defense counsel would “probably” have a conflict if the matter continued. Therefore, defense counsel’s conflicted representation of defendant, absent a proper and informed waiver, deprived defendant of his right to the effective assistance of counsel … . People v Marshall, 2019 NY Slip Op 04499, Third Dept 6-6-19

 

THE SENTENCING COURT DID NOT FOLLOW THE CORRECT PROCEDURE FOR DETERMINING WHETHER DEFENDANT WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; EVEN WHERE THE DEFENDANT COMMITTED AN ARMED FELONY, WHICH CAN DISQUALIFY A DEFENDANT FROM THE STATUS, THE STATUTORY FACTORS WHICH WOULD NONETHELESS ALLOW YOUTHFUL OFFENDER STATUS MUST BE CONSIDERED AND PLACED ON THE RECORD (THIRD DEPT).

The Third Department determined Supreme Court did not follow the correct procedure with respect to whether the defendant should be afforded youthful offender status. Although the defendant pled guilty to an armed felony, which can render him ineligible for youthful offender status, the court was required to consider the factors which would render him eligible despite the armed felony and to do so on the record:

… [T]he Court of Appeals has held that, “when a defendant has been convicted of an armed felony . . ., and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record ‘even where the defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain”… . If the court determines that the offender is not an eligible youth, the inquiry is at an end; however, “if the court determines that the defendant is an eligible youth based on the presence of one or more of the CPL 720.10 (3) factors, . . . [t]he court [then] must exercise its discretion a second time to determine whether the eligible youth should be granted youthful offender treatment pursuant to CPL 720.20 (1)” … . …

The record before us does not conclusively establish that Supreme Court reached a determination, as required by CPL 720.10, regarding defendant’s eligibility for youthful offender treatment in the first instance. The court made no mention of the factors set forth in CPL 720.10 (3) and, instead of first determining defendant’s eligibility for youthful offender treatment pursuant to that statute, appears to have moved to the second step and determined that youthful offender treatment was inappropriate under CPL 720.20. People v Colon, 2019 NY Slip Op 04498, Third Dept 6-6-19

 

A SUPERIOR COURT INFORMATION (SCI) IS NOT AN APPROPRIATE CHARGING DOCUMENT AFTER AN INDICTMENT HAS COME DOWN; IN ADDITION THE SCI HERE WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE ORIGINAL CHARGE OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing County Court and dismissing the Superior Court Information (SCI), determined the SCI was an improper vehicle for defendant’s guilty plea because the grand jury had already handed down an indictment. In addition the SCI was jurisdictionally defective because it did not include the original charge or a lesser included offense:

CPL 195.10 (2) (b) provides that a defendant may waive indictment and consent to be prosecuted by a SCI in “the appropriate superior court, at any time prior to the filing of an indictment by the grand jury.” However, “waiver of indictment attempted after a [g]rand [j]ury actually indicts is generally invalid under CPL 195.10 (2) (b) because the plain words of the statute require a waiver be made prior to the filing of an indictment” … .

It is well settled that the general purpose and objectives of constitutional and statutory boundaries with respect to the waiver of indictment are to permit a defendant “to go directly to trial without waiting for a grand jury to hand up an indictment, [thereby] affording a defendant the opportunity for a speedier disposition of charges [and] eliminating unnecessary [g]rand [j]ury proceedings” … . When the grand jury has already acted, and those motivations are no longer present, waiver of indictment is not authorized, even where defendant has consented to the devised procedure … .

Here, an indictment had been filed — to which defendant pleaded guilty — prior to defendant agreeing to be prosecuted by way of an SCI. Although the indictment was subsequently dismissed, the dismissal was not due to any defect requiring such dismissal (see CPL 210.20), County Court did not authorize resubmission of the charge to the grand jury (see CPL 210.45 [9]) and a new felony complaint was never filed. Therefore, defendant was not placed on a formal preindictment procedural track … . People v Eggleston, 2019 NY Slip Op 04497, Second Dept 6-6-19

 

