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AFTER TWO MENTIONS OF THE POSSIBLE NEED FOR AN ATTORNEY WHICH DID NOT AMOUNT TO AN UNEQUIVOCAL REQUEST, THE DEFENDANT STATED “THAT’S WHAT I WANT A LAWYER FOR,” HE WAS “SCARED TO TALK,” AND HE “COULD STILL COOPERATE LATER;” THOSE STATEMENTS SHOULD HAVE BEEN UNDERSTOOD BY THE POLICE AS A REQUEST FOR COUNSEL (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined statements made by defendant after he invoked his right to counsel should have been suppressed:

In the course of the investigators’ questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began focusing on how he had first encountered the victim earlier that morning, defendant expressed that he did not wish to discuss that subject. After the investigators continued with a couple of follow-up questions on this topic, defendant stated, “that’s what I want a lawyer for.” He then went on to say that he was scared to talk and noted that he could still cooperate with the District Attorney at a later time.

… [We conclude that defendant clearly invoked his right to counsel. Although the first two alleged invocations … did not constitute requests for an attorney, they nevertheless serve to indicate that the subject of obtaining a lawyer was on defendant’s mind while he was being questioned. … [O]nce the interrogation moved to the underlying incident, defendant “articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney” … . Accordingly, any statements made by defendant thereafter should have been suppressed … . People v Lipka, 2024 NY Slip Op 05153, Third Dept 10-17-24

Practice Point: Defendant’s statements “that’s what I want a lawyer for,” he was “scared to talk,” and he “could still cooperate later” constituted an unequivocal request for counsel. Statements made thereafter should have been suppressed.

 

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THE DELAY IN PRODUCING THE DEFENDANT FOR ARRAIGNMENT AFTER THE PEOPLE BECAME AWARE HE WAS IN CUSTODY WAS ATTRIBUTABLE TO THE PEOPLE (A “CONTRADICTORY HOLDING” BY THE FOURTH DEPARTMENT WAS NOTED); DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS ON SPEEDY TRIAL GROUNDS; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the People were not timely ready for trial and defense counsel was ineffective for failing to move for dismissal on “speedy trial” grounds:

… [T]he People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they requested to have the arraignment adjourned to “May 28th, as soon as we can get [defendant] from downstate.” Yet, the record reflects that the People engaged in no efforts to have defendant produced until May 29, when they filed their application pursuant to CPL 560.10, and we reject their generic assertion that this constituted diligent and reasonable efforts … . The People could not proceed to trial without having first arraigned defendant and because the delay was caused by the People’s own inaction, the 16 days from May 13 through May 29 are chargeable to the People, thus exceeding the seven days remaining on the speedy trial clock. As such, we conclude that the People were not ready for trial within the applicable six-month statutory period … .

Having concluded that defense counsel failed to make a meritorious speedy trial motion, we must determine whether this failure, alone, was so egregious and prejudicial as to amount to ineffective assistance … . We reject the People’s contention that this speedy trial motion involved the resolution of various novel and complex issues … , as it has long been settled in this Department that CPL 560.10 (1) (a) imposes upon the People a “responsibility to petition the trial court for an order producing defendant for ‘arraignment or prosecution’ ” … — a principle which is not diminished by the Fourth Department’s contradictory holding in People v Taylor (57 AD3d at 1518-1519 …). As such, and noting that the timeline underlying the speedy trial analysis is uncontroverted, we find that defendant was denied meaningful representation due to defense counsel’s failure to pursue a meritorious speedy trial motion and, thus, his motion to vacate should have been granted … .. Lastly, as the time to prosecute defendant under this indictment has expired, the indictment must be dismissed. People v Shuler, 2024 NY Slip Op 05154, Third Dept 10-17-24

Practice Point: In the Third Department [but apparently not in the Fourth Department (People v Taylor (57 AD3d at 1518-1519)?] any delay in producing a defendant for arraignment after the People become aware the defendant is in custody is attributable to the People.

