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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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Automobile Exception to Warrant Requirement Applied

The Third Department determined the police had probable cause to conduct a warrantless search of the glove box of defendant’s car based upon information provided by a confidential informant:

…[T]here was probable cause for the search of the vehicle pursuant to the automobile exception to the warrant requirement, which permits a search of a vehicle where there is probable cause to believe that contraband or evidence of a crime will be found inside … . Following defendant’s arrest, the information furnished by the confidential informant provided the police with probable cause to believe that there was a large quantity of ecstasy in the glove box. Inasmuch as the police were authorized to conduct a warrantless search of defendant’s vehicle, County Court properly denied his suppression motion. People v Portelli, 2014 NY Slip Op 02467, 3rd Dept 4-10-14

 

Question of Fact About Whether Golfer, Who Was Injured When the Golf Cart He Was Driving Tipped Over, Was Subject to More than the Normal Hazards Associated with Golfing

The Third Department determined there were triable issues of fact about whether the occupants of a golf cart were exposed to more than the usual hazards associated with golf.  The cart tipped over on an incline.  There was (disputed) evidence indicating wet leaves were on the ground and the tires of the cart were “bald:”

A person who chooses to participate in an athletic or recreational activity “‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . “[G]olfers are deemed to assume the risks of open topographical features of a golf course” …and they are “held to a common appreciation of the fact that there is a risk of injury from improperly used carts” … . Nevertheless, liability may be found where the participant proves “a dangerous condition over and above the usual dangers that are inherent in the sport” … .

Although plaintiff was an experienced golfer, he had not previously played on this particular course. He claimed that he was driving slowly and cautiously when the car simply slid out of control on wet leaves. Defendant acknowledged that the golf course path where the accident occurred was steep and winding. While defendant disputes the amount of wet leaves that plaintiff contends were on the path, it is uncontested that there were leaves present and that defendant’s employees had inspected the area earlier in the day. Significantly, plaintiff produced proof via the testimony of the person with whom he was golfing that, after the accident, he observed that the tires on the golf cart were “bald.” Rose v Tee-Bird Golf Club Inc, 2014 NY Slip Op 02481, 3rd Dept 4-10-14

 

Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

The Third Department determined the trial court’s failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (…compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'”… . Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” … .

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes …, here Lewandowski was an accomplice as a matter of law with respect to defendant’s weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22 [2] [b]…). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski’s testimony absent corroborative evidence… . People v Medeiros, 105941, 3rd Dept 4-3-13

 

Trial Court’s Decision to Conduct Trial in Defendant’s Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

The Third Department reversed defendant’s conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant’s presence:

“A defendant’s right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute” … . Even where, as here, “a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized”… . Rather, it must also appear from the record that the trial court considered “all appropriate factors” before proceeding in defendant’s absence, “including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear” … . As the Court of Appeals has instructed, “[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile” … .

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant’s whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant’s arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

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Elements of Prima Facie Tort Explained—Disinterested Malevolence Not Demonstrated

The Third Department, in finding the allegations insufficient to make out the cause of action, explained the elements of prima facie tort:

“To sufficiently allege a cause of action for prima facie tort . . . a plaintiff must plead the intentional infliction of harm without justification or excuse, which results in special damages, by one or more acts which would otherwise be lawful” … . Moreover, “there is no recovery in prima facie tort unless malevolence is the sole motive for the defendant’s otherwise lawful act” … . The act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Even egregious conduct by an attorney during the course of representing a client that aids to some degree the attorney’s client or the attorney’s practice generally will not satisfy the disinterested malevolence requirement of a prima facie tort, because such conduct is not motivated solely to harm the defendant … .

