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Defendant Who Pled to All Charges Without a Plea Bargain Could Not Be Required to Waive Appeal

The Third Department noted that the defendant should not have been required to waive his right to appeal where he pled to all the charges and there was no plea bargain:

Having exercised his statutory  right to  plead  guilty to  all of  the charges levied against him in the indictment and inasmuch as “no promise, plea agreement, reduced charge, or any other bargain or consideration” was given in exchange for that plea, defendant was improperly required to waive his right to appeal … .  People v Crump, 104433, 3rd Dept, 6-6-13

 

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SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced

The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders.  The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not incarcerated and requires a Board assessment before discharge when the defendant is incarcerated.  Here the defendant was released from incarceration on the day he was convicted. In holding the SORA properly made the assessment in the absence of a Board recommendation, the Third Department wrote:

Although SORA charges the Board with responsibility for making a risk level recommendation relative to incarcerated offenders, the ultimate responsibility for the risk level determination  is vested  in the  sentencing  court, which  “‘in the exercise of its discretion, may depart from [the Board’s] recommendation and determine the sex offender’s risk level based upon  the facts and circumstances that appear in the record'”…. In our view, this judicial obligation necessarily includes the authority to determine the appropriate procedure for a  risk level determination where,  as  here, the circumstances are not fully addressed by the SORA statutory scheme. This conclusion is supported by the statutory provisions addressing failures by  the  Board  to complete its statutory obligation; where the Board fails to issue a timely recommendation, SORA  provides that the court must nonetheless make  a risk level determination and, if it cannot do  so before the offender is discharged, must “expeditiously complete the hearing  and  issue its determination”  after his or  her  release (Correction Law § 168-l [8]). In effect, that is the procedure that County Court followed here.  People v Grimm, 104233, 3rd Dept, 6-6-13

 

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Waiver of Appeal Not Sufficient

The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea.  The defendant was 21 years old, had no prior criminal history and had some mental health problems.  The Third Department wrote:

…[T]he court did not ensure that “defendant ha[d] ‘a full appreciation of the consequences’ of such waiver”…, which requires record proof that the defendant “comprehend[s] that an  appeal waiver ‘is separate and  distinct from  those rights automatically forfeited upon  a plea of guilty'”….  This was  especially important considering defendant’s age, mental health history and lack of prior criminal history; defendant was 19 years old at the time of the crime and 21 at the time of sentencing, had  been diagnosed and  had  ongoing problems with attention deficit hyperactivity disorder, past history of suicidal ideation, bipolar disorder, a possible learning disorder and  a significant history of acting out on  impulse.  The written waiver also failed to explain the separate and distinct nature of the right being waived.  As it is not evident on the face of the record that defendant was  aware  of this separate and  distinct nature, we cannot be sure that his waiver of the right to appeal was knowingly and intelligently made… .  People v Bouton, 103593B, 3rd Dept, 6-6-13

 

Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts

The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant:

Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to  enable  defendant  to  distinguish each count. Rather than identify each count temporally or by physical evidence, the People sought to remedy the defect by providing the name of an intended victim for each count. However, reckless endangerment is a conduct-specific, rather than a victim-specific, crime….  Thus, despite the amendment, the conduct underlying each count of the indictment remained unclear, as none of the seven shots fired hit any of the individuals named in the indictment.  As a result, there is simply no way to match each count of the indictment with the specific underlying conduct of defendant that would insure that the jury had reached a unanimous verdict with regard to each count and,  therefore, the  reckless endangerment  counts  must  be dismissed as duplicitous… . People v Estella, 103574, 3rd Dept, 6-6-13

 

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Initial Detention at Gun-Point Was Not an Illegal Arrest

The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest:

Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant’s presence alongside the residence and the absence of any other individual in the vicinity, the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of defendant’s possible involvement in the armed robbery… . Furthermore, defendant was informed that he was being detained, was not questioned during that period of time and was held at the crime scene in order to effectuate showups by the victims of the robbery… . People v Stroman, 103148, 3rd Dept, 6-6-13

SUPPRESSION

 

Motion to Resettle Explained

In determining petitioner’s motion was not a motion to resettle because it sought to amend, rather than merely clarify, a judgment, the Third Department explained:

[A motion to resettle] is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision”…. Such  motions  rest on  the inherent power  of courts to  “‘cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'”…. Here, petitioners’ motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court’s prior judgment … .  Matter of Torpey v Town of Colonie, 515902, 3rd Dept,. 6-6-13

 

Supreme Court’s Annulment of Regulation Permitting Out-Of-Competition Drug Testing of Harness Racehorses Reversed

The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law.  In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein and peptide-based drugs” because it conflicted with the permitted-use regulation. Matter of Ford v NYS Racing and Wagering Board, 514622, 3rd Dept, 6-6-13

 

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No Investment Tax Credit for Company which Delivered Natural Gas, as Opposed to Processing or Manufacturing a Product

The Third Department upheld the NYS Tax Appeals Tribunal’s determination that the petitioner, Brooklyn Union Gas Company, was not entitled to an investment tax credit (ITC) because it was in the business of delivering natural gas, not producing or processing a product as those terms are construed for an ITC under the Tax Law:

The record amply supports, for purposes of our limited review, the Tribunal’s determination that petitioners’ integrated system  was  primarily one  of  distribution and  delivery  rather than processing or manufacturing.  The  vast  majority  of petitioners’ 11,000-mile system, both  in terms  of size and  cost, is comprised of pipes and  mains  through  which  natural gas  flows.  No material change occurs to the natural gas while in the pipes and mains, as these serve as the primary means for delivering the product. Viewing the system as a whole, the modifications made by petitioners to the gas  –  while important –  do  not  result in a significant change  in the product.  Matter of Brooklyn Union Gas Company v NYS Tax Appeals Tribunal, 514825, 3rd Dept, 6-6-13

 

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Lane Abutting Properties Was Not Owned by Property-Owners

The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:

Fiebelkorn [a leading case] and its progeny stand for the general proposition that “[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes”….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs’ deeds contain no reference to a map. * * *

Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation’s inventory of local roads lying within the Village’s jurisdiction, and (c) the  Village  “has  never  maintained”  it.  Plaintiffs’ dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13

 

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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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