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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

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Code Provision Requiring Issuance of Rental Certificate by City Prior to Leasing an Apartment Deemed Constitutional

The Third Department determined the code provision (Rental Certificate Ordinance or RCO) which required the issuance a rental certificate each time a vacant apartment is about to be leased is constitutional.  Entry to the apartment is accomplished either with the consent of the owner, or upon the issuance of a search warrant:

The RCO provided, in relevant part, that “[i]t shall be unlawful for any owner to permit the occupancy of any rental unit subject to [former article X of the Code of the City of Schenectady], unless such unit has a current and valid rental certificate or temporary rental certificate” (Code of City of Schenectady former § 167-59 [A]). Thus, “[w]henever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner [must] submit a written application for a rental certificate” (Code of City of Schenectady former § 167-60 [A] [1]) and, “within five working days of receipt of [such] application, the Building Inspector [must] inspect the rental unit to determine if [it] is in compliance with” certain enumerated housing standards (Code of City of Schenectady former § 167-60 [A] [2]). If the Building Inspector is unable to perform the necessary inspection within the five-day window, the property owner may apply for a temporary rental certificate, which “is valid for 30 days or until the unit is inspected . . . , whichever is less” (Code of the City of Schenectady former § 167-60 [B]). In the event that the property owner refuses to grant access to the premises, “the Building Inspector shall apply for a search warrant or court order in an appropriate court and upon a showing that there [are] reasonable grounds to believe that a building or rental unit within [the] building is rented and occupied in violation of” the RCO (Code of the City of Schenectady former § 167-61). A property owner’s violation of the RCO may result in the imposition of a fine or other civil or criminal penalties (see Code of the City of Schenectady former § 167-67).

“It is well established that the 4th Amendment protection against unreasonable searches and seizures extends to administrative inspections of private commercial premises. [Thus,] to the extent that the challenged ordinance directly or in practical effect authorizes or requires a warrantless inspection, it will not pass constitutional muster” … . Here, however, the RCO expressly required either the consent of the property owner or the issuance of a valid search warrant in order for the Building Inspector to conduct the administrative inspection. As the inclusion of the warrant requirement is sufficient to safeguard plaintiff’s constitutional rights, his challenge to the facial validity of the RCO must fail … . Wisoff v City of Schenectady, 2014 NY Slip Op 02479, 3rd Dept 4-10-14

 

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No Negligence Cause of Action Against Commissioner of Mental Health (Based Upon Alleged Statutory Violations)

The Third Department determined claimant, an insanity acquittee, could not bring a negligence cause of action against the Commissioner of Mental Health based upon alleged violations of Criminal Procedure Law 330.20.  The court explained the applicable law re: the liability of a governmental agency (special duty/special relationship):

The rule is well established “that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . A special duty will only arise from a special relationship, which can be formed in three ways: “(1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Inasmuch as claimant asserts that CPL 330.20 creates a statutory duty for the benefit of the class of which he is a member, i.e., insanity acquittees, only the first of these categories is potentially applicable.

Significantly, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … . Because CPL 330.20 does not expressly confer upon insanity acquittees the right to seek civil damages for any failure by the Commissioner to follow the statute’s provisions, “recovery may be had only if a private right of action can be implied” … . A private right of action may be fairly implied when all of the prerequisites are fulfilled, namely: “(1) the [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” … . In our view, the legislative history supports the finding of the Court of Claims that CPL 330.20 was primarily enacted to benefit the public, rather than insanity acquittees … . Justice v State of New York, 2014 NY Slip Op 02483, 3rd Dept 4-10-14

 

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Corporate Officer Personally Liable for Outstanding Sales and Use Taxes

The Third Department determined the evidence was sufficient to hold a corporate officer personally liable for outstanding sales and use taxes.  The court explained the criteria for such personal liability:

