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“Strangulation” Conviction Affirmed

In a full-fledged opinion by Justice Garry, the Third Department affirmed defendant’s conviction for strangulation in the second degree (as well as assault in the third degree).  The victim of domestic abuse alleged the defendant choked her with one hand and shoved a piece of pizza in her face with the other.  The court explained the statutory strangulation offenses as follows:

In 2010, the Legislature enacted several criminal statutes to address choking, strangling, and other forms of intentional interference with a victim’s breathing or circulation (see Penal Law art 121; William C. Donnino, Practice Commentaries McKinney’s Cons Laws of NY, Book 39, Penal Law § 121.11, 2013 Pocket Part at 38).  At the time of enactment, the Legislature stated that domestic abusers use strangulation as “a form of power and control [that] has a devastating psychological effect on victims and a potentially fatal outcome” (Senate Mem in Support, Bill Jacket, L 2010, ch 405, 2010 McKinney’s Session Laws of NY at 1977) and noted that strangulation can be challenging to prosecute as it may not cause obvious injuries, thus allowing the crime to go unpunished (see Assembly Mem in Support, Bill Jacket, L 2010, ch 405).  In the statutory scheme, the severity of the offense is measured by the degree of the consequent harm.  A person commits the misdemeanor of criminal obstruction of breathing or blood circulation when, “with intent to impede the normal breathing or circulation of the blood of another person, he or she a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person,” with no resulting injury (Penal Law § 121.11).  Such acts resulting in “stupor, loss of consciousness for any period of time, or any other physical injury or impairment” constitute the felony of strangulation in the second degree (Penal Law § 121.12); strangulation in the first degree involves “serious physical injury” (Penal Law § 121.13).  People v Carte, 105808, 3rd Dept 12-5-13

 

One Party’s Video-Recording of Consensual Sexual Activity Without the Other Party’s Knowledge and Consent Violates the Unlawful Surveillance Statute

In a full-fledged opinion by Justice Stein, the Third Department affirmed defendant’s conviction for violating New York’s Unlawful Surveillance statute (Penal Law 250.45).  This “first impression” case involved the defendant’s recording of his sexual activities with two women without the women’s knowledge or consent. The statute was found to apply to the video recording of consensual sexual activity by one of the parties involved in that activity.  Defendant was sentenced to a term in prison.  The relevant portions of the statute at issue provide:

“A person is guilty of unlawful surveillance in the second degree when:

1.         For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

2.         For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

3.         (a) For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent” (Penal Law § 250.45 [1], [2], [3] [a]).  People v Puznarksi, 105460, 3rd Dept 12-5-13

 

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Regulations Promulgated by Administrative Bodies Are Quasilegislative Acts—Any Challenge to the Regulations Must Be Brought in an Article 78 Proceeding Alleging the Regulations to Be Arbitrary and Capricious

The Third Department assumed, without deciding, that the plaintiffs, three New York residents and electricity ratepayers, had standing to bring an action challenging the Regional Greenhouse Gas Initiative (RGGI) which implemented a carbon-dioxide-emission cap and trade program for New York power plants.  The challenged RGGI regulations had been promulgated by the Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA). The court determined the complaint was properly dismissed because, although couched in terms of a request for a declaratory judgment, the action should have been brought as an Article 78 proceeding subject to the four-month statute of limitations:

Although declaratory judgment actions are typically governed by a six-year statute of limitations (see CPLR 213 [1]), “a court must look to the underlying claim and the nature of the relief sought and determine whether such claim could have been properly made in another form” …. “Where, as here, governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding” … .  “While it is well established that a challenge to the validity of legislation may not be brought under [CPLR] article 78, this principle does not apply to the quasilegislative acts and decisions of administrative agencies,” which are subject to a four-month statute of limitations … .

