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https://www.courtlistener.com/api/rest/v3/opinions/5902131/ | OPINION OF THE COURT
Denman, J. P.
In this libel action defendant, the Herald Company, was granted summary judgment dismissing the complaint. It asks that we modify the order to impose sanctions, including costs and attorney’s fees, on plaintiff and his attorney for instituting and pursuing a frivolous claim (CPLR 8303-a). We find that the libel claim stated herein is lacking in merit and, because plaintiff and his attorney knew or should have known that it lacked merit, defendant is entitled to sanctions.
Plaintiff commenced this action for libel against defendant, publisher of the Syracuse Herald Journal, alleging injury to his reputation as a result of an article published on August 27, 1985. Plaintiff complains of eight statements contained in the article and, in addition, complains of a headline, "Woman Raped,” pertaining to an unrelated article appearing under the article about plaintiff. The article about plaintiff described an argument between plaintiff and several neighbors followed by an altercation between plaintiff and two police officers who *215responded. The article recounted that, upon the arrival of police, plaintiff approached one of his neighbors in a threatening manner; that a female police officer stepped between them; that plaintiff stepped on the officer’s foot and challenged her; that the officers arrested plaintiff; that plaintiff punched the female officer, breaking her nose, and pushed the other officer, injuring his wrist; and that plaintiff then ran off before being subdued and charged with two counts of assault, disorderly conduct, and resisting arrest.1 The article was written by defendant’s reporter, Jeffrey Stage, after reviewing various police reports. Read together, the police reports, sworn accounts of the incident and follow-up investigation by at least three police officers, support the factual statements contained in the newspaper article.
The gravamen of plaintiffs claim, as amplified by his answers to interrogatories, is that the story is false and that defendant was grossly irresponsible in reporting the incident. With respect to the issue of truth, plaintiff contends that he is innocent of the charges and that the statements contained in the police reports and newspaper article are false. With respect to the allegation of gross irresponsibility, plaintiff contends that the reporter was at fault in relying solely on the reports of the police officers and in failing to interview other eyewitnesses to the incident who "would have told the reporter(s) that the police version of the incident was not true”.
In its answer, defendant denied the allegations of the complaint and raised the affirmative defenses of truth and constitutional privilege (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196). Following service of the answer, defendant’s attorney wrote to the plaintiffs attorney and asked him to discontinue the frivolous suit or risk the imposition of sanctions. Plaintiffs counsel did not respond to the letter.
Defendant moved for summary judgment and for sanctions against plaintiff and his attorney for prosecuting a frivolous action. The motion was supported by the affidavits of defendant’s counsel and the author of the newspaper article. As the basis for summary judgment, defendant argued that, in light of his criminal conviction, plaintiff was collaterally estopped *216from showing that the article was false. Additionally, defendant argued that it was entitled to summary judgment because it did not act with gross irresponsibility in publishing the story. The reporter averred that the story was based entirely upon his review of several sworn police reports; that, in his experience, such reports are generally highly reliable; and that he had "no basis whatsoever to doubt the accuracy” of the reports. The basis for defendant’s motion for sanctions was similar. Defendant contended that plaintiff and his attorney should have known that the claim was meritless in view of the dispositive effect of the criminal conviction on the issue of truth; plaintiff’s inability to demonstrate that defendant was grossly irresponsible in relying on sworn police reports; and plaintiff’s inability, as a convicted felon, to show injury to reputation.
Plaintiff opposed the motion by affidavit of his attorney, who basically reiterated plaintiff’s claim of innocence and merely argued that defendant had not demonstrated its entitlement to summary judgment. In opposition to the motion for sanctions and to refute defendant’s claim that plaintiff and his attorney were or should have been aware of the lack of merit of the claim, plaintiff’s attorney averred that "plaintiff had no access to any factual allegations by defendants [sic] of the source of their information for said article.” Elsewhere in his affidavit, however, plaintiff’s counsel averred that he "was the trial attorney for Stephen Mitchell and is personally familiar with all the facts and circumstances of the criminal prosecution and conviction * * * has personally investigated the circumstances of the underlying incident and believes that * * * this action was brought in good faith and is not frivolous.” Without indicating the basis for its decision, the court granted defendant’s motion for summary judgment dismissing the complaint, but denied its motion for sanctions.
The court properly granted summary judgment to defendant. Since the news article concerned a matter within the sphere of legitimate public concern, defendant was required to demonstrate that its reporter was not grossly irresponsible in writing the article (Chapadeau v Utica Observer-Dispatch, supra, at 199-200). Defendant demonstrated its entitlement to judgment as a matter of law on that issue and, in addition, on the issue of truth (see, Zuckerman v City of New York, 49 NY2d 557, 562; Chapadeau v Utica Observer-Dispatch, supra). The reporter relied on the sworn reports of 3 or 4 officers who *217were either involved in the incident or investigated it. A newspaper reporter is entitled to rely on official reports by law enforcement officers, including unsworn reports (see, Carlucci v Poughkeepsie Newspapers, 88 AD2d 608, affd 57 NY2d 883; Robart v Post-Standard, 74 AD2d 963, affd 52 NY2d 843; Grobe v Three Vil. Herald, 69 AD2d 175, affd 49 NY2d 932), unless the reporter is aware of the probable falsity of the reports or has some reason to doubt their accuracy (Robart u Post-Standard, supra). Here, the reporter averred that he knew such reports to be generally reliable and that there were no indications that the reports might be false. In view of defendant’s subsequent conviction on the charges arising out of the incident, it is beyond dispute that the police reports were accurate. Because a plaintiff in a libel action is required to prove the falsity of the publication where it involves a matter of public concern (see, Philadelphia Newspapers v Hepps, 475 US 767), the fact that the article is true bars plaintiff’s claim. Thus, defendant has shown its entitlement to judgment as a matter of law on plaintiff’s libel claim.
In opposition to the motion, plaintiff failed to raise a triable question of fact on the issues of truth or gross irresponsibility (see, Chapadeau v Utica Observer-Dispatch, supra). Plaintiff submitted only an attorney’s affidavit, which was not competent to establish the falsity of the news article (Zuckerman v City of New York, supra, at 563). In addition, plaintiff’s counsel failed to show that the reporter was grossly irresponsible in relying on the police reports. The thrust of plaintiff’s argument was that the reporter did not conduct an independent investigation into the incident and hence, did not interview witnesses who supposedly would have given a version favorable to plaintiff. However, the newspaper is under no legal obligation to interview every possible witness to an incident or to write the most balanced article possible. The newspaper’s obligation is to base its story on a reliable source. It is clear that defendant’s reporter did so and thus defendant was properly granted summary judgment (Chapadeau v Utica Observer-Dispatch, supra; Carlucci v Poughkeepsie Newspapers, supra, at 609; Robart v Post-Standard, supra; Grobe v Three Vil. Herald, supra).
Because plaintiff and his attorney knew or should have known that the libel claim lacked merit, we conclude that defendant is entitled to sanctions. In reaching that conclusion, *218two issues must be addressed. The first is whether plaintiff’s claim is frivolous. CPLR 8303-a2 states, in pertinent part:
"§ 8303-a. Costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death
"(a) If in an action to recover damages for personal injury, injury to property or wrongful death, an action or claim is commenced or continued by a plaintiff or a counterclaim, defense or cross claim is commenced or continued by a defendant that is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney’s fees not exceeding ten thousand dollars * * *
"(c) In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following * * * "(ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.”
Applying the statutory definition of frivolousness, we conclude that the suit was commenced and continued "in bad faith without any reasonable basis in law or fact” (CPLR 8303-a [c] [ii]; England v Gradowitz Bros. Realty Corp., 137 Misc 2d 21, *21922; see, Zaldivar v City of Los Angeles, 780 F2d 823, 828; Golden Eagle Distrib. Corp. v Burroughs Corp., 801 F2d 1531, 1538 [holding that determination whether there was a violation of the analogous rule 11 of the Federal Rules of Civil Procedure is to be reviewed by the appellate court de novo or, if a factual dispute exists, under the "clearly erroneous” standard]).
Plaintiff could recover in this libel action only if he proved that the newspaper account was false and that defendant was grossly irresponsible in printing it. From the outset of this action, it was or should have been apparent to plaintiff and his counsel that neither issue could be resolved in his favor. It is probable that plaintiff is collaterally estopped from contesting the truth of the news article as a result of his conviction for assault, since the events related in the article were directly at issue in the criminal proceeding. Even if, as plaintiff argues, the recently concluded criminal action does not constitute collateral estoppel, the evidence adduced therein was sufficient to prove beyond a reasonable doubt that the police reports and the article were true. Although he denied being aware of the source of the newspaper article, plaintiff’s counsel was defense counsel in the criminal action and thus was certainly acquainted with the contents of the police reports relied upon by the reporter.
The bad faith of plaintiff and his counsel is further illustrated by the inclusion in the complaint of the allegation that plaintiff was libeled by the headline, "Woman Raped,” relating to an entirely separate story. No reader could reasonably conclude that the headline concerned plaintiff and no reasonable attorney could conclude other than that such allegation was frivolous. The bad faith of plaintiff and his counsel was compounded by their failure to discontinue the action after being specifically advised by defendant’s attorney that the claim was baseless. The statute imposes a duty on the party and his attorney to act in good faith to investigate the claim and promptly discontinue it where inquiry would reveal that the claim lacks a reasonable basis (cf., Golden Eagle Distrib. Corp. v Burroughs Corp., supra).
A second issue is whether the statute mandates an award of costs upon a finding of frivolousness or whether the court has discretion to deny an application. Use of the word "shall” in the statute appears to mandate an award of costs, including reasonable attorney’s fees, up to $10,000. Although no New York court has addressed the issue, the trend among Federal *220appellate courts which have interpreted the similar language of rule 11 of the Federal Rules of Civil Procedure is that sanctions are mandated on a finding that rule 11 has been violated (see, Brown v Federation of State Med. Bds., 830 F2d 1429, 1434 [7th Cir]; Weil v Markowitz, 829 F2d 166, 171 [DC Cir]; Robinson v National Cash Register Co., 808 F2d 1119, 1130-1131 [5th Cir]; Golden Eagle Distrib. Corp. v Burroughs Corp., supra, at 1538 [9th Cir]; Albright v Upjohn Co., 788 F2d 1217, 1221-1222 [6th Cir]; Eastway Constr. Corp. v City of New York, 762 F2d 243, 254 [2d Cir], cert denied — US —, 108 S Ct 269). In accordance with the weight of Federal authority, we hold that sanctions are mandated after a finding of frivolousness. Interpreting the statute in that manner will accomplish the legislative intent of preventing waste of judicial resources and reducing malpractice and other liability insurance costs by discouraging frivolous claims and defenses (see, L 1985, ch 294, § 1; L 1986, ch 220, § 1).
Based on the foregoing, and in accordance with the statute, the matter must be remitted to the trial court to determine the amount of costs which are properly recoverable and the amount of reasonable attorney’s fees (CPLR 8303-a [a], [b]). Moreover, the trial court shall determine, based on the circumstances, whether the sanction should be imposed against the plaintiff, his attorney, or both (CPLR 8303-a [b]).
Accordingly, the order insofar as appealed by plaintiff, should be affirmed and insofar as appealed by defendant should be modified to award sanctions pursuant to CPLR 8303-a in an amount to be determined by the court on remittitur.
Pine, Balio and Davis, JJ., concur with Denman, J. P.; Green, J., taking no part.
Order modified, on the law, and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with opinion by Denman, J. P.
. The criminal charges against plaintiff resulted in his conviction for second degree assault, resisting arrest, and disorderly conduct. The conviction preceded the commencement of this libel action by about two weeks. Plaintiff has appealed his conviction to this court but the appeal has not yet been perfected.
. There are actually two nearly identical CPLR sections numbered 8303-a. The first authorizes the award of sanctions for frivolous claims or defenses in actions for personal injury, injury to property, or wrongful death. Plaintiff does not contest the applicability of that section to this action based on defendant’s contention that an action for personal injury includes a claim for defamation (see, General Construction Law § 37-a). The second section 8303-a authorizes the award of sanctions for frivolous claims and defenses in actions for medical, dental, and podiatric malpractice. The statutes appear to be redundant, at least as to actions commenced on or after June 28, 1986, since the Court of Appeals has assumed that a suit for malpractice is encompassed within a suit for personal injury (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6). The duplication is the apparent result of the Legislature’s attempt to amend a statute which had previously been amended out of existence (compare, L 1986, ch 220, § 35 [eff June 28,1986], with L 1986, ch 485, § 11 [eff July 21,1986]). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902133/ | OPINION OF THE COURT
Kupferman, J. P.
Petitioner was the trainer of Ryan’s Choice, a standardbred horse which competed in the third race at Monticello Raceway on the evening of December 22, 1984. The horse finished last in an eight-horse field. A postrace urinalysis revealed the presence of the drug prednisolone.*
As a result of such finding, petitioner, by notice dated March 15, 1985, was notified by respondent New York State Racing and Wagering Board that his license to participate in racing was suspended for 60 days. When he appealed such ruling, his suspension was stayed and a hearing was held, on December 9, 1985, before a Hearing Officer designated by the Board at which the parties stipulated to the foregoing facts. At the conclusion of the hearing, the Hearing Officer, in his report dated February 28, 1986, found that the Board had adequately established that petitioner had violated its rules in that the drug prednisolone had been administered to Ryan’s Choice within 48 hours prior to post time of the scheduled races on December 22, 1984. In its order, dated March 6, 1986, the Board adopted the report of the Hearing Officer and confirmed the original 60-day suspension. This CPLR article 78 proceeding ensued and was transferred to this court by order of the Supreme Court, New York County (Stanley Parness, J.), entered December 22, 1986.
Pursuant to 9 NYCRR 4120.2 (c), prednisolone may not be administered within 48 hours of the start of a racing program and it shall be part of a trainer’s responsibility to prevent such administration. The so-called "trainer responsibility rule” (9 NYCRR 4120.4) holds a trainer responsible for any positive test unless he can show by substantial evidence that neither he nor any employee or agent was responsible for the administration of the drug or other restricted substance. In effect, the rule creates a presumption that a trainer has failed in his duty any time his horse tests positive, but permits him *223to rebut the presumption by coming forward with substantial evidence to the contrary. (See, Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589, 595.)
At the hearing, respondent’s expert, Dr. George A. Maylin, was of the opinion that the prednisolone found in the postrace urine sample had been administered to Ryan’s Choice within 48 hours of post time. On cross and redirect examination, however, he conceded that it was possible, but unlikely, that the drug was administered at 1:00 p.m. on December 20, 1984, approximately 55 hours prior to the race.
Petitioner then presented his veterinarian, Dr. Chris Aylesworth, who appeared pursuant to subpoena and testified that he had treated Ryan’s Choice for an abscess on his withers on three occasions in November and December 1984, the last being December 20, 1984, two days before the race. On each occasion, he drained the abscess and injected prednisolone and gentamicin (an antibiotic) directly into the abscess. Dr. Aylesworth testified that he last treated the horse at approximately 1:00 p.m. on December 20, which testimony was corroborated by petitioner’s employee, Ronald Lovelace, a licensed groom, who held the horse while Dr. Aylesworth treated it. Dr. Aylesworth also testified that he knew that Ryan’s Choice was scheduled to race on the evening of December 22nd, and petitioner testified that the veterinarian assured him that the horse would be able to race on the 22nd since, according to the Board’s rules, prednisolone could be administered up until 48 hours before the racing program.
Unlike Matter of Casse v New York State Racing & Wagering Bd. (supra, 70 NY2d, at 597), where the Court of Appeals found that it could not be said that the petitioner offered substantial evidence to rebut his strict responsibility for the positive results of the drug tests since neither petitioner nor his groom could explain the presence of the drug in the horse’s system (see also, Matter of Belanger v New York State Racing & Wagering Bd., 114 AD2d 609), petitioner here has presented substantial evidence establishing that the drug detected in the postrace test had been administered to Ryan’s Choice more than 48 hours prior to the racing program on December 22nd. Moreover, it is evident that petitioner, who had a previously unblemished record, relied upon his veterinarian’s assurance that the injection of prednisolone was in compliance with the Board’s rules. (See, Matter of Wetzel v New York State Racing & Wagering Bd., 109 AD2d 1099.)
*224Accordingly, the petition should be granted and respondent’s determination, dated March 6, 1986, should be annulled, without costs.
