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THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department (1) granted the writ of coram nobis based upon appellate counsel’s failure to raise the issue, and (2) ordered a new trial on the second degree murder charge because the jury instruction on depraved indifference was defective. Although the issue was not preserved, the Third Department considered it in the interest of justice:

Defendant asserts that County Court’s instructions to the jury regarding depraved indifference murder were consistent with the overruled objective standard set forth in People v Register (60 NY2d 270 [1983] …), and therefore the court’s instructions failed to explain the requisite culpable mental state as required by People v Feingold (7 NY3d 288 [2006]). We agree. In discharging its duty to deliver a charge to the jury, “[a] court must instruct the jury regarding both the ‘fundamental legal principles applicable to criminal cases in general’ and those ‘material legal principles applicable to the particular case’ ” (… CPL 300.10 [1], [2]). At the time of defendant’s trial, the Court of Appeals had already held that “depraved indifference to human life is a culpable mental state” … . As a result, “under Feingold, it is not the circumstances under which the homicide occurred that determines whether [a] defendant is guilty of depraved indifference murder, but rather [the] defendant’s mental state at the time the crime occurred” … .

Upon our review of the record, which reflects that County Court had twice instructed the jury with the overruled objective standard, “the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, [and therefore] we cannot conclude that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at a decision” … . People v Weaver, 2023 NY Slip Op 02352, Third Dept 5-4-23

Practice Point: The depraved indifference jury instruction was similar to the overruled objective standard requiring a new trial. Depraved indifference is the defendant’s mental state at the time of the crime, not the circumstances of the commission of the homicide.

Practice Point: Although the issue was not preserved, appellate counsel was ineffective for failing to raise it on appeal. Here the writ of coram nobis was granted, the conviction reversed and a new trial ordered.

 

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PAROLEES DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; HERE THE SEARCH BY PAROLE OFFICERS WAS BASED UPON A TIP FROM DEFENDANT’S MOTHER; THE SEARCH WAS DEEMED SUBSTANTIALLY RELATED TO THE PAROLE OFFICERS’ DUTIES; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, over a comprehensive dissent, determined the parole officers’ search of defendant-parolee’s residence based upon a tip from his mother was proper. Mother, with whom defendant resided, said she saw a picture of defendant with a gun. In the search extended magazines and gun parts were found in defendant’s bedroom:

The general rules and conditions of release typically require a parolee to submit to a warrantless search by his or her parole officer … . The record evinces that defendant executed such a document. However, “a parolee does not surrender his or her constitutional rights against unreasonable searches and seizures, [and] what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is. Accordingly, a search of a parolee undertaken by a parole officer is constitutional if the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty and was substantially related to the performance of duty in the particular circumstances” … .

* * * Since the information concerning defendant’s possible violation of his parole conditions came from his mother, there existed a legitimate reason for the search undertaken and it was substantially related to the performance of the parole officer’s duties … . People v Spirito, 2023 NY Slip Op 02353, Third Dept 5-4-23

Practice Point: Parolees do not give up the right to contest an unreasonable search. Here the search was prompted by a tip from defendant’s mother and was deemed substantially related to the parole officers’ duties. There was a comprehensive dissent.

 

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SETTING A RETURN DATE LESS THAN 20 DAYS FROM THE DATE OF SERVICE OF THE ARTICLE 78 PETITION WAS NOT, UNDER THE FACTS, A JURISDICTIONAL DEFECT; THE PETITION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the failure to provide the requisite 20-day notice in an Article 78 petition, under the facts, was not a jurisdictional defect and the dismissal of the petition was an abuse of discretion. Petitioners sought to contest a ruling of the NYS Office of Children and Family Services which refused to find a maltreatment report unfounded re: one of the petitioners:

Pursuant to CPLR 7804 (c), “a notice of petition, together with the petition and affidavits specified in the notice, shall be served . . . at least [20] days before the time at which the petition is noticed to be heard.” However, CPLR 2001, which has been held to apply to service defects … , authorizes a court to “permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” In deciding whether a defect in service is a “technical infirmity” within the scope of CPLR 2001, “courts must be guided by the principle of notice to the [respondent] — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” … .

… [I]t is … wholly undisputed that the subject application was not heard on the return date proposed by petitioners, nor was there any appearance before Supreme Court, either held or calendared, prior to respondents’ motion. It is further undisputed that, apart from failing to strictly comply with CPLR 7804 (c), petitioners properly served respondents. Thus, this case is functionally no different than those in which a return date has been omitted from a notice of petition, and such failures have been held to be technical infirmities within the scope of CPLR 2001 … . Given these facts, although the return date on the notice of petition was defective at the time of service, we find that the service effectuated by petitioners was reasonably calculated to apprise respondents of this proceeding and afford them the opportunity to defend against it … . Matter of Naomi R. v New York State Off. of Children & Family Servs., 2023 NY Slip Op 02362, Third Dept 5-4-23

Practice Point: Here, under the facts, the failure to provide the required 20-day notice (service at least 20 days before the return date) for an Article 78 petition did not prejudice the respondent and was not a jurisdictional defect. The petition should not have been dismissed.

