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THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

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THE STRIP SEARCH OF DEFENDANT WAS JUSTIFIED AND CONDUCTED PROPERLY (THIRD DEPT).

The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper:

“[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified at the suppression hearing that the search of the vehicle led to the discovery of 1.1 grams of marihuana in the center console. A K-9 search of the vehicle revealed “hits” at both the center console and the driver’s seat. According to the trooper, during the transport of defendant to the State Police barracks, the smell of marihuana was “overwhelming.” At the barracks, defendant was handcuffed to a bench and the trooper continued to smell marihuana. Each time the trooper asked defendant if he had marihuana on him, he denied it. After defendant was advised that he was to be strip-searched, he was taken to a private interview room and the search was conducted by two male officers. Defendant was asked to remove one article of clothing at a time; when he was down to his underwear, defendant handed over the marihuana, and the cocaine was revealed shortly thereafter. Given this evidence, a reasonable suspicion existed that defendant was concealing evidence and we find that the search was conducted in a reasonable manner … . People v Hightower, 2020 NY Slip Op 04513, Third Dept 8-13-20

 

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THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined defendant’s assertion that he was not adequately informed of the rights he was giving up by pleading guilty was not preserved for appeal. The dissent argued the court should consider the appeal under its interest of justice jurisdiction and reverse the conviction:

Defendant also asserts that his guilty plea was not knowing, voluntary and intelligent because County Court did not fully advise him of the rights that he was giving up by pleading guilty. This claim was not preserved for our review as the record does not disclose that defendant made an appropriate postallocution motion … , and we decline to exercise our interest of justice jurisdiction to take corrective action.

From the dissent:

… County Court engaged in a limited and brief exchange with defendant in which it explained that, by pleading guilty, defendant was giving up the “right to remain silent and not to incriminate yourself,” the “right to a jury trial” and “any other rights you have on a trial.” County Court failed to advise defendant of his right to be confronted by witnesses. Additionally, and significantly, when asked if he had discussed the plea and its consequences with counsel, defendant merely stated, “She told me about violating, would be like 90 days. I understand.” The record does not establish that defendant understood and affirmatively waived the trial-related rights that he was automatically forfeiting by pleading guilty and, thus, defendant’s plea is invalid … . People v Cruz, 2020 NY Slip Op 04514, Third Dept 8-13-20

 

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FAMILY COURT RESOLVED CONFLICTING EVIDENCE AND CREDIBILITY ISSUES WITHOUT A HEARING, FAILED TO ACCEPT ALLEGATIONS IN A PRO SE MODIFICATION OF CUSTODY PETITION AS TRUE, IMPOSED A SANCTION FOR A VIOLATION OF A CUSTODY ORDER WHICH IS NOT ALLOWED BY THE CONTROLLING STATUTES, AND FAILED TO TAKE THE BEST INTERESTS OF THE CHILDREN INTO ACCOUNT (THIRD DEPT).

The Third Department, reversing Family Court, noted several errors in these proceedings which began with father’s violation of custody petitioner followed by two modification of custody petitions by mother. All the petitions were brought pro se. Family Court erred: (1) in dismissing mother’s modification petitions without a hearing; (2) in failing to accept as true and liberally construe mother’s pro se allegations; (3) in making factual findings and credibility determinations in the absence of a hearing on the modification petitions; (4) and in imposing an impermissible sanction on mother for an alleged violation of a custody order:

Family Court did not liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. …

… [R]ather than accept the mother’s allegations as true, Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father … . …

… [T]he only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753 [A]; Family Ct Act § 156 …). However, Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children. Matter of Gerard P. v Paula P., 2020 NY Slip Op 04515, Third Dept 8-13-20

 

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ALTHOUGH THE VICTIM’S FACIAL SCARS WERE SHOWN TO THE JURY NO DESCRIPTION OF THE SCARS APPEARS IN THE TRIAL RECORD AND NO PHOTOGRAPH OF THE SCARS WAS INTRODUCED; THEREFORE THE SERIOUS DISFIGUREMENT ELEMENT OF ASSAULT FIRST WAS NOT DEMONSTRATED AND THE ASSAULT FIRST CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (THIRD DEPT).