Ross, Kassal, Rosenberger and Smith, JJ., concur.
Determination of respondent dated March 6, 1986, unanimously annulled and the petition granted, without costs and without disbursements.
A glucocorticoid having the properties of cortisone and used to treat inflammations. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129306/ | Judgment reversed, with costs, and judgment ordered for plaintiff on demurrer, with leave to defendant to answer on payment of costs of demurrer and of appeal. Opinion by
Bocees, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129307/ | Order affirmed, with ten dollars costs and printing disbursements. Opinion by
Learned, P. J.,
and by Bocees, J., dissenting. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129308/ | Judgment affirmed, with costs. Opinion by
Learned, P. J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129309/ | Order affirmed, with costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129310/ | Decree affirmed, vdth costs against appellant. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129311/ | Judgment affirmed, with costs. Opinion by
Bocees, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129312/ | Decisions already handed down, setting aside assessment and apportionment. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823509/ | Coupler lock operating mechanism. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902134/ | Appeal from a judgment of the Supreme Court (Lawliss, J.), entered March 2, 2012 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item after a search of his cell uncovered a sharpened half of a pair of tweezers with clear tape for a handle and an altered hot plate. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and a penalty was imposed. The determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and this appeal ensued.
We affirm. The alleged errors in the prehearing assistance provided to petitioner were remedied by the Hearing Officer *1043(see Matter of Senior v Fischer, 98 AD3d 783, 784 [2012]; Matter of Martino v Goord, 38 AD3d 958, 959 [2007]). Further, petitioner was properly precluded from introducing physical and documentary evidence that he possessed a complete set of tweezers, as such evidence would have been redundant to petitioner’s testimony, which was accepted by the Hearing Officer as true (see Matter of Darshan v Bango, 83 AD3d 1302, 1302 [2011]). Petitioner’s remaining claims, to the extent that they have been preserved for our review, are without merit.
Peters, P.J., Mercure, Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534587/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 14, 2020
Plaintiff-Appellee,
v No. 344970
Wayne Circuit Court
LARRY MASTERS III, LC No. 17-001728-01-FH
Defendant-Appellant.
Before: K. F. KELLY, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of one count of assault with intent to
do great bodily harm less than murder (AWIGBH), MCL 750.84, two counts of assault with a
dangerous weapon (felonious assault), MCL 750.82, two counts of carrying a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, and one count of larceny from a motor
vehicle, MCL 750.356a(1). The trial court sentenced defendant to concurrent prison terms of 2½
to 10 years for AWIGBH, two to four years for each count of felonious assault, and two to five
years for larceny from a motor vehicle. Defendant was also sentenced to two-year prison terms
for each felony-firearm conviction, to be served consecutively to defendant’s other sentences and
concurrently with each other. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On November 12, 2016, Quinte Sanders and his girlfriend, Allona Shaw, went to Masters
Auto Repair (Masters) in Detroit, where defendant was employed, to pick up Sanders’s vehicle.
Sanders and defendant got into a heated argument about the shop’s liability for damage to the
vehicle. Sanders claimed that the damage had occurred while the vehicle was in the shop’s care,1
and defendant told Sanders to leave. According to Sanders, defendant then lifted his shirt to reveal
a pistol. Sanders responded by pulling out his own gun, but quickly left the shop after brandishing
it momentarily in the customer service area. Shaw testified that as she followed Sanders out of the
1
Sanders turned out to be correct, as an employee of Masters testified that he had accidentally
backed Sanders’s Yukon Denali into another vehicle.
-1-
shop, defendant pointed his gun in her face, demanding that she leave. Outside, Sanders paced in
front of the shop with gun in hand until another mechanic came outside and spoke to him calmly
about resolving the problem. Sanders gave the gun to Shaw before following the mechanic into
the shop’s garage. Shaw placed the gun in the trunk of her vehicle before proceeding into the shop,
although she was unable to get through the locked door into the garage.
Once inside the garage, Sanders was attacked and beaten by two other employees, Steven
Gillman and Joseph Cristao. During this attack, Cristao struck Sanders on the head and face
several times with an airsoft pistol. Defendant was outside of the garage at the time. When
defendant entered the garage, Sanders was still on the ground, but attempting to stand. Defendant
immediately rushed toward Sanders and began punching him. After several seconds, Cristao
joined in and repeatedly struck Sanders with his foot. When this second attack ended, Sanders
made his way to the door where Shaw was waiting. Defendant pointed a gun at them and told
them to get out. Sanders sustained a severe laceration on his head and required treatment for a
concussion and traumatic brain injury. He had little memory of anything that occurred after he
was pistol-whipped in the first attack.
Four people were initially charged in connection with the incident: defendant, Cristao,
Gillman, and defendant’s father, Larry Masters, Jr. (Larry). The prosecutor dismissed the charges
against Larry, Gillman pleaded guilty to aggravated assault, and Cristao pleaded guilty to
AWIGBH and felonious assault pursuant to a Cobbs2 evaluation after the jury was selected for
defendant and Cristao’s joint trial. The trial proceeded as to defendant only. The prosecution
presented video recordings from several of the shop’s surveillance cameras and elicited testimony
from Sanders, Shaw, and Larry about the events that were depicted in the recording. In pertinent
part, the recording included footage of the initial encounter between Sanders and defendant in the
customer service area, Sanders’s activities outside of the shop, and both batteries that occurred
inside the garage. There was also footage in which defendant could be seen removing electronic
equipment from Sanders’s Denali several hours later. Defendant did not testify at trial. The jury
acquitted defendant of one count of felonious assault stemming from the pistol-whipping that
occurred during the first attack, but found him guilty of AWIGBH, two counts of felonious assault,
two counts of felony-firearm, and one count of larceny from a motor vehicle. The trial court
sentenced defendant as described.
On January 1, 2019, defendant filed a motion for a Ginther3 hearing and new trial, alleging
that his trial counsel was ineffective for advising defendant not to testify and for failing to review
all of the surveillance footage and offer into evidence footage that showed that defendant was not
present during the initial assault on Sanders. After holding a Ginther hearing, the trial court denied
defendant’s motion for a new trial.
This appeal followed.
2
People v Cobbs, 443 Mich. 276; 505 NW2d 208 (1993).
3
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
-2-
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel in several respects,
most of which involve his attorney’s failure to object to alleged errors in the proceedings.
Defendant also argues that his attorney prevented him from testifying and failed to adequately
investigate the case. We disagree.
“Whether a defendant was deprived of the effective assistance of counsel presents a mixed
question of fact and constitutional law.” People v Head, 323 Mich. App. 526, 539; 917 NW2d 752
(2018). We review for clear error a trial court’s findings of fact. Id. “A finding is clearly erroneous
if the reviewing court is left with a definite and firm conviction that a mistake has been made.”
People v Lopez, 305 Mich. App. 686, 693; 854 NW2d 205 (2014) (quotation marks and citation
omitted). We review de novo questions of law. Head, 323 Mich. App. at 539. To preserve these
issues for review, defendant was required to move for a new trial or evidentiary hearing before the
trial court or file a motion to remand in this Court. People v Heft, 299 Mich. App. 69, 80; 829
NW2d 266 (2012). As stated, defendant moved for a Ginther hearing and new trial below;
however, he did not raise all of the challenges to defense counsel’s performance that he now raises
on appeal. The trial court held a Ginther hearing at which defendant and his trial attorney testified.
The only issues that were addressed at the hearing concerned whether defendant had waived his
right to testify, whether defense counsel had reviewed all of the surveillance footage from
November 12, 2016, and the substance of defendant’s proposed testimony. To the extent that
defendant failed to raise his ineffective assistance claims in his motion for a new trial or establish
a record concerning his claims at the Ginther hearing, our review is limited to mistakes apparent
on the record. People v Hoang, 328 Mich. App. 45, 63; 935 NW2d 396 (2019); People v
Muhammad, 326 Mich. App. 40, 63; 931 NW2d 20 (2018).
A defendant who claims to have been denied the effective assistance of counsel bears a
heavy burden to overcome the presumption of effective assistance. Head, 323 Mich. App. at 539.
To do so, the defendant must generally satisfy the two-part test announced in Strickland v
Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984), by showing that “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Muhammad, 326 Mich. App. at
63. The defendant bears the burden of establishing the factual basis for his claim. Id.
A. ADVICE NOT TO TESTIFY
Defendant first argues that he was denied the effective assistance of counsel when his
attorney advised him not to testify. We disagree.
Defendants in a criminal proceeding have a constitutionally protected right to testify in
their defense. People v Bonilla-Machado, 489 Mich. 412, 419; 803 NW2d 217 (2011). The
decision to assert or waive that right is the defendant’s alone. Id. Here, the trial court found that
defendant waived his right to testify, noting that the court had asked defense counsel if defendant
wished to go on record about his decision not to testify, to which defendant shook his head no.
The trial court’s finding was not clearly erroneous. Head, 323 Mich. App. at 539. Defendant was
not denied his right to testify.
-3-
Moreover, defense counsel’s advice to defendant did not constitute ineffective assistance
of counsel. Decisions regarding what evidence and witnesses to present at trial are generally
considered matters of trial strategy that should not be second guessed with the benefit of hindsight.
Muhammad, 326 Mich. App. at 66. Consequently, failure to call a witness will not support a claim
of ineffective assistance of counsel unless it deprived the defendant of a substantial defense.
People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009). “A substantial defense is one
that might have made a difference in the outcome of the trial.” People v Chapo, 283 Mich. App.
360, 371; 770 NW2d 68 (2009) (quotation marks and citation omitted).
Defendant argues that he should have been called as witness because he could have testified
about his state of mind, contradicted the complainants’ assertions that he pointed a gun at them,
explained that he did not know Sanders was unarmed when he encountered him in the garage, and
described the shop’s policy of removing valuable belongings from a customer’s vehicle when the
vehicle is to be parked on the street overnight. Defense counsel testified that his strategy at trial
was to convince the jury that defendant did not commit the felonious assaults against either
complainant and that “whatever occurred in the garage area, [defendant] acted in self-defense.”
Defense counsel also explained his general preference for attacking the sufficiency of the
prosecutor’s proofs, as opposed to presenting additional evidence or testimony to rebut the
prosecutor’s case, and that he had concluded that he did not want defendant subjected to cross-
examination.
The trial court found that defendant’s attorney acted reasonably and provided sound advice
about the risks of testifying. We agree. Because the surveillance video did not provide a
substantial factual basis for the felonious assault charges (which were based on defendant pointing
a gun at Shaw, an event not captured on video), those charges turned primarily on the credibility
of the complainants. Defense counsel went to great lengths to attack the complainants’ credibility,
focusing on inconsistencies in their statements, testimonies, and the surveillance footage. For
example, defense counsel pointed out that Sanders had testified that defendant pistol-whipped him,
but had not mentioned this in his statement to police; further, defense counsel elicited testimony
from Sanders that he saw defendant hit him during the first beating—testimony contradicted by
the surveillance footage that showed only Cristao and Gillman attacking Sanders. Similarly,
defense counsel cast doubt on Shaw’s testimony that defendant pointed a gun at her twice by asking
her about her initial statement to the police, in which she reported that defendant only pointed a
gun at her once. He also argued that Shaw’s reactions were not consistent with a person who had
just been threatened with a gun; the surveillance video showed her calmly walking out of the shop
and, despite her alleged shock and fear after facing defendant’s gun, she stored her own gun in the
trunk of her vehicle after Sanders handed it to her instead of keeping it in her possession for
protection.
The events that resulted in the AWIGBH and larceny charges were captured by the
surveillance cameras. Defense counsel elicited testimony from Larry regarding a shooting that
occurred at the shop in 2010 as evidence that defendant would likely have a heightened sense of
fear in response to Sanders’s actions. Defense counsel emphasized defendant’s absence during
the initial attack and drew the jury’s attention to the fact that Sanders had angrily just brandished
a gun in the shop. In addition, while it was clear that defendant punched Sanders, defense counsel
maintained that defendant did not use a weapon and was not responsible for the most violent
attacks against Sanders. In sum, defense counsel was able to present a reasonable argument that
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defendant had acted in self-defense or in defense of others, without having to rely on testimony
from defendant. Defense counsel’s trial strategy was within the “wide range of reasonable
professional assistance” that constituted sound trial strategy. People v LeBlanc, 465 Mich. 575,
578; 640 NW2d 246 (2002) (quotation marks and citation omitted).
Regarding the larceny charge, neither attorney gave the charge significant attention at trial
and, in closing arguments, defense counsel merely argued that the jury would have to assess the
video (showing defendant removing Sanders’s personal property from the Denali) for itself. At
the Ginther hearing, defendant testified that he had removed Sanders’s personal property from the
Denali out of concern that the items might be stolen if the Denali remained parked on the street
overnight. Defense counsel testified that he chose not to focus on the larceny issue for fear that it
would distract the jury from the self-defense issue. Defense counsel’s view of the matter was not
objectively unreasonable. There was no getting around the fact that defendant was recorded
removing Sanders’s property from the Denali. The property was later discovered in defendant’s
personal vehicle. Defense counsel could have reasonably concluded as a matter of trial strategy
that presenting defendant’s self-serving testimony that he removed the property of Sanders (a man
with whom he had just had a violent encounter), from his vehicle and placed it into his own out of
concern that it might be stolen, bore an unacceptable risk of damaging the credibility of the defense
as a whole. Again, defense counsel’s conduct fell within the wide range of reasonable professional
assistance. Id.
Furthermore, even if defense counsel’s decision to advise defendant not to testify was
objectively unreasonable, defendant cannot show prejudice. After considering defendant’s
testimony at the evidentiary hearing, the trial court found it improbable that the jury would have
reached a different result if defendant had testified at trial. We agree with the trial court. The trial
court noted a number of reasons for finding defendant’s testimony less than credible. The trial
court’s analysis was well reasoned and rested primarily on the relative credibility of the witnesses
who appeared before it. Credibility determinations of this sort are entitled to deference on appeal.
People v Johnson, 502 Mich. 541, 565; 918 NW2d 676 (2018). Defendant has not established that
he was prejudiced by defense counsel’s strategic advice or that the trial court clearly erred in this
regard. Muhammad, 326 Mich. App. at 63.
B. SURVEILLANCE FOOTAGE
Defendant also argues that his defense counsel was ineffective in failing to introduce
surveillance footage from another camera—Camera 6—which showed him outside at the time
Sanders was first battered by Gillman and Cristao. We disagree. Again, decisions regarding what
evidence to present are generally presumed to be matters of trial strategy. Muhammad, 326 Mich
App at 66. Although defense counsel testified at the Ginther hearing that he had viewed the
surveillance footage in its entirety, he had no memory of seeing the footage from Camera 6. To
the extent that he was unaware of the footage, he could not have made a strategic choice to omit it
from trial. Trakhtenberg, 493 Mich. at 52. But even if defense counsel’s failure to admit the
Camera 6 footage fell below an objective standard of reasonableness, defendant cannot show
prejudice. The prosecution did not attempt to prove that defendant was involved in the initial
attack—in fact, the prosecution explicitly conceded during closing arguments that defendant was
outside when that attack occurred. And the surveillance footage that was shown to the jury
depicted only Cristao and Gillman initially attacking Sanders. Because defendant’s whereabouts
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were essentially undisputed, defendant cannot establish a reasonably probability that the result of
his trial would have been different if the Camera 6 footage had been presented to the jury.
Muhammad, 326 Mich. App. at 63.
C. PRETRIAL INVESTIGATION
Defendant also argues that he was denied the effective assistance of counsel because his
attorney failed to interview any witnesses or subject the prosecutor’s case to meaningful
adversarial testing. Defendant argues that his trial counsel’s performance constituted a complete
denial of counsel as described in United States v Cronic, 466 U.S. 648, 658-660; 104 S. Ct. 2039; 80
L. Ed. 2d 657 (1984), and therefore prejudice should be presumed. People v Frazier, 478 Mich.
231, 243; 733 NW2d 713 (2007); see also People v Kammeraad, 307 Mich. App. 98, 125; 858
NW2d 490 (2014), quoting Cronic, 466 U.S. at 659. We disagree.