Tax Law § 1133 (a) imposes personal liability on any person who is responsible for collecting tax under Tax Law article 28. A person required to collect tax (a responsible person) includes “any officer, director or employee of a corporation . . . who . . . is under a duty to act for such corporation . . . in complying with any requirement of [Tax Law article 28]” (Tax Law § 1131 [1]). Whether a person has a duty to act for a corporation and is responsible for collecting sales tax is a factual determination to be made on a case by case basis (…20 NYCRR 526.11 [b] [1], [2]). The factors that the courts have considered relevant to this determination include (1) authority to sign corporate checks, (2) responsibility for managing the corporation and maintaining its books, (3) ability to hire and fire employees, (4) status as a corporate officer, and (5) receipt of substantial income from the corporation or stock ownership … . Significantly, this Court has stressed that “[w]hat must be considered is [the person’s] authority and responsibility to exercise control over the corporation, not his [or her] actual assertion of such authority” … . Matter of Ippolito v Commissioner of NY State Dept of Taxation & Finance, 2014 NY Slip Op 02475, 3rd Dept 4-10-14

 

Detention by Immigration Officials Did Not Disqualify Claimant from Receiving Workers’ Compensation Benefits

The Third Department determined detention by immigration officials did not disqualify claimant from receiving Workers’ Compensation benefits.  Claimant had been convicted of a felony sex offense, but was sentenced to probation, not incarceration:

We cannot agree with the employer’s argument that claimant’s detention by immigration officials amounts to incarceration “upon conviction of a felony,” thereby rendering him ineligible to receive benefits pursuant to Workers’ Compensation Law § 10 (4). That statutory language was enacted in 2007 to codify existing case law (see L 2007, ch 6, § 37; Governor’s Program Bill Memo, Bill Jacket, L 2007, ch 6…). In our view, giving plain meaning to each of the words used, the statute reflects an intent that benefits should not be paid if a sentence of incarceration is imposed as punishment for a felony conviction. While claimant was convicted of a felony, his punishment did not include incarceration. Rather, he was sentenced to 10 years of probation. His confinement for immigration purposes, on the other hand, was civil and nonpunitive in nature, and its purpose was to determine whether he should be deported (see 8 USC § 1226…). Accordingly, we are unpersuaded that claimant was “incarcerated upon conviction of a felony” as that phrase is used in the statute. Matter of Islam v BD Constr & Bldg, 2014 NY Slip Op 02474, 3rd Dept 4-10-14

 

Intra-Agency Exemption Applied to FOIL Request About AIG Prosecution

The Third Department determined the “intra-agency” exemption applied to documents requested from the Attorney General’s office concerning the prosecution of American International Group (AIG):

The intra-agency exemption applies to “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” (…see Public Officers Law § 87 [2] [g]…). The purpose of such exemption is “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . Matter of Smith v New York State Off of the Attorney Gen, 2014 NY Slip Op 02488, 3rd Dept 4-10-14

 

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Statutory Notice Requirements for Tax Foreclosure Me

The Third Department determined the tax foreclosure proceedings were valid.  The motion to reopen the default judgment was untimely and the statutory notice requirements were met:

A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment'” … . Significantly, “‘the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding'”… .

…[W]e reject respondent’s contention that the statute of limitations period for its motion to vacate never commenced running because petitioner failed to comply with the notice requirements of RPTL 1125. Pursuant to RPTL 1125 (1) (b) (i), notice of a foreclosure proceeding shall be sent to a party entitled to notice by certified mail and first class mail and “notice shall be deemed received unless both the certified mailing and the ordinary first class mailing are returned by the United States postal service within [45] days after being mailed” … . Further, where one of the notices is not returned within the requisite period, a petitioner is “‘not obligated to take additional steps to notify [the] respondent of the foreclosure proceeding'” … . Here, the first class mailing sent to respondent in October 2011 was never returned to petitioner. Additionally, although the November 2011 first class and certified mailings were both returned, that did not occur within 45 days; they were returned more than 100 days after being mailed. As a result, the mailings were deemed received and petitioner’s obligation to provide notice under the statute was satisfied … . Matter of County of Clinton, 2014 NY Slip Op 02486, 3rd Dept 4-10-14

