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DEFENDANT IS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, DESPITE HIS WAIVER OF APPEAL; THE ISSUE HERE WAS RAISED AFTER THE COMPLETION OF THE APPEALS PROCESS BY A MOTION FOR A WRIT OF CORAM NOBIS (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was entitled to consideration of whether he should be afforded youthful offender status in spite of defendant’s waiver of appeal:

Defendant … moved for a writ of error coram nobis contending that Supreme Court neglected to consider whether he should be afforded youthful offender treatment in connection with his conviction of assault in the first degree and that appellate counsel, in turn, was ineffective for failing to raise this issue upon the direct appeals. This Court granted defendant’s motion to the extent of reinstating defendant’s appeals … and permitting defendant to brief the youthful offender issue … .

The People concede — and we agree — that remittal is warranted. People v Rudolph (21 NY3d 497 [2013]), which was decided before defendant was sentenced and the ensuing appellate process was completed, requires the sentencing court to make “a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” … . Notably, a defendant’s waiver of the right to appeal, regardless of its validity, does not foreclose review of the sentencing court’s failure to consider youthful offender status … . Where, as here, a defendant is convicted of an armed felony … , such defendant is not automatically precluded from obtaining youthful offender status; rather, “the court is [first] required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)” … . “If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states the reasons for that determination on the record, no further determination by the court is required. If, however, the court determines that one or more of the CPL 720.10 (3) factors are present, and the defendant is therefore an eligible youth, the court then must determine whether or not the eligible youth is a youthful offender”… . People v Jones, 2023 NY Slip Op 04689, Third Dept 9-21-23

Practice Point: Whether a defendant should be afforded youthful offender status can be raised on appeal, despite the waiver of appeal. Here the issue was raised after the appeals process was complete by a motion for a writ of coram nobis alleging appellate counsel was ineffective.

 

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REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION PREVENTING THE ENFORCEMENT OF A SUBPOENA TO TESTIFY AT THE SUSPECT’S TRIAL; THE PEOPLE DID NOT MEET THE CRITERIA OF CIVIL RIGHTS LAW 79-H, THE NEW YORK SHIELD LAW, WHICH PROTECTS REPORTERS FROM SUBPOENAS WHEN THE REPORTER’S TESTIMONY IS NOT “CRITICAL OR NECESSARY” TO THE PEOPLE’S CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined the petitioner, a reporter who had interviewed a murder suspect (Ramsaran) prior to his conviction (which was overturned), was entitled to a writ of prohibition preventing the enforcement of a subpoena to testify at the suspect’s second murder trial  The People did not meet the criteria required by Civil Rights Law 79-h known as the New York Shield Law:

… [P]etitioner has made a sufficient showing that, if in error, respondent (County Court Judge) exceeded his jurisdiction and power in denying petitioner’s motion to quash the subpoena and in ordering her to testify to the information that she obtained in her capacity as a journalist in contravention of Civil Rights Law § 79-h. * * *

To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make “a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source” … . * * *

Even accepting that the information was “highly material and relevant” to the prosecution of Ramsaran, the People failed to establish that it was “critical or necessary.” There is a multitude of other evidence against Ramsaran, including the statements that he made during his telephone calls to 911, his girlfriend and to the police, as well as DNA evidence of the blood found on his clothes and the victim’s van. Contrary to the People’s contentions, Ramsaran’s statements during the interview do not contradict any of his other statements, but rather corroborate other available evidence against him … . Matter of Canning v Revoir, 2023 NY Slip Op 04623, Third Dept 9-14-23

Practice Point: This is a rare example of the granting of a writ of prohibition preventing a judge from enforcing a subpoena. The subpoena sought the testimony of a reporter who had interviewed a murder suspect. The People did not meet the criteria of the New York Shield Law which protects reporters from subpoenas when the reporter’s testimony is not “critical or necessary” to the People’s case.

