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MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, following the other three departments, determined that a motion to amend the pleadings no longer requires a demonstration of the merit of the proposed amendment:

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We have previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a “sufficient evidentiary showing to support the proposed claim” … , that is, to make an “evidentiary showing that the proposed amendments have merit” … . However, we are persuaded to depart from that line of authority and follow the lead of the other three Departments, and we now hold that “[n]o evidentiary showing of merit is required under CPLR 3025 (b)” … . Thus, the rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit”… . The rationale for adopting this rule is that the liberal standard for leave to amend that was adopted by the drafters of the CPLR is inconsistent with requiring an evidentiary showing of merit on such a motion. “If the opposing party [on a motion to amend] wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment [or to dismiss] upon a proper showing” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07918, Third Dept 11-9-17

 

CIVIL PROCEDURE (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/PLEADINGS, AMENDMENT OF  (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/AMENDMENT OF PLEADINGS  (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/CPLR 3025 (b) (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))

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REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department affirmed most of Supreme Court’s rulings on the disclosure of documents in a billing dispute, including a report from a consultant, finding that the documents were not protected by privileges for attorney-client communications, attorney work-product, or material prepared for litigation. The criteria for all were described:

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… [T]he report “does not include any legal advice, legal analysis or discussion of legal issues” nor does it disclose confidences of defendant, and ,,, it is not a communication “of a legal character” … . * * *Thus, the report was not protected by the attorney-client privilege.

…[T]he report was not protected from disclosure as attorney work product, as this “privilege should be narrowly applied to materials prepared by an attorney, acting as an attorney, which contain his [or her] analysis and trial strategy” … .

Materials such as reports prepared by a third party, a nonlawyer consultant, during an investigation do not ordinarily qualify under this exception … . * * *

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With regard to the claim that the report was protected from disclosure as material prepared for litigation, defendant’s “burden was to demonstrate that [the report] was obtained solely for litigation purposes” … , which “cannot be satisfied with wholly conclusory allegations”… . “[M]ixed or multipurpose reports are not free from disclosure” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07909, Third Dept 11-9-17

 

ATTORNEYS (PRIVILEGES, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))PRIVILEGE (ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/CIVIL PROCEDURE (DISCLOSURE, PRIVILEGE,  REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY-CLIENT PRIVILEGE (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY WORK-PRODUCT (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/LITIGATION, MATERIAL PREPARED FOR (PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT)/DISCLOSURE (PRIVILEGE, ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))

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CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT).

The Third Department determined claimant was not totally unemployed and was therefore not entitled to unemployment insurance benefits. Claimant was winding up his corporation’s business during the relevant period of time:

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“[A] corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal” … . Following the sale of the business, claimant took measures in winding up the business during the time period in question, including changing the company name with the Department of State as required by the purchase agreement, distributing the monthly installment payments received from the purchaser of the business, and writing checks from the company account for accountant and counsel fees, taxes, insurance costs, a charitable contribution, office supplies and other business expenses. Under these circumstances, the Board’s determination that claimant was not totally unemployed is supported by substantial evidence and will not be disturbed … . “Contrary to claimant’s assertion, actual financial gain is not a prerequisite to a finding that a claimant is not totally unemployed” … . Matter of Lasker (Commissioner of Labor), 2017 NY Slip Op 07924, Third Dept 11-9-17

 

UNEMPLOYMENT INSURANCE (CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT))/CORPORATION LAW (UNEMPLOYMENT INSURANCE, CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT))

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QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the village’s motion for summary judgment in this front-end loader/pedestrian accident case should not have been granted. Plaintiff was injured when the front-end loader backed up over her in a municipal parking lot at night. The parking lot was deemed a “highway” for purposes of the applicability of the “reckless disregard for safety” standard for machinery used in highway work. But the Third Department held there were questions of fact about whether the reckless disregard standard was met. The court noted that the usual safety precautions used during the day were not used at night, when the accident occurred:

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Vehicle and Traffic Law § 1103 (b) provides that the safety rules and regulations governing the operation of vehicles upon highways (i.e., the “rules of the road”) will “not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway . . . [or] to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” . … [T]he Legislature has provided vehicles engaged in such road work the benefit of a lesser standard of care … — rather than having to establish ordinary negligence, an injured plaintiff seeking damages must instead demonstrate that “any person . . . [or] operator of a motor vehicle or other equipment while actually engaged in work on a highway” acted with a “reckless disregard for the safety of others” … . * * *

