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WAIVER OF APPEAL INVALID; THERE WAS PROBABLE CAUSE FOR THE DWI ARREST EVEN THOUGH NO FIELD SOBRIETY TESTS WERE CONDUCTED; BETTER PRACTICE WOULD BE FOR THE PROSECUTOR TO PLACE THE EVIDENCE OF DEFENDANT’S GUILT ON THE RECORD AT THE TIME OF AN ALFORD PLEA (THIRD DEPT).

The Third Department, affirming defendant’s DWI conviction by guilty plea, determined the waiver of appeal was insufficient. The Third Department noted that the better practice would have been to place the evidence of defendant’s guilt on the record at the time of the Alford plea, and found the arresting officer had probable cause without conducting field sobriety tests. With regard to the waiver of appeal, the court wrote:

During the brief colloquy with defendant, County Court did not sufficiently distinguish the waiver of the right to appeal from the trial-related rights that defendant was forfeiting by virtue of his guilty plea, and the record does not reflect that defendant executed a written waiver. Additionally, in response to County Court’s inquiry regarding defendant’s willingness to waive his right to appeal, defendant replied, “Yes, if that’s what I gotta do, yes. If that’s what you’re making me do, I’ll do it.” Under these circumstances, we are unable to conclude that defendant knowingly, intelligently and voluntarily waived his right to appeal. People v Crandall, 2020 NY Slip Op 01857, Third Dept 3-16-20

 

CLAIMANT’S FAILURE TO COMPLY WITH THE FORMATTING REQUIREMENTS SUPPORTED THE DENIAL OF CLAIMANT’S APPLICATION FOR BOARD REVIEW (THIRD DEPT).

The Third Department determined claimant’s failure to comply with the formatting requirements supported the denial of claimant’s application for Board review:

The Board’s instructions for the RB-89 form regarding question number 13 required that claimant specify the date and document ID numbers of “the transcripts, documents, reports, exhibits, and other evidence in the Board’s file that are relevant to the issues and grounds being raised for review.” In response, claimant answered, “[a]ll hearings, transcripts and documents in [the Board] file are pertinent to the outstanding issue.” By merely referencing the entire Board case file in response to question number 13, claimant failed to comply with the prescribed formatting and completion requirements … . Accordingly, the Board did not abuse its discretion in denying claimant’s application for Board review, and its decision will not be disturbed … . Matter of Hirschbeck v Office of the Commr. of Major League Baseball, 2020 NY Slip Op 01870, Third Dept 3-16-20

 

REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined, after a reconstruction hearing, the trial judge was not made aware of a jury note which requested a trial exhibit and a chronology of events relating to the defendant’s dating the victim’s relative. The judge’s clerk provided the trial exhibit to the jury. No such chronology existed and the judge was not informed of the request for it. Because the chronology did not have anything to do with the charged offense, the failure to address that aspect of the jury note was not a mode of proceedings error:

… [T]he chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury’s process of reaching a verdict … . … [I]n Silva, the Court of Appeals found that a trial court’s O’Rama [78 NY2d 270] error did not require reversal of the defendant’s drug-related convictions because the jury inquiry did not pertain to those convictions, but only to a conviction for weapon possession (People v Silva, 24 NY3d at 301 n 2). Likewise, in People v Walston (23 NY3d 986, 990 [2014]), the defendant’s manslaughter conviction was reversed because of a trial court’s mode of proceedings error, but the Court of Appeals held that reversal of a separate conviction on another charge was not required because the note did not address that offense.

Thus, reversal of a conviction is not required when a trial court fails to address a jury inquiry that has no direct relevance to that conviction … . People v Johnson, 2020 NY Slip Op 01668, Third Dept 3-12-20

 

FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department determined that the Superior Court Information (SCI) was not jurisdictionally defective and therefore any attack on the validity of the SCI was precluded by the waiver of appeal:

Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d 1306 [2020]), defendant’s further contention that her 2015 waiver of indictment was jurisdictionally defective because the SCI did not set forth the approximate time of the commission of the charged crimes as required by CPL 195.20 is also without merit … . The omission of the approximate time of the charged crimes in the SCI, to which defendant did not object, is a nonjurisdictional defect to which any objection was forfeited by her guilty plea. Notably, no claim has been made that defendant lacked notice of the specific crimes for which she agreed to waive prosecution by indictment. People v Edwards, 2020 NY Slip Op 01671, Third Dept 3-12-20

