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THERE WAS NO SHOWING THAT THE DEPARTMENT OF SOCIAL SERVICE’S (DSS’S) VIOLATION OF A COURT ORDER LIMITING THE CHILD’S VISITATION WITH STEPMOTHER PREJUDICED THE CHILD’S RIGHTS, THEREFORE FAMILY COURT SHOULD NOT HAVE HELD DSS IN CONTEMPT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined that the Department of Social Services (DSS) should not have been held in contempt for violation of an order limiting the child’s visitation with the stepmother. DSS acknowledged it was aware of the order and acknowledged violating it. But there was no showing of prejudice to the child’s rights:

“A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party’s rights” … . DSS does not dispute that it was aware of the court’s order limiting visitation with the stepmother, nor does it dispute that it did not follow that order, thereby establishing the first two elements for a civil contempt finding. Notably, however, DSS contacted the court immediately after receiving the order to advise that the stepmother had been certified as a foster parent and that the child was residing [*3]with her in that capacity. The AFC’s petition, filed shortly thereafter, alleged that DSS had violated the order and sought to have the child placed with the foster parents, but failed to allege or present evidence establishing, by clear and convincing evidence, that DSS’s failure to comply with the December 2016 order had “prejudiced the [child’s] rights” … . Matter of Nilesha RR. (Loretta RR.), 2019 NY Slip Op 04063, Third Dept 5-23-19

 

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THE TERM ‘AUTOMATIC OVERRIDE’ DOES NOT MANDATE THAT AN OFFENDER WITH A PRIOR SEX-CRIME FELONY BE CLASSIFIED A LEVEL THREE SEX OFFENDER, BOTH COUNTY COURT AND DEFENSE COUNSEL MISUNDERSTOOD THE TERM (THIRD DEPT). ​

The Third Department, reversing County Court, determined that both County Court and defense counsel misunderstood the meaning of “automatic override” in the context of whether an offender who has a prior felony sex-crime conviction mandates a level three classification:

… [T]he use of the words “automatically” or “automatic override” does not mandate that a particular individual be classified as a risk level three sex offender; rather, the “automatic” nature of the override results in a presumptive risk level three classification — a classification from which a court indeed may depart based upon the evidence presented … . Thus, “the application of the override for a prior felony sex crime is presumptive, not mandatory or automatic” … , and “[t]reating the presumptive override as mandatory is a ground for reversal” … .  …

Defense counsel’s misunderstanding of the override — as evidenced by his erroneous statement that defendant’s prior felony conviction for a sex crime resulted in “an automatic override” to a risk level three classification — deprived defendant of the opportunity to present factors in support of a downward departure; similarly, County Court’s misapplication of the override — premised upon the court’s mistaken belief that “a mandatory override to a risk level [three] status” was “required” — foreclosed any inquiry into whether the presumptive risk level three classification was in fact warranted … . People v Jones, 2019 NY Slip Op 04060, Third Dept 5-22-19

 

SENTENCING COURT MUST MAKE A THRESHOLD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS IN THIS FIRST DEGREE RAPE CASE, SENTENCE VACATED (THIRD DEPT).

The Third Department vacated defendant’s sentence for rape first degree and remitted the matter for a determination of defendant’s eligibility for youthful offender status:

… [A] “youth” is defined as “a person charged with a crime alleged to have been committed when he [or she] was at least [16] years old and less than [19] years old” (CPL 720.10 [1]), and an “eligible youth” is “a youth who is eligible to be found a youthful offender” (CPL 720.10 [2]). “Every youth is so eligible” (CPL 720.10 [2]) — subject to certain statutory exceptions including, as pertinent here, a conviction for “rape in the first degree . . ., except as provided in [CPL 720.10 (3)]” … . To that end, CPL 720.10 (3) provides, in relevant part, that “a youth who has been convicted of . . . rape in the first degree . . . is an eligible youth if the court determines that one or more [statutory] factors exist,” including “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . …

Defendant was 17 years old at the time of the underlying offense and, despite his conviction of rape in the first degree, he was not statutorily precluded from being found to be an eligible youth (see CPL 720.10 [3]). Where, as here, a defendant has been convicted of an enumerated sex offense … , the sentencing court, “in order to fulfill its responsibility under CPL 720.20 (1) to make a youthful offender determination for every eligible youth, . . . must make the threshold determination as to whether the defendant is an eligible youth by considering the factors set forth in CPL 720.10 (3)” … — “‘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” … . People v Robertucci, 2019 NY Slip Op 04057, Third Dept 5-23-19

 

THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the Superior Court Information (SCI) to which defendant pled guilty was jurisdictionally defective because it did not include an offense that was charged in the felony complaint or a lesser included offense:

… [T]he waiver of indictment and SCI are jurisdictionally defective because they did not charge an “offense for which the defendant was held for action of a grand jury” (CPL 195.20 …). Pursuant to CPL 195.20, a waiver of indictment must contain “each offense to be charged in the [SCI]” which “may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable.” To that end, “a defendant is held for the action of a [g]rand [j]ury on both the offense charged in the felony complaint as well as its lesser included offenses” … , because, “[f]or purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the ‘same offense’ and may be substituted for the original charge in a waiver of indictment and SCI”… . Accordingly, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge” … . …

Inasmuch as it is possible to commit the crime charged in the felony complaint — possession of a loaded weapon — without committing the crime charged in the SCI — possession with intent to use the weapon unlawfully — the crime charged in the SCI is not a lesser included offense of the former and the SCI could not serve as a proper jurisdictional predicate for defendant’s guilty plea … . People v Diego, 2019 NY Slip Op 04054, Third Dept 5-22-19

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THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).

The Third Department, in a matter of first impression, determined that the public assistance benefit received by claimant when he participated in the work experience program (WEP) constituted wages for the purpose of calculation the workers’ compensation benefit for injury on the job:

Wages are defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident” (Workers’ Compensation Law § 2 [9]). A recipient of public assistance may be required to participate in work activities, including work experience in the public sector (see Social Services Law §§ 331, 336 [1] [d]) … . The amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage (see Social Services Law § 336-c [2] [b]). Significantly, the benefits of a recipient who fails to participate in a required WEP without good cause are subject to reduction or forfeiture (see Social Services Law § 342). The fact that recipients of public assistance must participate in a WEP to receive benefits without reduction means that the public assistance paid to WEP participants directly serves as compensation for the work performed … . Accordingly, we conclude that public assistance benefits paid to WEP participants are wages as defined in the Workers’ Compensation Law. We note that our conclusion is consistent with the Court of Appeals’ observation that that the “rate and method of payment of WEP workers” is determined by the Social Services Law … . Matter of Covert v Niagara County, 2019 NY Slip Op 03870, Third Dept 5-16-19

 

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AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIES TO PARKED UNOCCUPIED CARS, SMELL OF MARIHUANA (FROM OUTSIDE THE CLOSED UNOCCUPIED CAR) PROVIDED PROBABLE CAUSE TO SEARCH THE CAR, OFFICER’S SUBJECTIVE INTENT TO SEARCH THE CAR BEFORE HE SMELLED THE MARIHUANA IS IRRELEVANT (THIRD DEPT).

The Third Department determined the warrantless search of defendant’s car, which was parked outside the apartment where defendant had been arrested, was valid under the automobile exception to the warrant requirement. The officer who opened the car door with keys taken from the defendant, testified that he smelled marihuana as he approached the car, and that he intended to search the car before he smelled the marijuana. The Third Department held that the officer’s subjective intent to search before he smelled the marihuana did not invalidate the search, and the officer’s claim he could smell marihuana outside a closed car was a credibility issue resolved by County Court:

The automobile exception to the warrant requirement is not based solely upon the mobility of vehicles, but also on the “reduced expectation of privacy in an automobile” … . Thus, the automobile exception is not limited to vehicles that are moving or occupied when observed by police and may also be applied when, as here, a vehicle is parked in “a public place where access [is] not meaningfully restricted” … . …

