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Judge’s Flawed Question During Plea Colloquy Required Vacation of the Plea

The Third Department determined County Court’s equating a lack of consent (re: sexual abuse) with the “forcible compulsion” element of the offense required vacation of the plea:

In response to the court’s questioning, defendant admitted that he had subjected the victim to sexual contact by “grabb[ing] her breasts.” County Court then inquired of defendant, “did you do that by forcible compulsion, in other words, without her consent or without her authority?” Forcible compulsion, however, is defined as compelling another “by either [] use of physical force; or [] a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8]). Defendant answered in the affirmative, and County Court accepted his guilty plea without conducting any further inquiry into the facts or readdressing the element of forcible compulsion.

By equating forcible compulsion with lack of consent, County Court misdefined an essential element of the crime to which defendant was pleading. While defendant was not required to recite facts establishing every element of the crime … , we cannot countenance a conviction that rests upon a misconception of the key element of forcible compulsion … . Because the record fails to establish that defendant understood the nature of the charge or that his guilty plea was knowingly and intelligently entered, his plea must be vacated and the matter remitted to County Court … . People v Marrero, 2015 NY Slip Op 05974, 3rd Dept 7-9-15

 

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Multiplicitous Indictment Counts Dismissed/Warrantless Search of Impounded Vehicle Upheld

The Third Department determined several counts of an indictment stemming from a fatal car accident (involving reckless driving under the influence) were multiplicitous and further determined the warrantless search of the impounded vehicle was valid:

An indictment “is multiplicitous when a single offense is charged in more than one count” (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . “Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous” … .

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13 [3]). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of Vehicle and Traffic Law § 1192 (2), (3) or (4-a) thereby causing the death of another person (see Penal Law § 125.12 [1]).

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim, differing only in the nature of defendant’s impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3], [4-a]). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12 (1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 … . * * *

Testimony at the suppression hearing established that, at the request of law enforcement, defendant’s vehicle was removed from the accident scene and taken to an unsecured lot, where it remained for several hours until it was transported — at the direction of a Rensselaer County deputy sheriff — to a secure impound lot. While defendant does not contest the initial towing from the accident scene, he claims that the seizure of the vehicle from the unsecured lot to the secured lot was unconstitutional. We disagree. “It is well settled that once the police possess a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would produce the fruits, instrumentalities, contraband or evidence of the crime the police can conduct[] a warrantless search and seizure of the vehicle” … . Here, the vehicle was moved from a lot where it was easily accessible to any member of the public to the secure lot only after it became clear that it was involved in a fatal accident. People v Hoffman, 2015 NY Slip Op 05976, 3rd Dept 7-9-15

 

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Pre-“Padilla” Statement by Counsel that Defendant’s Plea to an “Aggravated Felony” Would Not Result in Deportation Justified a Hearing on Defendant’s Motion to Vacate Her Conviction

The Third Department determined defendant was entitled to a hearing on her motion to vacate her conviction.  Defendant alleged she was erroneously told by her attorney (pre “Padilla”) her conviction (for an “aggravated felony”) would not cause her to be deported:

… [D]efendant’s … claim that counsel affirmatively misinformed her about the plea’s deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel’s affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim … .

In her affidavit in support of the motion, defendant alleged that her counsel advised her that, although immigration authorities would be notified about her guilty plea, “he did not think anything further would happen.” In fact, the crime of rape in the third degree constitutes an “aggravated felony” that results in mandatory deportation (see 8 USC § 1101 [a] [43] [a]; § 1227 [a] [2] [A] [iii]; § 1229b [a] [3]…). Defendant further averred that, had counsel informed her that she was certain to be deported as a result of her guilty plea, she would not have pleaded guilty and would have gone to trial. As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from her guilty plea and that she was prejudiced as a result thereof, she was entitled to a hearing on this aspect of her CPL 440.10 motion … . People v Ricketts-simpson, 2015 NY Slip Op 05975, 3rd Dept 7-9-15

 

Claim for Psychological Injury Should Have Been Upheld—Retail Employee Was Directed to Submit False Reserve Orders for a Product to Deceive Manufacturer

