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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

Claimant Deemed an Employee Despite Independent Contractor Agreement

The Third Department upheld the determination that claimant was an employee, entitled to unemployment benefits, despite the existence of an independent contractor agreement.  Claimant was hired by AML, a consulting firm, for a four-week research project for one of AML’s clients.  Claimant worked at the client’s location:

Initially, we note that the existence of an employment relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence … . In making this determination, particularly where the work of professionals is involved, the relevant inquiry is whether the employer exercised “control over important aspects of the services performed” … . Here, undisputed evidence was presented that AML set claimant’s rate of pay, established her work hours, provided training, conferred with her on a regular basis, reviewed her work product and submitted her final report to the client. Significantly, although claimant physically worked at the client’s location, an AML representative was present on a daily basis to discuss the project with claimant. Under the circumstances presented, notwithstanding the existence of the independent contractor agreement, substantial evidence supports the Board’s finding that claimant and those similarly situated research analysts were AML’s employees … . Matter of Stewart…, 2014 NY Slip Op 04539, 3rd Dept 6-19-14

 

Workers’ Compensation Carrier Not Liable After Liability Has Shifted to Special Fund—Board Overruled Precedent Holding Otherwise When the Carrier is Responsible for Delay Until the Special Fund Is Available to Assume Liability

The Third Department upheld the Workers’ Compensation Board’s determination that the workers’ compensation carrier is not liable for medical expenses after liability has been shifted to the Special Fund. The Board had the power to overrule prior precedent which allowed the carrier to remain liable if it was attempting to delay providing benefits in order to have liability shifted to the Special Fund:

Workers’ Compensation Law § 25-a (1) provides that, where seven years have passed from the date of claimant’s injury and three years have passed from the date of the last payment of compensation, “if an award is made it shall be against the [S]pecial [F]und” (emphasis added). Both of those time periods have undoubtedly been met in this case. The Board has previously observed, however, that a carrier with a pending application to shift liability may be tempted to delay in approving necessary medical expenses in order to avoid the complications of paying for them and later seeking reimbursement from the Special Fund. In an effort to address that concern, the Board had held that, in certain instances, a carrier would be held liable for medical expenses that would otherwise be the responsibility of the Special Fund if it “had attempted to delay payment for the surgery until after a determination was made regarding the applicability of [Workers’ Compensation Law] § 25-a, and not based . . . on a good faith objection to the surgery” … .

In the decision at issue here, the Board discussed that precedent at length and overruled it, which it was free to do given that it “set forth its reasons for doing so” and considered appropriate statutory and judicial authorities … . * * *

“The purpose of [Workers’ Compensation Law § ] 25-a is to save employers and insurance carriers from liability . . . for stale claims of injured employees” … . Workers’ Compensation Law § 25-a (1) furthers that purpose by requiring that any award “shall be [made] against the [S]pecial [F]und” if the requisite time periods have elapsed (emphasis added). As both the language and purpose of the statute demonstrate, the carrier “has no further interest in [the] payment of the claim” once liability has shifted to the Special Fund … , and “the Board ha[s] no power to direct that the award be paid by the [carrier] instead of out of the [S]pecial [F]und” under those circumstances … . Thus, the Board properly concluded that the statute does not permit a carrier to be held liable for medical expenses incurred after liability has been shifted to the Special Fund. Matter of Ercole v New York State Police, 2014 NY Slip Op 04550, 3rd Dept 6-19-14

 

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Defendant Did Not Demonstrate Standing to Challenge Search of Vehicle

The Third Department determined the defendant did not demonstrate he had standing to contest the inventory search of a vehicle, parked and empty at the time the police seized it, which turned up a weapon.  A police officer had seen the defendant driving the vehicle just before it was seized and a confidential informant had told the police where the defendant kept a handgun in the vehicle. Because the People did not rely solely on the statutory presumption of possession of a weapon (Penal Law 265.15 (3)) the defendant needed to allege and demonstrate standing.  Because the defendant did not own the vehicle and denied driving it on the day it was seized, he was unable to challenge the search:

A defendant seeking to suppress evidence has the burden to allege and, if disputed, establish standing to challenge a search … . “Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy” … . While a defendant is entitled to “automatic standing” if the People “rely solely on the statutory presumption [of possession of a weapon] contained in Penal Law § 265.15 (3) to establish his [or her] guilt” …, defendant here cannot rely on that exception to his burden regarding standing. The People did not depend entirely upon the statutory presumption of standing, but had other evidence, including one officer who witnessed defendant driving the vehicle and the CI who provided information that defendant had a handgun in the vehicle and where within the vehicle the gun would be located … . Inasmuch as defendant did not own the BMW and denied that he was driving it on the day in question, he failed to allege any legitimate expectation of privacy in that vehicle. People v Anderson, 2014 NY Slip Op 04269, 3rd Dept 6-12-14

 