 

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THE DEPARTMENT OF HEALTH REGULATIONS PLACING A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE PLACED IN LARGE (AT LEAST 80-BED) ADULT HOMES DOES NOT CONSTITUTE DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the cap on the number of seriously mentally ill persons who can be placed in large adult homes (at least an 80-bed capacity) did not amount to unconstitutional discrimination under the Americans with Disabilities Act (ADA):

On this record, we conclude that respondent has demonstrated that the admissions cap was implemented to benefit, rather than to discriminate against, persons with serious mental illness … .

… [R]espondent [Commissioner of Health] has demonstrated that the challenged regulations are narrowly tailored to implement the integration mandate of Title II of the ADA and that the “benefit to the [protected class from the subject regulations] . . . clearly outweigh[s] whatever burden may result to them” … . The admissions cap applies only to people with a serious mental illness — those “who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders . . . and whose severity and duration of mental illness results in substantial functional disability” (18 NYCRR 487.2 [c] … ). Accordingly, the cap is specifically tailored to the very individuals who are the subject of the integration mandate. Rather than limiting admissions to all adult homes, the regulations apply solely to a subcategory of large adult homes — those certified with at least an 80-bed capacity — where new admissions would increase the population of persons with serious mental illness over the 25% threshold. Matter of Oceanview Home for Adults, Inc. v Zucker, 2023 NY Slip Op 02365, Third Dept 5-4-23

Practice Point: The cap on the number of seriously mentally ill persons who can be placed in large adult homes does not amount to unconstitutional discrimination against persons with disabilities.

 

EXPOSURE TO AND CONTRACTION OF COVID-19 IN THE WORKPLACE IS AN UNUSUAL HAZARD WHICH IS COMPENSABLE UNDER THE WORKERS’ COMMPENSATION LAW; HOWEVER HERE THERE WAS NO PROOF DECEDENT CONTRACTED COVID-19 AT HIS WORKPLACE (THIRD DEPT).

The Third Department noted that contracting COVID-19 in the workplace qualifies as an unusual hazard which is compensable under the Workers’ Compensation Law. Here the claimant’s husband last worked on March 11, 2020, experienced COVID-10 symptoms on March 13 and died on March 29, 2020. But there was no evidence decedent was exposed to COVID-19 in the workplace:

… “[T]he contraction of COVID-19 in the workplace reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers’ Compensation Law” … . Nevertheless, whether a compensable accident has occurred is a question of fact to be resolved by the Board, and its determination in this regard will not be disturbed where supported by substantial evidence … . To this end, “the claimant bears the burden of establishing that the subject injury arose out of and in the course of his or her employment” … . …

Claimant offered no evidence or testimony of decedent’s specific exposure to COVID-19 in his workplace. Further, no evidence was presented indicating any cases of COVID-19 among those living or working in the group home where decedent was house manager, or among other employees with whom decedent may have had contact, prior to or contemporaneous with his onset of symptoms. In fact, the employer’s witness testified that decedent was the first known COVID-19 infection in his workplace. Although another worker at the same group home later contracted COVID-19 and succumbed to the disease, the employer’s witness testified that the other worker tested positive two weeks after decedent’s positive test. Moreover, claimant did not know the extent to which, if at all, decedent personally interacted with others at the group home where he worked. In view of the foregoing, substantial evidence supports the Board’s conclusion that claimant failed to meet her burden to demonstrate that decedent contracted COVID-19 in the course of his employment … . Matter of Holder v Office for People with Dev. Disabilities, 2023 NY Slip Op 02156, Third Dept 4-27-23

Practice Point: Exposure to and contraction of COVID-19 is an unusual hazard which is compensable under the Workers’ Compensation Law. Here however there was no proof decedent contracted COVID-19 at his workplace.