The Workers’ Compensation Law Judge (WCLJ) found a retail employee suffered compensable psychological injury because he was directed by a supervisor to submit false reserve orders for a product in order to deceive the manufacturer.  The Workers’ Compensation Board disagreed and disallowed the claim. The Third Department reinstated the claim, finding the Board’s conclusion was not supported by substantial evidence:

The WCLJ found claimant’s testimony to be credible and determined, among other things, that he had been directed by a supervisor to submit false reserve orders in order to deceive the manufacturer and that credit card numbers were included in the reserve orders. The WCLJ concluded that claimant sustained a mental injury as a result of “the stress of being directed to engage in deceptive business practices” and that this stress was greater than that experienced in the normal work environment because “[p]ressure to engage in unethical and illegal practices . . . cannot be considered a normal work environment.” The Board subsequently disallowed the claim, finding that, because all of the employees in claimant’s department were pressured to place reserve orders and were given the same instruction, claimant’s stress was not greater than that of similarly situated workers.

We reject this analysis. The Board neither contradicted nor commented upon the findings of the WCLJ that claimant’s supervisors directed him to engage in a deceptive business practice by submitting falsified reserve orders, and it did not exercise its power to reject the underlying credibility determinations … . Thus, the remaining basis for the Board’s conclusion that claimant was not subjected to stress greater than that experienced in a normal workplace is that other employees were similarly directed to engage in wrongful conduct. This analysis is untenable; the imprimatur of “normal” cannot be placed upon a workplace where an employee is directed to carry out a deceptive, unethical or potentially illegal practice because an employer also gave that direction to other employees … . The mere fact that other employees may have received the same instruction cannot support this conclusion. Here, there was no other evidence from which it may be concluded that directions to place false reserve orders constituted part of a normal work environment for similarly situated employees. The employer’s witnesses testified that corrective action — including termination — had been taken when similar practices occurred at the store in the past, and claimant testified that he would have been fired for such conduct in other upscale department stores where he had previously worked. Accordingly, we find that the Board’s determination is not supported by substantial evidence … . Matter of Cox v Saks Fifth Ave., 2015 NY Slip Op 06003, 3rd Dept 7-9-15

 

People Could Not Show Good Cause for the Nearly Five-Year Pre-Indictment Delay—Indictment Dismissed

The Third Department, over a dissent, determined, in a child pornography case, the nearly five-year delay between when defendant’s computer was seized and defendant questioned (2009) and the indictment (2013) required dismissal of the indictment. The case was not complex and no additional information beyond that gathered in 2009 was needed to indict. The People therefore did not demonstrate good cause for the extensive delay:

The parties agree that there has been a protracted preindictment delay that places the burden on the People to establish good cause for that delay … . The People state in their brief that there are no issues of fact regarding the issue before this Court and the record on appeal provides an adequate basis to determine whether the protracted delay was justified.

In determining whether there is an undue delay, the trial court must consider “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . Here, although defendant was not incarcerated during the period of delay and the nature of the charges are serious, the extent of the delay was clearly extensive. The People attribute the delay to the fact that the matter was initially referred to the office of the United States Attorney for the Northern District of New York for prosecution, and point to vague references of personnel changes within that office, as well as that office’s decision, at some point, not to prosecute.

This was not a complex legal matter and the record establishes that no further evidence was needed in order to charge defendant beyond that gathered in the 2009 … .  People v Montague, 2015 NY Slip Op 05721, 3rd Dept 7-2-15

 

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Defendants Ordered to Dismantle and Remove Boathouses Built Without Permits/Immediate Neighbors Had Standing to Bring an Action to Enjoin the Zoning Violations

The Third Department, in a full-fledged opinion by Justice Egan, determined that boathouses constructed without permits (required by the New York State Uniform Fire Prevention and Building Code [SBC] and the Village of Lake Placid/Town of North Elba Land Use Code [LUC]) must be completely dismantled and removed.  The defendants were aware from the start that proceeding with the building of the boathouses without permits would be at their own risk. The permits were ultimately denied. The opinion is extensive and much of it is devoted to explaining the litigation/appeal history and refuting defendants’ arguments (not addressed here).  With respect to the finding that the neighbors had standing to bring an action to enjoin the asserted zoning violations re: one of the parcels (referred to as the “children’s parcel”), the court wrote:

As a threshold matter, Supreme Court correctly concluded that the neighbors have standing to challenge the asserted zoning violations and to seek injunctive relief against the children. Although municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries (see Town Law § 268 [2]), this “does not prevent . . . private property owner[s] who suffer[] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]” … . To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected” by the statute or ordinance at issue … .