 

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THE PETITIONS FOR A PERMISSIVE REFERENDUM ON THE BONDS TO BE ISSUED FOR THE CONSTRUCTION OF CERTAIN TOWN BUILDINGS WERE NOT REJECTED WITHIN THE MEANING OF THE CONTROLLING STATUTES; THEREFORE THE TOWN WAS REQUIRED TO SET UP THE PERMISSIVE REFERENDUM FOR NOVEMBER 2023 (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the Town Clerk did follow the statutory procedure for rejecting the petitions for a permissive referendum on bonds to be issued to fund the construction of certain Town road-maintenance buildings. Therefore the town was obligated to set up the permissive referendum:

We need not … decide whether the Town Clerk acted beyond the scope of her authority in rejecting the referendum petitions prior to their filing because, contrary to respondents’ contentions, the subject referendum petitions were received and accepted for filing by the Town Clerk on October 11, 2022 … . The record contains a receipt of filing stating that the Town Clerk “received from [petitioner] three petitions” which were identified by name in the receipt. The receipt issued by the Town Clerk also bears both a signature and a date stamp indicating that the petitions were received for filing … . The receipt issued and signed by the Town Clerk did not constitute a legal rejection of the petition within the contemplation of Town Law § 91 and, as a matter of fact, was not so intended by her to be a rejection since she stated in her own affidavit that she subsequently reviewed the filed petitions with both the Association of Towns of the State of New York and the town attorney and consulted with them regarding the petitions’ handling. Matter of Long v Town of Caroga, 2023 NY Slip Op 04352, Third Dept 8-17-23

Practice Point: Here the statutory requirements for the rejection of petitions for a permissive referendum on bonds to be issued for the construction of town buildings were not met. To the contrary, the Town Clerk accepted the petitions, and the town must set up the permissive referendum for November 2023.

 

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THE FACT THAT THE CONTAMINATED AREA WHERE THE NEW CONSTRUCTION WAS TO BE LOCATED HAD BEEN REMEDIATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) WAS NOT ENOUGH TO ENSURE SAFETY WHEN THE SOIL IS DISTURBED FOR CONSTRUCTION; THE SEQRA REVIEW DID NOT TAKE THE REQUISITE HARD LOOK AT THE EFFECTS OF DISTURBING THE SOIL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the Plattsburgh Common Council, the lead agency responsible for review of a construction project pursuant to the State Environmental Quality Review Act (SEQRA), did not take the requisite hard look at the potential danger associated with disturbing the contaminated soil which had been cleaned up and declared remediated by the Department of Environmental Conservation (DEC):

… Supreme Court correctly determined that, although the soil contamination was addressed, the ZBA (Zoning Board of Appeals) and Planning Board failed to take a hard look at this issue … . More specifically, the failure in providing mitigation measures for this environmental concern did not comply with the mandates of SEQRA … . Preliminarily, the Common Council, and thereafter the Planning Board and ZBA, properly relied on DEC correspondence in determining that the project site in its current form did not present adverse environmental impacts … . Here, however, it was inappropriate to determine that there would be no adverse environmental impacts when it was known that the contemplated site plan would necessarily disturb the contaminated soil … . * * * The fact that the brownfield remediation was successful at the time does not discharge the involved agency’s duty to take a hard look relative to the project … . Indeed, the citizens who may be impacted have the right to insist that the construction be done in an environmentally safe manner in accordance with SEQRA.  Matter of Boise v City of Plattsburgh, 2023 NY Slip Op 04338, Third Dept 8-17-23

Practice Point: Here the construction area had been contaminated and was successfully remediated by the DEC. But the SEQRA review required a hard look at the effects of disturbing the soil n the remediated area during construction. The review could not simply rely on the remediation-conclusions of the DEC.

 

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THE APPEAL WAIVER WAS INVALID; ALTHOUGH DEFENDANT WAS SUFFERING FROM MENTAL ILLNESS AND WAS APPARENTLY ATTEMPTING TO COMMIT SUICIDE WHEN HE CAUSED THE TRAFFIC ACCIDENT RESULTING IN THE ASSAULT CHARGE, THE MAJORITY CONCLUDED THE SEVEN-YEAR SENTENCE FOR ASSAULT (THE MAXIMUM) SHOULD NOT BE REDUCED; A TWO-JUSTICE DISSENT ARGUED THE SENTENCE SHOULD BE REDUCED; A CONCURRENCE ARGUED THE APPEAL WAIVER WAS VALID (THIRD DEPT). ​