The warrantless search was permissible under the automobile exception. “[I]t is well established that the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle” … . …

… [P]robable cause analysis is based upon reasonableness, and a search or seizure is permissible where, as here, “the circumstances, viewed objectively, justify the action” … . As the smell of marihuana outside the vehicle objectively provided probable cause for the warrantless search, the lieutenant’s subjective intentions are irrelevant. People v Hines, 2019 NY Slip Op 03853, Third Dept 5-16-19

 

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PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the parole officer’s, Rosa’s, search of defendant-parolee’s apartment, which was based on a tip from a person known to the parole officer, was supported by reasonable suspicion:

Although a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures[,] . . . what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is” … . Accordingly, a search of a parolee undertaken by a parole officer is constitutional if “the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty . . . [and was] substantially related to the performance of duty in the particular circumstances” … . A parole officer’s duty is twofold and sometimes inconsistent in nature because a parole officer not only “has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes[, but] he [or she] also has a responsibility to the parolee to prevent violations of parole and to assist [the parolee] to a proper reintegration into [the parolee’s] community” … .

Here, there can be little doubt that Rosa’s search of defendant’s residence due to the informant’s tip was reasonably related to Rosa’s duties as a parole officer … . Therefore, the key inquiry is whether Rosa, based upon the information provided by the informant, had reasonable suspicion to conduct the search … . Rosa’s testimony at the suppression hearing revealed that the information was not from an anonymous tipster (compare People v Burry, 52 AD3d at 858), but rather was from another parolee with whom Rosa was familiar and with whom he had interacted prior to receiving the information. Rosa testified that the informant indicated that he or she had firsthand knowledge of the drug activity at defendant’s residence. Therefore, based upon the circumstances of this case — including that defendant had been on parole for less than a month and therefore had no proven track record of compliance with parole rules — Rosa’s search of defendant’s residence was founded on reasonable suspicion and, as such, was lawful … . People v Wade, 2019 NY Slip Op 03851. Third Dept 5-16-19

 

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PLAINTIFF-TENANT IS DISABLED BY DEPRESSION, DEFENDANT-LANDLORD’S REFUSAL OF PLAINTIFF’S REQUEST TO KEEP AN EMOTIONAL SUPPORT DOG IN HIS APARTMENT CONSTITUTED DISCRIMINATION UNDER THE FAIR HOUSING ACT AND THE HUMAN RIGHTS LAW, THE LANDLORD’S LIMITING PLAINTIFF’S LEASE TERM TO THREE MONTHS CONSTITUTED IMPERMISSIBLE RETALIATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing Supreme Court, determined plaintiff-tenant’s discrimination and retaliation claims against defendant landlord should not have been dismissed. Plaintiff demonstrated his need for an emotional support dog (he suffers from debilitating depression) and further demonstrated the landlord’s denial of his request to keep a dog was discriminatory, and the landlord’s reduction of the lease term to three months constituted impermissible retaliation:

… [T]he parties have strictly limited their arguments on appeal on the question of discrimination to two narrow and carefully circumscribed issues: (1) whether defendant has a qualifying disability within the meaning of the FHA [Fair Housing Act] and the HRL [Human Rights Law] and (2) whether the accommodation he requested was “necessary to afford [him] equal opportunity to use and enjoy [his] dwelling” as provided in the statutes (42 USC § 3604 [f] [3] [B]; see Executive Law § 296 [18] [2]). * * *

… [B]ased upon defendant’s significant limitations in the major life activities of working and interacting with others, we are satisfied that he is disabled within the meaning of the FHA … . …

The HRL’s definition of disability is broader than those used in the federal disability statutes … . The HRL does not require a showing of a limitation in a major life activity, but instead defines disability, as pertinent here, as “a physical, mental or medical impairment . . . [that] is demonstrable by medically accepted clinical or laboratory diagnostic techniques” (Executive Law § 292 [21] [a]). Defendant’s therapist, a clinical psychologist, testified in some detail regarding the clinical techniques used to diagnose depression and defendant’s specific symptoms … . …