Here, plaintiffs’ first three causes of action challenge the validity of the RGGI regulations promulgated by DEC and NYSERDA pursuant to the statutory authority granted to those respective administrative bodies pursuant to the Environmental Conservation Law and the Public Authorities Law.  The enactment of such regulations was “quasi-legislative” and, as such, plaintiffs’ challenges thereto were capable of being reviewed in the context of a CPLR article 78 proceeding … .  Although at times couched in terms of constitutional infirmity and illegality, the essence of plaintiffs’ claims against DEC and NYSERDA is that the RGGI regulations are “arbitrary and capricious” and that the decision to promulgate such regulations was “affected by an error of law” (CPLR 7803 [3]…).  Thrun v Cuomo, 516556, 3rd Dept 12-5-13

 

 

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Hearsay Insufficient to Support Revocation of Substance Abuse Counselor Credential

The Third Department determined the hearsay evidence used to justify the revocation of petitioner’s credential as a Credentialed Alcoholism and Substance Abuse Counselor (CASAC) was insufficient:

Substantial evidence has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .  In this regard, an administrative determination may be based entirely upon hearsay evidence …– provided such evidence is “sufficiently relevant and probative” … or “sufficiently reliable” … and is not otherwise “seriously controverted” … . * * *

Although we have no doubt that the investigator conducted thorough interviews with many of those involved and accurately related – in both his report and his corresponding testimony – the specific information gleaned therefrom, we cannot say – given the particular facts of this case – that the hearsay proof adduced at the hearing was “the kind of evidence on which responsible persons are accustomed to rely in serious affairs”… .  Matter of Doctor v NYS Office of Alcoholism and Substance Abuse Services…, 516209, 3rd Dept 12-5-13

 

Family Members Failed to Raise a Question of Fact About Whether Care-Provider Exercised Undue Influence Over Decedent

The Third Department determined Surrogate’s Court properly granted summary judgment dismissing the objections and admitting the will to probate.  The respondents failed to raise a question of fact about whether the decedent’s care-provider had exercised undue influence over the decedent.  The care-provider, by the terms of the will, was allowed to live in decedent’s home rent-free for a designated period after decedent’s death.  The rest of decedent’s estate went to organizations decedent was affiliated with, nothing was allotted to respondent family members:

To establish undue influence, respondents were required to demonstrate that decedent “was actually constrained to act against [her] own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred” … .  The influence asserted must rise to the level of “a moral coercion” …, and “[m]ere speculation and conclusory allegations, without specificity as to precisely where and when the influence was actually exerted, are insufficient to raise an issue of fact” … .

Here, even assuming that respondents’ proof was sufficient to establish that [the care-provider] had motive and opportunity to influence decedent’s testamentary dispositions, respondents failed to demonstrate that House actually exercised undue influence with respect to the distribution of decedent’s assets.  By all accounts, decedent was a very intelligent, private and strongwilled woman who “ran her life the way she wanted to run it.” Matter of Stafford…, 516429, 3rd Dept 11-27-13

 

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Tax Lien Foreclosure Upheld Despite Alleged Lack of Notice

The Third Department determined a motion to vacate a tax lien foreclosure was properly denied in the face of claimed lack of notice, finding the motion untimely and finding the statutory notice requirements had been met and the owner had been afforded due process:

Respondent’s motion to vacate was untimely as it was brought more than one month after entry of the judgment of foreclosure (see RPTL 1131…).  Notably, “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”… . …

“[N]otice 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,” and the foreclosing agent is required to seek an alternative mailing address for the property owner only when both such notices are returned (RPTL 1125 [1] [b] [i] …).  Accordingly, inasmuch as the notice sent by first class mail to respondent at the 8th Avenue address was not returned, such notice was deemed received …, and “petitioner was not obligated to take additional steps to notify respondent of the foreclosure proceeding”… .

