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Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here—Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea

The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:

The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced … . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.

Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court …, the Court of Appeals has recognized that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” … . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'” … . Inasmuch as defendant–due to the inaccurate advice of his counsel and the trial court–did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea …, preservation was not required … . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea … . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14


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Trial Testimony Rendered an Indictment Count Duplicitous Requiring Dismissal/Sexual Abuse First Degree Is Not a Lesser Included Offense Re: a Course of Sexual Conduct Against a Child First Degree

The Third Department determined that an indictment-count rendered duplicitous by the trial testimony should have been dismissed, and an indictment-count was wrongly amended because the new charge was not a lesser included offense re: the original charge:

As pertinent here, the crime of criminal sexual act in the first degree requires proof that the defendant engaged in oral sexual conduct with another person who is less than 11 years old, and oral sexual conduct includes “contact between . . . the mouth and the vulva or vagina” (Penal Law § 130.00 [2] [a]; see Penal Law § 130.50 [3]). The challenged count charged defendant with this crime based upon the victim's grand jury testimony that defendant had caused the victim to use her mouth to make contact with defendant's vaginal area on a single occasion in 2004. At trial, however, the victim testified that defendant caused her to engage in this conduct multiple times during the pertinent time period, and that she did not remember any specific time when it had happened. … Unfortunately, the … testimony regarding multiple acts made it impossible to ascertain the particular act upon which the jury verdict was based. We are therefore required, despite the utterly heinous nature of the acts the victim described, to reverse defendant's conviction on this charge; further, the challenged count must be dismissed… . …

While the People may seek to amend an indictment at any time during trial to correct “matters of form, time, place, names of persons and the like,” such an amendment may not alter the theory of prosecution reflected in the evidence before the grand jury (CPL 200.70 [1]; see CPL 200.70 [2]…). Further, a court may submit to a jury a lesser included offense of a crime charged in an indictment provided that the elements of the two crimes are such that “it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct [and] there [is] a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . * * *

A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense … . It is possible for a defendant to engage in an act of sexual conduct within the scope of the crime of course of sexual conduct against a child through an act of sexual contact, defined in pertinent part as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). However, a defendant could also commit an act of sexual conduct within the scope of the originally-charged offense by an act of “sexual intercourse, oral sexual conduct, anal sexual conduct, [or] aggravated sexual contact” (Penal Law § 130.00 [10]). The definitions of these acts do not include any element of intent; thus, it is possible for a defendant to commit an act that constitutes sexual conduct without the purpose of gratifying anyone's sexual desire that is a required element of sexual contact (see Penal Law § 130.00 [1], [2] [a], [b]; [11]…). Therefore, as it is possible to commit course of sexual conduct against a child in the first degree without also committing sexual abuse in the first degree by the same conduct, defendant's conviction on that charge must be reversed, and the amended indictment count must be dismissed … . People v Baker, 2014 NY Slip Op 09068, 3rd Dept 12-31-14


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Regulation Prohibiting/Restricting Smoking in New York Parks Properly Promulgated by Office of Parks, Recreation and Historic Preservation—“Boreali” Criteria Explained and Applied to the Facts in Some Depth

Reversing Supreme Court, the Third Department, in a full-fledged opinion by Justice Peters, determined that a regulation prohibiting/restricting smoking in New York parks was properly promulgated by the Office of Parks, Recreation and Historic Preservation (OPRHP).  Petitioner, an organization promoting the interests of smokers, argued the agency did not have the authority to regulate smoking in parks absent legislation on the issue and, therefore, the promulgation of the rule violated the principle of separation of powers.  The court explained the “Boreali” criteria under which the regulation was analyzed and applied the criteria to the facts (the interesting, detailed, fact-specific analysis is not summarized here):