Defendant’s reliance on Cronic is misplaced. Cronic’s presumption of prejudice applies
only when defense counsel’s failure is complete, as opposed to deficient at specific points in the
proceedings. Bell v Cone, 535 U.S. 685, 697; 122 S. Ct. 1843; 152 L. Ed. 2d 914 (2002). “For
purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not
of degree but of kind.” Id. Defense counsel met with defendant for trial preparation, reviewed
police reports and surveillance footage and was very familiar with the facts of the case. He cross-
examined both complaining witnesses about inconsistencies in their testimonies, prior statements,
and the surveillance video. Because it is evident that defense counsel’s investigation, however
limited, did not result in a complete failure to subject the prosecutor’s case to meaningful
adversarial testing, Cronic is inapplicable. Id.
Nor was counsel’s investigation ineffective under the Strickland standard. “Counsel
always retains the duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Trakhtenberg, 493 Mich. at 52 (quotation marks and
citation omitted). Defendant’s insistence that defense counsel failed to interview any witnesses
before trial is not supported by the record. This matter was not explored at the Ginther hearing,
leaving this Court without a factual record for determining whether defense counsel actually
interviewed any witnesses or whether he had strategic reasons for choosing not to do so. Defendant
has failed to establish the factual predicate for his claim.4 Muhammad, 326 Mich. App. at 63. And
defense counsel’s alleged failure to uncover the Camera 6 footage before trial, even if true, would
not constitute ineffective assistance for the reasons already discussed.
4
Although defendant presents this Court with affidavits from Larry and Cristao stating that defense
counsel did not interview them, he has not requested that this Court remand for a second Ginther
hearing, nor has he explained why this issue could not have been explored during the first Ginther
hearing. We therefore decline to permit the expansion of the record on appeal. See
MCR 7.210(A); People v Nix, 301 Mich. App. 195, 203; 836 NW2d 224 (2013).
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III. LAY WITNESS OPINION
Defendant argues that the trial court erred by permitting a police detective to testify about
the content of the surveillance video. We agree that the testimony was improper lay witness
opinion, but conclude that the error was harmless.
“To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001). Defense counsel did not object at trial
that the detective’s testimony was impermissible lay opinion testimony. This Court reviews
unpreserved claims regarding the admissibility of evidence for plain error. Chelmicki, 305 Mich
App at 62.
Detective Derryck Thomas testified at trial concerning the surveillance video he had
obtained from Masters. At the end of his cross-examination, defense counsel asked Detective
Thomas whether the surveillance video showed defendant in the garage during the initial attack
and whether defendant could be seen holding an object as he struck Sanders. Detective Thomas
answered both questions in the negative. On redirect-examination, the prosecution asked the
detective whether he could see what was in defendant’s hands as defendant ran into the garage just
before the second battery and, again, Detective Thomas answered no. After playing the footage
depicting defendant striking Sanders, the prosecution asked whether “in the 14 times that we see
[defendant’s] arm move back and forth” the detective could see what was in defendant’s hands.
Defense counsel objected on the grounds that Detective Thomas had not testified that he saw
defendant’s arm move 14 times, and the trial court sustained the objection. Replaying the same
footage, the prosecution asked Detective Thomas to count how many times he saw defendant’s
hand swing at Sanders. Detective Thomas counted to 13 and said, “And they hit [Sanders] on—
they hit him and begin stomping him, so.” Defense counsel objected again, stating that Detective
Thomas could not have seen defendant “stomping anybody.” The trial court responded: “[I]f he
says he saw [defendant] stomping somebody, I guess that’s what he says. I mean there’s hardly
any point in our quibbling over what the video shows or doesn’t show. That’s what he said.”
Detective Thomas then confirmed that, to him, it appeared as though the video showed defendant
“stomping.”
Under MRE 701, a lay witness’s “testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in
issue.” However, a lay witness “may not opine about the defendant’s guilt or innocence in a
criminal case.” Heft, 299 Mich. App. at 81. Further, a police witness may not testify to the contents
of video shown to the jury if they stand in the same position as the jury; doing so invades the
province of the jury to determine defendant’s guilt with the evidence before it. See People v
Fomby, 300 Mich. App. 46; 831 NW2d 887 (2013). Like the officer in Fomby, Detective Thomas
did not have personal knowledge of the events the video depicted and merely testified about his
perception of the video itself. Further, Detective Thomas’s statements that he counted at least 13
punches from defendant, and that he saw “stomping,” invaded the jury’s role as fact finder. Id. at
52-53.
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However, defendant cannot establish that the challenged testimony affected his substantial
rights. A jury is always “free to reject [a witness’s] opinion on the basis of the evidence adduced
at trial . . . .” McFarlane, 325 Mich. App. at 523. Despite defendant’s contention to the contrary,
it is far from certain that the jury gave the improper opinion testimony any credence. The jury
viewed the surveillance footage repeatedly throughout three days of proceedings and had access
to it during deliberations. The jury heard eyewitness accounts of what occurred both through
narrations of the surveillance and on the basis of the eyewitnesses’ independent recollections. And
regardless of how many times defendant struck Sanders or whether he also “stomped” on Sanders,
the jury was presented with sufficient evidence to conclude that defendant had attacked Sanders
with the intent to do great bodily harm, and to reject his claim of self-defense. Considering the
evidence presented at trial and the circumstances in which the improper testimony was presented,
there is no reasonable basis to conclude that Detective Thomas’s testimony affected the outcome
of the proceedings. Wiley, 324 Mich. App. at 151.
IV. JURY INSTRUCTIONS
Defendant also argues that the trial court clearly erred by giving defective jury instructions,
or in the alternative that defense counsel was ineffective for failing to object to instructional error.
While we agree that the trial court misspoke while instructing the jury on Count 4, we find that
error harmless; we find defendant’s remaining claims of error to be without merit.
A criminal defendant has a fundamental right to have his or her guilt determined by a
properly instructed jury. Head, 323 Mich. App. at 537. “A defendant is thus entitled to have all the
elements of the crime submitted to the jury in a charge which [is] neither erroneous nor
misleading . . . .” People v Kowalski, 489 Mich. 488, 501; 803 NW2d 200 (2011) (quotation marks
and citation omitted; alteration in original). Jury instructions need not be perfect if, on the whole,
they adequately protect defendant’s rights. People v Bell, 209 Mich. App. 273, 278; 530 NW2d
167 (1995).
Defendant raises three alleged deficiencies in the jury instructions. First, defendant argues
that defense counsel erred by failing to request a jury instruction concerning Cristao’s plea
agreement. Defendant has not established the factual predicate for this claim. Muhammad, 326
Mich. App. at 63. Defendant contends that Cristao’s plea agreement was discussed in front of the
jury, but the record does not support this contention. Further, our review of the instruction given
by the trial court concerning Cristao’s absence shows that it adequately protected defendant’s
rights. Bell, 209 Mich. App. at 278. After Cristao accepted a plea offer on the first day of trial
(outside the presence of the jury), the trial court instructed the jury as follows on their return:
There, uh, there was another development that took us a little time to work
out. But just briefly you will probably notice that Mr. Evelyn and his client Mr.
Cristao are no longer with us. They are no longer a part of this trial. I’m going to
ask you, or actually tell you not to concern yourselves with that or the whys or the
wherefores.
As I told you, um, in your preliminary instructions yesterday when there
were two defendants in this case, you are to give each defendant separate
consideration. And now you will just give the remaining defendant separate
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consideration and concern yourselves only with the evidence that’s presented
against him and no one else.
Don’t concern yourselves with the absence of the second defendant. And
that’s an issue that should not even enter into your deliberations.
By instructing the jury that Cristao’s absence from the case should not enter the jury’s
deliberations, the court effectively conveyed that the disposition of the charges against Cristao was
not evidence. For that reason also, defense counsel was not ineffective for failing to request a
more specific instruction. See People v Stokes, 312 Mich. App. 181, 204; 877 NW2d 752 (2015),
vacated in part on other grounds 501 Mich. 918 (2017).
Defendant also argues that the trial court erred when it instructed the jury concerning
Count 4, which charged felony-firearm predicated on AWIGBH. During the final jury
instructions, the trial court walked the jury through the verdict form to clarify the different charges
against defendant. With respect to Count 4, the court said, “[Defendant is] charged with
felony[ ]firearm, which is possessing and or using a gun or having a gun at the time of committing
some other crime, and that would be the assault with intent to do great bodily harm.” Later, the
court instructed:
And, um, as I mentioned earlier too when I was going over the jury verdict
form with you, the defendant is charged with two separate counts of what we call
felony[-]firearm. That is, possessing or having a firearm in the commission of
another felony.
There’s two felony[-]firearm counts here that you have to consider, Count
4 and Count 6. Each one attaches to a different underlying felony.
In Count 4, defendant Masters is charged with the crime of possessing a
firearm at the time that he committed the crime of assault with intent to do great
bodily harm less than murder against Quinte Sanders.
And to prove this charge, the prosecutor must prove each of the following
elements beyond a reasonable doubt.
First, that the defendant committed either the assault with intent to do great
bodily harm or felonious assault against Quinte Sanders.
That’s for the beating, right?
And these charges have already been defined for you.
Secondly, that at the time the defendant committed either one of those
crimes, he knowingly carried or possessed a firearm. [Emphasis added.]
As defendant correctly points out, the italicized portion of the above jury instructions was
clearly inaccurate because the prosecution charged Count 4 only in connection with AWIGBH,
while the felony-firearm charge in Count 6 was predicated on the three felonious assault charges
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in Counts 2, 3, and 5. There could be no legitimate strategic reason for defense counsel not to
have objected to this error. Defense counsel’s failure to object to the inaccurate jury instruction
fell below an objective standard of reasonableness. See People v Eisen, 296 Mich. App. 326, 330;
820 NW2d 229 (2012) (finding deficient performance where the defendant’s attorney did not
object to defective instructions that omitted an essential element of the crime). However,
defendant cannot demonstrate that he was prejudiced by the trial court’s error. Trakhtenberg, 493
Mich. at 51. The jury was correctly instructed at other times and the verdict form clearly specified
that Count 4 related only to AWIGBH. This Court has found that a proper verdict form
significantly reduced the prejudicial effect of a defective jury instruction that omitted an essential
element. Eisen, 296 Mich. App. at 330.
Furthermore, in evaluating the effect of improper jury instructions, this Court considers the
instructions as a whole. Kowalski, 489 Mich. at 501. Immediately after the trial court defined the
first element of Count 4 as requiring that “defendant committed either the [AWIGBH] or felonious
assault against Quinte Sanders,” the court clarified, “That’s for the beating, right?” The only
counts that could arguably be viewed as relating to “the beating” were AWIGBH and the felonious
assault underlying Count 2 (pistol-whipping Sanders). The jury acquitted defendant of Count 2.
There is no evidence on the record that the jury convicted defendant of Count 4 based on anything
other than a finding that defendant possessed a firearm when he later assaulted Sanders.
Trakhtenberg, 493 Mich. at 51.
Defendant also argues that defense counsel performed deficiently by failing to request an
instruction regarding the order in which the jury should deliberate on the offenses charged. We
disagree. In People v Handley, 415 Mich. 356, 361; 329 NW2d 710 (1982), our Supreme Court
stated:
[A] jury instructed after the day this opinion is released must be told to consider the
principal charge first. It should then be instructed that if it fails to convict or acquit
or is unable to agree whether to convict or acquit on that offense, it may then turn
to lesser offenses. The correct instruction would be that after the jury has given
consideration to the greater offense, it may turn to lesser offenses either if it finds
the defendant not guilty of the greater offense or if it is unable to agree on whether
the defendant is guilty or not guilty of the greater offense.
The trial court in this case did not instruct the jury about the order of deliberations as
outlined in Handley. Nor, however, did it issue any instructions that precluded the jury, explicitly
or by implication, from considering aggravated assault under Count 1 without first unanimously
agreeing that defendant was not guilty of AWIGBH. Consequently, the absence of an instruction
regarding the order of deliberations in this case was far less significant than the circumstances at
issue in Handley. As noted earlier, we do not review specific jury instructions in a vacuum; the
instructions must be viewed as a whole to properly assess claims of instructional error. Kowalski,
489 Mich. at 501. With respect to Count 1, the court told the jury that it had three voting options:
“It’s either not guilty or guilty of assault with intent to do great bodily harm less than murder, or
guilty of a lesser crime called aggravated assault.” Later, when the trial court described the
elements of the offenses at issue, it again noted that the jury could “consider the lesser crime of
aggravated assault” under Count 1. The trial court also instructed the jury, without reference to
any specific charge, that its verdict had to be unanimous. Nothing in these instructions interfered
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with the jury’s discretion to consider the lesser included offense. Therefore, even if defense
counsel erred by failing to request a specific instruction on the order of deliberations, defendant
cannot demonstrate prejudice. Trakhtenberg, 493 Mich. at 51.
V. SEARCH AND SEIZURE
Defendant also argues that his Fourth Amendment rights were violated when the police
searched his vehicle while executing a search warrant at the repair shop, and that he was denied
the effective assistance of counsel when his attorney did not move to suppress the evidence that
was discovered in defendant’s vehicle. We disagree.
To preserve a challenge to the constitutionality of a search and seizure, the defendant must
move for suppression of the illegally seized evidence before the trial court. People v Snider, 239
Mich. App. 393, 406; 608 NW2d 502 (2000). Because defendant did not move to suppress the
evidence seized from his car, this issue is unpreserved. This Court reviews unpreserved issues of
constitutional law for plain error. People v Henry (After Remand), 305 Mich. App. 127, 160; 854
NW2d 114 (2014).
“A defendant has the right to be secure from unreasonable searches and seizures under both
the federal and state constitutions.” People v McGhee, 255 Mich. App. 623, 625; 662 NW2d 777
(2003). Searches and seizures that are not conducted pursuant to a valid warrant or an exception
to the warrant requirement are unreasonable and, therefore, unconstitutional. People v Hellstrom,
264 Mich. App. 187, 192; 690 NW2d 293 (2004). In order to provide reasonable guidance to those
who execute a search warrant, the warrant “must particularly describe the place to be searched and
the persons or things to be seized.” Id. As a general matter, “evidence obtained in violation of the
Fourth Amendment is inadmissible as substantive evidence in criminal proceedings.” People v
Kazmierczak, 461 Mich. 411, 418; 605 NW2d 667 (2000).
Defendant contends that the search of his vehicle was unlawful because the search warrant
pertained only to the auto repair shop, and his vehicle was parked in a lot north of the building that
was not owned by the auto repair shop. We find no factual support in the record for defendant’s
claim. The police searched the shop pursuant to a warrant authorizing the search of 19984 Conant
in Detroit, Michigan, as well as “the entire premises, all out buildings, garages, or other storage
buildings related to the above-described premises, all containers in or on the premises and curtilage
or storage area related to the above described place.” Detective Thomas testified that he seized
defendant’s vehicle in the course of executing the search warrant and discovered electronic
equipment belonging to Sanders in the trunk during an inventory search. Defendant provides this
Court with an affidavit saying that his car was not parked in a lot owned by the shop at the time of
the search, but the record contains no evidence in support of this self-serving statement. On the
record before us, we find no plain error. Even if we were to find plain error, Sanders testified that
the equipment had been removed from his vehicle when he returned to claim it, and defendant was
recorded on video removing that equipment. In our judgment, it is more probable than not that the
jury would have convicted defendant of larceny from a vehicle even if the equipment recovered
from defendant’s vehicle had been suppressed. Henry, 305 Mich. App. at 160. For similar reasons,
defense counsel was not ineffective for failing to move to suppress this evidence. An attorney is
not required to raise meritless objections, Eisen, 296 Mich. App. at 329, and defendant cannot
establish on the existing record that a motion to suppress would have been successful if pursued
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by defense counsel. And as already noted, it does not appear reasonably probable that the outcome
of the trial would have been different but for counsel’s failure to seek suppression. Accordingly,
defendant cannot establish either deficient performance or prejudice. Trakhtenberg, 493 Mich. at
51.
VI. PROSECUTORIAL MISCONDUCT
Defendant also argues that the prosecutor’s closing argument impermissibly commented
on defendant’s failure to testify. We disagree.
Defendant did not preserve his challenge to the prosecutor’s closing argument by placing
a contemporaneous objection and requesting a curative instruction. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). This Court reviews unpreserved claims of prosecutorial
misconduct for plain error. People v Abraham, 256 Mich. App. 265, 274; 662 NW2d 836 (2003).
