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GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS.

The Third Department determined that claimant, a licensed creative arts therapist, was an employee of CompassionNet, which provides home care to sick and terminally ill children:

… [T]he record evidence demonstrates, that while claimant was not required to undergo any training, she submitted a résumé and went through an interview process that was several hours in duration. Upon being selected for placement on a panel of therapists, claimant signed an agreement identifying her as an independent contractor; however, that agreement required claimant to adhere to policies established by CompassionNet and prohibited her from employing or subcontracting another therapist in her place without the prior written consent of CompassionNet. A schedule attached to the agreement unilaterally established the fees that clients would be charged for claimant’s services and the amounts that she would be reimbursed for her travel expenses, including parking and tolls. Although claimant could decline a particular assignment, the agreement provided that, upon being assigned, a case manager would establish the visit frequency and the duration and time of day that claimant would provide her services, and required claimant to submit documentation to CompassionNet within 72 hours of providing services and invoices in a predetermined format at least monthly. To that end, claimant was paid for her services regardless of whether CompassionNet received payment from, or on behalf of, the client. While CompassionNet required claimant to maintain her own professional liability insurance, claimant explained that she was never self-employed as a creative arts therapist and that she did not provide her services for any other entity during the time period in question. Matter of Kliman (Genesee Region Home Care Assn., Inc. — Commissioner of Labor), 2016 NY Slip Op 05680, 3rd Dept 7-28-16

UNEMPLOYMENT INSURANCE (LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS)

HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED.

The Third Department determined petitioner was entitled to a new hearing. An inmate petitioner wished to call as a witness refused to testify, giving a reason which was on its face untrue. In that circumstance, the hearing officer was obligated to inquire further into the reason for the inmate’s refusal:

During the disciplinary hearing, petitioner requested the testimony of the other inmate who was present in the room at the time of the incident. The Hearing Officer contacted that inmate, who refused to testify and executed a refusal form stating, “I know nothing.” This statement, however, is belied by evidence in the record. According to the unusual incident report, the potential inmate witness informed correction officers that petitioner “stabbed [the victim] with the weapon that was found in the garbage can.” Notably, the Hearing Officer specifically referenced the witness’s account of the incident in his statement of the evidence that he relied on in making the determination of guilt. Inasmuch as evidence in the record “casts doubt on the authenticity of the reason[] given” for the witness’s refusal … , and there is nothing in the record indicating that the Hearing Officer made any further inquiry, we find that petitioner’s right to call witnesses was violated … . Insofar as the Hearing Officer articulated a good-faith reason for the denial of the witness, “this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Peterson v Annucci, 2016 NY Slip Op 05681, 3rd Dept 7-28-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED)/INMATES (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S DISCIPLINARY HEARING, NEW HEARING ORDERED)

PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Third Department determined meth-lab evidence and defendant’s Mirandized statements should have been suppressed. The police were called to an apartment and heard the sounds of a physical altercation inside. The police opened the unlocked door and separated the two men who were fighting. Defendant then came out the bathroom and was asked to sit down. The officers heard someone in the back bedroom which defendant rented. Defendant told the police his wife was in the back bedroom. The officers knocked on the locked bedroom door and defendant’s wife said she had to get dressed. She then came out of the bedroom into the living room. One of officers smelled a chemical odor in the back bedroom, went in, lifted up a shirt and found the meth lab equipment. The Third Department held that a protective sweep of the back bedroom was not justified (the concurrence disagreed). In addition the Third Department determined the People did not demonstrate defendant’s Mirandized statements were sufficiently attenuated from the improper questioning of the defendant at the apartment. With regard to the protective sweep, the court wrote:

… [T]he question is whether, on these facts, the officers were entitled to enter and look under clothing in defendant’s bedroom as part of a protective sweep, which “is a quick and limited search of premises . . . conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding” … . Recognizing the dangers faced by police officers who enter homes, the Supreme Court of the United States has held that officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” … . Beyond that precautionary measure, the Court held that, to conduct a further protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” … . People v Harris, 2016 NY Slip Op 05670, 3rd Dept 7-28-16

 

CRIMINAL LAW (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENTUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/ATTENUATION (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)

OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK.

The Third Department determined the Oklahoma statute prohibiting possession of a firearm could not be used as a predicate felony in New York. The Oklahoma statute does not have an operability element. In New York operability is a required element:

County Court erred in sentencing defendant as a second felony offender, as the elements of his predicate Oklahoma felony were not “equivalent to those of a New York felony” … . As relevant here, the inquiry regarding equivalency is “limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” … . Defendant was previously convicted under an Oklahoma statute prohibiting possession of a firearm by a felon; however, operability is not a required element of the Oklahoma statute … . In New York “[o]perability is a required element of the crime of criminal possession of a handgun, rifle or shotgun” … . Thus, as the comparable New York statute requires an element that the Oklahoma crime does not, defendant’s Oklahoma conviction cannot support a finding that he was a second felony offender … . People v Gibson, 2016 NY Slip Op 05668, 3rd Dept 7-28-16

CRIMINAL LAW (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SENTENCING (SECOND FELONY OFFENDER, OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)

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USE OF SINGLE FAMILY RESIDENCE FOR WEDDINGS, RECEPTIONS AND OTHER EVENTS VIOLATED THE ZONING ORDINANCE WHICH ALLOWED “ACCESSORY USE.”