Respondents, the Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) and its Commissioner, are empowered by statute to “[o]perate and maintain . . . historic sites and objects, parks, parkways and recreational facilities”(PRHPL 3.09 [2]) and to “[p]rovide for the health, safety and welfare of the public using facilities under its jurisdiction” (PRHPL 3.09 [5]). In February 2013, pursuant to this statutory authority, OPRHP adopted a rule establishing smoke-free areas in certain limited outdoor locations under its jurisdiction (see 9 NYCRR 386.1). Such regulation, among other things, also prohibits smoking in each state park located in New York City, with limited exceptions (see 9 NYCRR 386.1 [a] [2])… . OPRHP announced that this rule was needed in order to allow “patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience [s]tate [p]arks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter” (NY Reg Dec. 5, 2012 at 11). * * *

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (…see NY Const, art III, § 1). As the Court of Appeals has recently reaffirmed, when determining whether an administrative agency has violated the constitutional principle of separation of powers, we must consider the “coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1, 11 [1987]), namely, (1) whether the respondents improperly engaged in the balancing of their stated goal with competing social concerns and acted “solely on [their] own ideas of sound public policy”; (2) whether the respondents engaged in the “interstitial” rulemaking typical of administrative agencies or instead “wrote on a clean slate, creating [their] own comprehensive set of rules without benefit of legislative guidance”; (3) whether the challenged regulation concerns “an area in which the Legislature ha[s] repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”; and (4) whether the respondents overstepped their bounds because the development of the regulation did not require the exercise of expertise or technical competence by the administrative agency (id. at 12-14 …). In determining whether “the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed,” this Court should view these circumstances “in combination” (Boreali v Axelrod, 71 NY2d at 11), while ever mindful that “'it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends'” … .

Applying the four Boreali considerations, we find no usurpation of the Legislature's prerogative by respondents' promulgation of 9 NYCRR 386.1. Matter of NYC C.L.A.S.H. Inc v New York State Off of Parks, Recreation & Historic Preserv, 2014 NY Slip Op 09085, 3rd Dept 12-31-14


 

Documents Explaining Reason for Mail-Watch Order Re: Inmate Exempt from Disclosure Pursuant to Public Officers Law

The Third Department determined the petitioner-inmate was not entitled to documents explaining why a mail-watch order was issued by the Department of Corrections mandating that the petitioner's mail be monitored for two months.  The requested documents were exempt from disclosure as “communications exchanged for discussion purposes not constituting final policy decisions:”

…[T]he withheld document constitutes inter- or intra-agency deliberative material, “i.e., communications exchanged for discussion purposes not constituting final policy decisions” (…see Public Officers Law § 87 [2] [g]…). The withheld document is a mail watch request and consists of “predecisional evaluations, recommendations and conclusions,” and is accordingly exempt from disclosure pursuant to Public Officers Law § 87 (2) (g) … . Matter of Ward v Gonzalez, 2014 NY Slip OP 08931, 3rd Dept 12-24-14

 

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Negligent Training and Supervision Causes of Action Properly Survived Summary Judgment/Lawsuit Stemmed from Sexual Contact Between an Employee of Defendant Residential Facility and Plaintiff, Who Was 14 Years Old

In a case stemming from an employee's (Williams') sexual contact with the plaintiff, a 14-year-old resident of defendant Berkshire Farm Center and Services for Youth, the Third Department determined the negligent training and supervision causes of action properly survived summary judgment:

In order to succeed on a claim of negligent training and supervision of an employee, it must be demonstrated that the employer “knew or should have known of the employee's propensity for the conduct which caused the injury” … and that the allegedly deficient supervision or training was a proximate cause of such injury … . In support of its motion seeking the dismissal of plaintiff's negligent training and supervision claims, defendant presented testimony from its employees — including those who assumed supervisory positions — indicating that there were no prior indicia or reports of any inappropriate conduct by Williams toward the youths residing in the detention facility and that the news of the incident with plaintiff came as a complete surprise … . * * *

