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County Court Should Have Ordered a Hearing Re: Defendant’s 440 Motion to Vacate His Conviction—There Was Evidence Outside the Record that Required Development—Defendant Suffered from a Mental Illness and Was Taking Medications which May Have Affected His Judgment at the Time of the Plea Proceedings

The Third Department determined County Court erred when it did not order a hearing to determine defendant’s CPL 440.10 motion to vacate his conviction (by guilty plea).  The motion, as well as other evidence in the record (i.e., the presentence report), indicated defendant suffered from a mental illness and was taking medications that may have clouded his judgment when the guilty plea was entered:

Defendant presented further evidence of his mental illness and use of psychotropic medications upon his CPL 440.10 motion. In his own affidavit, defendant recounted experiencing extreme anxiety leading to his hospitalization, and stated that the medications he was taking made him feel intoxicated and in a haze during the plea and sentencing proceedings.  He also submitted the affidavit of a forensic nurse consultant, who indicated that the side effects of the medications that defendant was taking included drowsiness, dizziness, fatigue and abnormal thinking, and noted that Zoloft was not recommended for individuals with bipolar disorder.  The nurse opined that the combination and quantity of medications that defendant was taking at the time of his plea and sentencing “most certainly” would have affected his cognitive ability to understand the proceedings.

Although postjudgment motions may often be determined upon the record and submissions, a hearing is required where facts outside the record are material and would entitle a defendant to relief (see CPL 440.30 [5]…). Here, the proof reveals that defendant suffers from a mental illness and was taking psychotropic medications, and further development of the record is required to determine the extent to which his mental capacity was impaired and whether this rendered him unable to enter a knowing, voluntary and intelligent guilty plea.  A hearing on defendant’s CPL 440.10 motion is the appropriate vehicle for collecting further evidence on this issue and determining whether defendant’s guilty plea should be vacated as a result … .  Accordingly, we find that County Court erred in denying defendant’s CPL 440.10 motion without a hearing, and conclude that this matter must be remitted to County Court for this purpose. People v Hennessey, 105342, 3rd Dept  11-27-13

 

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The Prosecutor’s Summation Was Filled With Impermissible Statements and Suggestions, Requiring Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because of the prosecutor’s impermissible statements in summation. The prosecutor vouched for his witnesses, suggested that in order to believe the defendant the jury would have to believe there was a conspiracy to convict him, involving the trial judge, and effectively shifted the burden of proof to the defendant:

During the course of his summation, the prosecutor, among other things, repeatedly vouched for the credibility of the People’s witnesses (“He’s telling the truth”).  Such comments clearly are impermissible … .  We reach a similar conclusion regarding the prosecutor’s statement that if the jury was inclined to believe defendant, he had “a bridge in Brooklyn [to] sell” as well … .  These errors were compounded by the prosecutor’s completely speculative comment that “the only reason that [defendant] wasn’t involved in the other robbery that [Young] and [Ervin] committed” not long after the attack upon the victim “was because he couldn’t be there with them” – suggesting that had defendant not been in custody at the time that the subsequent robbery was committed, he would have participated in that crime as well.  Although the prosecutor’s comment in this regard undeniably was improper …, it paled in comparison to his statement that, in order to believe defendant’s version of events, the jury had to accept that there was a far-reaching conspiracy to convict defendant — one that included the trial judge.  Specifically, the prosecutor stated, “[H]ere’s what you’ll have to find to find that the defendant is not guilty.  This is what you have to believe.  You have to believe there was a conspiracy against [defendant,] that every single one of the witnesses that came in here went over there, put their hand on the Bible, swore to tell the truth, and then lied and made up a story, and that the detectives from the Albany Police Department . . . got together and risked their entire careers and got together with . . . Ervin and . . . Young to frame [defendant].  Then they got me involved to continue prosecuting the case, and then they got Judge Herrick and Judge Breslin to go along with these cooperation agreements and allowed them to come in here and lie.”