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). Claims of
prosecutorial misconduct or error are reviewed on a case-by-case basis, and this Court must
consider the alleged error in the context of the full record. Id. at 64. “Generally, prosecutors are
accorded great latitude regarding their arguments, and are free to argue the evidence and all
reasonable inferences from the evidence as they relate to their theory of the case.” People v Seals,
285 Mich. App. 1, 22; 776 NW2d 314 (2009). When reviewing challenges concerning closing
arguments, the “prosecutor’s comments are to be evaluated in light of defense arguments and the
relationship the comments bear to the evidence admitted at trial.” Dobek, 274 Mich. App. at 64.
Despite the broad discretion the prosecution possesses to craft persuasive closing
arguments, it cannot comment on a defendant’s failure to testify. People v Mann, 288 Mich. App.
114, 120; 792 NW2d 53 (2010). “Such remarks are prohibited because they ask the jury to draw
the inference that the defendant is guilty or hiding something merely because he has not taken the
stand.” Id. (quotation marks and citation omitted). Defendant takes issue with the following
portion of the prosecution’s closing argument:
Now, even though, and we’ve talked a great deal about how [defendant]
wasn’t physically present at the time of that first attack, but we know [defendant]
is who started this all off. We know that he’s the one who lifts the shirt to prove a
point. To make a statement. And he doesn’t denounce himself from these actions
afterwards.
We know that he’s still on scene. He’s at the shop there. He still
participating in this. We know that Mr. Sanders is trapped in the garage alone.
Defendant argues that the when the prosecution said he did not “denounce himself from
these actions afterwards,” it was commenting on the fact that he did not testify, thereby implying
that defendant bore the burden of disproving the allegations against him. We do not agree with
defendant’s characterization of this statement. It is evident in context that the prosecution’s remark
about defendant’s failure to “denounce himself” refers to defendant’s actions that day in the auto
repair shop, not his actions at trial. Immediately after that statement, the prosecution stated that
defendant was “still on the scene” and “still participating in this.” The prosecution’s comment
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was merely that after having escalated matters by flashing a gun at Sanders in the customer service
area, defendant did nothing to disavow the implied threat or halt the progression of the increasingly
volatile situation. The prosecution also clearly stated during oral argument that it bore the burden
of proving that defendant committed the charged offenses and that he did not act in self-defense.
Defendant has not established that the prosecution’s comment was improper. Mann, 288 Mich
App at120. Nor was defense counsel ineffective for failing to objected to this isolated statement,
as counsel was not required to make a meritless objection. Eisen, 296 Mich. App. at 329.
VII. SCORING ERROR
Defendant argues that the trial court erred in its scoring of offense variables (OVs) 1, 2,
and 14, and that defense counsel was ineffective for failing to object to the scoring of OVs 1 and
2. We agree that OV 1 was erroneously scored, but conclude that defendant has not demonstrated
that he is entitled to resentencing.
To preserve a scoring error, the defendant must raise the issue at sentencing, in a motion
for resentencing before the trial court, or in a motion to remand filed with this Court. People v
Hershey, 303 Mich. App. 330, 353; 844 NW2d 127 (2013). Of the scoring issues raised on appeal,
defendant only objected to the scoring of OV 14 at sentencing. Accordingly, only defendant’s
challenge to OV 14 is preserved for review.
In assessing points under the sentencing guidelines, the trial court must make factual
findings by a preponderance of the evidence, and those findings are reviewed for clear error.
People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). “A finding is clearly erroneous if the
reviewing court is left with a definite and firm conviction that a mistake has been made.” Lopez,
305 Mich. App. at 693 (quotation marks and citation omitted). “Whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to
the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Hardy,
494 Mich. at 438. We review unpreserved scoring errors for plain error affecting substantial rights.
People v Kimble, 470 Mich. 305, 312; 684 NW2d 669 (2004); People v Wiley, 324 Mich. App. 130,
150-151; 919 NW2d 802 (2018). “To establish that a plain error affected substantial rights, there
must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court
proceedings.” Wiley, 324 Mich. App. at 151 (quotation marks and citation omitted).
Defendant was assessed 15 points for OV 1. MCL 777.31(1)(c) directs the trial court to
assess 15 points when “[a] firearm was pointed at or toward a victim . . . .” “OV 1 is an ‘offense-
specific’ variable,” which means that only conduct relating to the sentencing offense may be
considered. People v Chelmicki, 305 Mich. App. 58, 72; 850 NW2d 612 (2014) (citation omitted).
The sentencing offense for defendant’s guidelines score was his AWIGBH conviction, which was
predicated on the events surrounding the second battery in the garage. Defendant argues that he
set his gun down before attacking Sanders and thus did not point it “at or toward” him while
committing AWIGBH. We agree.
Mere possession of a firearm during the sentencing offense will not satisfy the scoring
conditions under MCL 777.31(1)(c), which apply only where “[a] firearm was pointed at or
toward a victim or the victim had a reasonable apprehension of an immediate battery when
threatened with a knife or other cutting or stabbing weapon[.]” (Emphasis added.) The only
evidence supporting the trial court’s scoring of OV 1 is Sanders’s testimony that defendant struck
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him with a gun. Although Sanders was adamant that he saw defendant swing the gun at him, there
is no indication that defendant pointed the gun at or toward Sanders in doing so.
Defendant was also assessed five points for OV 2, which is required when “[t]he offender
possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon[.]”
MCL 777.32(1)(d). Because nothing in the statutory language of MCL 777.32 suggests that the
Legislature intended for conduct outside the sentencing offense to be considered under OV 2, the
trial court was again required to confine its analysis to conduct relating to the sentencing offense.
See People v McGraw, 484 Mich. 120, 129; 771 NW2d 655 (2009) (“Reading the provisions of
MCL 777.1 et seq. in harmony suggests that the offense variables are scored by reference only to
the sentencing offense, except where specifically provided otherwise.”). Defendant argues that he
did not “possess or use” a pistol during the sentencing offense, because he set it down before
approaching Sanders. We disagree.
Again, Sanders testified that defendant hit him with a gun. There are moments in the video
both before and after the second battery that clearly depict defendant holding a gun. While the
footage is clear enough to discern defendant’s repeated striking motion during the second battery,
the video sheds little light on whether defendant was holding or otherwise in possession of a gun
at that time. Given the conflicting evidence on this point, trial court’s scoring of OV 2 was not
plainly erroneous. In any event, even crediting defendant’s version of events, the trial court could
have found by a preponderance of the evidence that defendant constructively possessed the gun
when he set it down a few feet away from him. See People v Burgenmeyer, 461 Mich. 431, 437;
606 NW2d 645 (2000) (“[A] defendant has constructive possession of a firearm if the location of
the weapon is known and it is reasonable accessible to the defendant.”). The prosecution argued
that defendant had at least constructive possession of the gun during the whole encounter, and the
jury found defendant guilty of felony-firearm in connection with AWIGBH.
Defendant also makes passing reference to an error in the scoring of OV 14, MCL 777.44
(offender’s role in multiple offender situation), but offers absolutely no substantive argument
concerning the basis of the alleged error. “An appellant’s failure to properly address the merits of
his assertion of error constitutes abandonment of the issue.” Miller, 326 Mich. App. at 739
(quotation marks and citation omitted).
We agree with defendant that OV 1 was scored in error, but disagree that OV 2 was, and
hold that defendant has abandoned his challenge to the scoring of OV 14. Because reducing the
number of points assessed for OV 1 would not alter defendant’s recommended minimum sentence
range under the guidelines, resentencing is not required. People v Francisco, 474 Mich. 82, 89 &
n 8; 711 NW2d 44 (2006). For the same reason, defendant’s counsel was not ineffective in failing
to object to the scoring of OVs 1 and 2. See People v McFarlane, 325 Mich. App. 507, 537; 926
NW2d 339 (2018).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra
-14- | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902137/ | OPINION OF THE COURT
Per Curiam.
Respondent is an attorney admitted to practice in New York by this court on September 12, 1972. He maintains an office for the practice of law in Buffalo. He is charged by the Grievance Committee of the Eighth Judicial District with multiple violations of the Code of Professional Responsibility and the rules of this court, specifically Code of Professional Responsibility DR 1-102 (A) (4), engaging in conduct involving dishonesty; DR 1-102 (A) (5), engaging in conduct that is prejudicial to the administration of justice; DR 1-102 (A) (6), engaging in conduct that reflects adversely on his fitness to practice law; DR 6-101 (A) (3), neglecting a legal matter entrusted to him; DR 9-102 (A), (B), failing to identify, deposit, and promptly repay funds of a client; and 22 NYCRR 1022.5 (a), failing to maintain a special account for deposit of clients’ funds. Respondent denied the allegations of the petition, except for the allegation that he failed to maintain a clients’ account, and the matter was referred to a Referee to hear and report. The Referee found respondent guilty of all charges except the charge that he engaged in conduct involving dishonesty. With respect to that charge, the Referee found no proof that respondent had converted the clients’ funds "to his own use”.
Petitioner moves to confirm the Referee’s findings except for the finding that respondent did not engage in conduct involving dishonesty. Petitioner requests that we make the finding that respondent engaged in conduct involving dishonesty by failing to use client’s funds for the purpose for which they had been entrusted to him and, instead, misappropriating them and diverting them to the use of another. Respondent cross-moves to confirm the Referee’s report in part and disaffirm in part. He seeks confirmation of the Referee’s finding that he did not convert the funds, but asks us to disaffirm the other findings. We grant petitioner’s motion and make the additional finding that respondent engaged in conduct involving dishonesty in violation of DR 1-102 (A) (4). In all other *235respects, we adopt the Referee’s findings and conclude that respondent is guilty of violating DR 1-102 (A) (5), (6); DR 6-101 (A) (3); DR 9-102 (A), (B); and 22 NYCRR 1022.5 (a).
The facts established at the hearing and the reasonable inferences to be drawn therefrom demonstrate that respondent was retained to represent Mr. and Mrs. A. Z. Nsilo Swai in the prospective purchase of two properties in Buffalo. The Swais were Tanzanian nationals who were members of the United Nations delegation from that country. Over a three-week period in June 1985, Mr. Swai sent respondent three checks totaling $6,000, together with letters addressed to respondent as "Attorney”, instructing him to negotiate the purchases, apply for mortgages, and apply the funds as down payments on the properties. Respondent admits that he did not deposit the client’s funds in a proper account and in fact maintains no such account. Respondent also admits that he did not apply the funds as down payments on the properties. Instead, respondent endorsed the three checks, cashed two, and gave the third to Ernest Mawalla, Mrs. Swai’s brother, who is a client and friend of respondent. Mawalla took it to a check-cashing service and cashed the check while respondent waited outside. Respondent admits that he did not apply for the mortgage and had no contact with the bank or the property owners on behalf of the clients. Despite numerous requests for the money by Mrs. Swai and an attorney whom she retained to get the money, and, notwithstanding numerous promises by respondent to repay the money, respondent did not return the money until after commencement of a civil suit and the filing of this complaint.
The existence of an attorney-client relationship was established by the clear import of the checks and accompanying instructions sent to respondent by Mr. Swai; by respondent’s acceptance, endorsement, and cashing of the checks; by respondent’s failure to explain why, if there were no attorney-client relationship, he did not attempt to clarify the meaning of those communications; and by respondent’s repeated promises to repay the Swais. Since it was established that respondent was acting as the Swais’ attorney in their purchase of the properties, it follows that respondent neglected a legal matter entrusted to him by failing to deposit the money in a client’s account, failing to apply the funds for the purposes intended by the client, turning the funds over to Mawalla without obtaining a receipt, and failing to carry out the client’s instructions with respect to negotiating the purchases *236and pursuing the mortgage applications. Such conduct, in addition to being a violation of Code of Professional Responsibility DR 6-101 (A) (3), DR 9-102 (A), (B), and 22 NYCRR 1022.5 (a), reflects adversely on respondent’s fitness to practice law and thus is also a violation of DR 1-102 (A) (6).
The remaining charges that respondent engaged in conduct involving dishonesty and conduct prejudicial to the administration of justice by converting the client’s funds are established by the circumstances surrounding his negotiation of the checks and failure to apply the funds for the purposes intended by the client and by evidence of his evasiveness, lack of cooperation, inconsistent statements, and generally incredible explanations in defense of these charges. Respondent contends that he turned over the checks or proceeds to Mawalla in the mistaken belief that Mawalla was acting as the Swais’ "agent” in this matter, and further, that he relied on Mawalla’s misrepresentations that he would take care of the mortgage applications and take the money to the bank. Respondent’s explanations are undercut by his acceptance and handling of the checks and by his tacit admission of responsibility in promising to repay the Swais. Further, respondent’s actions and inconsistent statements in response to the complaint in this matter are inconsistent with his claim of innocence. When confronted by Mrs. Swai and her attorney, respondent never claimed that he had given the money to Mawalla. Instead, he avoided the Swais and their attorney and repeatedly broke appointments to meet with them. Following the filing of this complaint, respondent consistently avoided meeting with petitioner’s investigators, even after respondent had been subpoenaed to testify and produce his records. Finally, respondent made several demonstrably false and contradictory statements when he finally told the version of events to which he now adheres, the most damaging of which was his denial that he had accompanied Mawalla to the check-cashing service when Mawalla cashed the $4,000 check. Respondent’s evasiveness, lack of cooperation, and generally incredible story establish an intent to defraud his clients and support a finding that respondent engaged in conduct involving dishonesty in violation of Code of Professional Responsibility DR 1-102 (A) (4) and that he engaged in conduct prejudicial to the administration of justice in violation of DR 1-102 (A) (5).
*237We find that respondent is guilty of professional misconduct as charged in the petition. In view of respondent’s insensitivity to his legal and ethical obligations, we conclude that he should be disbarred.
Boomer, J. P., Pine, Balio, Lawton and Davis, JJ., concur.
Order of disbarment entered. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902139/ | OPINION OF THE COURT
Per Curiam.
The petitioner, The New York Times Company (hereinafter the Times), instituted the instant CPLR article 78 proceeding against the respondent, a Justice of the Supreme Court, Queens County, seeking to prohibit him from conducting plea proceedings pursuant to Queens County indictment number 890/87 in a closed session from which the public and press are excluded and to compel the respondent to disclose the transcript of any prior plea proceedings involving the defendant Harry Buonocore which were conducted outside the presence of the press and public. We find that the respondent’s action in precluding the public and press from plea proceedings in this case is improper and accordingly, the petition herein is granted.
I
This proceeding arises out of the highly publicized case involving the attack upon three black men by a group of white youths in the Howard Beach section of Queens County in December 1986. One black man was struck and killed by a passing vehicle when he was chased onto the Belt Parkway by his attackers. Previously, three youths involved in the attack were convicted, inter alia, of manslaughter in the second degree. The trial of seven remaining defendants accused of participating in the attack was scheduled to begin on May 23, 1988. One of the youths is charged, inter alia, with the crime of attempted murder in the second degree and the remaining six individuals, including Harry Buonocore and Salvatore DeSimone are charged, inter alia, with riot in the first degree.
*249Sometime during May 18, 1988, the Times was informed that two of the named defendants, Buonocore and DeSimone, were negotiating with the prosecution and the respondent to plead guilty and that the pleas would formally be entered on May 19 and 20, 1988. The respondent issued a "gag order” prohibiting any of the involved parties or their attorneys from commenting to the press on the pending proceedings and the Times, despite several attempts, was unable to obtain any information regarding the impending guilty pleas. The Times, during the afternoon of May 18, 1988, and the following morning, contacted the respondent’s chambers several times requesting an opportunity to gain access to the plea proceedings or to be heard on the issue of the closure of the proceedings. The respondent failed to respond to those requests and refused to hold a hearing. Sometime during May 19, 1988, the defendant Buonocore allegedly pleaded guilty to the charges against him under Queens County indictment number 890/87 in the respondent’s chambers with the public and the press excluded. A transcript of those plea proceedings was allegedly taken and sealed.
On the afternoon of May 19, 1988, the Times sought, by order to show cause, to temporarily restrain the respondent from conducting further secret plea proceedings and to direct the respondent to disclose the transcript of the plea proceedings involving the defendant Buonocore. Upon being informed of this application, the respondent finally agreed to hold a hearing on the application of the Times.