…Review of the testimony of defendant's employees reveals that there was a general reluctance on the part of several staff members to report policy violations to supervisors or register complaints regarding staff conduct. Two staff members, in particular, testified that the director was not responsive to reports of improper conduct and she disregarded staff concerns regarding, among other things, scheduling male counselors to work alone during overnight shifts while there were female residents — some of whom were characterized as highly sexually active — in the facility. One staff member testified that he was aware of an incident in which Williams told plaintiff that she was “sexy” as she was returning to her room in a towel after having taken a shower, but he did not confront Williams or report it to his supervisors. Other evidence exists evincing Williams' propensity to engage in inappropriate contact with youths in the facility, including one occasion where it was discovered that a female resident had written Williams' phone number on a slip of paper. Rather than make a comprehensive inquiry about the matter, defendant limited its investigation to questioning the female and Williams. Despite the nature of the incident, defendant's director denied having any concerns about Williams' interaction with the residents. Other testimony by staff members described Williams as a counselor who appeared to relish having authority over the children and he acted aggressively toward them and without apparent concern for their interests. Specifically, one counselor averred that he observed Williams tell a female resident that he would “be with her” under different circumstances and that, although this staff member reported the exchange to a supervisor, Williams was not disciplined. Other complaints to supervisors regarding Williams' improper conduct appear to have gone unaddressed, causing one counselor to opine during his deposition that such reports “went in one ear and out the other.” Viewing this evidence, as well as counselor testimony that defendant did not test or otherwise ensure that its staff members were knowledgeable and compliant with its written policies and instructional materials, in a light most favorable to plaintiff, we find that material issues of fact preclude summary judgment on these causes of action … . Hicks v Berkshire Farm Ctr & Servs for Youth, 2014 NY Slip Op 0889, 3rd Dept 12-18-14

 

Breach of Contract Lawsuit Precluded by Claimant’s Failure to Comply With Notice Requirements Which Were Conditions Precedent—Alleged Misconduct by Defendant Did Not Prevent Compliance with Conditions Precedent—Conditions Precedent Not Waived by Defendant’s Participation In an Attempt to Resolve the Dispute

The Third Department noted that, absent any claim that defendant's misconduct prevented claimant from fulfilling the notice requirements in the contract, the notice requirements were conditions precedent which, because they were not met, precluded the breach of contract lawsuit:

Claimant alleged seven specific items of damages, each of which was subject to contract provisions requiring that notice be provided to defendant within 10 work days and that certain records be kept and submitted to defendant. The contract provided that “[t]he notification and record-keeping provisions of this Contract shall be strictly complied with for disputes of any nature and are a condition precedent to any recovery” … . No party can prevail on a breach of contract claim if that party has failed to perform a specified condition precedent … . According to the contract, the contractor's failure to supply the required notice and submit the required records is deemed a waiver of any related claim by the contractor, “notwithstanding the fact that [defendant] may have actual notice of the facts and circumstances which comprise such dispute and is not prejudiced by said failure.”

Defendant established its entitlement to summary judgment by submitting proof that claimant did not comply with the condition precedent, in that claimant did not provide timely notice for the alleged items of damages and did not timely submit the required records … . In response, claimant did not provide proof that it complied with the notice and record-keeping requirements, but argued that defendant waived noncompliance, had actual knowledge of the disputed items and prevented claimant from complying with those requirements. Those arguments are unavailing. Fahs Constr Group Inc v State of New York, 2014 NY Slip Op 0885, 3rd Dept 12-18-14

 

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Sheriff’s Deputy’s Driving During an Emergency Operation Did Not Rise to the “Reckless Disregard” Standard for Liability

The Third Department determined summary judgment was properly granted in favor of the sheriff's department because the conduct of the sheriff's deputy (Curry) involved in the vehicle accident did not meet the “reckless disregard” standard for vehicles involved in “emergency operations.”  The accident happened when the deputy made a U-turn because he noticed a police officer who appeared to be “having trouble with” a detained suspect:

“Vehicle and Traffic Law § 1104 (a) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws when they are 'involved in an emergency operation'” … . This statutory qualified immunity “precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness” … . By statute, “[e]very . . . police vehicle” is an “authorized emergency vehicle” within the meaning of Vehicle and Traffic Law § 1104 (a) and (b) (Vehicle and Traffic Law § 101 [emphasis added]), and the fact that Curry's police vehicle was unmarked does not compel a contrary conclusion (see Vehicle and Traffic Law § 101…), although it may be relevant to the inquiry into whether he acted recklessly … .