The problem with the foregoing statement is three-fold. First, the comment made by the prosecutor relative to what the jury would need to believe in order to find that defendant was not guilty arguably shifted the burden of proof from the People to defendant.  Additionally, the prosecutor’s reference to a conspiracy in no way constitutes fair comment upon the evidence adduced.  Although defendant indeed testified that Young and Ervin were not being truthful, he never suggested that the People’s witnesses, among others, were engaged in a conspiracy to wrongfully convict him, and there is nothing in the record to support such a claim.  Finally, there is no question that one of the jury’s key roles in a criminal trial is to assess the credibility of the witnesses who testify on behalf of the People and, in those instances where the defendant takes the stand or otherwise presents witnesses in support of his or her defense, to weigh the credibility of the People’s witnesses vis-a-vis the defendant’s witnesses.  Such a “credibility contest” is entirely permissible, and there is nothing inherently prejudicial about that evaluative process.  Here, however, the prosecutor’s commentary set up a far different credibility contest by suggesting to the jury that it could believe defendant only if it also believed that the trial judge, among others, had permitted the People’s witnesses to lie to the jury and/or otherwise engaged in some form of misconduct.  Simply put, the prosecutor’s conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel’s prompt objection and County Court’s appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored. People v Forbes, 104771, 3rd Dept 11-27-13

PROSECUTORIAL MISCONDUCT

 

 

Supreme Court Should Not Have Treated Pre-Answer Motion to Dismiss as Motion for Summary Judgment

The Third Department determined Supreme Court erred in treating respondents’ pre-answer motion to dismiss as a motion for summary judgment:

Generally, a summary judgment motion is premature prior to the service of an answer … .  However, a court may treat a pre-answer motion as one for summary judgment if it “give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to ‘deliberately chart[] a summary judgment course'” … .  There is no indication in the record before us – nor do the parties assert – that Supreme Court provided any notice of its intention to treat the motion as one for summary judgment. Thus, the question before us distills to whether the parties charted a summary judgment course by laying bare their proof…. .  [P]etitioners clearly did not lay bare all of their proof … .  … Under these circumstances, Supreme Court erred in treating respondents’ motion as one for summary judgment.  Dashmaw v Town of Peru, 516581, 3rd Dept 11-27-13

 

Invocation of Fifth Amendment Privilege Against Self-Incrimination by Both Attesting Witnesses Did Not Require Dismissal of Petition to Admit Will to Probate

The Third Department determined that Surrogate’s Court properly denied the motion to dismiss the petition.  Dismissal was sought because both attesting witnesses invoked their Fifth Amendment right against self-incrimination:

To establish that the will was duly executed, petitioner was required to produce the attesting witnesses for examination unless the law permitted the court to dispense with their testimony (see SCPA 1404 [1]).  The applicable statutes do not address the invocation of the privilege against self-incrimination by attesting witnesses, but this Court has found that such an invocation is akin to a failure to recall the events surrounding a will’s execution and, thus, that a will may be admitted to probate pursuant to SCPA 1405 (3) when one witness invokes the privilege, based on the testimony of the other witness or witnesses and sufficient other proof … .

Respondents contend that, as both attesting witnesses invoked the privilege here, the requirement in SCPA 1405 (3) for the testimony of “at least [one] other attesting witness” was not satisfied.   However, the Court of Appeals has held that SCPA 1405 (3) was not intended to “revolutionize[] prior practice” by requiring at least one attesting witness to testify in favor of a will … .  Instead, in holding that a will may be admitted to probate under SCPA 1405 (3) when no attesting witness recalls its execution, the Court found that – consistent with prior law – the statute requires attesting witnesses to be “examined, and all relevant testimony elicited” … but does not impose requirements upon the substance of their testimony.  * * * The issue thus distills to whether there was sufficient other evidence to establish a prima facie case of due execution, and we find that there was. Matter of Estate of Buchting…, 516257, 3rd Dept 11-21-13