Practice Point: Defense counsel’s failure to move to dismiss on speedy-trial grounds is ineffective assistance.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR AN INTOXICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the denial of defendant’s request for the intoxication jury instruction was reversible error:

… County Court improperly refused to instruct the jury as to the defense of intoxication. “An intoxication charge is warranted if, viewing the evidence in the light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . The charge should be given when there is “evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant’s ability to form the necessary criminal intent” … . It is true that more is required than “a bare assertion by a defendant that he was intoxicated,” but the threshold to demonstrate entitlement to the charge is nevertheless “relatively low” … . We find that the evidence presented at trial regarding defendant’s consumption of alcohol during the afternoon and evening on the date in question easily surpassed this low bar. People v Smith, 2024 NY Slip Op 05158, Third Dept 10-17-24

Practice Point: The evidence of defendant’s consumption of alcohol was more than sufficient to warrant instructing the jury on the intoxication defense.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the denial of defendant’s request for a cross-racial identification jury instruction was reversible error:

As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification” … . Here, at the close of proof, defendant requested that the jury be given a cross-racial identification instruction pursuant to Boone. County Court denied his request noting, among other things, that in the present case, the identifying witness … knew defendant. County Court, however, misinterpreted the Boone standard and erred in denying defendant’s request for a cross-racial identification jury instruction upon defendant’s request for same … . People v Alexander, 2024 NY Slip Op 05160, Third Dept 10-17-24

Practice Point: Where the witness who identifies the defendant as the perpetrator and the defendant appear to be of different races, defendant’s request for a cross-racial identification jury instruction must be granted.

 

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IN THIS “ATTEMPTED CRIMINAL POSSESSION OF A WEAPON” AND “FALSIYFING BUSINESS RECORDS” PROSECUTION, THE PEOPLE DID NOT PROVE DEFENDANT WAS SUBJECT TO A RESTRAINING ORDER ISSUED AFTER A HEARING OF WHICH HE HAD NOTICE AND IN WHICH HE COULD HAVE PARTICIPATED; THEREFORE THE PEOPLE DID NOT PROVE HIS ANSWERING “NO” TO THE QUESTION WHETHER HE WAS SUBJECT TO A RESTRAINING ORDER WAS FALSE; CONVICTIONS REVERSED (THIRD DEPT). ​

The Third Department reversed defendant’s “attempted criminal possession of a weapon” and “falsifying business records” convictions as against the weight of the evidence. Defendant, when attempting to purchase a shotgun, answered “no” to the question whether he was subject to a court order. Although restraining orders were produced by the People, there was no proof any restraining order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” as required by 18 USC 922 (g) (8) (an element of the charged offenses):

… [T]he People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was “prohibited by law” (Penal Law § 265.17 [1]). People v Rock, 2024 NY Slip Op 05162, Third Dept 10-17-24

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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THE NYS DEPARTMENT OF HEALTH’S (DOH’S) UPDATED GUIDELINES WHICH PROHIBIT PHYSCIANS WHO TREAT CANCER PATIENTS FROM DISPENSING MEDICATIONS WHICH ADDRESS THE SIDE EFFECTS OF CANCER TREATMENTS ARE “IRRATIONAL” (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the NYS Department of Health’s (DOH’s) definition of “oncological protocol” was irrational. The petitioner provides physician-care to cancer patients, including Medicaid recipients. Physicians who provide care to cancer patients can dispense medications (72-hour supplies) pursuant to the DOH’s “oncological protocol.” In the past, petitioner was dispensing medications which addressed the side effects of cancer treatments, including nausea, pain, vitamins, antibiotics and antipsychotics. Under the 2021 update to the DOH’s guidelines, the oncological protocol no longer covered medications which address the side effects of cancer treatments. That update was deemed “irrational” by the Third Department:

The record before us is replete with evidence of industry guidelines and authoritative medical literature strongly suggesting that respondents’ definition may inhibit the provision of adequate healthcare to oncology patients. This includes evidence of the need for ancillary or concomitant administration of medications presumably excluded from the definition in order to enhance the effects of cancer treatments and/or prevent fatal complications arising therefrom. That evidence also clearly contemplates supportive care medications being administered as part of cancer treatment regimens in order to address the often debilitating side effects of such treatment. Given the complete absence of any medical basis for the line drawn here, and guided by the Legislature’s intent to ensure that its general prohibition against prescriber-dispensing did not unreasonably impede the provision of adequate healthcare services in the context of oncology, we cannot find that the definition of oncological protocol before us is rational. Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 2024 NY Slip Op 05165, Third Dept 10-17-24

Practice Point: Here the Third Department deemed the Department of Health’s guideline which prohibited physicians who treat cancer patients from dispensing medications which address the side effects of cancer treatments “irrational” and therefore unenforceable.