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While we agree with Supreme Court that the [parking] lot constituted a highway so as to invoke the provisions of Vehicle and Traffic Law § 1103 (b), that determination, standing alone, did not serve to insulate defendants from all potential liability for their actions that evening and entitle them to summary judgment. … Given [the] acknowledgment that the Village had a safety zone policy in place that called for the establishment of work zones when heavy machinery was being operated in parking lots during the daytime and chose not to implement it during nighttime operations, [the] candid testimony that a flagperson would have been helpful and may have been able to stop plaintiff before she crossed behind the loader and the lack of any admissible expert opinion dispositive of defendants’ claim that it did not act with recklessness, defendants failed to establish their entitlement to summary judgment as a matter of law … . Freitag v Village of Potsdam, 2017 NY Slip Op 07919, Third Dept 11-9-17

 

NEGLIGENCE (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/MUNICIPAL LAW (NEGLIGENCE, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/RECKLESS DISREGARD (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/HIGHWAYS (MUNICIPAL LAW, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/PARKING LOTS (MUNICIPAL LAW, HIGHWAYS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS PARKING LOT FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, NEGLIGENCE, RECKLESS DISREGARD, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OF SAFETY STANDARD WAS MET IN THIS FRONT-END LOADER ACCIDENT CASE, VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT).

The Third Department determined criminal contempt charges were not precluded by the double jeopardy rule. As part of a neglect proceeding defendant admitted violating orders of protection. Although a 60-day period of incarceration was part of the disposition, it was repeatedly delayed as the court monitored defendant’s compliance (and was never imposed). Because the incarceration was deemed to induce compliance with Family Court’s orders, it was remedial, not punitive in nature. Therefore a subsequent prosecution for criminal contempt, arising from the violations of the orders of protection, did not violate the double jeopardy prohibition:

 

The double jeopardy protections of the US and NY Constitutions “shield a defendant from multiple criminal punishments arising from the same offense” … . Whether double jeopardy bars a criminal prosecution subsequent to a finding of contempt or similar violation of a court order depends not on the labels used to describe the previously imposed sentence, but on “the character and purpose” of that sentence … . In a contempt matter, the sentence imposed for violation of a court order is remedial if it was intended “to coerce compliance” with a court order … . By contrast, when “a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended — by the contemnor’s compliance with the law [or a court order], then the contempt is not remedial but punitive” … . Double jeopardy precludes “a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose” … . However, if the imposed sentence was remedial, double jeopardy does not apply … . People v Lamica, 2017 NY Slip Op 07646, Third Dept 11-2-17

 

FAMILY LAW (ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CONTEMPT (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/DOUBLE JEOPARDY (FAMILY LAW, ORDERS OF PROTECTION, CRIMINAL CONTEMPT, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))

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DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT).

The Third Department determined the state trooper properly stopped the defendant, which led to his arrest for DWI, because the defendant had his high beams on as he approached the trooper:

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Petitioner contends that the revocation of his driver’s license must be reversed because the trooper’s testimony at the revocation hearing was insufficient to establish that he violated Vehicle and Traffic Law § 375 (3), thereby rendering the traffic stop unlawful. We disagree. A police officer may lawfully execute a traffic stop of a vehicle when he or she has probable cause to believe that the driver of the vehicle has committed a violation of the Vehicle and Traffic Law … . Pursuant to Vehicle and Traffic Law § 375 (3), a driver shall operate his or her headlights in such a manner “that dazzling light does not interfere with the driver of [an] approaching vehicle.” To establish such a violation, it must be shown that the operator of the motor vehicle used his or her high beams within 500 feet of an approaching vehicle and that the use of such high beams interfered with the vision of that driver by “hampering or hindering [his or her] vision” … .

At the hearing, the trooper testified that he was traveling westbound … , when he observed petitioner’s vehicle approximately 500 feet away in the eastbound lane of travel with his high beams activated. The trooper testified that petitioner’s high beams caused “a glare to [his] vision” and affected his driving insofar as he had to “adjust [his] eyes.” In our view, such testimony sufficiently established that he had probable cause to believe that petitioner had committed a violation of the Vehicle and Traffic Law … and, together with the negative inference that the Appeals Board permissibly drew from petitioner’s failure to testify at the hearing … , we conclude that the determination was supported by substantial evidence … . Matter of Barr v New York State Dept. of Motor Vehicles, 2017 NY Slip Op 07664, Third Dept 11-2-17

 

CRIMINAL LAW (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/VEHICLE AND TRAFFIC LAW (HIGH BEAMS, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/TRAFFIC STOPS (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT)/HIGH BEAMS (VEHICLE AND TRAFFIC LAW, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/REVOCATION (DRIVER’S LICENSE, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVER’S LICENSE (REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))REFUSAL (CHEMICAL TEST, DWI, DRIVER’S LICENSE REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVING WHILE INTOXICATED (TRAFFIC STOP, REVOCATION HEARING, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))

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MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT).