 

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Property Owned by Religious Group Entitled to Real Property Tax Exemption

The Third Department reversed Supreme Court and determined a religious group (Cybeline Revival) had demonstrated its property was used primarily for religious and charitable purposes, and, therefore, the group was entitled to a real property tax exemption:

…[P]etitioner met its burden to demonstrate that it uses the property primarily for its religious and charitable purposes … .  In accord with Supreme Court’s determination, respondents contend that the property was used primarily to provide cooperative housing because, in essence, the few adherents of the Cybeline Revival have in effect just continued the property’s former residential use… .  However, these arguments contend that there is some threshold amount of activity and public benefit that must be demonstrated, which confuses the standard that is simply whether the property was used primarily for religious and charitable purposes … .  The testimony established that the Cybeline Revival stresses communal living among its adherents, as well as providing hospitality and charity to those in need, and the members consider this property the home of their faith … .  They also conduct religious and charitable activities throughout the property on a regular basis.  Accordingly, petitioner has satisfied the legal requirements in order to receive a real property tax exemption for 2009, 2010 and 2011 … .  Matter of Maetreum of Cybele, Magna Mater Inc v McCoy…, 515598, 3rd Dept 11-21-13

 

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Court Should Have Instructed Jury on Plaintiff’s Comparative Fault in this Legal Malpractice Action

The Third Department determined Supreme Court should have charged the jury on comparative fault in a legal malpractice action.  The client’s first priority security interest in equipment and vehicles had not been protected. The client alleged the attorney’s failure to file a UCC-1 and DMV liens constituted malpractice. With respect to the requested comparative-fault jury instruction, the Third Department explained:

 We agree with defendants’ contention that Supreme Court erred in refusing to charge the jury regarding plaintiff’s comparative fault.  The culpable conduct of a plaintiff client may be asserted as an affirmative defense in a legal malpractice action in mitigation of damages (see CPLR 1411, 1412…).  Here, the evidence was sufficient to support a finding that plaintiff could reasonably have been expected to understand the underlying obligations and formalities… .  Hattem v Smith, 516183, 3rd Dept 11-21-13

 

Because the Statute Relied Upon by the State Police to Deny a FOIL Request Did Not Pertain to the Sought Documents, the Request Should Have Been Granted/Court Cannot Substitute Another Ground for Denial

The Third Department determined an inmate’s FOIL request for lab reports, raw data, logbook entries, chain of custody forms and other documentation relating to the taking of blood samples should have been granted:

Courts reviewing administrative determinations may only rely on the grounds invoked by the agency, and if those grounds are improper, the courts may not substitute what they deem a legitimate or more appropriate basis … . Respondent relied on the portion of Executive Law § 995-c that states, “DNA records contained in the state DNA identification index shall be released” for only limited purposes, one of which is “for criminal defense purposes, to a defendant or his or her representative, who shall also have access to samples and analyses performed in connection with the case in which such defendant is charged” (Executive Law § 995-c [6] [b]).  For purposes of that statute, a DNA record is defined as “DNA identification information prepared by a forensic DNA laboratory and stored in the state DNA identification index for purposes of establishing identification in connection with law enforcement investigations or supporting statistical interpretation of the results of DNA analysis.  A DNA record is the objective form of the results of a DNA analysis sample” (Executive Law § 995 [8]).