…”[D]ue process does not require actual notice by the property owner, only reasonable efforts to provide notice under the circumstances” …, and petitioner discharged its obligations in this regard by fulfilling the requirements of RPTL 1125 … .  Finally, we note that”[o]wnership carries responsibilities” …, which includes an obligation to apprise the tax enforcing officer of a change in address (see RPTL 1125 [1] [d]…).  There is nothing in the record to suggest that respondent fulfilled that obligation here.  Simply put, “respondent was responsible for protecting his ownership interests and chargeable with notice that failure to pay his taxes could result in foreclosure” … . Matter of Foreclosure of Tax Liens by County of Sullivan…, 516658, 3rd Dept 11-27-13

 

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Broker Entitled to Commission Based Upon Defendant’s Refusal of a Purchase Offer/Copy of Purchase Offer Properly Put in Evidence

The Third Department determined plaintiff real estate broker was entitled to a commission because he presented a willing buyer at the price agreed to in the listing agreement and one of the property owners, the defendant, refused the offer because he no longer wanted to sell. In the course of the decision, the court noted that a copy of the purchase offer was properly received in evidence (in the absence of the original):

“In the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his [or her] commission when he [or she] produces a buyer who is ready, willing and able to purchase at the terms set by the seller” … . The listing agreement identified the parties, the property, the asking price, and an agreement to pay an 8% commission in exchange for plaintiff producing a buyer.  This was sufficient information to create a valid listing agreement … .  Defendant asserts that the listing agreement is invalid because not all of the property owners signed it … .  However, a contract to pay compensation to a real estate broker or salesperson need not be in writing to be effective (see General Obligations Law § 5-701 [a] [10]).  …

Supreme Court did not err in accepting into evidence a copy of a second version of the offer to purchase.  Although the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” …, secondary evidence of the contents of an unproduced original document may be admitted where the court finds a sufficient explanation for the absence of the original, that the proponent “has not procured its loss or destruction in bad faith,” and that the secondary evidence accurately reflects the original … .  Posson … v Przestrzelski, 516677, 3rd Dept 11-27-13

 

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Reimbursement Cuts for Profit-Making Nursing Homes Did Not Violate Takings or Equal Protection Clauses

The Third Department determined the plaintiffs—profit-making businesses operating nursing homes—did not raise questions of fact about whether reductions in Medicaid reimbursement rates instituted in 2011 violated the Takings Clause and the Equal Protection Clause:

…”‘[W]here a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking'”… . * * *

Given [the] fundamental difference in the underlying economic purposes and incentives of proprietary and voluntary facilities, they are not similarly situated as they must be to sustain plaintiffs’ equal protection claim … . Bay Park Center for Nursing and Rehabilitation LLC v Shah, 516654, 3rd Dept 11-27-13

 

Object’s Fall of 1 ½ Feet Constituted Physically Significant Elevation Differential for Purposes of Requiring a Safety Device Pursuant to Labor Law 240 (1)

In this 240(1) action, the Third Department determined Supreme Court erred when it found that the accident did not arise form a physically significant elevation differential.  Plaintiff was struck by part of a roll carrier (re: a roll of roofing membrane) after the roll fell to the roof. Prior to the incident the roll carrier had been positioned about a foot and a half above the roof:

In determining whether an elevation differential is physically significant or de minimis, we must take into account “‘the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent'” … .  Here, for purposes of defendants’ motion, plaintiff established that a membrane roll weighing between 600 and 800 pounds was hoisted by the roll carrier to a height of approximately 1½ feet off the roof’s surface at the time of the accident.  In our view, despite the relatively short distance that the membrane roll fell, it constituted a significant elevation differential given its substantial weight and the powerful force it generated when it fell, so as to require a safety device as set forth in Labor Law § 240 (1) … .  Accordingly, Supreme Court should not have granted defendants’ motion for summary judgment dismissing the Labor Law § 240 (1) cause of action on this basis.  Jackson v Heitman Funds/191 Colonie LLC. 516248, 3rd Dept 11-27-13

 

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Evidence Relevant to a Reason to Fabricate is Never Collateral

The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed.  Evidence of a witness’ reason to fabricate should not have been excluded as collateral:

…County Court improperly denied his motion requesting permission to question Corsi and Beebe about prior notices of discipline, grievances filed by defendant and defendant’s pending federal lawsuit … .  The court concluded that the issues were collateral and would be precluded unless the door were opened by a witness’s testimony reflecting bias or hostility toward defendant.  While “trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters,” “extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground”… .  People v Hughes, 105838, 3rd Dept 11-27-13

 

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