The Third Department, over a two-justice dissent and a concurrence, determined (1) the waiver of appeal was invalid, and (2) the sentence was not harsh and excessive. The dissenters argued defendant exhibited signs of mental illness and the traffic accident which was the basis of the assault charge was a suicide attempt, warranting a lesser sentence and rehabilitative measures. The concurrence argued the appeal waiver was valid:

The written appeal waiver executed by defendant during the plea allocution is overly broad in several respects, as it purported to create an absolute bar to a direct appeal by indicating that the appeal waiver “mark[s] the end of [his] case” and precludes him from pursuing collateral relief “in any state or federal court” … . Although County Court’s brief oral allocution advised defendant that certain appellate rights survive the waiver, this was not sufficient to cure the defects in the written waiver … and did not establish that he understood that some collateral and federal review survives the waiver …  Consequently, defendant did not knowingly, intelligently and voluntarily waive the right to appeal … .

From the dissent:

… [I]t is evident that defendant’s criminal conduct was not borne of a malicious intent nor of a conscious choice to act with reckless disregard for the lives of others; rather, the entirety of his conduct appears attributable to his profound mental illness, which was no longer adequately controlled at the time of the incident and casts serious doubt on the level of his culpability. Moreover, the record reveals that, at the time of the incident, defendant was 26 years of age, had no history of prior unlawful conduct and had been a productive member of society, as demonstrated by, among other things, his participation in a reserve officer training corps program while attending college … . Under these circumstances, we find that the societal benefits of deterrence and punishment achieved through a seven-year term of imprisonment, which is the maximum legal sentence for his conviction, are minimal and, more importantly, they are far outweighed by the rehabilitative considerations that support reducing this specific defendant’s sentence … . People v Appiah, 2023 NY Slip Op 03955, Third Dept 7-27-23

Practice Point: The appeal waiver was deemed invalid because it intimated all appellate issues were precluded.

Practice Point: Although defendant was suffering from mental illness and was apparently attempting to commit suicide when he caused the traffic accident (the basis of his assault conviction), the majority concluded his seven-year sentence should not be reduced. A two-justice dissent disagreed.

 

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DEFENDANTS’ EXPERTS’ CLAIMS THAT DEFENDANTS PROVIDED PROPER CARE AND ADVICE IN THIS MEDICAL MALPRACTICE ACTION WERE BELIED BY THE MEDICAL RECORDS AS EXPLAINED BY PLAINTIFF’S EXPERTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s experts in this medical malpractice action raised questions of fact about the negligence of each defendant. The decision is fact-specific and far too detailed to fairly summarize, but it provides insight into when expert affidavits are deemed sufficiently substantive to raise questions of fact:

… [W]hen viewed in a light most favorable to plaintiff, we find that the record raises several questions of fact as to whether each defendant satisfied the standard of care applicable to him or it … . Despite that each defendant and their respective experts opined that decedent was not presenting with the signs or symptoms of a stroke, this is belied by the medical record, which establishes that decedent was experiencing a stroke and/or vertebral artery dissection during the relevant time period that they treated decedent and presented with the “classic” symptoms associated with a stroke. At a minimum, these differing opinions create a question of fact, which plaintiff’s experts highlighted in so far that each defendant deviated from the standard of care by failing to refer decedent to a specialist or neurologist … . McCarthy v Town of Massena, N.Y. (Massena Mem. Hosp.)2023 NY Slip Op 03959, Third Dept 7-27-23

Practice Point: Here the medical records as explained by plaintiff’s experts raised questions of fact about whether plaintiff’s decedent was exhibiting symptoms of a stroke at the time defendants treated him, a diagnosis defendants allegedly failed to make.

 

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ALTHOUGH PETITIONER’S USING HIS CELL PHONE WHILE ON DUTY TO SEND EXPLICIT MESSAGES VIOLATED THE EMPLOYEE’S MANUAL AND WARRANTED PUNISHMENT, TERMINATION WAS TOO SEVERE A PENALTY (THIRD DEPT).

