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Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure​

In a full-fledged opinion by Justice Peters, the Third Department determined that the records of a hit-and-run accident involving a state trooper, sought in a Freedom of Information Law (FOIL) request made by a newspaper journalist, may be protected by the Civil Rights Law 50-a if they are personnel records used to evaluate performance toward continued employment, even after employment has been terminated.  In this particular case, however, the Third Department ruled that the respondent (police department) failed to demonstrate that the records sought fell squarely within the Civil Rights Law exception and the motion to dismiss should not have been granted.

Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[] squarely within the exemption”….   Here, petitioners’ FOIL request sought all “records, in any form” that “relate[d] to” the off-duty incident involving Beardsley. In reply, respondent withheld all of the requested records on the basis of a blanket invocation of Civil Rights Law § 50-a, without describing any of the documents withheld or offering a specific basis for the claimed exemption … .  In the Matter of Hearst Corporation… v New York State Police, 515693, 3rd Dept, 5-30-13

 

 

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“Hose Company” Not Entitled to Payment of Tax Monies to Fire Department

The Third Department determined that a “hose company” was not part of the fire department and thus was not entitled to the payment of tax monies slated for the fire department:

The members of Citizens Hose are not trained to perform interior or exterior firefighting and, on the rare occasions when they are paged to assist the fire department, the few members who respond are limited to performing auxiliary services such as coiling hoses, directing traffic and  cleaning equipment. The evidence at trial established that whenever  the fire department  requires assistance in actually fighting a fire, it makes  a mutual aid call to volunteer fire companies in surrounding communities. Citizens Hose is not part of the mutual aid call system.  Krol … v Porter, 516002, 3rd Dept, 5-30-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

No Determinate Sentences for Youthful Offenders 

In a full-fledged opinion by Justice Stein, the Third Department concluded that the sentencing guidelines for youthful offenders do not allow the imposition of a determinate sentence:

Penal Law  §  60.02 (2) provides, as relevant here, that a sentencing court must  impose  upon  a youthful offender “a sentence authorized to be imposed upon a person convicted of a class E felony” (emphasis added).   In turn, the permissible prison sentence for a person convicted of an undesignated class E felony is an indeterminate sentence with a minimum of one year and a maximum of four years (see Penal Law §  70.00  [2] [e]). * * *

When Penal Law § 60.02 (2) is read in conjunction with CPL 720.20 (1) (a), it is clear that the authorized sentence for a youthful offender adjudication substituted for any  felony conviction is an indeterminate term that does not exceed a maximum of four years, “regardless  of  the  classification of  the  felony  committed”… .  People v Jorge D, 104930, 3rd Dept, 5-30-13

 

 

 

Challenge to Superior Court Information Does Not Survive Guilty Plea

The Third Department noted that a challenge to the factual sufficiency of a superior court information must be preserved by objection and does not survive a guilty plea (after indictment).  People v Martinez, 104837, 3rd Dept, 5-30-13

 

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Relationship Between Defendant’s Act and Fatal Car Accident Too Attenuated to Support Criminally Negligent Homicide

The Third Department determined that the relationship between the defendant’s act and a fatal car accident was too attenuated to support a conviction for criminally negligent homicide.  The defendant, a passenger, jerked the steering wheel, apparently in an attempt to intimidate or strike a car that was along side of the car defendant was in.  The car defendant was in struck a guard rail and caused the blockage of one lane of traffic.  The one car accident caused traffic to back up.  30 minutes later the fatal accident occurred.  The Third Department wrote:

“[A]n act ‘qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'”… .   A connection between the conduct and the death that is obscure or “merely probable” will not suffice ….  On the other hand, we note that the mere lapse of time will not  necessarily serve to break the chain of causation … .  Nor  does  a  defendant’s conduct  need  to be  the  sole cause  of death  in order  for criminal responsibility to attach ….  * * *

Here, the People failed to present evidence directly linking defendant’s act to the victims’ deaths …. Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was  a foreseeable result of the initial accident … . People v Ballenger, 104664, 3rd Dept, 5-30-13

 

 

 

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Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Rendered Her Position Adverse to Defendant’s

The defendant made a pro se motion to withdraw his plea of guilty.  In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should not have questioned defense counsel about the merits of the motion and should have assigned new counsel to the defendant once it was clear counsel’s position was adverse to defendant’s:

Under  established principles, defense counsel has no  duty to support a pro se motion that he or she has determined to be without merit, and failing to support such a motion “does not constitute a position adverse to the client” ….   Here, after properly informing County Court that she would not be making the motion on behalf of defendant, defense counsel responded to the court’s substantive inquiry that she found no  “legal basis” for his motion. Indeed, in denying defendant’s request for new counsel or for more time to make the motion, the court reiterated that defense counsel “in her knowledge and  understanding of this case [stated] that there’s no legal basis to withdraw your plea of guilty.”  “[O]nce counsel took a position adverse to . . . defendant, the court should not have proceeded  to determine the motion  without first assigning. . . defendant new counsel” … . People v McCray, 104161, 3rd Dept, 5-30-13

 

 

Indictment Count Did Not State an Offense; Jurisdictional Defect Can Not Be Cured by Amendment

The Third Department determined one count of an indictment was jurisdictionally defective and the People’s attempt to cure the defect by amendment was prohibited by CPL 200.70, which does not allow amendment to fix the failure to state or charge an offense:

Here, count 3 of the indictment charged defendant with conspiracy in the second degree, a crime which requires an “intent that conduct constituting a class A  felony be  performed” (Penal Law § 105.15). While count 3 references the relevant statutory section for conspiracy in the second degree and expressly states that defendant acted “with intent that conduct constituting a class A felony be performed,” it does not include any statutory reference to the class A  felony listed in count 1 of the indictment. * * *

While it is true that “[t]he incorporation [in an indictment] by  specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon” …, such reference may be negated, as it was here, by the inclusion of conduct that does not constitute the crime charged …. People v Boula, 104053, 3rd Dept, 5-30-13

 

 

Includable/Excludable Time Under Speedy Trial Statute Explained​

The Third Department explained the principles and proof requirements with respect to excludable time under the speedy trial statute, including a detailed analysis of all the relevant types of excludable/includable time raised by the facts of the case:

Where, as here, a defendant is charged with a misdemeanor punishable by a sentence of more than three months of incarceration, the People are required to be ready for trial within 90 days of the commencement of the criminal action (see CPL 30.30 [1] [b];…).   “Whether  the People  complied  with this obligation is ‘determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any  periods of delay that are excludable under  the terms  of the statute and  then  adding  to the result any postreadiness periods of delay that are actually attributable to the People  and  are ineligible for an  exclusion'”… . People v Sydlar, 103777, 3rd Dept, 5-30-13

 

 

Deputy Sheriff Fired for Incompetence and Insubordination Was Entitled to Unemployment Benefits

In upholding the finding that a former sheriff’s deputy was entitled to unemployment insurance benefits, even though he was terminated for incompetence and insubordination, the Third Department noted that collateral estoppel applied to the factual findings in the Civil Service proceeding, but the Unemployment Insurance Appeal Board could make its own determination whether the facts supported denial of unemployment benefits:

Given that claimant had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law § 75 hearing, the Board properly accorded collateral estoppel effect to the factual findings of the Hearing Officer… .  It was, however, incumbent upon the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying claimant from receiving unemployment insurance benefits….  Significantly, “[t]he  same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes….  The Board’s decision in this regard will not  be  disturbed  if supported  by substantial evidence … . Matter of Guynup, 515235, 3rd Dept, 5-23-13

 

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