The following morning, May 20, 1988, prior to the allegedly scheduled plea proceedings involving the defendant DeSimone, the respondent provided the Times with an opportunity to be heard on the issue of the closure of the plea proceedings. In addition to seeking access to the plea proceedings of the defendant DeSimone, the Times also sought disclosure of the plea hearing transcript involving the defendant Buonocore. Neither the defense lawyers nor the prosecution were in attendance at this hearing. The prosecution has represented to this court that it takes no position on the Times’ application. The papers presented to this court indicate that at least one of the defense attorneys has voiced strong opposition to the closed proceedings, and no defendant opposed the application of the Times.
At the conclusion of the Times’ argument, the respondent denied the application. The respondent determined that if the *250plea proceedings were open to the press and public and/or the plea transcript was unsealed at that time, the respondent could not insure that the remaining defendants’ rights to a fair and impartial jury would be protected due to extensive media publicity. The respondent also summarily determined that possible alternatives to closure of the plea proceedings, such as an extensive and careful voir dire, a change of venue or an adjournment of the impending trials, were not viable. This determination consisted of conclusory statements lacking any factual basis whatsoever.
Immediately after the respondent’s ruling, the Times commenced this proceeding. The proceedings under Queens County indictment number 890/87 from which the public and the press are excluded have been stayed pending this court’s determination on the Times’ petition.
II
The courts have consistently held that the right of the public and press to attend court proceedings, civil and criminal, is guaranteed by the Federal and State Constitutions (US Const 1st Amend; NY Const, art I, § 8; see, Globe Newspaper Co. v Superior Ct., 457 US 596; Richmond Newspapers v Virginia, 448 US 555; Gannett Co. v DePasquale, 443 US 368; Matter of Capital Newspapers v Moynihan, 71 NY2d 263; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Matter of Herald Co. v Weisenberg, 89 AD2d 224, affd 59 NY2d 378; see also, Judiciary Law § 4 ["The sittings of every court within this state shall be public, and every citizen may freely attend the same”]). In criminal cases, this right of access has been extended not only to the trial itself, but also to pretrial hearings (see, Press-Enterprise Co. v Superior Ct. of Cal., 478 US 1, 106 S Ct 2735; Waller v Georgia, 467 US 39; Matter of Associated Press v Bell, 70 NY2d 32), voir dire proceedings (see, Press-Enterprise Co. v Superior Ct. of Cal., 464 US 501), and plea proceedings (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707). In cases dealing with the claim of constitutional right to access to criminal proceedings, the courts have recognized that open-court proceedings serve several purposes. "First, 'contemporaneous review in the forum of public opinion’ (Matter of Oliver, 333 US 257, 270) serves to protect the accused from 'secret inquisitional techniques’ and unjust persecution by public officials and 'goes far toward insuring him the fair trial to which he is entitled’ (People v *251Jelke, 308 NY 56, 62) * * * The public also has an interest in seeing that there is justice for the accuser—the police and prosecutors who must enforce the law, and the victims of crime who suffer when the law is not enforced with vigor and impartiality. And when justice has been done, public awareness 'serve[s] to instill a sense of public trust in our judicial process’ (People v Hinton, 31 NY2d 71, 73) by assuring the innocent and impressing the guilty with the power of the rule of law. Justice must not only be done; it must be perceived as being done” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437, supra).
In Press-Enterprise Co. v Superior Ct. of Cal. (464 US 501, 508, supra, quoting from Richmond Newspapers v Virginia, 448 US 555, 570, supra), the Supreme Court also noted that the open trial "has what is sometimes described as a 'community therapeutic value’ ”. The court further explained: "Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done * * * When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected” (Press-Enterprise Co. v Superior Ct. of Cal., 464 US 501, 508-509, supra).
This is not to say that a criminal proceeding may never be closed to the public or press. It has been recognized that the right to an open trial may give way in certain instances to other rights or interests, such as an accused’s right to a fair trial or the government’s interest in avoiding the disclosure of sensitive information. However, closed proceedings must be rare and may only be held for cause shown which clearly and compellingly outweighs the value of openness (see, Waller v Georgia, 467 US 39, 45, supra; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 438, supra). The Supreme Court set forth the applicable rule in Press-Enterprise Co. v Superior Ct. of Cal. (464 US 501, 510, supra): "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to Serve that interest. *252The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered” (see also, Globe Newspaper Co. v Superior Ct., 457 US 596, 606-607, supra; Matter of Westchester Rockland Newspapers v Leggett, supra, at 442).
Prior to deciding whether closure of court proceedings is warranted, the Trial Judge must provide the interested parties with notice and an adequate opportunity to be heard on the issue (see, Matter of Westchester Rockland Newspapers v Leggett, supra, at 442). Moreover, a court’s decision to close a criminal proceeding to the public and the press may not be based upon conclusory assertions but must be supported by specific factual findings (see, Press-Enterprise Co. v Superior Ct. of Cal., 478 US 1, 10-15, supra).
Ill
In the instant proceeding, it is significant to note that the respondent refused the Times an opportunity to be heard on the issue of closure of the plea proceedings prior to the alleged taking of the defendant Buonocore’s guilty plea on May 19, 1988. In fact, the respondent failed to make any specific findings at that time to support his determination that closure of the proceedings was necessary. In this respect, the respondent, who acted secretly and apparently sua sponte, failed to comply with the procedures required for closure prescribed in Matter of Westchester Rockland Newspapers v Leggett (48 NY2d 430, 442, supra) and Press-Enterprise Co. v Superior Ct. of Cal. (464 US 501, 510, supra) (see, Matter of Johnson Newspaper Corp. v Parker, 101 AD2d 1027, appeal dismissed 63 NY2d 673; In re Washington Post Co., 807 F2d 383).
Moreover, we conclude that the respondent’s findings, made after the belated hearing conducted on May 20, 1988, that the closed proceedings and sealed plea transcript were necessary to protect the remaining defendants’ rights to a fair trial, have not been demonstrated in the record and therefore are insufficient to outweigh the constitutional right of access of the public and the press. A similar argument was addressed and ultimately rejected by the Court of Appeals in Matter of Associated Press v Bell (70 NY2d 32, supra) which involved a trial court ruling directing the closure of the Huntley hearing in the widely publicized murder trial of Robert Chambers. The Court of Appeals stated: "[HJypothetical risk of prejudice or taint cannot justify categorical denial of public access to *253suppression hearings because, as a general matter, the important interests of both the accused and the public can be accommodated. In individual cases, through careful voir dire a court can identify any potential jurors whose prior knowledge of the case would deter them from rendering an impartial verdict, and thus protect the right of the accused to a fair trial (Press-Enterprise [Co. v Superior Ct. of Cal.], 478 US 15, supra)” (Matter of Associated Press v Bell, supra, at 38).
It is also significant that during the hearing on the Times’ application, the respondent conceded that despite the extensive publicity which preceded the first Howard Beach trial, he was able to impanel a fair and impartial jury after conducting a thorough voir dire process. Surely, the potentially prejudicial effect which the public disclosure of the instant plea proceedings would have upon the jury selection process in the impending trials is no greater than that which occurred from the pretrial publicity in the earlier trial. The publicity and public attention which this case has generated from the date of the incident to present day has been extensive and has included recurring accounts of the witnesses’ observations and their trial testimony given in the preceding trial. It is difficult to discern how public access to the instant plea proceedings would cause such prejudice to the remaining defendants’ right to a fair and impartial jury as to warrant the categorical denial of the constitutional right of access of the public and the press. This is particularly so where it is apparent that at least one of the attorneys for a defendant to be tried voiced opposition to the closed sessions because of a concern of the prejudice to his client of "partial” and speculative media reports of the closed proceedings.
In view of the foregoing, we conclude that the presumption of openness of criminal proceedings was not overcome in this case. The respondent’s articulated purpose for closing the plea proceedings to the public and the press does not justify the actions taken in this case. Absent a showing of compelling circumstances, this court cannot countenance secret court proceedings to which the public and the press have a constitutional right of access. The right of freedom of the press guaranteed under the First Amendment and the public’s right to be informed should not be hostages to the subjective whims of a Trial Judge, no matter how well intentioned he or she might be. Accordingly, the petition is granted.
Mollen, P. J., Mangano, Rubin and Sullivan, JJ., concur.
*254Ordered that the cross motion is denied, without costs or disbursements; and it is further,
Adjudged that the petition is granted, on the law, without costs or disbursements, and the respondent is prohibited from conducting any further plea proceedings in a criminal matter under Queens County indictment number 890/87 from which the public and the press are excluded and the respondent is directed to release forthwith the transcript of any plea proceedings involving the defendant Harry Buonocore under that indictment. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902140/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was directed to provide a urine sample for testing, but claimed he could not do so at that time. Soon after, he was observed retrieving the finger of a latex glove filled with liquid by rolling it from the gallery floor into his cell. When he was asked what he had retrieved, he said “nothing” and flushed the liquid-filled finger down the toilet. As a result, the effort to obtain a urine sample from petitioner was terminated and he was charged in a misbehavior report with violating various prison disciplinary rules. Petitioner faced further charges after a needle and a plastic glove with fingers missing from it were subsequently found in his cell. Following a tier III disciplinary hearing on both reports, petitioner was found guilty of refusing a direct order, violating urinalysis testing procedures, and possessing contraband. Petitioner pursued an unsuccessful administrative appeal, then commenced this CPLR article 78 proceeding.
The misbehavior reports, as well as the testimony of petitioner himself and a correction officer who authored one of the reports, provide substantial evidence to support the determination of guilt (see Matter of Quinones v Fischer, 78 AD3d 1407, 1408 [2010]; Matter of Cole v Selsky, 269 AD2d 717, 717 [2000]). The Hearing Officer, moreover, could reasonably infer from the evidence presented that petitioner planned to submit the liquid in the glove finger as his urine sample in an attempt to circumvent *1044the urinalysis testing procedures (see Matter of Kae v Bezio, 79 AD3d 1496, 1497 [2010]; Matter of Billue v Goord, 28 AD3d 845, 845-846 [2006]). Petitioner’s remaining claim is not preserved for our review and, in any event, is without merit.
Rose, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902142/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was directed to provide a urine sample for testing, but claimed he could not do so at that time. Soon after, he was observed retrieving the finger of a latex glove filled with liquid by rolling it from the gallery floor into his cell. When he was asked what he had retrieved, he said “nothing” and flushed the liquid-filled finger down the toilet. As a result, the effort to obtain a urine sample from petitioner was terminated and he was charged in a misbehavior report with violating various prison disciplinary rules. Petitioner faced further charges after a needle and a plastic glove with fingers missing from it were subsequently found in his cell. Following a tier III disciplinary hearing on both reports, petitioner was found guilty of refusing a direct order, violating urinalysis testing procedures, and possessing contraband. Petitioner pursued an unsuccessful administrative appeal, then commenced this CPLR article 78 proceeding.
The misbehavior reports, as well as the testimony of petitioner himself and a correction officer who authored one of the reports, provide substantial evidence to support the determination of guilt (see Matter of Quinones v Fischer, 78 AD3d 1407, 1408 [2010]; Matter of Cole v Selsky, 269 AD2d 717, 717 [2000]). The Hearing Officer, moreover, could reasonably infer from the evidence presented that petitioner planned to submit the liquid in the glove finger as his urine sample in an attempt to circumvent *1044the urinalysis testing procedures (see Matter of Kae v Bezio, 79 AD3d 1496, 1497 [2010]; Matter of Billue v Goord, 28 AD3d 845, 845-846 [2006]). Petitioner’s remaining claim is not preserved for our review and, in any event, is without merit.
Rose, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902145/ | OPINION OF THE COURT
Per Curiam.
The respondent was admitted to practice by this court on March 22, 1967, under the name Louis Anthony Tirelli.
On January 22, 1988, respondent was convicted after trial *276by a jury in the County Court, Rockland County, of attempted grand larceny in the third degree in violation of Penal Law §§ 110.00 and 155.35, a class E felony, falsifying business records in the first degree (two counts) in violation of Penal Law § 175.10, class E felonies, and misconduct by an attorney in violation of Judiciary Law § 487, a misdemeanor.
Pursuant to Judiciary Law § 90 (4), the respondent ceased to be an attorney and counselor-at-law upon his conviction of a felony.
Accordingly, the petitioner’s motion is granted. The respondent is disbarred and the clerk of the court is directed to strike his name from the roll of attorneys and counselors-at-law forthwith.
Mollen, P. J., Mangano, Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902147/ | OPINION OF THE COURT
Harvey, J.
Petitioner, while an inmate at Eastern Correctional Facility in Ulster County, was found guilty after a Superintendent’s hearing of violating an institutional rule prohibiting fighting. He received a penalty of one year in the special housing unit (hereinafter SHU). Petitioner proceeded with an administrative appeal (see, 7 NYCRR 254.8). Petitioner requested a copy of the tape of the hearing. Although a copy was made, petitioner was denied access to the tape since 7 NYCRR 301.3, which restricts the items of personal property an inmate may have while in SHU, does not include tapes or audio equipment. Petitioner’s request that the tape be released to an inmate who was assisting him in his appeal was also denied. Petitioner subsequently commenced this CPLR article 78 proceeding challenging the refusal by prison officials to allow him access to a recording or transcript of the hearing for purposes of pursuing his administrative appeal while he was in SHU. The petition was dismissed by Supreme Court and this appeal followed.
Respondents argue that the appeal should be dismissed as moot since petitioner has served his confinement in SHU. An exception to the mootness doctrine exists when the particular issue is likely to recur, typically evades review and is a substantial and novel issue (see, Matter of David C., 69 NY2d 796, 798; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-715; New York Pub. Interest Research Group v Regan, 91 *283AD2d 774, lv denied 58 NY2d 610). Given the numerous inmate disciplinary proceedings which occur and the fact that many result in administrative appeals, the issue is likely to recur. An inmate’s period of confinement to SHU will generally be shorter than the period of time in which judicial proceedings can be commenced, a judgment rendered and an appeal perfected. Thus, the issue typically evades review. Finally, the issue appears to be substantial and novel in light of the fact that petitioner has advanced a constitutional argument in support of his claim and respondents have not pointed to any other appellate decision addressing the issue. Accordingly, the appeal should not be dismissed as moot (see, supra).
Turning to the merits, petitioner contends that he was denied procedural due process of law by respondents’ refusal to provide him with a copy of the tape or transcript of his hearing, while he was in SHU, for the purpose of pursuing an administrative appeal. The minimal due process requirements for an inmate charged with misconduct are met if he receives "at least 24 hours advance written notice of the charged violation, and a written statement of the fact finders as to the evidence relied upon and the reasons for the action taken” (Matter of Amato v Ward, 41 NY2d 469, 472; see, Wolff v McDonnell, 418 US 539, 563-564). The purpose of requiring a statement of the evidence relied upon and the reasons for the action is "to provide a written basis for administrative or judicial review of the actions of the prison authorities, if such review is available” (Matter of Amato v Ward, supra, at 472). New York allows both administrative review (see, 7 NYCRR 254.8) and subsequent judicial review pursuant to the traditional process for reviewing determinations of administrative agencies in this State, i.e., a CPLR article 78 proceeding.
Here, petitioner does not assert that he was not provided with a statement of the evidence relied upon and the reasons for the action taken. Petitioner, who has no constitutional right to the type of administrative review afforded by this State (see, Matter of Amato v Ward, supra, at 473), was thus afforded with adequate information to allow him to intelligently challenge the disposition of the Superintendent’s hearing upon his appeal to the Commissioner of Correctional Services. If petitioner had exhausted his administrative remedies and commenced a timely CPLR article 78 proceeding, the Commissioner would have been required to file a certified copy of the transcript of the hearing with his answer or with the *284clerk of the court (see, CPLR 7804 [e]; Matter of Petty v Sullivan, 131 AD2d 762, 763; Matter of Jacob v Winch, 121 AD2d 446). This requirement, however, is statutory in origin and, in the context of an appeal from an administratively affirmed inmate disciplinary action, not constitutionally mandated. We conclude that petitioner was adequately afforded the procedures required by the Constitution as well as the additional procedural protections provided by the applicable statutes and regulations of this State.
Mahoney, P. J., Weiss, Levine and Mercure, JJ., concur.
Judgment affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362192/ | 48 Haw. 204 (1964)
397 P.2d 558
STATE OF HAWAII
v.
GEORGE MORITO KITASHIRO.
No. 4380.
Supreme Court of Hawaii.