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THE PARKER WARNINGS DID NOT SPECIFICALLY WARN DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE WERE ARRESTED BETWEEN THE PLEA AND SENTENCING, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE ENHANCED SENTENCE ON THAT GROUND, MATTER REMITTED FOR SENTENCING TO THE AGREED TERM OR FOR AN OPPORTUNITY FOR DEFENDANT TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, reversing County Court, determined the Parker warnings [notifying defendant of the enhanced sentencing consequences of misconduct between the plea and the sentencing] were inadequate and defendant’s counsel was ineffective for not raising the issue. Defendant’s sentence was five years longer than the sentence promised at the time of the plea because he was rearrested. The Parker warnings did not clearly inform defendant his sentence would be enhanced if he was rearrested. The failure to preserve the error was excused because of the ineffective assistance. The Parker warnings, in relevant part, were as follows: ” COURT: Don’t get in any trouble at the jail, don’t get rearrested, don’t get involved with contraband, or break the law, or anything like that in jail, you can do that? DEFENDANT: Yes, sir COURT: Thirdly, the [P]robation [D]epartment is going to be in to see you. They are going to do a presentence report. I ask you to be cooperative with them and honest with them and continue to express the remorse that you show here today because if you don’t cooperate with them, and if you are not honest with them, or if you don’t continue to accept remorse and responsibility for what you did then your plea will stand and I will be free to impose a sentence of 25 years to life and say things to make sure that you never see parole, so, please, cooperate with your probation officer:”

… [C]ounsel was ineffective for failing to challenge the enhanced sentence on the ground that County Court did not insure that defendant was fully aware of the consequences of being rearrested prior to sentencing. A successful challenge to the enhanced sentence would have resulted in County Court having to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his plea … . … People v Hunter, 2019 NY Slip Op 04496, Third Dept 6-6-19

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PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE SO HIS FALL FROM A LADDER WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1), A MUNICIPALITY’S MAINTENANCE OF LIGHT POLES IS A PROPRIETARY FUNCTION TO WHICH THE DOCTRINE OF IMMUNITY DOES NOT APPLY, THE MUNICIPALITY’S ‘LACK OF WRITTEN NOTICE’ DEFENSE COULD NOT BE RAISED FOR THE FIRST TIME ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was engaged in routine maintenance when he was injured, which is not actionable pursuant to Labor Law 240 (1). The Third Department further determined that a municipality’s maintenance of light poles is a proprietary function subject to ordinary standards of negligence which is not protected by the doctrine of governmental immunity. The court further held that the “lack of written notice” defense was not a question of law which the municipality could raise for the first time on appeal. The plaintiff was repairing burned out lights which were on strands of decorative lights attached to a light pole. The strands of decorative lights were not fixtures within the meaning of the Labor Law:

… Merchants [a non-profit which had wrapped decorative lights around city light poles] hired plaintiff, as an independent contractor, to replace light strands located on 36 light poles because many of the light bulbs had become inoperable. Plaintiff was injured when he fell from a 16-foot aluminum-rung extension ladder when the pole that it was leaning on suddenly fell over. …

… [R]replacement of the light strands, which was necessary because numerous bulbs had burned out, constituted routine maintenance that is outside the protection of Labor Law § 240 (1) … . …

… [A]lthough replacement of a light fixture on a lighting pole is a repair within the protection of Labor Law § 240 (1) … , under the facts herein, the light strands cannot be considered a fixture. …

Although a municipality may enjoy qualified immunity from liability arising from highway planning and design decisions … , that doctrine does not shield a municipality from liability arising from negligent maintenance. Gutkaiss v Delaware Ave. Merchants Group, Inc., 2019 NY Slip Op 04527, Third Dept 6-6-19

 

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PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE SERVICE OF PROCESS REQUIREMENTS OF THE LIMITED LIABILITY COMPANY LAW (SERVICE UPON THE SECRETARY OF STATE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs did not demonstrate compliance with the service of process requirements of the Limited Liability Company Law:

“The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process” … . Proof of service, often in the form of an affidavit of service (see CPLR 306 [d]), must include “the papers served, the person who was served and the date, time [and] address [of such service], . . . and set forth facts showing that the service was made by an authorized person and in an authorized manner” … . Additionally, “[b]ecause service of process is necessary to obtain personal jurisdiction over defendants, courts require strict compliance with the statutory methods of service” … . As relevant here, “[s]ervice of process on the secretary of state as agent of a domestic limited liability company . . . shall be made by personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, . . . duplicate copies of such process together with the statutory fee” … . …