The Third Department, finding the assault first conviction to be against the weight of the evidence and reducing it to attempted assault first, determined the record of the evidence presented at trial did not support the serious disfigurement element in this knife attack case:

The testimonial, photographic and documentary evidence demonstrated that the victim sustained a laceration to his right cheek that was approximately four centimeters long, as well as a similarly sized laceration transversing the tip of his nose to his right nostril. Both lacerations were sutured by a plastic surgeon. Although the evidence clearly demonstrated the locations of the lacerations and their size prior to and immediately after suturing, the record is imprecise as to the extent and appearance of any resulting facial scars. The People did not introduce a photograph depicting the victim’s nose and right cheek at the time of trial or any time after the sutures had been removed and the lacerations healed … . Further, although the physician who treated the victim testified that the victim was expected to have facial scars and the victim did in fact display facial scars to the jury, the People failed to make a contemporaneous record of what the jury observed, so as to demonstrate the extent and appearance of those scars … . Moreover, despite their prominent locations, there is no indication that the relatively small facial lacerations produced jagged, uneven or “unusually disturbing” scars … . In the absence of a photograph depicting the victim’s facial scars or an on-the-record description of the victim’s scars at the time of trial, we cannot conclude that the record evidence supports a finding of serious disfigurement … . People v Harris, 2020 NY Slip Op 04431, Third Dept 8-6-20

 

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DOCTRINE OF PRIMARY JURISDICTION PRECLUDED THIS CIVIL SUIT AGAINST OFFICERS OF THE UTILITY AFTER THE PUBLIC SERVICE COMMISSION DETERMINED PLAINTIFF’S ELECTRICITY HAD BEEN PROPERLY CUT OFF BY THE UTILITY BECAUSE PLAINTIFF HAD REPLACED THE METER (THIRD DEPT).

The Third Department determined the doctrine of primary jurisdiction precluded plaintiff’s lawsuit against former officers of the Central Hudson Gas & Electric Corporation. Plaintiff believed the digital encoder receiver transmitter (ERT) installed at his home by the utility to replace an analog meter emitted cancer-causing radiation. Plaintiff removed the ERT and replaced it with an analog meter. The utility considered the meter dangerous and cut off plaintiff’s electricity. Plaintiff complained to the Public Service Commission (PSC) which supported the utilities’ power cut-off and informed plaintiff of his appeal rights. Plaintiff did not appeal and started the instant civil suit:

… [W]e find that Supreme Court was correct in its interpretation of the doctrine of primary jurisdiction. Under the doctrine of primary jurisdiction, a court has the discretion to refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction, and the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of the agency … . Here, the issues concern the particular meter used by Central Hudson, plaintiff’s removal and replacement of same, the safety concerns caused by his actions and the validity of the disconnection of his service. These matters fall under the doctrine and, thus, were appropriate for PSC determination. We also agree with Supreme Court’s assessment that the causes of action found in plaintiff’s complaint amount to little more than a rebranding of his PSC claim and were properly dismissed … .

… [W]e agree with Supreme Court’s determination that review of a PSC ruling is limited to a CPLR article 78 proceeding. “Supreme Court, in determining the motion for [summary judgment,] properly considered whether the . . . primary jurisdiction doctrine[] precluded the causes of action propounded by plaintiff[]” … , and that, in order to review the original ruling, it was incumbent upon plaintiff to bring an article 78 proceeding … . [Romine] v Laurito, 2020 NY Slip Op 04432, Third Dept 8-6-20

 

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POLICE OFFICER WAS JUSTIFIED IN FOLLOWING DEFENDANT’S CAR AFTER OBSERVING A TRAFFIC VIOLATION, DIRECTING THE OCCUPANTS OF THE CAR TO RETURN TO THE CAR AFTER IT PULLED INTO A RESIDENTIAL DRIVEWAY, AND DETAINING THE DEFENDANT AND CONDUCTING A SEARCH ON THE PROPERTY AFTER THE HOMEOWNER SAID HE DID NOT KNOW THE OCCUPANTS OF THE CAR (THIRD DEPT).