December 2, 1964.
TSUKIYAMA, C.J., CASSIDY, WIRTZ, LEWIS AND MIZUHA, JJ.
Yukio Naito (Shim & Naito of counsel), for defendant-appellant.
Herbert H. Tanigawa, Deputy Prosecuting Attorney, City and County of Honolulu (John H. Peters, Prosecuting Attorney, and Bert S. Tokairin, Deputy Prosecuting Attorney, with him on the briefs) for the State, appellee.
OPINION OF LEWIS, J., IN WHICH WIRTZ, J., JOINS, ANNOUNCING THE JUDGMENT OF THE COURT.
This is an appeal by George Morito Kitashiro, one of two codefendants charged with larceny first degree, i.e., the theft of an automobile belonging to Theodore T. *205 Kawamura, Jr. The other defendant, Kenny Yukuo Otake, changed his plea from "not guilty" to "guilty" by permission of the court after the State had put in its case. Kitashiro, hereinafter referred to as "defendant," was convicted after trial jury-waived, and upon the entry of judgment appealed therefrom, his ground of appeal being, as set forth in the specification of errors, the admission into evidence of his confession after the court had deferred to the time of trial a ruling on defendant's pre-trial motion to suppress it, which was renewed at the trial and denied at the conclusion of the trial.
Defendant contends that his confession was the product of an unlawful search and seizure, an unlawful arrest, and an unlawful delay between his arrest and production before a magistrate,[1] each of which ipso facto requires the exclusion of the confession from evidence, according to defendant's argument.
The trial court found that an illegal search and seizure had occurred. The legality of the search and seizure is not before us. However, the State contends that the confession was not tainted by the illegal search and seizure. This was but one of the surrounding circumstances having to do with the ultimate question of voluntariness, likewise the lawfulness or unlawfulness of defendant's arrest and detention were only circumstances bearing on the ultimate question of voluntariness, according to the State's contention.
The evidence showed that Kawamura's car was stolen on November 13, 1962, and recovered the next morning at 9:15 A.M. at which time it had been stripped of many parts and was inoperable.
*206 It so happened that Kawamura himself came upon vital information on the morning his car was recovered. While delivering laundry in pursuit of his business, he noticed a group of youths at a residence next door to his customer's, one of whom was carrying a transmission from the trunk of a car. Kawamura went over, talked to the youths, and watched one of them, Otake, cleaning the transmission. While there he recognized, among the things they had, a dilapidated pink chenille bedspread which he customarily carried in the stolen car and used to cover the floor of the car to protect his customers' clothes. He went back to his shop and summoned police aid. When he got back to his shop he learned that his car had been found and towed in.
Returning to the scene with the police he found Otake still cleaning the transmission in the driveway. Upon questioning by the police Otake admitted the transmission was stolen. At this time Kawamura saw there some dresses his wife had been making, which had been in the stolen car.
While the police were at Otake's residence a car drove up containing two juveniles besides the driver. Otake had implicated one "Smokey," who turned out to be the driver. One of the juvenile passengers implicated defendant. This informer, whom we have referred to as "M,"[2] took the police to defendant's residence and to where his car was parked on the University campus. At both places, according to the trial court's holding, there occurred illegal searches and seizures of automobile parts stripped from Kawamura's automobile. Prior to the trial, on defendant's motion, the court suppressed the use as evidence of any of the automobile parts so recovered. See H.R. Cr. P., Rule 41 (e).
After recovering the stolen parts from defendant's *207 residence and parked car the police waited for him to return home. They had asked to be informed when he returned. When defendant's parents called and said he was back, the police again went to his residence about 3:00 P.M. Defendant's father was there and asked for some time alone with his son. The police waited in the garage and arrested defendant after the conclusion of his talk with his father. There was no warrant for his arrest and defendant contends it was unlawful. The basis for this contention is the alleged unreliability of the information obtained from "M," and the illegality of the searches and seizures made by the police. However, for reasons hereinafter stated, we do not find it necessary to pass on the lawfulness of the arrest.
After defendant's arrest at his home he was taken to the police station in a car containing two police officers, one of whom could not recall whether anything was mentioned to defendant at the time about the automobile parts. The other, Officer Ragsdale, testified as to the conversation on the way to the police station:
"Q. In your conversation with George, did you mention the fact that you had taken certain automobile parts from his home?
"A. I think I did.
"Q. Did you also tell him that since you had the parts, he might as well confess?
"A. Not that way. I told him I had the parts `You may as well tell the truth as to what happened' because at the time he was very quiet. I asked him a question and he didn't say anything; so I just said, `Let's tell the truth. What happened?'
"Q. But you did mention the fact that you had the automobile parts?
"A. I imagine I did."
Defendant testified:
*208 "Mr. Natio: Now, at the time of your arrest at your residence, did the officer mention anything to you about any automobile parts?
"Witness: Well, I heard someone say that `we have the parts already.'
"Q. (By Mr. Naito) Did they tell you where they got the parts?
"A. Yes. From the garage closet.
"Q. And this was this told to you?
"A. Yes, I think so.
"Q. Did the officer say anything about making a confession because he had the parts?
"A. While we were riding down to the police station.
* * * * * *
"Q. Do you recall how many times he told you that they had the parts so you had to confess?
"A. Yes no, I don't remember exactly how much, but they told me quite a few times.
"Q. They kept repeating it, is that correct?
(Witness nodding.)"
Defendant arrived at the police station at 3:15 or 3:30 P.M. and was booked, along with others. At this point Officer Kasparovitch of the Detective Bureau, to whom the case had been assigned, saw him for the first time. However, Officer Kasparovitch interrogated Otake before defendant, interrupting this interrogation briefly to arrest defendant for the second time and place him in another interrogation room. At that time, Officer Kasparovitch saw defendant's father as well as defendant. The father was with defendant in the interrogation room for ten or fifteen minutes. The father told defendant that on his lawyer's advice he should not say anything.
Defendant was not questioned until 7:10 in the evening. Meanwhile he remained in the interrogation room. *209 He saw other officers, who questioned him about another matter. He was not questioned about this case, and for nearly three hours waited there for Officer Kasparovitch.
According to Officer Kasparovitch, when he first went into the interrogation room where defendant was waiting the following occurred:
"* * * I asked him if he wanted to eat. He said no, he wanted to get it off his chest and continue. And I said, `Did your father talk to you about your attorney not wanting you to say anything to me?' And he said, `Yes, but I want to get it off my chest and I want to talk about it.' So I said, `Okay, let me have your story.'"
Defendant then gave Officer Kasparovitch an oral statement, following which a stenographic statement was taken, commencing at 8:00 P.M. At approximately 8:30 P.M. defendant was taken to the cell block, the taking of the stenographic statement having been concluded. The next morning, at 8:00, Officer Kasparovitch took down to the prosecutor's office a complaint which had been typed out the night before. Defendant was permitted to leave the police station about noon.
Officer Kasparovitch testified that though he knew certain auto parts had been recovered at defendant's home he only questioned defendant about the parts he took and made no statement about the parts found at his residence. Defendant testified, to the contrary, that when Officer Kasparovitch came into the interrogation room: "He told me, `Are you ready to confess?' He told me, `You might as well. We have the parts.'" Defendant further testified:
"Q. Why did you say you were ready to confess?
"A. Because I felt that I wasn't there wasn't anything I could do.
* * * * * *
"Mr. Naito: Now, you stated that you confessed *210 because you felt that they had the parts; so you felt you might as well tell?
"Witness: Yes.
"Q. (By Mr. Naito) Now, was this the only basis for your confession?
"A. Yes."
I
It is settled law in this jurisdiction that: "A confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time, even though the arrest or custody may have been under invalid process or without any process or legal right." Territory v. Young and Nozawa, 37 Haw. 189, 197, aff'd, 163 F.2d 490 (9th Cir.1947). Defendant contends that, under Wong Sun v. United States, 371 U.S. 471 (1963), this rule no longer obtains because the Fourth Amendment and the accompanying exclusionary rule apply to the states by virtue of the Fourteenth Amendment as held in Mapp v. Ohio, 367 U.S. 643, and under Wong Sun, "if there is an illegal arrest of a defendant, his confession which follows the illegal arrest is not admissible in evidence, even if the confession was voluntarily given," so it is argued.
Defendant's contention is without merit. As stated in Wong Sun: "The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion," and "matters observed [or overheard] during an unlawful invasion * * *." Wong Sun extended this rule to "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case * * *." (371 U.S. at 485). In Wong Sun, federal officers without probable cause broke open a door and followed defendant into his living quarters, where he was placed under arrest and at that time *211 made oral statements held admissible by the courts below but held by the Supreme Court to be within the scope of the exclusionary rule. The decision rested on the oppressive circumstances there present.
The federal courts have had occasion to pass on the contention here made that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun. Prior to that decision they followed the same rule as has been followed in Hawaii in a case of illegal arrest. The contention that Wong Sun has eliminated the question of voluntariness in such a case was rejected in Rogers v. United States, 330 F.2d 535, 540-42 (5th Cir.); Hollingsworth v. United States, 321 F.2d 342, 350-51 (10th Cir.); Burke v. United States, 328 F.2d 399, 402-03 (1st Cir.), affirming 215 F. Supp. 508, 511. But see Gatlin v. United States, 326 F.2d 666, 672 (D.C. Cir.). State cases decided since Wong Sun also apply the voluntariness test. State v. Keating, 61 Wash.2d 452, 378 P.2d 703; Prescoe v. State, 231 Md. 486, 191 A.2d 226; People v. Freeland, 32 Cal. Rptr. 132.
Here the trial court found that even if one of the two arrests of defendant was illegal the other was not, and that defendant had decided to confess after talking to his father and after being told by his father to follow his lawyer's advice and say nothing. Defendant was not arrested, even on the first occasion, until after he had talked with his father. The oppressive circumstances present in Wong Sun are entirely lacking. As in Rogers v. United States, supra, 330 F.2d 535, there was approximately a three-hour interval between the arrest and the confession, during which defendant was not under interrogation and was free to assay his position. Wong Sun is inapplicable even if the arrest was unlawful, a point not decided.[3]
*212 Defendant cites Bynum v. United States, 104 App. D.C. 368, 262 F.2d 465, where a defendant who voluntarily came to the police station was arrested there without probable cause and his fingerprints taken. The court equated this to a search of the person on the occasion of an illegal arrest, governed by United States v. Di Re, 332 U.S. 581, or a statement obtained from an accused person during his illegal detention, governed by Upshaw v. United States, 335 U.S. 410 and Mallory v. United States, 354 U.S. 449. Since Bynum was a federal prosecution the court had no occasion to decide which of these two lines of authority it was following. In a state prosecution this must be decided since the second line of authority does not govern.
What has been referred to above as the second line of authority (Upshaw v. United States, supra, Mallory v. United States, supra) commonly is referred to as the McNabb-Mallory rule.[4] This court repeatedly has held that the McNabb-Mallory rule does not apply in the courts of this State. Territory v. Aquino, 43 Haw. 347, 368-76; State v. Evans, 45 Haw. 622, 635, 372 P.2d 365, 375; State v. Shon, 47 Haw. 158, 165-67, 385 P.2d 830, 835-36. The Court of Appeals for the Ninth Circuit so held in Palakiko v. Harper, 209 F.2d 75, 94. Defendant concedes that the McNabb-Mallory rule is without constitutional basis, unless Wong Sun anchored it on the Fourth Amendment. Wong Sun does not have that significance.
The McNabb-Mallory rule is a federal rule, based on the Supreme Court's supervisory powers over federal criminal prosecutions. It is confined to cases of unlawful delay between arrest and arraignment before a United States Commissioner. Under the rule a confession during such unlawful delay ipso facto is inadmissible. As seen, *213 the federal courts generally have declined to extend this rule to illegal arrest cases even after Wong Sun. Thus the rule retains its original supervisory character. If the rule had constitutional basis it surely would be applied to illegal arrest cases. To put it another way, if any success were to be scored by the champions of a rule excluding confessions made during illegal detention as a Fourth Amendment matter irrespective of voluntariness, the illegal arrest cases would be the first ones to feel the impact of the Fourth Amendment in this new area.
After this case was argued, Escobedo v. Illinois, 378 U.S. 478 (June 22, 1964), was decided. Escobedo, who had been arrested, interrogated and released pursuant to a writ of habeas corpus obtained by his lawyer, again was picked up about ten days later between 8:00 and 9:00 P.M., after he had been implicated by one subsequently made a codefendant. He was held in custody and interrogated, but repeatedly asked to see his lawyer. Finally, when confronted by his accuser, he implicated himself by saying "I didn't shoot Manuel, you did it," and thereafter made further admissions. His statement was taken by an assistant state attorney. Meanwhile, his retained lawyer repeatedly sought to see his client from 9:30 or 10:00 P.M. to approximately 1:00 A.M., but succeeded only in making his presence at the Homicide Bureau known at one point when a door to the office where defendant was held was open.
In an extension of Massiah v. United States, 377 U.S. 201 (May 18, 1964), the Court held in Escobedo:
"* * * The fact that many confessions are obtained during this period [between arrest and indictment] points up its critical nature as a `stage when legal aid and advice' are surely needed. * * * (p. 488).
* * * * * *
"We hold, therefore, that where, as here, the investigation *214 is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. [335], at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. (pp. 490-491).
* * * * * *
"Nothing we have said today affects the powers of the police to investigate `an unsolved crime,' Spano v. New York, 360 U.S. 315, 327 (Stewart, J., concurring), by gathering information from witnesses and by other `proper investigative efforts.' Haynes v. Washington, 373 U.S. 503, 519. We hold only that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer." (p. 492).
While Escobedo marks a shift in course, upon comparison with Crooker v. California, 357 U.S. 433, Cicenia v. Lagay, 357 U.S. 504, Culombe v. Connecticut, 367 U.S. 568, and Haynes v. Washington, 373 U.S. 503, the point pertinent here is that emphasis was put upon the right to counsel. The McNabb-Mallory rule was not extended to *215 state cases. It remains the rule in this jurisdiction that a confession obtained during unlawful delay between arrest and production before a magistrate is not ipso facto inadmissible.
The adoption of Rule 5(a) of the Hawaii Rules of Criminal Procedure was not an adoption of the McNabb-Mallory rule by this court. This is evident from State v. Shon, supra, 47 Haw. 158, 165-67, 385 P.2d 830, 835-36. Paragraph (2) of Rule 5(a) qualifies the provision for taking a person arrested without a warrant before a magistrate by the language "except where and to the extent the detention of the arrested person is authorized by law." The quoted language is enough in itself to differentiate the rule from its counterpart in the Federal Rules of Criminal Procedure. The exception refers to and incorporates R.L.H. 1955, §§ 255-5 and 255-9, as does the reference later in the same paragraph of the rule to persons "arrested for examination." The significance of these statutory provisions was recognized in Young and Nozawa v. Territory, supra, 163 F.2d 490, 496, affirming 37 Haw. 189.
Defendant contends that "both arrests were arrests in the fullest sense and not arrests for investigatory purpose." However, irrespective of the lawfulness or unlawfulness of the arrests and subsequent detention, under the rule applicable in this jurisdiction it is decisive of this branch of the case that the confession plainly was voluntary[5] and there was no denial of the right to counsel. *216 The crux of the case therefore lies in the remaining point. There is no disagreement on this among the members of the court, though one member so holds without joining in this Part I.