Although plaintiffs proffered an unsigned receipt of service purportedly generated by the Office of the Secretary of State, that receipt did not set forth the papers served, whether duplicate copies of those papers were delivered to the Secretary of State, the time of service or facts showing that service was made by an authorized person (see Limited Liability Company Law § 303 [a]; CPLR 306 [a], [d]). Cedar Run Homeowners’ Assn., Inc. v Adirondack Dev. Group, LLC, 2019 NY Slip Op 04528, Third Dept 6-6-19

 

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ARBITRATOR EXCEEDED HIS AUTHORITY PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) BY RELYING ON EVIDENCE WHICH WAS NOT PART OF THE HEARING EVIDENCE TO DETERMINE WHETHER THE RESPONDENT HAD PROBABLE CAUSE TO SUSPEND THE PETITIONER (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator in this employment dispute covered by a collective bargaining agreement (CBA) , exceeded his authority by relying on the information in the notice of suspension, as opposed to the hearing evidence, to determine whether the employee, who was suspended without pay, was entitled to back pay:

Respondents’ sole contention on appeal is that the arbitrator’s award of back pay for the period of interim suspension exceeded his authority. We agree. “Judicial review of arbitral awards is extremely limited. Pursuant to CPLR 7511 (b) (1), a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator’s power” … . Moreover, “although an arbitrator’s interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority”… . Therefore, “if the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator’s construction[,] in effect, made a new contract for the parties, which is a basis for vacating the award” … . …

Here, the arbitrator’s award of back pay for the period of interim suspension was based upon a determination that DOCCS lacked probable cause to suspend petitioner. As relevant here, section 33.4 (c) (1) of the CBA states that “[s]uspensions without pay . . . shall be reviewable by a disciplinary arbitrator . . . to determine whether the [respondent] had probable cause.” This Court has previously held that hearing evidence should be considered by the arbitrator in determining probable cause (see Matter of Livermore-Johnson … . However, the decision makes clear that the arbitrator did not rely on the hearing evidence to reach this determination … . Matter of Czerwinski (New York State Dept. of Corr. & Community Supervision), 2019 NY Slip Op 04526, Third Dept 6-6-19

 

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THE HOME-BUILDER’S CONTRACT WAS INVALID BECAUSE IT DID NOT COMPLY WITH THE GENERAL BUSINESS LAW, THE HOMEOWNERS’ BREACH OF CONTRACT COUNTERCLAIM SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND HOWEVER; CONTRACTOR ENTITLED TO RECOVER IN QUANTUM MERUIT IF, UPON REMITTAL, IT IS DETERMINED THE CONTRACTOR’S BREACH, IF ANY, WAS NOT SUBSTANTIAL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the plaintiff contractor’s breach of contract cause of action against defendants-homeowners was properly dismissed because the contract to build the home did not comply with General Business Law 771. The defendants-homeowners refused to make the final payment of approximate $39,000 upon completion of the home, alleging the home was not complete and was not up to code. The homeowners’ counterclaim for breach of contract should not have been dismissed because General Business Law 771 applies only to contractors. The contractor’s quantum meruit cause of action was not precluded by the contractor’s failure to comply with the General Business Law. The agreed price of the work in the “contract” was evidence of the value of the work done by the contractor, even though the contract itself was invalid. The matter was sent back for determination of the homeowners’ breach of contract cause of action, and a determination of whether the contractor committed a substantial breach of the contract, which would preclude the quantum meruit cause of action:

“The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered” … . Defendants’ argument centers around plaintiff’s failure to establish the fourth element. In its decision, the court stated that, “[a]lthough there was no direct evidence presented regarding the reasonable value of the work performed, the parties’ agreement can furnish evidence of such value.” We discern no error in the court so holding, as “an unenforceable writing may provide evidence of the value of services rendered in quantum meruit” … . …

… [O]on remittal, should the court find that plaintiff breached the contract, it must then also decide if the breach was substantial, and, if so, plaintiff is precluded from recovering in quantum meruit … . Conversely, if the court finds that plaintiff’s breach of contract was not substantial, plaintiff is not precluded from quantum meruit recovery, and the damages due to defendants for plaintiff’s breach of the contract must be offset by plaintiff’s award … . Grey’s Woodworks, Inc. v Witte, 2019 NY Slip Op 04525, Third Dept 6-6-19

 

PETITIONER WAS MISINFORMED ABOUT WHETHER HE COULD REQUEST WITNESSES, AND, IF THEY REFUSED TO TESTIFY, WHETHER PETITIONER WAS ENTITLED TO A REFUSAL FORM OR EXPLANATION, NEW HEARING ORDERED (THIRD DEPT).