The Third Department, modifying Supreme Court, over a dissent, determined that petitioner, a civil service employee, was properly found to have violated the Employee’s Manual by using his cell phone while on duty to send explicit messages. However, termination was deemed too severe a penalty and the matter was remitted. The dissent argued termination was proper:

“Judicial review of an administrative penalty is limited to whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one’s sense of fairness” … . Petitioner was employed by respondent for 21 years at the time of the hearing and had a generally unremarkable disciplinary history….  Further, there is no indication that the messages were disseminated to any of his colleagues or subordinates or that there was a significant impact on the performance of his duties. To the contrary, the record establishes that petitioner consistently received strong evaluations for his work performance. Further, the record establishes that petitioner expressed remorse to respondent’s investigators, noting that he was not proud of his conduct, which he characterized as “unprofessional and even inappropriate.” Under these circumstances, we find that the penalty of termination “is so disproportionate to the offense and shockingly unfair as to constitute an abuse of discretion as a matter of law” and, accordingly, we remit the matter for consideration of a less severe penalty … . Matter of Brooks v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 03962, Third Dept 7-27-23

Practice Point: A civil service employee’s violation of general provisions of the Employee’s Manual, here the employee’s use of his cell phone to send explicit messages while on duty, warranted punishment . But termination was deemed too severe.

 

PETITIONER SEX OFFENDER’S ABSCONDING FROM SUPERVISION IS A NON-TECHNICAL VIOLATION OF PAROLE AUTHORIZING REINCARCERATION FOR 30 MONTHS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner committed a non-technical violation of his parole (absconding from supervision) for which he could be incarcerated for 30 months. Supreme Court had determined petitioner had committed a technical violation for which he could be incarcerated for only 15 days:

… [P]etitioner was released to postrelease supervision on August 4, 2020. On August 11, 2020, petitioner was charged with violating various conditions of release, including that he not abscond from supervision, and a parole warrant was issued. In March 2021, the Department of Corrections and Community Supervision (hereinafter DOCCS) was advised that petitioner had been arrested and charged with assault. DOCCS then issued a supplemental parole violation notice that included various new violation charges, including that petitioner had committed an assault while on release. In April 2021, a final parole revocation hearing was held during which petitioner pleaded guilty to the charge of absconding from supervision in satisfaction of all the violations with which he was charged. Pursuant to the terms of the agreement, the Administrative Law Judge (hereinafter ALJ) ordered that petitioner be held for 30 months. * * *

… [P]etitioner’s condition of parole prohibiting him from absconding — that he admitted to violating, prescribing petitioner from “intentionally avoiding supervision by failing to maintain contact with my [p]arole [o]fficer and failing to reside at my approved residence” — is in line with the Legislature’s concerns regarding sex offenders released on parole and is also reasonably related to petitioner’s sex offense and efforts to protect the public from the commission of a repeat of that offense so as to warrant classifying him as a non-technical offender under Executive Law § 259 (7) (b). People ex rel. Marrero v Stanford, 2023 NY Slip Op 03964, Third Dept 7-27-23

Practice Point: Under the Less is More Act DOCCS must determine whether a parole violation is technical, allowing only minimal reincarceration, or non-technical, allowing reincarceration up to the balance of the period of post-release supervision. Here the sex offender’s absconding from supervision was deemed a non-technical violation allowing reincarceration for 30 months.

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the requirements for a prescriptive easement over plaintiff’s property were not met and plaintiff did not prove the damages element of the trespass action. Plaintiff, however, was entitled to nominal damages for trespass:

… [O]ur independent review of the trial evidence reflects that defendant did not establish that the adverse use of the road continued for the requisite 10-year period. It follows that defendant’s counterclaim for a prescriptive easement must be dismissed and that, in the absence of that easement, [defendant] committed a trespass when he entered upon plaintiff’s property in 2004 … . * * *

… [P]laintiff failed to meet her burden of proving “[t]he lesser of the diminution in value of the property or the cost to repair” that would be the ordinary measure of damages for a trespass … or, for that matter, the loss of a specific number of trees for purposes of RPAPL 861 … . She was accordingly not entitled to an award of actual damages. Nevertheless, because “nominal damages can be presumed in an action for trespass to real property,” dismissal of her trespass claim was not warranted upon that basis … . Mastbeth v Shiel, 2023 NY Slip Op 03895, Third Dept 7-20-23

Practice Point: Here defendant did not prove 10 years of hostile use of plaintiff’s property and therefore did not demonstrate a prescriptive easement. Plaintiff did not prove the damages element of trespass and therefore was entitled only to nominal damages.

 

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