Exclusive Access Not Required for Constructive Possession

The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:

Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found … . Exclusive access, however, is not required to sustain a finding of constructive possession … . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man’s boot located in a hallway leading to that apartment among shoes belonging to defendant’s girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found … . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14

 

Defendant Did Not Make a Sufficient Showing to Justify Severance of Counts (Counts Related to Different Victims of Sexual Abuse)—-Nor Did the Defendant Make a Sufficient Showing to Justify a “Taint” Hearing (to Explore whether Allegations by a Child Were the Result of Suggestive Questioning)

The Third Department determined the defendant’s motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied.  The court further determined the defendant’s motion for a taint hearing (to explore whether a child-victim’s allegations were the result of suggestive questioning) was properly denied:

Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]…), a court nonetheless may — “in the interest of justice and for good cause shown” — exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]…). Good cause, in turn, may be established by demonstrating, among other things, that there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]…). Simply put, defendant failed to make such a showing here. * * *

Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques,” a court nonetheless may — “[u]pon a proper showing” by the defendant — direct that a pretrial taint hearing be held … . Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial… . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14

 

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Past Domestic Violence Admissible to Show Intent in Rape Case—Victim’s Statements in Hospital Report Admissible under Business Records Exception/Confrontation Clause Not Implicated Because Statements Were Not Testimonial—Victim’s Statements Shortly After the Rape Admissible as Excited Utterances

In a case where the defendant was charged with raping his ex-girlfriend, the Third Department determined past incidents of domestic violence were properly allowed in evidence to demonstrate intent, statements made by the victim (who died before trial from an unrelated cause) included in a hospital report were admissible under the business records exception to the hearsay rule, and statements made by the victim shortly after the rape were admissible as excited utterances.  With respect to the hospital records, the court wrote:

County Court properly allowed admission of statements that the victim made during her medical examination. “Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment” … . Details of the abuse, even including the perpetrator’s identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim’s safety when creating a discharge plan and gauging the patient’s psychological needs … . The physician who examined the victim testified that all of the information in the medical records was relevant to and gathered for purposes of diagnosis or treatment, and the primary purpose of the examination was to care for the patient’s health and safety, although a secondary purpose of the forensic examination was to gather evidence that could be used in the future for purposes of prosecution. Considering this information, although the victim was unavailable to testify because she died before trial (from causes unrelated to defendant’s crimes), defendant’s Confrontation Clause rights were not violated because the statements were not testimonial… . People v Pham, 2014 NY Slip Op 04276, 3rd Dept 6-12-14

 

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Failure to Advise Respondent of His Right to Counsel at a Temporary Removal Hearing Not Condoned—Reversal Not Required Because No Evidence from the Temporary Removal Hearing Was Elicited in the Subsequent Neglect Proceedings

The Third Department determined that Family Court’s failure to advise respondent on his right to counsel in a temporary removal hearing did not require the reversal of a subsequent neglect adjudication.  None of the evidence elicited at the temporary removal hearing was used during the neglect proceedings:

It is well established that failure to fully advise a respondent of his or her right to counsel is a deprivation of a fundamental right that requires reversal of any “resulting adjudication” in a proceeding pursuant to Family Ct Act article 10, whether or not prejudice is shown … . “[A] Family Ct Act § 1022 removal hearing is no exception” to this requirement … . Here, Family Court undisputedly failed to advise respondent of his right to counsel “[w]hen [he] first appear[ed] in court . . . before proceeding” with the temporary removal hearing (Family Ct Act § 262 [a]). We do not condone this failure … .

Nonetheless, we agree with the attorney for the children that the circumstances present here are distinguished from the precedent cited above –not due to the lack of any resulting prejudice, which would not suffice — but rather and specifically relative to whether the determination ultimately rendered after the fact-finding hearing constituted a “resulting adjudication.” Here, the neglect adjudication was based solely upon evidence elicited during the course of the fact-finding hearing; no testimony from the temporary removal hearing — in which respondent did not participate — was introduced. The adjudication following fact-finding did not therefore rely, in any part, on the evidence adduced at the temporary removal hearing … . Matter of Elijah ZZ, 2014 NY Slip Op 04280, 3rd Dept 6-12-14

 

Mother’s Consent to Adoption Not Required

The Third Department determined mother’s consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:

“Consent to adoption is not required of a parent who ‘evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'” … . “Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact”… . * * *

The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother’s own acts and lack of effort … . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14

 

Parole Conditions Did Not Require Parolee to Report Brief, Incidental Contact with Children to His Parole Officer—Parole Violation Determination Annulled

The Third Department annulled the finding that petitioner had violated his parole by not reporting brief contact with a child.  Petitioner was doing construction work when a coworker’s daughter emerged briefly approached petitioner and the coworker:

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination'” … . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]…), which we find lacking in the record before us. * * *

The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker’s children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner’s parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled… . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14

 

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