The Third Department determined petitioner was entitled to a new hearing because he was misinformed about whether he could request the presence of two witnesses who had refused to testify, and, if they again refused, whether petitioner was entitled to a refusal form or explanation:

The record reflects that, prior to the disciplinary hearing, petitioner asked his employee assistant to secure the testimony of three inmate witnesses — Franklin, Figueroa and Forrest. The assistance form indicates that although Forrest agreed to testify, the remaining two inmates refused. At the disciplinary hearing, the Hearing Officer advised petitioner that, because Franklin and Figueroa had been requested as witnesses prior to the start of the hearing, neither a witness refusal form nor an explanation for their refusal to testify was required. Specifically, the Hearing Officer explained that “when it comes to assistance . . . they only ask you yes or no, there are no witness forms required.” The Hearing Officer further explained, “If you ask for [an] additional witness that is not on this list and that person says no[,] I don’t want to testify[,] then a form would have to be done in that instance” (emphasis added). In response, petitioner indicated that he wished to call additional witnesses, but did not again request Franklin or Figueroa.

Respondent concedes that the Hearing Officer’s explanation incorrectly suggested that petitioner could request additional witnesses but not the two who had already refused. This error was significant as petitioner could still have requested Franklin and Figueroa and, if they again refused, a refusal form or explanation would have been required … . Matter of Getfield v Annucci, 2019 NY Slip Op 04523, Thrid Dept 6-6-19

 

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PLAINTIFFS BREACHED THE CONTRACT TO PURCHASE THE HOME BUILT BY DEFENDANTS BY CLEARLY INDICATING THEY COULD NOT GO THROUGH WITH THE PURCHASE (ANTICIPATORY REPUDIATION); HOWEVER, DEFENDANTS WERE NOT ENTITLED TO THE FULL AMOUNT PLAINTIFFS HAD ALREADY PAID DEFENDANTS, OVER $220,000, AS DAMAGES FOR THE BREACH, DAMAGES TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiffs breached the contract to purchase the home built by defendants by a clear expression that they did not intend to go through with the purchase (anticipatory repudiation). The plaintiffs had paid defendants about $220,000 toward the purchase price of about $322,000. After the plaintiffs repudiated the contract the builder sold the property to his daughter fore $269,000. Supreme Court allowed the defendants to keep the entire $220,000 paid by plaintiffs as damages. The Third Department determined the damages were excessive in ordered a trial to determine the appropriate amount of damages:

Having determined that plaintiffs breached the contract, the issue distills to whether Supreme Court correctly determined that, as a result thereof, they forfeited, as a matter of law, the $222,241 in payments made to defendants prior to their cancellation of the contract. Defendants argue that we must apply the well-settled rule set forth by the Court of Appeals over a century ago in Lawrence v Miller (86 NY 131 [1881]), which was later reaffirmed in Maxton Bldrs. v Lo Galbo (68 NY2d 373 [1986]), “that a vendee who defaults on a real estate contract without lawful excuse[ ] cannot recover his or her down payment” … . However, we find that forfeiture of the payments made by plaintiffs in this case, which constitute approximately 69% of the total contract amount, represents, on its face, a damages award disproportionally higher than the actual damages incurred by defendants … , such that defendants have failed to establish, as a matter of law, their entitlement to a damages award equivalent to all payments made by plaintiffs  … . Accordingly, Supreme Court should have denied this portion of defendants’ motion. As a result, a trial is required to determine the appropriate amount of defendants’ damages. Burns v Reiser Bros., Inc., 2019 NY Slip Op 04522, Third Dept 6-6-19

 

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