II
Was the court's decision that unlawful searches and seizures had occurred sufficiently implemented by the court's rulings?[6] Under the Fourth Amendment as interpreted in the leading case of Silverthorne Lumber Co. v. United States, 251 U.S. 385, and under our own State Constitution, Article I, § 5, as interpreted in State v. Pokini, 45 Haw. 295, 308, 367 P.2d 499, 506, and State v. Evans, supra, 45 Haw. 622, 637, 372 P.2d 365, 374, there must be excluded from evidence not only articles illegally seized but also other evidence which is "a fruit of the poisonous tree."[7] This doctrine encompasses a confession which is tainted by an unlawful search and seizure. Fahy v. Connecticut, 375 U.S. 85, reversing on account of the admission of illegally seized evidence and noting that, since the case was tried prior to Mapp v. Ohio, 367 U.S. 643, the petitioner was unable to claim at the trial that the illegally seized evidence induced his admissions and confessions, the Court concluding "petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence"; State v. Evans, supra, 45 Haw. 622, 636-38, 372 P.2d 365, 374-75, recognizing applicability of the Silverthorne doctrine but finding the record insufficient to determine the point at issue; People v. Rodriguez, 11 N.Y.2d 279, 286, *217 229 N.Y.S.2d 353, 357, 183 N.E.2d 651, 654, stating that "it matters not that these `fruits' happen to be confessions rather than some other type of evidence," and that "if [defendant] was induced to confess as a result of being confronted with [illegally obtained] articles, his confession may not be received in evidence"; Commonwealth v. Spofford, 343 Mass. 703, 180 N.E.2d 673, suppressing photographs delivered by defendant to the police after questioning by the police on the basis of other similar material illegally obtained, the court holding: "The defendant's purported consent and the second lot were an offshoot of the original unreasonable search and seizure. Its acquisition was branded with the original taint." See Takahashi v. United States, 143 F.2d 118, 122 (9th Cir.), a similar case. Cf., Hall v. Warden, supra, 313 F.2d 483, 489-90 (4th Cir.), in which the court reversed because of the admission of illegally seized evidence, and treated the question of the tainting of the confession by the illegal search and seizure as one of voluntariness, dependent on "the circumstances of pressure." On the record as it stood, petitioner was not shown the articles illegally seized until after he had made his statement, but there was an inference that a report was made in his presence as to the finding of these articles before he made his statement. Since the case in any event was to be retried, the trial under review was before Mapp v. Ohio, supra, 367 U.S. 643, and upon retrial more specific testimony might be offered concerning the circumstances of the disclosure to petitioner of the results of the illegal search, the court did not affirmatively find that error was committed as to the confession but set out principles to serve as a guide upon retrial, stating:
"* * * It may be that Hall's incriminating statements were induced by the search which Hall must have realized the police were determined to make *218 without bothering to ask his permission and which he must have known, as the District Court stated, would disclose damaging evidence."
Here it is undisputed that at the time of defendant's arrest, or shortly thereafter on the way to the police station, defendant was told that the police had the automobile parts and he might as well "tell the truth." Thus the illegally seized automobile parts were used to instill in defendant a realization of the hopelessness of his situation. He was left to meditate on it for about three hours, while the corrosive properties of the poison so instilled had their intended effect. We cannot agree with the State's contention that during this interval the taint of the illegal search and seizure became dissipated.
We must ask ourselves what induced defendant's confession. Defendant testified that it was because he felt there wasn't anything he could do. He directly attributed his confession to the police having the parts. He testified that while he was told others had confessed and had implicated him, this was not until after he had said he was ready to confess. Officer Kasparovitch, the interrogating officer, testified that at about 6:38 P.M., while interrogating Otake, he brought defendant Kitashiro in, and Otake identified him as the person who helped Otake strip the car. However, on objection by Kitashiro's counsel to the admission of this evidence against him, it was confined to Otake's case, this being prior to Otake's change of plea. Therefore, we cannot consider this evidence in connection with the case before us.
Some evidence was required to rebut the natural and reasonable inference that the statement made by the police concerning the stolen parts taken from defendant's home had the intended effect on defendant and did induce his confession as testified by him. While the trial court ruled that "I don't believe the defendant when he said that he *219 confessed because they had the goods," defendant's contention did not rest on his credibility alone. Nor did it rest upon rejection of Kasparovitch's testimony that he made no statement to defendant about the parts found at his residence. Defendant's contention had a solid foundation in undisputed fact, consisting in statements made to defendant by Officer Ragsdale, who took him to the police station.[8] The prosecution offered no rebutting evidence, other than what Otake said in Kitashiro's presence and that was not offered on the point under consideration and was excluded, as we have said. The case therefore is one in which the prosecution did not meet its burden of going forward with the evidence.
The rule we must follow as to the burden of proof was laid down in Nardone v. United States, supra, 308 U.S. 338, 341. That case involved evidence acquired through the use of illegal wiretaps. The Court, speaking through Mr. Justice Frankfurter, said:
"* * * Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation * * * ought to be within the reach of experienced trial judges. The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established as was plainly done here the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial *220 portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin."
As interpreted in the well-reasoned opinion in United States v. Goldstein, 120 F.2d 485, 488 (2d Cir.), affirmed on the ground of lack of standing, sub nom., Goldstein v. United States, 316 U.S. 114:
"That language cannot indeed serve as a ruling that the prosecution has the burden to show how far its proof has `an independent origin,' but it is consonant with that position and to some extent suggests it. In any event it appears to us that this should be the rule * * *. * * * [A]fter the accused had proved that the `taps' had been made and had to some extent been used to break down Messman * * *, the burden fell upon the prosecution to satisfy the district judge that they had no part, or no substantial part, in that result."
While the outcome of the Goldstein case upon further appeal[9] reduces the above-quoted statement to dictum, it nevertheless is helpful dictum. In Costello v. United States, 365 U.S. 265, 278-80, petitioner contended that certain admissions, made before a 1943 New York grand jury as to bootlegging activities during Prohibition, were impelled by the belief that the New York prosecutor already had the answers to the questions from illegal wiretaps *221 made in 1943. The Court concluded, however, "from the record," that there was another explanation for petitioner's admissions, saying:
"The short answer to this contention is that we conclude from the record that his truthful answers to Mr. Hogan's questions were not given because he thought that the conversations tapped in 1943 revealed his activities in the Prohibition era, but because he realized that these facts had been known to the authorities for some time. None of Mr. Hogan's questions even implies that Mr. Hogan gained his information from the 1943 wiretaps. Mr. Hogan had a transcript of the 1939 federal grand jury minutes of the petitioner's appearance before that body. The petitioner presses no argument in this Court that his admissions before that grand jury were infected with wiretapping. Early in Mr. Hogan's examination, the petitioner admitted that he recalled being questioned before the grand jury in 1939. The questioning at that proceeding had elicited the petitioner's admission of his bootlegging. * * *" (Emphasis added.) (365 U.S. at 278-79.)
Here the State made no showing none we can consider in this case that defendant's confession was impelled by circumstances other than his knowledge that the police had the stolen parts. What showing might be made upon remand of the case need not be speculated upon. The present record is insufficient to permit us to uphold the trial court's ruling.[10] We do not feel justified *222 in regarding as substantial evidence of an independent origin of the confessions such information as, by surmise and inference, it may be supposed defendant possessed concerning his accomplices having implicated him, dependent upon what may have been conveyed to defendant by members of his family, specifically his father who was given "a brief summary of what had taken place prior to that time [the afternoon of the arrest.]"[11] The trial court could not have ruled on the suggested basis, since direct evidence that Kitashiro's accomplice Otake had implicated him was excluded by the trial court. The error of the trial court lay in its failure to recognize that, on the record before it, rebutting evidence of an independent origin of the confession was not only relevant but necessary in order for the trial court to exercise its fact-finding prerogative in respect of the contention that the confession was tainted. Otherwise the record admitted of but one conclusion.
The trial court found, in ruling on this branch of the case, that it was "very important * * * that the father of the defendant talked to his son for not less than 15 minutes, and part of his talk was, `Don't say anything about this case. Follow whatever your lawyer says.'" This is a strong factor upholding the voluntariness of the confession, since it shows that defendant had no reason to feel defenseless. But it is in no way inconsistent with the conclusion that he felt his situation was hopeless because the stolen parts had been found in his home, and confessed for that reason.
We take note of a line of cases in which advice of counsel has been held to insulate a second confession from a first confession excluded under the McNabb-Mallory *223 rule. Goldsmith v. United States, 277 F.2d 335, 340, 342 (D.C. Cir.) and Jackson v. United States, 285 F.2d 675 (D.C. Cir.), as explained in Killough v. United States, 315 F.2d 241 (D.C. Cir.). This line of cases stems from United States v. Bayer, 331 U.S. 532, 539-41, which stresses the removal of the conditions calling for exclusion of the first confession under the McNabb-Mallory rule. In any event, in the absence of evidence of an actual consultation with counsel there is no room for an inference that the causal connection between the illegal searches and seizures and the confession had become attenuated under this line of cases.
On the evidence in this record defendant's confession should have been excluded altogether. Reversed and remanded for a new trial or other proceedings consistent with this opinion.
CONCURRING OPINION OF MIZUHA, J.
I join in Part II of the opinion of Lewis, J., and in the judgment of the court. In my opinion there is no occasion to go into the subject matter of Part I.
*224 DISSENTING OPINION OF CASSIDY, J., WITH WHOM TSUKIYAMA, C.J., JOINS.
I concur in Part I of Justice Lewis' opinion but dissent from the holding of the majority of the court reversing the conviction on the grounds that the defendant's confession was tainted and inadmissible by reason of the fact, or of the manner in which, the police officers imparted information to the defendant that they had obtained the parts he had received of the stolen automobile, which parts, upon defendant's application, had been excluded from evidence by the trial court as illegally seized in contravention of the Fourth Amendment of the Federal Constitution and Article I, Section 5 of the State Constitution.
I am unable to agree that there is a sufficient causal connection shown in this record between the automobile parts seized from the garage at the defendant's home and the confession he gave to the police to warrant its exclusion on any theory that it was tainted. Further, this court should be bound by the trial court's resolution of the issue.
As the majority points out, the rule of evidence upon which the appellant bases his case on the point under consideration was first enunciated in Silverthorne Lumber Co. v. United States, 251 U.S. 385. That case laid down the rule that the Government may not use derivative evidence produced from following up information obtained by a search and seizure made in contravention of the Fourth Amendment. This rule was held also applicable to use of evidence derived from information illegally obtained by wiretapping in Nardone v. United States, 308 U.S. 338, another bench mark in the field under consideration. In Nardone, the exclusion of evidence derived from an illegal act was analogized to the use of the "fruit of the poisonous tree." The Silverthorne exclusionary rule has carried that label ever since.
*225 There is no question but that the fruit of the poisonous tree rule applies to a confession which directly stems from and is tainted by an unlawful search and seizure. Fahy v. Connecticut, 375 U.S. 85; State v. Evans, 45 Haw. 622, 372 P.2d 365. Part and parcel of the rule, however, is the cognate principle that notwithstanding there may have been an unlawful search and seizure, the Government is not precluded from using the facts thus obtained in building its case if it had acquired the same information from an independent source. The exposition of the two facets of the rule is given in the Silverthorne case at p. 392, as follows:
"* * * The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. * * *"
The independent source doctrine permitting the purge of original taint from an illegal search or seizure has become as firmly established as the exclusionary portion of the rule established by the Silverthorne case. And it is well settled that evidence comparable to that discovered or derived from information obtained by an illegal seizure is not per se inadmissible.
Close to home is Warren v. Territory, 9 Cir., 119 F.2d 936 (decided on appeal from this jurisdiction), in which it is stated at p. 938 on authority of the Silverthorne case that:
"[K]nowledge of facts gained from a proper independent source such as here obtained may be used, *226 though it also may be obtained from an illegal act."
Recently, in Wong Sun v. United States, 371 U.S. 471, it was asserted in respect to the independent source doctrine (at pp. 487-488):
"We need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)."
It can be accepted, as argued, that when primary illegality has been shown, the prosecution has the burden of proving that the controverted evidence had an independent origin or was produced from leads provided by an independent source. See United States v. Goldstein, 2 Cir., 120 F.2d 485, 488.
In our case, the prosecution definitely sustained the burden imposed on it in that respect. There can be no other conclusion from the evidence but that the police officers had been informed by the defendant's confederates, before the officers went to the defendant's home on their first visit on November 14, 1962, that the defendant had actively participated in stealing the complainant's automobile and that he had received some of the parts subsequently stripped from it.
It is difficult for me to conceive of a simpler situation in which the independent source doctrine could and should operate. Here, the interrogation of defendant, including questioning him relative to the stripping of the automobile and the distribution of the parts, was not "come at by exploitation" of the illegal seizure. It followed, *227 rather, as a matter of course and ordinary duty from what the police investigation had revealed on defendant's complicity in the crime prior to the seizure of the carburetor and manifold from the garage at his home. Harlow v. United States, 5 Cir., 301 F.2d 361, 372-373; Wiggins v. United States, 9 Cir., 64 F.2d 950, 951. Further, I cannot agree that this court can properly hold that the confession given by defendant was infected by reason of what transpired between any of the police officers and the defendant between the time he was picked up at his home at 3 p.m. on the day in question and his confessing a few hours later.
Defendant's claim that his confession was tainted rests on his testimony respecting conversations with a police officer on the way to the police station and with Officer Kasparovitch prior to the latter's questioning him at the police station.
In respect to the conversation on the trip to the station, the gist of the defendant's testimony, in which tailor-made leading questions of counsel played a prominent part,[1] was that an officer told him that the police had the parts from the garage closet, and so he had to confess.
*228 While Officer Ragsdale admitted he told the defendant on the way to the police station that the police had certain automobile parts taken from defendant's home, his version of the remainder of the discussion between the two is not the same as that of the defendant. The officer testified:
"A * * * I told him I had the parts `You may as well tell the truth as to what happened' because at that time he was very quiet. I asked him a question and he didn't say anything; so I just said, `Let's tell the truth. What happened?'"[2]
At the police station the defendant was held in an interrogation room for about three hours without anyone questioning him on the case, while Officer Kasparovitch, who was in charge of the investigation, questioned the other three participants in the theft of the automobile. Each of them implicated the defendant. When that phase of the investigation was completed, Officer Kasparovitch went into the interrogation room in which the defendant had been waiting to question him.
Defendant's claim is that Kasparovitch immediately told him he might as well confess as the police had the parts. The defendant concluded by testifying that the only basis for his confession was that he felt the police had the parts and he might as well tell. Defendant's full testimony in that respect is as follows:
"Q When Officer Kasparovitch came into the interrogating *229 room, what did he tell you as soon as he came in?
"A He told me, `Are you ready to confess?' He told me, `You might as well. We have the parts.'
"Q Did he say, `You might as well. We have the parts'?
"A Yes.
"Q Now, what was your response?
"A I said I was ready.
"Q Why did you say you were ready to confess?
"A Because I felt that I wasn't there wasn't anything I could do.
"Q Did Officer Kasparovitch tell you that the others had confessed and implicated you?
"A Yes.
"Q When did he tell you this?
"A Within that same time.
* * * * *
"MR. NAITO: When did he tell you that the others had confessed?
"WITNESS: It was after.
"THE COURT: After what?
"WITNESS: It was later on because the first thing he told me was, `Are you ready to confess?'
"MR. NAITO: Now, you stated that you confessed because you felt that they had the parts; so you felt you might as well tell?
"WITNESS: Yes.
"Q (By Mr. Naito) Now, was this the only basis for your confession?
"A Yes."
Kasparovitch's testimony is completely at odds with that of the defendant on this major point of the defendant's case. The officer testified as follows:
*230 "Q And at that time was his father mentioned in any way?
"A Yes. When I first went in there, I asked if he wanted to eat. He said no, he wanted to get it off his chest and continue. And I said, `Did your father talk to you about your attorney not wanting you to say anything to me?' And he said, `Yes, but I want to get it off my chest and I want to talk about it.' So I said, `Okay, let me have your story.'
"Q Then he gave you an oral statement?
"A Then he gave me an oral statement.
* * * * *
"Q After you took this oral statement from Kitashiro, what, if anything, happened?
"A I asked him if he wanted to give me a stenographic statement and he agreed to do so.
"Q Did you take a stenographic statement?
"A Yes, I did."
Kasparovitch denied he mentioned anything about automobile parts before questioning the defendant.
That the countervailing effect of Kasparovitch's testimony on defendant's claim was not missed at the trial level is reflected in the questioning of the witness by defendant's counsel on cross-examination, as follows:
"Q According to your story, he told you he already talked to his father?
"A Yes, sir.
"Q And his father warned him he should talk to a lawyer and not say anything?
"A He told me his father told him not to say anything.
"Q But in spite of that he wanted to make a clean breast of it?
"A Yes, sir."
Further, the defendant admitted on cross-examination *231 that he told Kasparovitch he wanted to talk and get it off his chest.
There are other features in evidence that bear on and should be considered in determining the issue.