To that end, the neighbors both alleged and submitted proof that they own land (improved with single-family homes) on either side of the children’s parcel and that the children’s boathouse was built without the permits required by the LUC and SBC. The neighbors also demonstrated that the children’s boathouse violates various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building (see Joint Village of Lake Placid/Town of North Elba Land Use Code part IV, art III, § 4; art V, appendix F [II]). Where, as here, the offending premises are immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” … . We find that the neighbors’ specific allegations of close proximity give rise to an inference of damage and injury, thereby permitting them to maintain action No. 2. Moreover, the neighbors have demonstrated that their interests fall within the “zone of interest” protected by the LUC, in that violations thereof adversely affect their privacy and property values … . Indeed, we recognized as much in our prior decision permitting the neighbors to intervene, concluding that they “have an interest in the litigation by virtue of their status as owners of adjoining premises” … . Town of N. Elba v Grimditch, 2015 NY Slip Op 05740, 3rd Dept 7-2-15

 

Transcriber of Administrative Hearings Was an Employee Entitled to Unemployment Insurance Benefits—Appeals Board Not Required to Follow or to Explain Why It Didn’t Follow an “Unappealed” Ruing by an Administrative Law Judge

The Third Department determined claimant, who transcribed administrative hearings for “The Mechanical Secretary,” was an employee entitled to unemployment insurance benefits. The court noted that the unemployment insurance appeals board was not required to explain why it did not follow a prior “unappealed” ruling by an administrative law judge which went the other way:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the [Board], if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . “An employer- employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results” … . Here, the record establishes that The Mechanical Secretary advertised for transcriber positions. The president would interview the applicants and assess the quality of their work. The transcriber was required to have certain equipment, but The Mechanical Secretary would loan the transcriber a transcription machine if needed. The Mechanical Secretary arranged to have the work delivered to and picked up from the transcribers within a certain area. In claimant’s case, however, because she did not live in close proximity to the company, she was required to pick her work up at its office and to return the completed work to that office by 9:00 a.m. Claimant was occasionally reimbursed for her travel expenses. Significantly, The Mechanical Secretary set the nonnegotiable pay rate, supplied all the paper needed by the transcribers, and reviewed the final product for mistakes and would correct any minor mistakes or, where the mistakes were significant, send it back to be corrected by the transcriber. Furthermore, The Mechanical Secretary had to be notified if a transcriber was going to take any vacation. Given the evidence produced, we find that there is substantial evidence to support the Board’s finding that The Mechanical Secretary exercised a sufficient degree of control over claimant’s work to establish an employment relationship … .

We are unpersuaded by The Mechanical Secretary’s contention that the Board was bound by a prior unappealed Administrative Law Judge decision that found medical transcribers that it had used to be independent contractors. Claimant, who is not a medical transcriber, was not involved in that prior proceeding such that there was a full and fair opportunity for her to contest the decision, nor is the Board “required to conform to the precedent established in the prior unappealed decision or offer a rational explanation for not doing so” … . Matter of Ingle (The Mech. Secretary, Inc.–Commissioner of Labor), 2015 NY Slip Op 05553, 3rd Dept 6-25-15

 

Factory-Work Packaging Yogurt Was Not “Suitable Employment” for a Skilled Carpenter

The Third Department reversed the Unemployment Insurance Appeals Board’s determination claimant was not eligible for unemployment insurance benefits because he refused suitable employment.  Claimant is a skilled carpenter.  He refused a yogurt-packaging job in a factory.  The yogurt-packaging job was not, under the circumstances, “suitable employment” for the claimant:

Pursuant to Labor Law § 593 (2), a claimant who refuses “an offer of employment for which he or she is reasonably fitted by training and experience” will be disqualified from receiving unemployment insurance benefits … . Significantly, a “claimant need not accept every job offered but, rather[,] only those job offers which bear a reasonable relationship to [the] claimant’s skills” … . Here, it is undisputed that claimant was skilled in finish carpentry and had no experience working in a factory. Consequently, substantial evidence does not support the Board’s decision that he refused an offer of suitable employer … . The Board’s decision, in fact, runs contrary to a similar case in which the Board awarded benefits to another claimant who worked at the millwork company as a skilled craftsman and refused the same offer to work as a packager in a yogurt factory … . In view of the foregoing, the Board’s decision must be reversed. Matter of Reisen (Commissioner of Labor), 2015 NY Slip Op 05560, 3rd Dept 6-25-15

 

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Petitioner Was Entitled to a Reduction in the Assessed Value of a Home Depot Store Based Upon Its Expert’s Appraisal

The Third Department determined the trial court had properly found petitioner’s expert-appraisal of the value of a Home Depot store to be the most appropriate. Petitioner was therefore entitled to a reduction in the assessed value of the property. The Third Department carefully explained the valuation methods used by the competing experts (that discussion is not summarized here). As to the courts’ role in property-tax assessment proceedings, the Third Department explained:

A local tax assessment is presumptively valid and, to overcome that presumption, a petitioner must present substantial evidence that the property is overvalued … . Petitioner met this threshold burden here through its submission of the detailed appraisal of Harland, a certified real estate appraiser with considerable experience, who utilized accepted methodologies and adequately set forth his calculations and the necessary details regarding the properties … . The appropriateness of the comparable properties used by Harland in his analysis goes to the weight to be given to his appraisal, not, as respondents contend, the appraisal’s competency to raise a valid dispute regarding valuation … .

With petitioner having rebutted the presumptive validity of the assessments, Supreme Court was obligated to “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . “Where, as here, conflicting expert evidence is presented, we defer to the trial court’s resolution of credibility issues, and consider whether the court’s determination of the fair market value of the subject property is supported by or against the weight of the evidence” … . Matter of Home Depot U.S.A. Inc. v Assessor of the Town of Queensbury, 2015 NY Slip Op 05556, 3rd Dept 6-25-15

 

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Question of Fact Whether State Exercised Due Diligence In Addressing Recurrent Blowing-Snow Problem on Highway

The Third Department, reversing the Court of Claims, determined questions of fact had been raised about whether the state had taken adequate measures to address a recurrent “blowing snow” condition in the vicinity of plaintiff’s-decedent’s highway accident. The court rejected defendant’s argument that the “storm in progress” rule should be applied to blowing snow on a roadway. Rather the inquiry is whether the defendant exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. There was evidence that the area in question was the site of several accidents and that installation of a snow fence may have prevented the problem. The state was unable to demonstrate it had undertaken a relevant study and was therefore unable to invoke qualified immunity:

… [I]t is a matter of established law that “[t]he pertinent inquiry is whether [defendant] exercised reasonable diligence in maintaining [the roadway] under the prevailing circumstances” … . Applying this analysis, ongoing adverse conditions do not excuse defendant from its duty to remediate dangerous conditions, but are relevant to the inquiry as to whether it exercised reasonable diligence in doing so … . * * *

Defendant may be held liable in negligence where it “failed to diligently remedy [a] dangerous condition[] once it was provided with actual or constructive notice or [where] it did not correct or warn of a recurrent dangerous condition of which it had notice” … . “Once [defendant] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . * * *

… [A]n issue of fact exists with respect to whether defendant’s actions in seeking to remedy the recurring hazard of windblown snow by relying solely on plowing were reasonable. * * *

… [D]efendant failed to show that it was entitled to summary judgment on the basis of qualified immunity. When defendant undertakes a “stud[y] [of] a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability” … . Although defendant contends that its decision not to utilize a snow fence or other measures intended to mitigate the hazard of windblown snow resulted from a “reasoned plan or study,” the record is inadequate to demonstrate, as a matter of law, that such a study was undertaken … . Frechette v State of New York, 2015 NY Slip Op 05538, 3rd Dept 6-25-15

 

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