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Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”

… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … .  This fundamental “right to testify is ‘personal’ and . . . can be waived only by the defendant,” and any such waiver must be knowingly, voluntarily and intelligently made … .  To be sure, the “trial court does not have a general obligation to sua sponte ascertain if the defendant’s failure to testify was a voluntary and intelligent waiver of his [or her] right” … .  However, “in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected” … .

We believe that such colloquy was critically necessary here.  The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion'” … .  But here the deputy’s actions in foisting the religious tract upon defendant constituted an effort by law enforcement to “interfere[] with the free and unhampered decision of [defendant] to testify” … .  Moreover, looking at “factors beyond the government’s control to determine whether [defendant’s] decision not to testify resulted from the government’s conduct,” defendant allegedly knew “chapter and verse” the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14

 

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Defendant Could Properly Subpoena Documents Which May Support a Motion to Dismiss the Indictment in the Interest of Justice/There Was Evidence of a Policy Not to Prosecute Native Americans for Tax Law Violations Relating to Cigarettes

In a case alleging (criminal) cigarette-related tax law violations, the Third Department affirmed Supreme Court’s denial of the state police’s and the tax department’s motions to quash subpoenas concerning a forbearance enforcement policy.  The defendant, who is Native American, alleged the tax department and the state police made a policy-decision not to prosecute Native Americans for tax law violations related to cigarettes manufactured by Native Americans.  The subpoenas were deemed relevant to a possible “interest of justice” dismissal of the indictment:

To be sure, the policy of the Department and the issues surrounding the Division’s actual enforcement of the Tax Law with respect to Native American manufactured cigarettes may very well be found insufficient to justify dismissal of the indictment in the interest of justice.  Yet, we simply cannot say that the testimony sought on those issues “is utterly irrelevant” to the question of whether defendant’s prosecution here would be unjust … .   Accordingly, Supreme Court properly denied the motions to quash the subpoenas. People v Laughing, NYS Dept of Taxation and Finance, 516567, 3rd Dept 1-16-14

 

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Crude Conduct Not Motivated by Petitioners’ Gender/Case of Same Sex Discrimination Not Made Out

The Third Department determined a case of “same sex” sex discrimination had not been made out.  The petitioners (Bargy and Colon) are male.  The conduct complained of related to the supervisor’s (Andross’) bringing a woman to the hotel room in which all three men were staying during a construction project and having sex with her.  After a dispute between the petitioners and the woman, the supervisor fired them:

Here, neither the written complaints nor testimony of Bargy or Colon set forth any allegations or indication of how Andross’ conduct was motivated by their gender or that their grievances to petitioner were ignored because of their gender.  The ALJ’s decision does not refer to any proof supporting a finding that complainants’ gender was relevant to, or a reason for, the conduct.  Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender-stereotyping.  However, the ALJ made no such finding.  … We fully agree that Andross’ conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of proof of gender-based discrimination, such conduct does not establish a claim.  We are constrained by the record to conclude that there is not substantial evidence that the conduct was caused by or related in any relevant fashion to complainants’ gender … . Matter of Arcuri v Kirkland…, 516735, 3rd Dept 1-9-14

 

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Valid State Purpose (Conserving Drinking Water) Did Not Relieve State of Liability Re: Breach of an Agreement to Provide a Certain Amount of Water to a Hydroelectric Power Provider

The Third Department determined that a contract with a hydroelectric power provider requiring a certain amount of water to be released from a reservoir was unambiguous and therefore must be enforced.  The amount of water released was less than called for in the contract due to a drought and concerns about the drinking water supply:

The parties to the agreement intended to resolve a dispute after defendants took claimant’s predecessor’s land in eminent domain.  Claimant’s predecessor wanted to ensure that sufficient water would reach its hydroelectric generation facility and accepted a considerably smaller amount of money than it sought, in exchange for the rights associated with the water release rates from the reservoir.  These rights would be far less valuable if defendants could deviate from the operating diagram’s release rates, and avoid liability in doing so, as long as defendants supported their actions with any State purpose. Pursuant to the agreement, defendants could only avoid liability if they deviated from the operating diagram’s release rates for a State canal use or purpose.  Because defendants altered the release rate for the purpose of preserving safe drinking water during a drought – a legitimate public and State purpose (see ECL 15-0105 [5]) – and not for a canal-related purpose, defendants are liable for breaching the contract… .  Erie Boulevard Hydropower v State, 516510, 3rd Dept 1-9-14

 

Sunset Provision in a Deed Which Referred to “Restrictions” Did Not Affect “Easements” or “Reservations”

The Third Department determined that a sunset provision in a deed which referred to restrictions did not affect easements or reservations.  The provision in the deed which created an easement for utilities, therefore, was valid and enforceable:

Restrictions “restrain servient landowners from making otherwise lawful uses of their property” …, and Schedule A contains various paragraphs restricting, for example, the construction of certain kinds of buildings and the raising of animals on defendants’ property.  These are sometimes referred to as negative easements, as opposed to a reservation to the grantor of an affirmative easement to maintain utility lines on defendants’ property … .  We view the common grantor’s failure to refer to reservations in the sunset provision as a deliberate choice to avoid the termination of easements on January 1, 2005.  Johnson v Zelanis, 516184, 3rd Dept 1-9-14

 

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Violation of a Local Law Did Not Demonstrate a Horse Pen Constituted a Private Per Se Nuisance

The Third Department determined summary judgment was properly denied for a nuisance cause of action.  The fact that a horse pen was 100 feet from a home, and was therefore in violation of a local law requiring a distance of 500 feet, did not demonstrate per se nuisance:

The per se nuisance claim is based upon the undisputed location of plaintiffs’ horse pen about 100 feet from defendants’ home, in alleged violation of a local law that requires such pens to be separated from dwellings by at least 500 feet (see Local Law No. 1 [2010] of Village of Valley Falls § 9).  We disagree with defendants that the declaration in the local law that such a violation is a “nuisance” (see Local Law No. 1 [2010] of Village of Valley Falls § 7) is sufficient, without more, to establish their claim of nuisance per se….  A showing that the pen is unlawful excuses defendants only from proving that plaintiffs’ actions were negligent or intentional; the other elements of a nuisance cause of action must still be shown … .  A private nuisance claim requires a showing of “intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” … . Defendants did not prove entitlement to summary judgment on the per se nuisance claim, as they relied exclusively on the alleged local law violation and offered no proof that the horse pen’s placement caused a substantial or unreasonable interference – and notably, such determinations “ordinarily turn[] on questions of fact”… . Overocker v Madigan, 516957, 3rd Dept 1-9-14

 

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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

Proof of Indemnification Agreement Insufficient

The Third Department determined the employer did not demonstrate that the contractor hired by the employer had agreed to indemnify the employer for damages related to the injury of the contractor’s employee:

Workers’ Compensation Law § 11 precludes third-party indemnification claims against employers unless the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  “Whether the parties did in fact have such an agreement involves a two-part inquiry.  First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of [Workers’ Compensation Law §] 11… . Trombley v Socha…, 516943, 3rd Dept 1-9-14

 

Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

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