 

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DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court and dismissing the indictment, determined the police officers did not have an objective credible reason for approaching defendant, who was in his car outside a nightclub just after the club closed. The defendant was arrested after a check on his license revealed it had been suspended. The handgun found in an inventory search of the car should have been suppressed:

… [D]efendant’s engagement in an argument on his cell phone while alone in his private vehicle — did not provide any apparent nexus to the drug and weapons crimes that police said were typically committed in the area, or give rise to any other objective reason to question his presence. Nothing about a driver’s conduct in arguing on a cell phone, without more, suggests criminal activity related to weapons or drugs … . A sole occupant of a private vehicle arguing with someone who is not present gives rise to no apparent reason for police to intervene, such as potential safety concerns … .

Thus, we find that police did not have the requisite objective, credible reason for approaching defendant’s vehicle in the first instance. The encounter was further invalid because police had no objective, credible reason to extend the initial conversation by running defendant’s driver’s license after he responded to their initial inquiry and provided the information they requested … . The officer gave no explanation for his decision to intrude further at that point, nor does the record reveal such an explanation. Nothing about the exchange with defendant gave rise to any reason to suspect that he was not telling the truth … . Defendant’s driver’s license did not appear to belong to someone else … or reveal anything unusual on its face … . Lacking an objective, credible reason that justified police in approaching defendant’s vehicle and making inquiries, the encounter was invalid at its inception … . People v Stover, 020 NY Slip Op 01676, Third Dept 3-12-20

 

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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT).

The Third Department noted that referring to the complaining witness using the term “victim” should be avoided at trial where the witness’s credibility is in issue, but found no error in the way the trial judge handled the matter in this sexual-offense case:

In [a] motion in limine, defense counsel sought to preclude references to the “victim,” arguing that they would dilute the presumption of innocence and deprive defendant of a fair trial. Several New York courts have examined this issue in the specific context of jury instructions and have held that it is improper for a trial court to refer to a complainant as the “victim” in a jury charge, but that reversal is not required unless, taken as a whole, the charge does not otherwise convey the proper standards to the jury … . It does not appear that any New York court has analyzed the issue outside the context of jury instructions, but several courts in other jurisdictions have held that the use of the term “victim” by the prosecution or its witnesses should be avoided where, as here, the credibility of the complaining witness is in issue, and that facts such as the context and frequency of the references and the strength of other evidence should be taken into account in determining whether use of the term is reversible error … . Here, although Supreme Court denied defendant’s application, it also agreed that his concern was “well-grounded” and warned counsel to use caution, stating that “[i]t might call the attorneys over” if a witness repeatedly used terms like “victim” or “assailant,” and that police witnesses should not use such terms in such a way as to have an emotional impact on the jury. While we agree with defendant that references to the complaining witness as the “victim” at trial should be avoided when his or her credibility is in issue, we find no error in the court’s treatment of the issue under the circumstances presented here. People v Horton, 2020 NY Slip Op 01530, Third Dept 3-5-20

 

EMPLOYER’S ANSWER TO A QUESTION ON ITS APPLICATION FOR A BOARD REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S AWARD OF BENEFITS WAS ADEQUATE AND SHOULD NOT HAVE BEEN THE BASIS OF THE BOARD’S DENIAL OF THE APPLICATION; THE QUESTION CONCERNED WHEN THE EMPLOYER’S OBJECTION TO THE RULING WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the employer’s answer to a question in its application for Board review of the Workers’ Compensation Law Judge’s award of benefits was adequate and did not warrant denial of the application. The question concerned when the objection to the ruling was made:

When the employer filed its application for Board review on March 2, 2018, question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . In response to question number 15, the employer stated, “Upon information and belief an exception/objection was noted prior to the conclusion of the hearing.” The Board found that the employer’s response was incomplete because the employer “failed to identify the date it interposed an objection on the record in response to [question number] 15” … . Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to question number 15, the regulation only requires the applicant to state when the objection or exception occurred … . Here, the employer’s response to question number 15 stated when the objection was made, that is, at “the conclusion of the hearing,” at which time the employer stated, “A protective exception, please, your Honor.” In our view, the employer’s response stated when the objection occurred, … and, therefore, the response was complete and complied with the Board’s regulatory formatting requirements … . …

We recognize that, in Subject No. 046-1119, the Board announced that “the [hearing] date when the objection or exception was interposed must be listed” in response to question number 15 on the RB-89 form … . However, Subject No. 046-1119 — as well as the Board’s other November 2018 documents providing clarification of its formatting requirements … postdate the instant March 2018 application for Board review and are, therefore, of no import here … . Matter of Granica v Town of Hamburg, 2020 NY Slip Op 01542, Third Dept 3-5-20

 

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PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined plaintiff’s expert did not raise a question of fact in this products liability case. Plaintiff’s decedent was killed by a crane operated remotely by plaintiff’s decedent. Defendants’ experts attributed the accident to plaintiff’s decedent’s acts of leaning into the path of the crane and bending over with the remote attached to his hip, causing the crane to be activated inadvertently. Both leaning into the path of the crane and bending over with the remote attached were known to be dangerous and plaintiff’s decedent had trained others accordingly. Although plaintiff’s expert averred that a dead man’s switch would have prevented the accident, he did not present any supporting evidence:

“An expert’s [Darby’s] affidavit — offered as the only evidence to defeat summary judgment — must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation, and would, if offered alone at trial, support a verdict in the proponent’s favor” … . Initially, although Derby alleged that he inspected the remote, his affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote … . Furthermore, although Derby averred that the remote could be made safer by adding a dead man’s switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed … , and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man’s switch rendered the remote unsafe … . After all, “[a] factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer” … . Given Derby’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man’s switch for crane operations, plaintiff’s proof was insufficient to raise a triable issue regarding design defect … . Darrow v Hetronic Deutschland GMBH, 2020 NY Slip Op 01543, Third Dept 3-5-20

 

BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Colangelo, reversing the Workers’ Compensation Board, in a matter of first impression, determined that claimant’s surviving child was entitled to the weeks of the nonschedule permanent disability award which remained upon claimant’s death, where claimant’s death was not related to the compensated injury:

“With respect to schedule injuries, SLU [schedule loss of use] awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members” … . “By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in subsections (a)-(u) [of Workers’ Compensation Law § 15 (3)], is based on a factual determination of the effect that the disability has on the [worker’s] future wage-earning capacity” … . In that regard, whereas an SLU award “is not allocable to any particular period of disability and is independent of any time that the [worker] might lose from work” … , a nonschedule permanent partial disability award under Workers’ Compensation Law § 15 (3) (w) requires a calculation of a worker’s weekly rate of compensation using the worker’s average weekly wages and wage-earning capacity and “specifies the [duration or maximum] number of weeks the worker will receive that weekly sum[] based upon the [worker’s] percentage of lost wage-earning capacity” … . * * *

Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonschedule permanent partial disability award is payable to the beneficiaries identified in Workers’ Compensation Law § 15 (4) upon a claimant’s death “arising from causes other than the [established] injury”… . Subdivision (3) includes both SLU [schedule loss of use] and nonschedule permanent partial disability awards … , and the unqualified language of subdivision (4) — which pertains to “[a]n award made to a claimant under subdivision three” … — neither distinguishes SLU awards from nonschedule permanent partial disability awards, nor contains any limiting language excepting nonschedule permanent partial disability awards from its scope. Given the unambiguous and unqualified language of subdivision (4) … , we see no basis to distinguish SLU and nonschedule awards where the plain language of subdivision (4) applies to any and all awards made under Workers’ Compensation Law § 15 (3). Accordingly, the language employed in Workers’ Compensation Law § 15 (4) reflects that the Legislature intended this subdivision to apply to all permanent partial disability awards made pursuant to subdivision (3) — that is, both SLU and nonschedule permanent partial disability awards … . Matter of Green v Dutchess County BOCES, 2020 NY Slip Op 01546, Third Dept 3-5-20

 

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