… While plaintiffs’ pleadings are liberally interpreted in the context of a CPLR 3211 (a) (7) motion, such liberal standard “will not save allegations that consist of bare legal conclusions or factual claims that are flatly contradicted by documentary evidence or are inherently incredible”  Wiggins & Kopko LLP v Masson, 517155, 3rd Dept 4-3-14

 

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Breach of Fiduciary Duty Cause of Action Stated Against Actuary

After sorting out professional malpractice claims (negligence—three-year S/L) from breach of contract claims (intentional—six year S/L), the Third Department explained the elements of a “breach of fiduciary duty” cause of action in the context of actuarial services (provided by SGRisk):

Actuaries are not considered professionals for the purpose of the shortened statute of limitations applicable to malpractice claims … . Despite not being deemed professionals in that context, actuaries can still develop relationships of trust and confidence sufficient to give rise to a fiduciary duty. Courts must conduct a fact specific inquiry to determine whether a fiduciary relationship exists based on confidence on one side and “resulting superiority and influence on the other” … . Plaintiff alleged that SGRisk “held itself out as being a skilled and competent actuarial” firm that “adhered to accepted professional standards,” that it rendered services for the trusts’ benefit, provided advice and created “a relationship of trust and confidence between” itself and the trusts. Plaintiff also alleged that SGRisk agreed to exercise “good faith and undivided loyalty” when determining appropriate valuation of the trusts’ future claims liability and the trusts reasonably relied on this, placing confidence in SGRisk that it would accurately produce truthful annual actuarial reports with correct estimates of future claims reserves. Additionally, plaintiff alleged that SGRisk breached the duty by knowingly and consistently underestimating the claims liabilities and necessary reserves and failing to identify dangerous underfunding … .  New York State Workers’ Compensation Board… v SGRisk LLC, 517387, 3rd Dept 4-3-14

 

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Keeping Animals In Cages On the Same Lot as Petitioner’s Home, as Part of the Operation of a Business, Constituted a “Home Occupation” Requiring Approval by the Zoning Board

The Third Department determined the zoning board of appeals had properly ruled that petitioner was conducting a business inside his home without approval, a so-called “home occupation.”  The fact that large animals were kept outside petitioner’s home in permanent cages was found to be within the scope of the relevant definition of an “accessory structure:”

Petitioner contends that the activities occur in the cages on his property, not in any building on the property or any offsite location. There is no evidence in this record to show that business activities are conducted “inside the residence” or “at off-site locations,” so such activities must be conducted in “a legally constructed accessory building” to fall within the ordinance (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). An “[a]ccessory [s]tructure” is defined as a building “which is located on the same lot” as, and “the use of which is incidental to that of,” a one- or two-family dwelling (Zoning Law[2008] of the Town of Mayfield § 202 [A] [1]). “Building” is defined as a one- or two-family dwelling or portion thereof “intended to be used for human habitation” but also “shall include accessory structures thereto” (Zoning Law [2008] of theTown of Mayfield § 202 [A] [10]). While cages would not generally be considered buildings, the Zoning Law contains a section on “[w]ord [u]sage” stating that “[t]he word ‘building’ includes the word ‘structure'” (Zoning Law [2008] of the Town of Mayfield § 201). That provision clarifies any ambiguity concerning the definitions of the relevant terms here, as a cage that is built into the ground – like these cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence … .The code enforcement officer did not assert that the cages were illegally constructed. Thus, as petitioner is carrying on business activities in legally constructed accessory structures, he is operating a home occupation. Matter of Salton v Town of Mayfield Zoning Board of Appeals, 516523, 3rd Dept 4-3-14

 

Respondents Must Demonstrate Why Request Not Specific Enough For Extraction from Electronic Documents/Claim that Documents Are Exempt from Disclosure Is Not Enough to Defeat the Request—Remedy Is In Camera Review

The Third Department determined the respondents should demonstrate why the descriptions of the documents sought by a FOIL request were insufficient for extraction from electronic documents.  With respect to respondents claim the information was exempt from disclosure, that assertion is not enough to defeat a FOIL request and the appropriate relief is an in camera review of the material alleged to be exempt:

We agree with respondents that a valid basis for denying the FOIL request has been established – at least with respect to the actual files – when they are not “indexed in a manner that would enable the identification and location of documents” … . Respondents have also indicated, however, that at least some of the files are maintained electronically. Despite this, they have offered no evidence to establish that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document from the virtual files through an electronic word search of the former Assistant County Attorney’s name or other reasonable technological effort (see Public Officers § 89 [3] [a]…).  We also note that “the broad allegation here that the files contain exempt material is insufficient to overcome the presumption that the records are open for inspection” … . In the event that the requested record can be located electronically and respondents are able to establish that the document contains exempt material, the appropriate remedy is an in camera review and “disclosure of all nonexempt, appropriately redacted material”… . Matter of Pflaum v Grattan, 516119, 3rd Dept 4-3-14

 

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