 

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THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a concurrence, determined judge improperly dismissed a juror in the absence of an adequate inquiry:

After juror No. 1 was selected and sworn in, but before jury selection had concluded, County Court made a record that juror No. 1 “needed to go home due to some health issues” but was advised, and agreed, to return the next day at 9:00 a.m. However, as of 9:28 a.m. the next morning, the court noted that juror No. 1 had not returned and, because the juror had left ill the prior day, the court found it “necessary to just replace her with the first alternate at this point.” Defense counsel then registered an exception to the court’s replacement of juror No. 1 … . Thereafter, County Court failed to conduct any inquiry regarding the absence of juror No. 1. When asked whether the court had received any notification from the juror, the court responded, “No. Basically, I don’t have juror number one. She’s just plain not here. She left early yesterday ill . . . . So, we are going to replace juror number one.” Although replacement of a juror is generally left to the court’s discretion, “[w]ithout a reasonably thorough inquiry, . . . the exercise of the court’s discretion on the ultimate issue of whether or not to replace the juror [was] uninformed” … .. County Court was certainly not required to wait two hours before substituting juror No. 1, but, on the record before us, it impermissibly presumed that she was “unavailable for continued service without conducting the requisite reasonably thorough inquiry and determining that [the] juror [was] not likely to appear within two hours” … . People v Watts, 2023 NY Slip Op 02144, Third Dept 4-27-23

Practice Point: Here a juror didn’t show up at 9:30 a.m. and the judge replaced her without making an inquiry. Defense counsel preserved the error by registering an exception. A new trial was ordered.

 

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IN THIS TAX FORECLOSURE PROCEEDING, THE COUNTY MUST PROVE IT COMPLIED WITH THE NOTICE REQUIREMENTS OF RPAPL 1125; EVEN THOUGH THE COUNTY PROVED IT MAILED THE NOTICE AND THE LETTERS WERE NOT RETURNED, PLAINTIFFS RAISED A QUESTION OF FACT ABOUT WHETHER THE COUNTY COMPLIED WITH RPAPL 1125 BY OTHER PROOF INDICATING NOTICE WAS NOT RECEIVED (THIRD DEPT).

The Third Department, reversing its prior decision after a reversal by the Court of Appeals, over a two-justice dissent, determined that the plaintiff had raised questions of fact about whether it was notified of the tax foreclosure proceeding by defendant county. The Court of Appeals had ruled that, although the county proved the notice was mailed the letters were not returned, plaintiffs could prove the notice was not received by other evidence:

… “[A]lthough the statute contains no requirement of actual notice and evidence of the failure to receive notice is,by itself, insufficient to demonstrate noncompliance, an interested party may create a factual issue as to whether the taxing authority has complied with the requirements of RPTL 1125 (1) (b) by other relevant proof, despite the taxing authority’s submission of the ‘affidavit[s] of mailing’ mandated by section 1125 (3) (a) and evidence that no mailings were returned” … . …

Although we are aware that, on its own, failure to receive notice is insufficient to defeat summary judgment … , such failure, when combined with other evidence, can support a reasonable inference that defendants failed to comply with the mailing requirements of RPTL 1125 (1) (b) (i). … [I]f the notices were not received, there are only two real possibilities — either the procedure used by defendant County … failed to comply with RPTL 1125 (1) (b) (i) inasmuch as the wrong address was affixed, or the United States Postal Service made an error. When viewed in conjunction with the further facts that the certified mail tracking history indicated an unknown address and that the return receipt was unstamped, it is reasonable to infer, together with the additional evidence of nonreceipt, that the notices were not correctly mailed and that the County failed to comply with the requirements of RPTL 1125 (1) (b) (i). James B. Nutter & Co. v County of Saratoga, 2023 NY Slip Op 02148, Third Dept 4-27-23

Practice Point: In this tax foreclosure proceeding, the county submitted prima facie proof it complied with the notice requirements of RPAPL 1125 by submitting proof the letters were mailed and not returned. However, the plaintiffs submitted evidence that the notice was not received, which raised a question of fact about whether the county in fact complied with RPAPL 1125.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT).

The Third Department determined burglary as a sexually motivated felony is not a registrable offense under SORA:

… [W]e agree with defendant, as well as the People’s concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a “[s]ex offense” pursuant to Correction Law § 168-a (2) (a) … .

… [T]he judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee … . People v Vakhoula, 2023 NY Slip Op 02034, Third Dept 4-20-23

Practice Point: Burglary as a sexually motivated felony is not a registrable offense under SORA. Conviction does not require registration as a sex offender.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of defendant’s murder first degree convictions:

… [W]e agree with defendant’s contention that his convictions for second degree murder (counts 2 and 3) must be dismissed as inclusory concurrent counts of his convictions for murder in the first degree (counts 7, 8 and 9) (see CPL 300.40 [3] [b]). People v Burton, 2023 NY Slip Op 01919, Third Dept 4-13-23

Practice Point: Here the murder second degree convictions were reversed as inclusory concurrent counts of the murder first degree convictions.

 

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