The Third Department determined the police officer acted properly in following the defendant’s car after observing a traffic violation, directing the occupants of the car to return to car after it pulled into a residential driveway, detaining the defendant when the homeowner said he did not know the defendant and the others, and arresting the defendant after a weapon was found after a search behind the house:

The officer observed a traffic infraction when the vehicle ran a stop sign …  and was accordingly justified in approaching the vehicle after he had caught up to it … . Defendant suggests that the traffic infraction was a pretext for making the approach, but that contention is unpreserved for our review … . As a result, although one might reasonably question why the officer, upon seeing a traffic violation of sufficient gravity to cause him to make a U-turn and follow the vehicle, did not put on his siren or emergency lights, and then approached the vehicle with more apparent interest in the passengers than the driver, the record was not developed on the possibility of an ulterior motive for the officer’s actions. It follows that the record affords no basis for defendant’s speculation as to the officer’s motivations. We are, in any event, bound by controlling precedent that those speculative motivations would not render an otherwise proper approach invalid … .

The officer had discretion to “control the scene in a way that maximize[d]” safety as the approach unfolded, could have directed defendant to exit the vehicle had he been in it and, in  … view of the heightened safety concerns stemming from defendant’s refusal to return to the vehicle and brief disappearance behind the house, was free to direct that defendant sit on the hood of the vehicle upon his return … . Shortly thereafter, the officer learned that the homeowner did not know anyone in the vehicle despite their claims and had watched defendant throw something away behind the house. The foregoing created a reasonable suspicion of criminal activity by defendant that warranted his detention, after which the handgun was recovered and afforded probable cause for his arrest … . People v Price, 2020 NY Slip Op 04430, Third Dept 8-6-20

 

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LOCAL LAW REVISING ZONING DISTRICTS AND ALLOWING MINING WAS VALIDLY ENACTED; CONTRARY TO SUPREME COURT’S FINDING, TWO PETITIONERS HAD STANDING BY VIRTUE OF THEIR OWNING PROPERTY SUBJECT TO THE NEW ZONING PROVISIONS; ONE PORTION OF THE LOCAL LAW USURPED THE POWERS OF THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) AND WAS ANNULLED; ANOTHER PORTION ADDRESSING TRUCK TRAFFIC VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS ANNULLED (THIRD DEPT).

The Third Department, in a comprehensive and detailed decision which can not be fairly summarized here, determined a local law which included and new zoning map, revised zoning districts and allowed mining on properties with existing permits was validly enacted. Disagreeing with Supreme Court, the Third Department noted that two of the petitioners, Holser and Hastings, had standing to challenge the State Environmental Quality Review Act (SEQRA) review by virtue of owning property subject to the rezoning ordinance. The court found that one section of the Local Law usurped powers reserved under SEQRA requiring annulment of that section. The court found that another paragraph of the Local Law prohibiting the transport of minerals on town roads did not carve out exceptions for deliveries as required by the Vehicle and Traffic Law. With respect to the standing issue, the court wrote:

For purposes of standing, when a property owner challenges the SEQRA review process undertaken in conjunction with a zoning enactment to which its property is subject, “ownership of the subject property confers a legally cognizable interest in being assured that the Town satisfied SEQRA before taking action to rezone its land”  … . “[S]tanding should be liberally constructed so that land use disputes are settled on their own merits rather than by preclusive, restrictive standing rules. To that end, the allegations contained in a petition are deemed to be true and are construed in the light most favorable to the petitioner” … . Holser and Hastings have demonstrated that they reside in the Town and own property therein. It is not necessary to assert “proof of special damage or in-fact injury” … , nor do they have to state a noneconomic environmental harm. All that is necessary for standing is to demonstrate ownership of property subject to the rezoning ordinance … . Matter of Troy Sand & Gravel Co., Inc. v Town of Sand Lake, 2020 NY Slip Op 04212, Thrid Dept 7-23-20

 

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DEFENDANT ARGUED THE INSURANCE COMPANY WHICH REPRESENTED THE PROPERTY OWNER AND THE GENERAL CONTRACTOR IN THIS CONSTRUCTION ACCIDENT CASE UNFAIRLY APPORTIONED THE PAYMENT OF THE SETTLEMENT BETWEEN THEM SUCH THAT THE NON-NEGLIGENT, VICARIOUSLY LIABLE PARTY PAID $2 MILLION, AND THE NEGLIGENT PARTY PAID $200,000; AFTER INDEMNIFYING THE PROPERTY OWNER IN THE AMOUNT OF $2 MILLION DEFENDANT SOUGHT TO BE INDEMNIFIED BY THE NEGLIGENT PARTY; THE ATTEMPT WAS REJECTED UNDER BOTH CONTRACTUAL AND COMMON LAW INDEMNIFICATION THEORIES (THIRD DEPT).