We further find that Curry was exempt from certain traffic laws because he was engaged in an “emergency operation” (Vehicle and Traffic Law §§ 114-b, 1104 [a]…). Specifically, among other privileges, Curry was entitled to “[d]isregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104 [b] [4]) and to “[s]top” his vehicle regardless of other traffic laws (Vehicle and Traffic Law § 1104 [b] [1]). Thus, while U-turns were not permitted at this location, Curry was permitted to stop or slow his vehicle in traffic and to make a U-turn, provided he did not act recklessly … . The evidence is undisputed that Curry, having acted to assist an officer who appeared to be having trouble with a detained suspect, was undertaking an “emergency operation.”  Jones v Albany County Sheriff's Dept, 2014 NY Slip Op 08895, 3rd Dept 12-18-14

 

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In a DWI Case, Operation Proved by Circumstantial Evidence

The Third Department determined circumstantial evidence the defendant had been driving while intoxicated was sufficient.  The defendant went to a witness' home seeking assistance after his car ended up in a ditch.  [Although not summarized here, the decision, which affirmed the conviction, also has in depth discussions of errors in juror selection (failure to address bias expressed by a juror re: a DWI case where peremptory challenges eventually exhausted), the criteria for juror disqualification when a juror is related to a witness but does not realize it until the witness testified, and related ineffective assistance claims.]:

A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running … . The testimony was that when defendant arrived on [a witness'] doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of [witnesses] describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway … . People v Colburn, 2014 NY Slip Op 08875, 3rd Dept 12-18-14

 

“Possession of Unauthorized Medication” Charge Could Not Stand—Chain of Custody of the Pills Not Demonstrated

The Third Department determined the inmate's “possession of unauthorized medication” charge could not stand because the chain of custody of the pills was not demonstrated:

The procedure to be followed when a suspected contraband drug is found dictates that correction officials prepare “a request for test of suspected contraband drugs” and that “[e]ach person handling the suspected substance shall make an appropriate notation on the form to document . . . the chain of custody of the substance until it is identified” (7 NYCRR 1010.4 [b]). Petitioner sought a copy of the request form with proof of chain of custody and, indeed, sought to have the charges against her dismissed because that document had not been provided to her. Despite her complaints, the Hearing Officer made no effort to obtain either the request form or any other proof to establish the chain of custody… . Matter of Sanabria v Annucci, 2014 NY Slip Op 08893, 3rd Dept 12-18-14

 

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Worker’s Compensation Award Made by Arbitrator Pursuant to an Authorized Dispute Resolution Program Is Reviewed Under the Appellate Court’s Limited Arbitration-Review Powers (Not Under the Usual “Substantial Evidence” Standard)

The Third Department noted that a worker's compensation award made by an arbitrator pursuant to an authorized dispute resolution program is not reviewed by the Worker's Compensation Board and is reviewed by the appellate court under the court's limited arbitration-review powers:

Workers' compensation claims generally reach this Court on direct appeal from decisions of the Workers' Compensation Board and are subject to the substantial evidence standard of review (see Workers' Compensation Law § 23…). On the other hand, determinations of workers' compensation claims by arbitrators pursuant to an authorized alternative dispute resolution program are not reviewed by the Board, but may be appealed directly to this Court (see Workers' Compensation Law § 25 [2-c] [d]; 12 NYCRR 314.3 [b]). The substantial evidence standard does not apply to appeals of claims reaching us through the latter procedural route … . Instead, these cases are reviewed under the standard applicable to review of arbitration awards in general (see CPLR 7511).

Pursuant to that standard, courts have limited power to review an arbitrator's award … . Courts may vacate an arbitration award only if it was procured by “corruption, fraud or misconduct,” if the arbitrator was biased (CPLR 7511 [b] [1] [i]; see CPLR 7511 [b] [1] [ii]) or “if [the award] violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power” … . “[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice”…, nor should courts “otherwise pass upon the merits of the dispute” … . Matter of Diaz, v Kleinknecht Elec, 2014 NY Slip Op 0882, 3rd Dept 12-18-14

 

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