Petitioner seeks lab reports, raw data, logbook entries, chain of custody forms and other documentation related to the taking of the blood sample and transporting of the sample and results.  He acknowledges that he has already received the actual DNA results from the Division of Criminal Justice Services. Aside from the lab reports that he has already received from another source, it does not appear that these documents are kept in the State’s DNA identification index, so they do not fall within the definition of DNA records.  Thus, Executive Law § 995c (6), which only applies to DNA records, does not apply to the majority of petitioner’s request.  As respondent failed to prove that the only ground it invoked for denial would exempt the requested documents – aside from the lab reports of DNA results that petitioner has already received and is not seeking on appeal – petitioner is entitled to receive those other documents… . Matter of Karimzada v O’Mara, 515412, 3rd Dept 11-21-13

 

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School District Attorney Was “Employee” Not “Independent Contractor”

The Third Department reversed the Comptroller’s finding that an attorney for a school district was an independent contractor, not an employee, requiring the attorney to refund retirement benefits already paid.  In explaining the criteria for an “employee” who provides professional services, the Third Department wrote:

Where professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship … .  Rather, such an employment relationship may be evidenced by “control over important aspects of the services performed other than results or means” …, i.e., “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … .  In our view, the Comptroller’s determination that petitioner was not an employee of the school district is not supported by substantial evidence.

Here, both the school board president and the assistant superintendent testified that the school board routinely engaged in discussions about whether to retain petitioner’s services as an employee or an independent contractor, and the board continually chose the former because it was more cost effective for the school district.  The testimony also indicated that, although there was no written contract with petitioner, the board and the assistant superintendent directed petitioner as to what work needed to be completed and when services were to be performed, the assistant superintendent and board reviewed petitioner’s work for its sufficiency and the president monitored petitioner’s performance and conducted annual performance evaluations.  Additionally, both the testimony and documentary evidence indicated that petitioner was a salaried employee paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and petitioner received a W-2 form annually.  Further, petitioner’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a “School Attorney” – an exempt position – at a salary in 1974 of $3,400 per year.  Matter of Mowry v DiNapoli, 516295, 3rd Dept 11-21-13

 

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ARTICLE 10 PROCEEDINGS ARE CIVIL IN NATURE, HOWEVER THE COURT ANALYZED WHETHER RESPONDENT COULD REPRESENT HIMSELF AND WHETHER HE WAS AFFORDED EFFECTIVE ASSISTANCE USING THE CRIMINAL LAW STANDARDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that Article 10 sex-offender commitment proceedings are civil in nature, but analyzed respondent’s request to represent himself and whether respondent received ineffective assistance under the criminal-law standards:

Supreme Court did not err in denying respondent’s request to proceed pro se. Assuming, without deciding, that a respondent in a Mental Hygiene Law article 10 proceeding has the same right of self-representation as a criminal defendant …, respondent’s request here was denied based on his failure to meet two prongs of the three-prong test:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .

Respondent made his request to proceed pro se only two business days before the second trial was scheduled to begin, which the court properly found untimely … . …The court properly denied his request based on … comments indicating that he would attempt to disrupt or prevent the orderly conduct of the trial …, along with the untimeliness of the request. …

Respondent was not deprived of the effective assistance of counsel. Initially, we hold that while Mental Hygiene Law article 10 proceedings are civil rather than criminal, and that ineffective assistance of counsel may only be considered in civil litigation if extraordinary circumstances are present, the indefinite and involuntary nature of confinement that may result in this type of proceeding constitutes such an extraordinary circumstance … .

Applying the criminal standard, we must determine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … . Matter of State of New York v Timothy BB., 2013 NY Slip Op 07774 [113 AD3d 18], Third Dept 11-21-13

 

Supreme Court Properly Declined to Give Husband Credit for Separate Property Contributions to Marital Residence—Husband Subsequently Conveyed Property to the Parties Jointly

The Third Department determined that Supreme Court properly declined to credit the husband with separate property contributions to the acquisition of the marital residence:

Although the residence was purchased prior to the marriage and the husband’s separate funds were used for the down payment and premarital mortgage payments, the husband conveyed the property to the parties jointly in 1998, creating a presumption that it then became marital property in its entirety … .  Under these circumstances, whether to grant the husband a credit for the contribution of separate property to the acquisition of this marital asset was within Supreme Court’s discretion …, and we find no abuse of that discretion here. Alecca v Alecca, 516659, 3rd Dept 11-21-13

 

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