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Jury Should Not Have Been Allowed to Hear Defendant’s Refusal to Waive His Right to Remain Silent and His Invocation of His Right to Counsel

The Third Department determined defendant was entitled to a new trial because the jury was allowed to hear a recording in which defendant refused to waive his right to remain silent and invoked his right to counsel. Under the facts, the error was not harmless. The Third Department directed that the portion of the recording which recounts defendant’s criminal history be redacted on retrial:

….[D]efendant is entitled to a new trial. During their case-in-chief, the People generally cannot introduce evidence that a defendant invoked his or her constitutional right to remain silent or to obtain counsel … . At the trial here, the People played the recording of the police interview up to and including the portion in which defendant stated that he would not sign the line of the Miranda form indicating his willingness to speak to the detective, and defendant stated, “Let me have a lawyer.” This was improper because “it creates a prejudicial inference of consciousness of guilt” by letting the jury hear defendant invoke his constitutional rights … . People v Carey, 2015 NY Slip Op 00251, 3rd Dept 1-8-15

 

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Right to Counsel Not Invoked by Defendant’s Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

The Third Department, in reversing (in part) County Court’s suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 “does not mandate summary denial of defendant’s motion even if the factual allegations are deficient” and the hearing was properly granted in this case under “principles of judicial economy;” (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant’s spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant’s responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the “non-communicative” portions of the video, the court wrote:

With a few exceptions, the video reveals that defendant’s statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression … . However, at three points following defendant’s successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant’s responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes “a communicative act that disclose[s] the contents of defendant’s mind” … . Generally, a defendant’s physical characteristics and appearance are not considered to be communicative in nature … . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements … . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

Even Though Husband’s Funds Were Deposited in a Joint Account, the Portion of those Funds Used for a Down-Payment on the Marital Residence Was Properly Deemed Husband’s Separate Property; Supreme Court Abused Its Discretion In Ordering the Sale of the Marital Residence—Wife Entitled to Exclusive Possession Until Child Turns 18

The Third Department determined that the husband’s separate property, which had been deposited in a joint account before a portion of it  was used for a down-payment on the marital residence, was properly deemed the husband’s separate property to the extent it was used for the down-payment. The Third Department further determined Supreme Court had abused its discretion in ordering the marital residence sold. Under the facts, the mother was entitled to exclusive possession until the child turns 18:

Supreme Court erred in directing that the marital residence be listed for sale. Our case law reflects “‘a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds'” … . Proof at trial established that the parties’ young children reside with the wife in the marital residence and, although she has the means to pay the mortgage, she is unable to refinance or purchase another residence. No evidence was adduced that the wife could obtain comparable housing at a lower cost or that either party is in immediate need to recoup their equitable share of the marital residence. Under these circumstances, we find that Supreme Court abused its discretion in directing that the marital residence should be listed for sale. Accordingly, the wife is entitled to exclusive possession of the residence until the youngest child reaches the age of 18 … . Albertalli v Albertalli, 2015 NY Slip OP 00257, 3rd Dept 1-8-15

 

Town Did Not Follow Its Own Procedures for Rescinding a Planned Development District–Local Law Purporting to Do So Annulled

The Third Department determined the Town of Colonie acted arbitrarily and capriciously when it enacted a Local Law restoring the original zoning after construction at the site came to a halt.  In enacting the new Local Law, the town had not followed its own procedures for rescinding a planned development district.  [The Third Department noted that the town's actions were not egregious and therefore damages based upon an alleged violation of constitutional rights (42 USC 1983) would not lie and the equal protection argument had no merit.]:

“Zoning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them” … . The Town Board was therefore obliged to “comply with its own procedural rules regarding enactment of the zoning ordinance” in making amendments to that ordinance … . Chapter 190 of the Code of the Town of Colonie (hereinafter referred to as Colonie Land Use Law) governs the creation and rescission of planning development districts, and Local Law No. 12 (2007) of the Town of Colonie was enacted pursuant to its terms (see Colonie Land Use Law § 190-65 et seq.). As is relevant here, Colonie Land Use Law § 190-72 permits the Town Board to rescind a planned development district and restore a property to its prior zoning under limited circumstances. The Town Board did not make the factual findings required by section 190-72, however, and the Town Attorney made clear that the Town Board was not relying upon that section in enacting Local Law No. 5. Respondents now argue that the facts of this case permitted the Town Board to rely upon section 190-72. The fact remains that the Town Board did not, however, and “a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper” … . Thus, the Town Board acted in an arbitrary and capricious manner by disregarding the provisions of the Colonie Land Use Law in enacting Local Law No. 5, and the law cannot be sustained … . Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip Op 09081, 3rd Dept 12-31-14