 

General Business Law 349 Action Must Be Based Upon a Deceptive Act Which Has an Impact on the General Public

The Third Department determined an action pursuant to General Business Law 349 was properly dismissed because the underlying financial service (re: tax deferred retirement plans) was offered to school districts, not the general public:

“A cause of action to recover damages pursuant to General Business Law § 349 has three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act” … . “The threshold requirement of consumer-oriented conduct is met by a showing that ‘the acts or practices have a broader impact on consumers at large’ in that they are ‘directed to consumers’ or ‘potentially affect similarly situated consumers'” .. . “Consumers,” in turn, generally are defined as “those who purchase goods and services for personal, family or household use” … . An act or practice will be deemed to be deceptive where it “is likely to mislead a reasonable consumer acting reasonably under the circumstances” … .

Applying these principles to the matter before us, it is readily apparent that Supreme Court properly granted defendant’s motion to dismiss. As a starting point, the underlying complaint fails to sufficiently allege that defendant’s purportedly “deceptive practices [were] aimed at the general public” … . In this regard, it is undisputed that defendant contracted with the plan sponsors, i.e., the relevant school districts, and not the districts’ individual employees, the latter of whom selected their particular investment options from the list of service providers chosen by their employers. School districts, as business-like entities, cannot properly be viewed as consumers for purposes of General Business Law § 349 … . Benetech Inc v Omni Fin Group Inc, 2014 NY Slip Op 02480, 3rd Dept 4-10-14

 

Facts Admitted In Guilty Plea Have Subsequently Been Found Insufficient to Constitute the Offense (Possession of Child Pornography)—Yet Vacation of the Conviction Not Warranted

The Third Department determined the fact that judicial interpretation of the law had changed since defendant’s guilty plea did not provide a basis for vacation of the plea.  The defendant contended he merely viewed child pornography on his computer but did not download, print or save them, and he was unaware the images were stored by the computer’s cache function (relying upon People v Kent, 19 NY3d 290 [2012]):

“[A]bsent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise” … . Here, defendant’s guilty plea was unequivocal, and his motion papers failed to present any evidence that tends to establish that his plea was less than a knowing, voluntary and intelligent choice among the alternatives available to him at that time … . By his definitive admission of guilt, defendant thus waived his claim that the facts, as previously alleged by him, were not sufficient to establish the crime … . Accordingly, we find that County Court did not abuse its discretion in denying defendant’s motion without a hearing. People v Mauro, 2014 NY Slip Op 02470, 3rd Dept 4-10-14

 

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Remote Drug-Related Convictions and a Single DWAI Not Enough to Assess Points (in a SORA Proceeding) for Substance Abuse

The Third Department determined points for substance abuse should not have veen assessed against the defendant in a SORA proceeding:

Here, there is no indication on this record that either drugs or alcohol played a role in the offense at issue herein or in defendant’s prior sex offense. County Court relied on defendant’s 1992 convictions for criminal sale of a controlled substance in the third degree, his 2002 conviction for criminal possession of a controlled substance in the seventh degree, and his 2009 conviction for driving while ability impaired. However, in our view these widely spaced incidents are not of the nature or degree to establish a pattern of drug or alcohol use by clear and convincing evidence (see Correction Law § 168-l [5] [a] [ii]…). The 1992 convictions, as well as other information relied upon in the case summary pertaining to defendant’s drug and/or alcohol use at that time, are excessively remote …, and his 2002 conviction for criminal possession of a controlled substance in the seventh degree does not prove drug use …, leaving his 2009 conviction for driving while ability impaired as the sole evidence of defendant’s substance abuse within the past 20 years … . People v Ross, 2014 NY Slip Op 02472, 3rd Dept 4-10-14

 

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