… [W]e find that defendant “offered sufficient evidence that having [an emotional support] dog would affirmatively enhance his quality of life by ameliorating the effects of his disability,” and thus demonstrated necessity within the meaning of the FHA and the HRL … . * * *

We are satisfied that plaintiff’s actions were sufficiently adverse to constitute interference with the exercise of defendant’s rights. Notably, discrimination against a disabled person in the terms or conditions of a lease is prohibited by the FHA and its implementing regulations … . Hollandale Apts. & Health Club, LLC v Bonesteel, 2019 NY Slip Op 03718, Third Dept 5-9-19

 

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INCLUSION OF CLAIMANT’S PHOTOGRAPH ON A WALL OF SHAME DEPICTING PERSONS ARRESTED DURING OPERATION SAFE INTERNET, AN INVESTIGATION INTO THE USE OF THE INTERNET FOR THE SEXUAL EXPLOITATION OF CHILDREN, CONSTITUTED ACTIONABLE DEFAMATION BY IMPLICATION SUPPORTING A $300,000 DAMAGES AWARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the Court of Claim’s decision awarding claimant $300,000 in this defamation-by-implication action against the state was supported by the evidence. Claimant had been arrested during Operation Safe Internet, but only because of the alleged Internet communication by claimant’s roommate. Claimant was arrested solely for possession of drugs and his case was subsequently adjourned in contemplation of dismissal and ultimately dismissed with the record sealed. In a televised news conference about an initiative to “investigate and prosecute crimes involving the online sexual exploitation of children, ” under a sign saying “Internet Crimes Against Children,” claimant’s photograph was one of 61 on a “wall of shame” depicting those who had been arrested during the investigation:

… [W]e now adopt a two-part test to determine whether the first element is met in causes of action alleging defamation by implication, requiring proof (1) that the language of the communication as a whole reasonably conveys a defamatory inference, and (2) that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference … . * * *

… [W]ithout providing more information to the public regarding the underlying facts of claimant’s case, to a reasonable viewer, the communication as a whole falsely implied that claimant, whose photograph was on the wall of shame, had engaged in a sexual crime against a child … . * * *

… [W]e find that claimant has established that the context of defendant’s communication as a whole can be reasonably read to affirmatively suggest that defendant intended or endorsed the defamatory inference that claimant was arrested for a crime involving the online sexual exploitation of a child  … . In fact, the very placement of claimant’s photo in the array strongly suggested to the public that defendant intended and endorsed the message that claimant belonged on the “wall of shame” because of his fictional crime against children. Further, the use of a small, unreadable label listing the crime for which claimant was actually arrested, which was the particular manner in which the true facts were conveyed, supplied “additional, affirmative evidence suggesting that the defendant intend[ed] or endorse[d] the defamatory inference” that claimant had been arrested for a crime involving the sexual exploitation of a child … . Partridge v State of New York, 2019 NY Slip Op 03715, Third Dept 5-9-19

 

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NEW TRIAL ORDERED BECAUSE THE INCONSISTENCY IN THE VERDICT SHEET COULD NOT BE REMEDIED AFTER THE JURY WAS DISCHARGED, THE JURY HAD AWARDED PLAINTIFF-STUDENT $1 MILLION IN A SUIT AGAINST A SCHOOL DISTRICT STEMMING FROM BULLYING BY OTHER STUDENTS (THIRD DEPT).

The Third Department determined a new trial was necessary because of an inconsistency in the jury’s answers on the verdict sheet. The trial court attempted to cure the inconsistency after the jury was discharged by speaking with the jury foreman, who was still in the courthouse when the problem was noticed. The jury had awarded plaintiff-student $1 million in a negligent supervision suit against a school district stemming from bullying by other students:

The taking of this verdict was fatally flawed. Pursuant to CPLR 4111 (c), when the answers on a verdict sheet “are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial” … . The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency … . However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration … . In essence, the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial … . Motta v Eldred Cent. Sch. Dist., 2019 NY Slip Op 03714, Third Dept 5-9-19

 

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