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY TO DETERMINE THE WAIVER WAS VOLUNTARY AND INTELLIGENT; THE INFORMATION IN THE WARRANT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT’S CELL PHONE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the judge should not have summarily denied defendant’s request to represent himself and the motion to suppress evidence retrieved from the defendant’s cell phone should have been granted:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

… [T]he warrant was supported by [the investigator’s] affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 05152, Third Dept 10-17-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge must conduct a colloquy to ensure the waiver of the right to counsel is voluntary and intelligent.

Practice Point: Here the search warrant did not demonstrate probable cause to believe the search of defendant’s cell phone would reveal evidence of criminal possession of a controlled substance.

 

NEW YORK STATE’S SELF-FUNDED GOVERNMENT HEALTH PLAN FOR NEW YORK STATE’S PUBLIC EMPLOYEES, THE “EMPIRE PLAN,” IS SUBJECT TO THE INDEPENDENT DISPUTE RESOLUTION (IDR) PROCEDURES IN THE FEDERAL “NO SURPRISES ACT” (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the state’s self-funded government health plan for New York State’s public employees (the Empire Plan) is subject to the independent dispute resolution (IDR) procedures in the federal “No Surprises Act:”

In 2014, the Legislature passed the “Surprise Bill Law” … which protects insureds from being billed directly for healthcare services they did not know were being performed by an out-of-network provider … . Under the law, the “health care plan” of an insured who receives a surprise bill is liable for the costs of the out-of-network services and may attempt to negotiate a reimbursement amount that is less than the amount billed … . “If the health care plan’s attempts to negotiate . . . do[ ] not result in a resolution of the payment dispute . . . , the health care plan shall pay the non-participating provider an amount the health care plan determines is reasonable for the health care services rendered, except for the insured’s co-payment, coinsurance or deductible” … . The law also contains an independent dispute resolution (… IDR) process to address payment disputes, which may be invoked by “[e]ither the health care plan or the non-participating provider” if certain conditions are met … . When invoked, the IDR process assigns the dispute to an independent arbitrator to determine the reasonable fees for services rendered by an out-of-network provider utilizing the factors outlined in Financial Services Law § 604 and the FAIR Health benchmarking database * * *

… [A]fter the US Congress passed the federal No Surprises Act in 2020 … — a statute substantively similar to the state’s Surprise Bill Law — the Empire Plan began using the IDR process set forth in the federal law, which uses different benchmarks to determine the reasonable fees to be paid to an out-of-network provider by an insured’s health care plan … . Joseph v Corso, 2024 NY Slip Op 05170, Third Dept 10-17-24

 

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FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT FORUM FOR THIS CUSTODY MATTER WAS NOT SUPPORTED BY EXPLICIT REFERENCE TO THE STATUTORY FACTORS OR ANY TESTIMONY OR SUBMISSIONS BY THE PARTIES; THE RECORD WAS THEREFORE INSUFFICIENT FOR APPELLATE REVIEW AND THE MATTER WAS REMITTED (THIRD DEPT).

The Third Department, reversing Family Court’s ruling that a Massachusetts court was the most convenient forum for this custody matter, determined Family Court’s failure to place on the record the factors it considered in making its ruling, combined with absence of any testimony, rendered the record inadequate for review, requiring remittal:

“Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” … . A court is obliged to consider eight statutory factors in rendering that determination, and “[t]hose statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (… Domestic Relations Law § 76-f [2] [a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute” … .

… Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court, which was essentially a back-and-forth between the judges on issues that included the language of the prior custody orders, the nature of the cases presently before them and the differences between New York and Massachusetts laws governing custody proceedings. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Matter of Mark AA. v Susan BB., 2024 NY Slip Op 05173, Third Dept 10-17-24

Practice Point: Here Family Court did not make an adequate record to support its ruling that a Massachusetts court was the more convenient forum for this custody matter. There were no submissions by the parties and there was no testimony. The statutory factors were not explicitly referenced. The matter was remitted.

 

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