Claimant Did Not Link Illness Caused by Ingestion of a Ubiquitous Mold to Workplace

The Third Department reversed the Workers' Compensation Board's determination that claimant had contracted an occupational disease by ingesting mold on the job at a garbage recycling and energy production facility.  Although there was mold at the plant, that same mold is ubiquitous:

Initially, Workers' Compensation Law § 2 (15) defines an occupational disease as “a disease resulting from the nature of employment and contracted therein” … . In order to demonstrate that a condition is compensable as an occupational disease, a claimant must “establish a recognizable link between his [or her] condition and a distinctive feature of his [or her] occupation through the submission of competent medical evidence” … .

Here, claimant maintained that he was exposed to the aspergillus fungus while working in the cooling tower, where he observed green plant life growing, and also in the boiler house under the ram feeder table, where there was decomposing garbage… . * * *

Carl Friedman, a pulmonary specialist who conducted an independent medical examination based upon a review of claimant's medical records, opined that claimant's respiratory condition was not causally related to his employment. Because the aspergillus fungus is ubiquitous and is found in soil everywhere, Friedman testified, claimant could have been exposed in an industrial setting or at home in his own backyard. Friedman further indicated that it could not be determined exactly when claimant was exposed or, given claimant's clinical history, the date of onset of the disease.

Based upon the foregoing, claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner … . Matter of Connolly v Covanta Energy Corp, 2014 NY Slip Op 09076, 3rd Dept 12-31-14


Self-Insured Employer Not Entitled to Offset Workers’ Compensation Benefits by the Amount Claimant Received in a Third-Party Settlement

The Third Department determined claimant's self-insured employer was not entitled to a reduction of the Workers' Compensation benefits payable to claimant by offsetting the amount claimant received in a third-party settlement (claimant was injured in an automobile accident on the job–employer agreed to the settlement):

Workers' Compensation Law § 29 provides that a carrier or self-insured employer that pays workers' compensation benefits has the right to offset future payments of compensation against proceeds recovered by a claimant in a third-party action as long as such payments do not constitute first party benefits made to reimburse a claimant for basic economic loss or payments made in lieu of first party benefits under the No-Fault Law (see Workers' Compensation Law § 29 [1], [1-a], [4]; Insurance Law §§ 5102 [a], [b]; 5104 [a]…). Basic economic loss includes payments, not exceeding $50,000, for items such as lost earnings of up to $2,000 per month for three years after the date of the accident (see Insurance Law § 5102 [a] [2]…). Payments that are considered reimbursement for basic economic loss or that are made in lieu thereof are not subject to the offset provisions of Workers' Compensation Law § 29 … . The dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimant's [initial] lost time falls within this category, despite the fact that it was initially labeled as payment for “temporary total disability.” * * *

Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employer's right of offset … . Matter of Cruz v City of New York Dept of Children's Services, 2014 NY Slip OP 09074, 3rd Dept 12-31-14


State Did Not Rebut Statutory Presumption Corrections Officer’s Heart Condition Was Linked to His Work

The Third Department determined petitioner, a corrections officer, should have been awarded performance of duty disability retirement benefits.  The state did not rebut the statutory presumption that petitioner's heart condition was linked to his job:

… Retirement and Social Security Law § 607-d … provides that performance of duty disability retirement benefits shall be awarded to correction officers who become disabled by “any condition of impairment of health caused by diseases of the heart” where such disability occurs while they are employed. Notably, the statute contains a presumption that the impairment “was incurred in the performance and discharge of duty, unless the contrary can be proven by competent evidence” (Retirement and Social Security Law § 607-d). To successfully rebut this statutory presumption, it must be demonstrated through expert proof that the applicant's cardiac condition was caused by cardiac risk factors other than the applicant's employment … . Matter of Park v DiNapoli, 2014 NY Slip Op 098075, 3rd Dept 12-31-14


County Has Power to Amend Tax Maps Without Notice and a Hearing/Tax Maps Merely Identify Property and Do Not Determine Ownership/Any Dispute About Ownership Must Be Remedied by an Action to Quiet Title

The Third Department determined the county had the power to amend tax maps without notice and a hearing.  Here the director of real property tax services amended a tax map to list the Steger Trust as the current owner of a 25 acre lot previously listed as the petitioner's property. The Third Department explained the county's powers in this regard, noted that a tax map merely identifies property, does not determine ownership and an action to quiet title is the appropriate remedy:

The County correctly asserts that the Director of Real Property Tax Services has the statutory authority to amend tax maps and to provide information about such amendments to the Town's assessor. Counties are required to prepare and maintain tax maps for each city and town therein, and it is the duty of the assessors to use such maps in assessment administration (see RPTL 503 [1] [a]; 1532 [1] [a]). As part of this responsibility, county directors of real property tax services are required to make “such changes from year to year upon such tax maps as may be necessary to maintain the maps in current condition” (RPTL 503 [2]; see 20 NYCRR 8189.14 [a] [7]; [c] [8]; 8189.16 [b]), and to advise assessors on the preparation and maintenance of assessment rolls and property record cards, among other things (see RPTL 1532 [1] [c]). Based on this authority, the County properly amended its tax map and provided the updated information to the assessor listing the Steger Trust as the current reputed owner.

Also, contrary to petitioners' claim, the County did not determine that they do not own the parcel. Rather, the listing of the reputed owner on the tax map is only for the purpose of identifying the assessed property … . Likewise, because title to the property is not determined by the tax map, petitioners have failed to identify any protected property interest giving rise to procedural due process protection … . Any ongoing dispute between petitioners and the Steger Trust should be resolved in an action to quiet title pursuant to RPAPL [Real Property Actions and Proceedings Law] article 15… . Matter of Carpentier v County of Sullivan, 2014 NY Slip Op 09083, 3rd Dept 12-31-14


Actual Income Is Best Measure of Value of Income-Producing Property/Amount of Mortgage on Property Does Not Necessarily Fairly Reflect Value/Assessment Awarded Can Not Be Lower than that Requested in Article 7 Petition

The Third Department determined petitioner was entitled to a lower assessment of petitioner's property, which included a hotel. However, the Third Department held that the assessment could not be lower than that requested in the Article 7 petition (Supreme Court had imposed a lower assessment than that requested in the petition based upon the trial evidence). The Third Department noted that actual income is the best indicator of income-producing property and the amount of the mortgage on the property is not necessarily a fair measure of value. The relevant law was explained:

It is undisputed that petitioner met its initial burden to rebut the presumptive validity of the tax assessments and, accordingly, Supreme Court was required 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'” … . Under settled law with respect to income-producing property, “actual income is the best indicator of value” … . * * *

While a court in determining fair market value may consider evidence of loans advanced on property during or near a particular tax status date when reviewing an assessment proceeding, such evidence standing alone is not entitled to [the] 'greatest weight' because the reasons behind the terms and amount of the loan may be uncertain and unrelated to market values” … . The mortgage was collateralized by land, buildings, furniture and equipment, with a limited personal guarantee, and, under the prevailing circumstances, did not necessarily fairly reflect the value of the property.

… We have previously stated that, “in areas outside New York City, RPTL 720 (1) (b) prohibits tax reductions beyond those requested in the petitions” … . * * * We are unpersuaded by petitioner's argument that it should be permitted to essentially eviscerate this statutory provision via a motion to amend its pleadings made after there has been a trial and decision on the merits of the petitions. Matter of Village Sq of Penna Inc v Board of Assessment Review of the Town of Colonie, 2014 NY Slip OP 09080, 3rd Dept 12-31-14

 

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At Least Some of the Information In a Report Prepared for the Town by Outside Counsel May Be Subject to Disclosure Because the Attorney-Client Privilege Was Waived to the Extent the Contents of the Report Were Described at a Public Hearing

The Third Department determined that a report prepared for the town by outside counsel was protected from disclosure by the attorney-client privilege.  However that privilege may have been waived to the extent the contents of the report were described at a public hearing:

“Under FOIL, an agency need not disclose documents 'specifically exempted from disclosure by state or federal statute,'” such as those protected by attorney-client privilege (…Public Officers Law § 87 [2] [a]; see CPLR 3101 [b], [c]; 4503 [a] [1]…). Petitioners do not, in fact, dispute that the report was privileged when it was prepared. They instead contend that the privilege was waived when the contents of the report were later disclosed at various Town Board meetings. Accordingly, it was incumbent upon respondents to demonstrate that the privilege had not been waived and that the report remained exempt from disclosure … .

…”[A] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege” … . In that regard, outside counsel appeared at a … public meeting and made an extensive oral presentation — apparently at the Town Board's behest — in which counsel set forth his legal analysis of the zoning issues involved. To the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report. … Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip OP 09082, 3rd Dept 12-31-14


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