The Third Department, over a concurrence, determined Lamela & Sons, Inc. (Lamela), the employer of plaintiffs James and Robert Lamela, was required to indemnify the property owner, Satin, for Satin’s portion of the $3.2 million settlement in this construction accident case. The settlement agreement required payment of $2,199,999 by Satin and Verticon, the general contractor. Lamela paid Satin $2 million in satisfaction of its contractual indemnity obligation to Satin. The insurance company which represented both Verticon and Satin apportioned a larger portion of the settlement to Satin, which was not negligent but was vicariously liable, and a lesser portion to Verticon, which was negligent. Lamela argued that a larger portion of the settlement should have been apportioned to the negligent party, Verticon. Lamela’s indemnity obligation to Satin, therefore, should have been less. On that basis, Lamela sought indemnity from Verticon. Lamela’s argument was rejected:

Verticon submitted the construction contract … between Verticon and Lamela, which provides for indemnity flowing from Lamela to Verticon, specifically stating, “To the fullest extent permitted by law, [Lamela] shall indemnify, defend and save harmless [Verticon] . . . against any and all suits [or] actions . . . arising from the use or operation by [Lamela] of construction equipment, tools, scaffolding or facilities furnished to [Lamela] to perform the [w]ork.” The provision, as expected, does not provide for indemnification flowing the other way, from Verticon to Lamela, as is being sought by Lamela. Thus, as “the subject of indemnification [is] clearly contemplated and expressly addressed by [Lamela and Verticon] in their contract, . . . there [can] only be a one-way obligation to indemnify by [Lamela] as the indemnitor, and any reciprocal obligation is extinguished” … . * * *

… .[C]ommon-law indemnity is not the appropriate relief here because Lamela is not responsible by operation of law … ; rather, its payment to Satin was based solely upon a voluntarily assumed obligation that it undertook by virtue of the contract. There has been no case cited that permits common-law indemnity under this scenario. Although we are mindful that Lamela’s motivation for seeking common-law indemnity stems from its concern that the settlement was unfairly apportioned, to attempt to remedy this by way of common-law indemnity is unavailing. Lamela v Verticon, Ltd., 2020 NY Slip Op 04214, Third Dept 7-23-20

 

CLAIMANT FINANCIAL ADVISOR HIRED TO SELL INSURANCE PRODUCTS WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant financial advisor who entered a written agreement to sell insurance products for Penn Mutual was an employee entitled to unemployment insurance benefits:

Claimant testified that he filled out an application with Penn Mutual, participated in an interview at which his commission rate and initial stipend were discussed, underwent a background check and thereafter signed a full-time soliciting agent’s contract … . Although claimant had to pay a monthly telephone fee, as well as any postage or photocopying costs that he incurred, he was provided a cubicle at Penn Mutual’s office, the use of the company’s receptionist and the ability to book a conference room, all at no charge to him. Claimant was given an in-house email address as well as letterhead and business cards bearing the agency’s name and address. Additionally, claimant was afforded the opportunity to qualify for health/dental insurance … and to participate in a matching 401(k) program; claimant also initially was covered under Penn Mutual’s errors and omissions policy. Claimant acknowledged that he was able to set his own schedule and to sell insurance products other than those offered by Penn Mutual; however, he also testified that he was required to meet with his managing director almost weekly, and that the managing director, in turn, scheduled training workshops that claimant was strongly encouraged to attend, reviewed and, if necessary, corrected the client applications submitted by claimant, directed claimant to develop a business plan and helped him do so, provided feedback on claimant’s performance, as set forth in the sales quarterly reports generated by Penn Mutual, and warned him that his contract might not be renewed if his performance was not satisfactory … . Matter of Thorndike (Penn Mut. Life Ins. Co.–Commissioner of Labor), 2020 NY Slip Op 03964, Third Dept 7-16-20

 

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