The Third Department determined defendant’s motion to vacate his conviction, in part on the ground of actual innocence, was properly denied. The court explained the standard of proof for actual innocence:

In People v Hamilton (115 AD3d 12 [2014]), the [2nd] Department determined that a claim of actual innocence must be established with clear and convincing evidence of “factual innocence, not mere legal insufficiency of evidence of guilt and must be based upon reliable evidence which was not presented at the trial” … . While we recognize that in People v Caldavado (26 NY3d 1034 [2015]) the Court of Appeals opted not to determine whether a freestanding claim of actual innocence is viable … , we concur with the analysis set forth in Hamilton and find that such a claim may be raised pursuant CPL 440.10 (1) (h) … . * * *

In our view, the evidence submitted at the hearing failed to establish by clear and convincing evidence that defendant did not murder the victims. Much of the evidence presented at the hearing was also presented to the jury, which considered and rejected defendant’s explanation, and the jury’s verdict was upheld on appeal … . At best, the additional evidence submitted in support of the motion to vacate arguably raised “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt,” neither of which is sufficient to support a motion to vacate a judgment based on actual innocence … . People v Mosley, 2017 NY Slip Op 07648, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, ACTUAL INNOCENCE, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/VACATE CONVICTION, MOTION TO (ACTUAL INNOCENCE, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))/ACTUAL INNOCENCE (CRIMINAL LAW, VACATE CONVICTION, MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT))

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ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Taylor, over a dissent, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Even though some of the ineffective assistance claims could be determined from the original record (and therefore should have been raised on appeal), because some of the claims could not be determined from the record, the court could consider all the ineffective assistance issues:

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… [W]e do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant’s argument that trial counsel was ineffective for failing to impeach the cabdriver “is dependent upon [a] statement[] to the police that [is] outside the record” and, therefore, was properly raised in the context of the instant CPL 440.10 motion … . Defendant also faults trial counsel for failing to request that the crime of assault in the third degree … be submitted to the jury as a lesser included offense of assault in the second degree … . While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that “the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People’s case” … . Because defendant’s complaint about counsel in this regard is predicated on counsel’s strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion … .

The two other allegations of ineffectiveness raised on the motion — that counsel failed to object to County Court’s Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 — are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 AD3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. … [W]e agree. People v Taylor, 2017 NY Slip Op 07649, Third Dept 11-2-17

CRIMINAL LAW (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/VACATE CONVICTION, MOTION TO (INEFFECTIVE ASSISTANCE, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION, ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT))

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ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT).

The Third Department determined the fact that defendant was not required to register as a sex offender under the law of Washington state did not affect the requirement that he register in New York. The Full Faith and Credit Clause was not implicated:

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Defendant argues that requiring him to register in New York when a Washington court order relieved him of the obligation to register in that state violates the Full Faith and Credit Clause (see US Const, art IV, § 1). However, this clause is designed “to avoid conflicts between [s]tates in adjudicating the same matters” … and “is not implicated where the issue decided by a court in [another] state is different from the issue being decided by a New York court” … . Here, Washington and New York have each separately adjudicated the risks posed by defendant to their respective citizens, and each state has imposed sex offender registration requirements pursuant to the governing sex offender registration laws in each state and, accordingly, neither state has adjudicated the “same matter” in violation of the Full Faith and Credit Clause .., .

… [F]ull faith and credit principles do not require New York to assign an offender the same risk level as that imposed by the jurisdiction where the conviction occurred … . …

… [Because] each state is assessing the risks posed to its own citizens and vulnerable populations and applying its own registration laws, the courts are not adjudicating the “same matters” in violation of the Full Faith and Credit Clause … . People v Hlatky, 2017 NY Slip Op 06693, Third Dept 9-28-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT)/CONSTITUTIONAL LAW (FULL FAITH AND CREDIT CLAUSE, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/FULL FAITH AND CREDIT CLAUSE (SEX OFFENDER REGISTRATION ACT, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))

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RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department determined the disciplinary determination must be annulled and expunged because the hearing officer did not independently assess the credibility of an informant:

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“A disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability”… . Here, the Hearing Officer, without informing petitioner, interviewed the correction officer who investigated the incident and authored the misbehavior report about the information obtained from the confidential informant. Although the correction officer attested to the informant’s past reliability, the substance of the information gleaned from the informant was too vague and insufficiently detailed to allow the Hearing Officer to independently assess the reliability or credibility of the informant … . Because the confidential information was instrumental in finding petitioner guilty of the charges, the determination is not supported by substantial evidence and must be annulled … . Matter of Fields v Annucci, 2017 NY Slip Op 06697, Third Dept 9-28-17

 

DISCIPLINARY HEARINGS (INMATES) (RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))

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