The Third Department determined the use of a single family residence (called Highland Castle) for weddings, receptions and other events constituted a violation of the zoning ordinance, which allowed “accessory use” of residential property:

The ZBA [zoning board of appeals] found that, given the manner in which petitioner utilized and marketed Highlands Castle as a venue for weddings and other large social gatherings, the challenged use was neither subordinate nor customarily incidental to the primary single-family residential use of the property. On this record, we cannot say that such determination is either irrational or unreasonable. Petitioner insists that Highlands Castle is held out merely for residential rental use, yet the record belies such a claim. In offering Highlands Castle for rent, petitioner emphasized its availability for weddings, large parties and other social receptions. Notably, the property was marketed as available on a daily or even a “half-day” basis and was advertised upon a pricing structure specific to the type of event that may be of interest to the consumer and, in some instances, to the number of individuals that will be attending. The marketing of Highlands Castle thus evinces a clear intent to target a rental audience that sought more than just residential use of the property and, indeed, no evidence was presented that Highlands Castle had ever been rented out for use as a single-family residence. To the contrary, the evidence shows that Highlands Castle was rented eight times over the course of a roughly two-year period for large-scale events — including three weddings and an American Bar Association function. Further, given that the property is advertised for rent on a year-round basis without restriction as to availability, nothing prevents its regular use as an event venue on a more frequent basis than that which has previously occurred. Matter of Lavender v Zoning Bd. of Appeals of The Town of Bolton, 2016 NY Slip Op 05599, 3rd Dept 7-21-16

ZONING (USE OF SINGLE FAMILY RESIDENCE FOR WEDDINGS, RECEPTIONS AND OTHER EVENTS VIOLATED THE ZONING ORDINANCE WHICH ALLOWED “ACCESSORY USE”)

OWNER OF SEASONAL BUSINESS WAS NOT TOTALLY UNEMPLOYED AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined claimant, the owner of a seasonal charter fishing business, was not totally unemployed and thus was not entitled to unemployment insurance benefits:

It is well settled that a “claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation” … . Notably, this rule has been applied to seasonal businesses as well as those that operate throughout the year … . Here, claimant performed a number of activities related to his fishing business after he filed his unemployment insurance claim. Specifically, he maintained a business website, communicated with prospective customers through email and by telephone, paid various business-related expenses, renewed insurance, placed an advertisement in a local circulation, leased a boat slip and prepared the boat for operation. Matter of Pasinski (Commissioner of Labor), 2016 NY Slip Op 05606, 3rd Dept 7-21-16

UNEMPLOYMENT (INSURANCE OWNER OF SEASONAL BUSINESS WAS NOT TOTALLY UNEMPLOYED AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED.

The Third Department determined the motion to dismiss the demand for punitive damages was properly denied. The action stemmed from an physical confrontation between plaintiff and defendant, an off-duty police officer:

“Punitive damages may be awarded in an action to recover damages for assault” … , but “are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant’s behavior cannot be said to be merely volitional” … . Defendant’s conduct, in other words, must reflect “a high degree of moral culpability, . . . [be] so flagrant as to transcend mere carelessness, or . . . constitute[] willful or wanton negligence or recklessness” … . * * *

… [The] proof permits the finding that defendant pursued plaintiff and angrily confronted him over his perceived deficiencies as a driver, then physically subdued plaintiff and falsely accused him of starting the confrontation to ensure that he would be detained by police. If true, this aggressive and dishonest behavior by an off-duty state trooper is precisely the type of “morally culpable” behavior that defendant and others should be deterred from engaging in … . George v Albert, 2016 NY Slip Op 05613, 3rd Dept 7-21-16

NEGLIGENCE (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/INTENTIONAL TORT (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/ASSAULT (CIVIL ACTION, MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/PUNITIVE DAMAGES (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)

AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID.

The Third Department determined the authorization purporting to allow the opening of petitioner’s mail was invalid:

Petitioner argues that his mail was opened in violation of established mail watch procedures. Specifically, petitioner contends that the “express written authorization” that permitted facility personnel to open, inspect or read his outgoing correspondence (7 NYCRR 720.3 [3] [e]) failed to “set forth the specific facts forming the basis for the action” (7 NYCRR 720.3 [e] [1]) and, as such, the subject authorization was invalid. Upon reviewing the document at issue, we agree. Accordingly, the determination of guilt must be annulled … . Matter of Ramos v Annucci, 2016 NY Slip Op 05601, 3rd Dept 7-21-16

DISCIPLINARY HEARINGS (INMATES) (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/INMATES (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/MAIL (INMATES, AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)

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TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.

The Third Department, in affirming defendant’s conviction, determined the testimony of the DNA expert (Pasqualino) did not violate defendant’s right of confrontation. Although the expert relied on data collected by non-testifying witnesses, the conclusions drawn from the data were entirely her own. In addition, the Third Department determined the concededly illegal stop of the defendant did not require suppression of his statement because the statement was sufficiently attentuated from the stop. An officer illegally stopped the defendant to tell him the police wanted to speak to him. The defendant  then drove to the station where he was read his Miranda rights. With respect to the DNA evidence, the court wrote:

Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant’s DNA profile to the victim’s rape kit, which conclusions were contained in the reports that she authored… . * * *

There is no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile; likewise, there is no proof that Pasqualino relied upon any such opinions or conclusions drawn by others … . Further, the technicians’ compilation of objective data was not accusatory and did not, without Pasqualino’s expert analysis and testimony, link defendant to these crimes … . Under these circumstances, defendant’s right of confrontation was not violated when Pasqualino relied upon and made reference to data collected by nontestifying lab technicians … . People v Stahl, 2016 NY Slip Op 05597, 3rd Dept 7-21-16

 

CRIMINAL LAW (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/EVIDENCE (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/CONFRONTATION, RIGHT TO (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/DNA (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/STREET STOPS (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/SUPPRESSION (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/ATTENUATION (CRIMINAL LAW, (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)

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