Officer Kasparovitch testified that in a brief confrontation of defendant with Otake during the time the officer was questioning Otake, Otake implicated defendant. On objection of defendant, the court ruled that the evidence would be confined to Otake's case. The ruling was undoubtedly correct insofar as the hearing on the merits was concerned. However, the court was then also entertaining the motion to suppress the confession. Otake's testimony was clearly pertinent to the motion and it should have been admitted against Kitashiro for that limited purpose. While as stated by the majority, we cannot, in view of the ruling, consider the evidence on this appeal, it nevertheless appears to me that other evidence in the record permits inferring the equivalent of what the rejected evidence tended to prove, namely, that before he was questioned by Kasparovitch, and, for that matter, before he left his home in custody of the police officers, defendant was aware that his part in the theft had been revealed to the police by some of his accomplices.
It is in evidence that when the police officers went to the defendant's home on the morning of November 14, 1962, they first met the defendant's aunt, and told her of what they had learned prior to that time. The same story was related in turn to a younger woman in the household, and then to the defendant's mother over the telephone. On the return of the police to the defendant's home in the afternoon, the story was again told to defendant's father,[3] who then asked for and was given an *232 opportunity to speak to his son in private. Judging this evidence in light of ordinary family relationships and according to common experience of mankind, a natural, rational and, I think, permitted inference is that the defendant knew before he got into the officers' car to be taken to the police station that one or more of his companions had given the police the full story on the commission of the crime. For the same reason it can be inferred that Ragsdale was telling the defendant no more than he already knew when he informed him that the police had obtained the automobile parts from the garage.
Another significant factor to be considered is that the defendant's father talked to him again at the police station, and told him to follow counsel's advice not to say anything about the case.
Considering all the circumstances in evidence, I can reach no other conclusion than that the illegality of the search and seizure in this case was too thinly connected to the taking by Kasparovitch and the giving by the defendant of the confession in evidence to permit or require a holding that it was tainted. I consequently cannot agree that it can be held as a matter of law that the confession should have been excluded as fruit of the illegally seized articles.
I do not find anything in the cases cited on behalf of appellant which warrants or justifies a reversal of the trial court's ruling admitting the confession over the objection under consideration.
While the main authorities relied on by appellant *233 may, by selected quotations from them, be made to appear to support his position, in my opinion, they do not, on scrutiny, bear it out.
People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651, from a factual standpoint, may be distinguished as, in that case, unlike this one, the defendant was directly confronted, when his confession was taken, with a gun and other articles which may have been illegally seized from his room. As is reflected in the quotation from the case set out in the majority opinion, the fact the defendant was confronted with the gun and articles was considered, and properly so, as an important factor in the court's ruling. However a highly significant point to be noted is that the court did not hold, even with the confrontation, that the confession would be inadmissible as a matter of law if the seizure was found on remand to have been illegal. More will be said later in that connection.
In Commonwealth v. Spofford, 343 Mass. 703, 180 N.E.2d 673, the evidence declared inadmissible by the appellate court was obtained only by the lead produced by confronting the defendant with and questioning him on photographs that had been illegally seized from his abode. The evidence was held to be "branded with the original taint" because it was solely by direct use of the illegally seized photographs that the challenged evidence was obtained. The Spofford case, not ours, presents the type of situation where it is proper to declare the derivative evidence an "offshoot" of the illegal seizure.
In Hall v. Warden, 4 Cir., 313 F.2d 483, as the prevailing opinion here points out, the court treated the question of the admission of defendant's confession which might have followed the defendant's ascertaining that certain illegally seized articles were in the possession of the police, as one of voluntariness. While it seems to me *234 that the majority is actually applying the ordinary voluntariness test when it speaks of the defendant being left to meditate for three hours, "while the corrosive properties of the poison so instilled [by Ragsdale] had their intended effect," no contention has been made, nor could any be made, that Kitashiro's confession was not, in fact, voluntary. On that score there can be no doubt on the record in this case that, to borrow apt language from People v. Freeland, 32 Cal. Rptr. 132, at pp. 136-137, "The circumstances smack of catharsis rather than the knout."
I read Costello v. United States, 365 U.S. 265, as negating rather than supporting appellant's contentions. The import of the independent source doctrine and its applicability to this case readily appears from what the court states at pp. 278 and 280:
"The contention that illegal wiretapping precluded reliance upon the petitioner's admissions rests primarily upon interrogations by New York County District Attorney Frank Hogan in 1943 when the petitioner appeared before the New York County grand jury and the Official Referee in the Appellate Division. State officers had a tap on the petitioner's telephone during several months of 1943. Mr. Hogan made frequent references to the tapped conversations when questioning the petitioner. The petitioner claims that his admissions of bootlegging activities during Prohibition were impelled by the belief that Mr. Hogan had learned from the tapped conversations the information sought by the questions. It is argued that the wiretaps were illegal under our decision in Benanti v. United States, 355 U.S. 96, and that his admissions were therefore to be excluded from evidence as `fruit of the poisonous tree,' on the reasoning in Silverthorne Lumber Co. v. United States, 251 U.S. 385, and Nardone v. United States, 308 U.S. 338.
* * * * *
*235 "It is true that the 1943 wiretaps prompted the calling of the petitioner before the county grand jury and the Official Referee. But the `fruit of the poisonous tree' doctrine excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an `independent source.' Silverthorne Lumber Co. v. United States, supra, at 392. * * * We are satisfied that any knowledge in Mr. Hogan's possession which impelled the petitioner to answer truthfully came from such independent sources and that any connection between the wiretaps and the admissions was too attenuated to require the exclusion of the admissions from evidence."
I think that an analysis of the pertinent evidence, in light of the authorities, permits only the conclusion that the defendant's confession was not a product of nor was it tainted by the illegal seizure. However, even if a different conclusion could be reasoned out from the cold record, as the majority does in independently evaluating the evidence and the inferences to be drawn from it, that would still not warrant a reversal.
The issue presented by appellant's claim, asserted on the stand, that the reason he gave the confession was because he "felt that they had the parts," so he felt he "might as well tell," was one of fact. As such, it was for the trial court to resolve. This is recognized and accepted by all of the authorities in the field we are now dealing with. The point is clearly brought out in People v. Rodriguez, supra, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651, relied on heavily by appellant. In that case it is stated, at p. 654:
"Upon the new trial, therefore, it will be incumbent on the trial court, in connection with the defendant's motion to suppress the challenged statements (see Code Crim. Proc., §§ 813-c, 813-d, 813-e, as added by *236 L. 1962, ch. 954, § 1), to hold a hearing in advance of the trial and decide the issues presented, namely, whether there was an illegal search and seizure and, if there was, whether Rodriguez' confession was induced by confrontation with the illegally obtained articles."
Similarly in Fahy v. Connecticut, supra, 375 U.S. 85, the remand put the issue back to the trial court to decide, the Supreme Court stating, at pp. 90-91:
"* * * But the defendants were not allowed to pursue the illegal search and seizure inquiry at trial, because, at the time of trial, the exclusionary rule was not applied in Connecticut state courts.[4] Thus petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession. * * * Thus petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence."
In Nardone v. United States, supra, 308 U.S. 338, it is said at p. 341:
"* * * Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation fair to the intendment of § 605, but fair also to the purposes of the criminal law ought to be within the reach of experienced trial judges. * * *" (Emphasis added.)
It was vital to the appellant's case that his testimony be given credence, which the trial judge did not do. Instead, the judge expressly stated that he did not believe the defendant and that he did believe Kasparovitch. We are therefore confronted with a situation which calls for *237 application of the fundamental principle of appellate review that there shall not be a reversal for any finding of fact depending on the credibility of witnesses or the weight of the evidence. Territory v. Young, 32 Haw. 628, 634; Territory v. Rodrigues, 41 Haw. 50, 52; State v. Hassard, 45 Haw. 221, 231, 365 P.2d 202, 207. The rule is the same whether the determination of fact be by a jury or a judge. Territory v. Hart, 35 Haw. 582, 590-591. This rule has not been altered by the adoption of the Hawaii Rules of Criminal Procedure. State v. Tamanaha, 46 Haw. 245, 251-252, 377 P.2d 688, 692.
As a result of weighing the evidence and determining the credibility of the witnesses, with the benefit we do not have of observing them on the stand, the trial judge found that appellant's claim was not substantiated. He expressly declared: "I don't believe the defendant when he said that he confessed because they had the goods." What was said in United States v. Goldstein, supra, 2 Cir., 120 F.2d 485, referred to in the prevailing opinion, is therefore particularly pertinent. The application of the fundamental principle governing the scope of appellate review of factual findings that should be adhered to in this case is there exemplified by the court's statement, at p. 488: "However, if the judge had affirmatively found that the `taps' contributed nothing to this result, we should not have disturbed the finding." Cf., Davis v. United States, 328 U.S. 582, 593; Burke v. United States, 1 Cir., 328 F.2d 399, 402-403.
In my opinion the experienced trial judge's ultimate finding of fact on the issue herein covered rests upon substantial evidence and warrants the recognition and acceptance which Goldstein indicates it should be given. With all deference, it appears to me that the majority's failure to do so is a departure from the established standard governing appellate review of findings of fact.
I would affirm the conviction.
NOTES
[1] Defendant also asserts that his confession was the product of a chain of events set off by the unlawful arrest of one M, who thereafter informed against him. The State contends that it does not lie with defendant to assert the unlawfulness of this person's arrest. We do not reach this question.
[2] See footnote 1.
[3] A fortiori, the lawfulness of the arrest of M, the informer, need not be decided. See footnote 1.
[4] This nomenclature refers to McNabb v. United States, 318 U.S. 332; Mallory v. United States, supra, 354 U.S. 449. The line of cases embraces Upshaw v. United States, supra, and many other cases.
[5] For purposes of this opinion, the question of voluntariness and the question whether the confession was tainted by the unlawful search and seizure have been considered as two separate points. However, in Hall v. Warden, 313 F.2d 483 (4th Cir.), the question whether the confession was tainted by the unlawful search and seizure was treated as a question of voluntariness. The cited case is discussed in Part II, infra. The validity of that treatment need not be pursued at this time. In any event, the question of the taint of an unlawful search and seizure brings into the case problems that are distinct from those presented by the alleged unlawful arrest and detention. Here the confession plainly was voluntary unless not deemed such because tainted by the unlawful search and seizure.
[6] The court suppressed the automobile parts so seized and those portions of the confession referring to the stripping of the car and division of the parts among the participants in the crime. The question here is whether the confession should have been excluded altogether. We have no question before us as to the correctness of the court's ruling excluding portions of the confession.
[7] Quoted from Nardone v. United States, 308 U.S. 338, 341.
[8] We cannot agree with the State's contention that defendant's claim rested on his testimony that at the start of the interrogation Officer Kasparovitch spoke to him about the police having the automobile parts. Defendant earlier had testified that he was told about this while riding down to the police station.
[9] As above noted, the case was affirmed upon the ground of lack of standing of the accused to invoke the protection of the statute outlawing the wiretaps. The Court of Appeals had gone into other aspects of the case. It held that the trial judge had made no direct finding as to the effect of the wiretaps, and had found only that the accused failed to prove that the wiretaps had contributed to the breakdown of witnesses who testified for the Government. The Court of Appeals therefore thought that if the accused had standing, the issue of burden of proof was decisive. The Court of Appeals stated that if the trial judge had made a direct finding that the wiretaps contributed nothing to the breakdown of the witnesses, that finding would not have been disturbed. It is noteworthy that the government witnesses involved both testified that the wiretaps had not influenced them at all.
[10] The State points to the fact that Officer Ragsdale's statement on the way to the station did not evoke a confession at the time. The State further contends that defendant's statement to Officer Kasparovitch that "I want to get it off my chest," as testified by the officer, shows an independent origin or as put in the State's brief "an independent origin and desire to cleanse his mind of whatever guilt existed." The difficulty is, however, that Officer Ragsdale's use of the illegal search and seizure to induce a confession came early in the chain of circumstances, so that what followed had to be considered in that light. The record affords insufficient support for the conclusion that defendant had an independent desire to confess apart from his feeling as to the hopelessness of his case.
[11] Other members of the family, so far as appears, were simply told that the police had reason to believe defendant was implicated and was supposed to have taken parts from the stolen vehicle.
[1] "MR. NAITO [defense counsel]: Now, at the time of your arrest at your residence, did the officer mention anything to you about any automobile parts?
"WITNESS: Well, I heard someone say that `we have the parts already.'
"Q (By Mr. Naito) Did they tell you where they got the parts?
"A Yes. From the garage closet.
"Q And this was this told to you?
"A Yes. I think so.
"Q Did the officer say anything about making a confession because he had the parts?
"A While we were riding down to the police station.
"Q While you were riding in the automobile going down to the police station?
"A Yes.
"Q Which officer said that to you?
"A I don't remember.
"Q Was there a general conversation going on in the automobile regarding this case?
"A Yes.
"Q Do you recall how many times he told you that they had the parts so you had to confess?
"A Yes no, I don't remember exactly how much, but they told me quite a few times.
"Q They kept repeating it, is that correct?
"(Witness nodding.)"
[2] As to the effect on a confession of an admonition to tell the truth, see Territory v. Sumngat, 38 Haw. 609, 613-614; Territory v. Young, 37 Haw. 189. In the latter case it is stated at p. 195: "Mere exhortation or adjuration to speak the truth does not render a confession incompetent."
[3] Officer Ragsdale's testimony respecting his conversation with the father at the home on the afternoon of the arrest was as follows:
"A I told him who I was. I identified myself. And he more or less had an idea of the purpose of the police coming to the house.
"Q What did Mr. Kitashiro do?
"A He just wanted to find out more about the circumstances. He was very cordial.
"Q Who did he talk to?
"A He spoke with me.
"Q You say he wanted to talk with someone?
"A No, he just wanted to find out how come the boys were involved; so I gave him a brief summary of what had taken place prior to that time."
[4] The trial took place before Mapp v. Ohio, 367 U.S. 643, was handed down. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902148/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
When correction officers approached petitioner’s cell to conduct a search, they observed petitioner grab an unknown object and flush it down the toilet. Petitioner was directed to exit his cell, but he refused. Instead, he turned toward the officers with a clenched fist, at which point they used force to avert an assault. As a result, petitioner was charged in a misbehavior report with attempting to assault staff, engaging in violent conduct, refusing a direct order and violating search and frisk procedures. Following a tier III disciplinary hearing, he was found guilty of all of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers involved in the incident, provide substantial evidence supporting the determination of guilt (see Matter of Martin v Fischer, 98 AD3d 774, 774 [2012]; Matter of Wright v Fischer, 98 AD3d 759, 759 [2012]). To the extent that petitioner and his inmate witnesses gave contrary testimony, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carrasco v Fischer, 96 AD3d 1315, 1316 [2012]; Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]). We have considered petitioner’s remaining claims and find them either unpreserved for our review or lacking in merit.
Peters, P.J., Lahtinen, Spain, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902150/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
When correction officers approached petitioner’s cell to conduct a search, they observed petitioner grab an unknown object and flush it down the toilet. Petitioner was directed to exit his cell, but he refused. Instead, he turned toward the officers with a clenched fist, at which point they used force to avert an assault. As a result, petitioner was charged in a misbehavior report with attempting to assault staff, engaging in violent conduct, refusing a direct order and violating search and frisk procedures. Following a tier III disciplinary hearing, he was found guilty of all of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers involved in the incident, provide substantial evidence supporting the determination of guilt (see Matter of Martin v Fischer, 98 AD3d 774, 774 [2012]; Matter of Wright v Fischer, 98 AD3d 759, 759 [2012]). To the extent that petitioner and his inmate witnesses gave contrary testimony, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carrasco v Fischer, 96 AD3d 1315, 1316 [2012]; Matter of Cruz v Fischer, 94 AD3d 1296, 1297 [2012]). We have considered petitioner’s remaining claims and find them either unpreserved for our review or lacking in merit.
Peters, P.J., Lahtinen, Spain, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902151/ | OPINION OF THE COURT
Mahoney, P. J.
This CPLR article 78 proceeding was originally commenced *302by 43 of New York’s 58 County Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners. Respondents include representatives of the Department of Correctional Services, which is charged with the responsibility of accepting and keeping all persons sentenced to a term of imprisonment in a State correctional facility, the Commission of Correction, which oversees all correctional institutions in the State and promulgates rules and regulations establishing minimum standards for the care of persons confined therein, and the State Division of Parole, which is responsible for the supervision of persons paroled from State correctional facilities.
The genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility. After sentencing, there is some delay while certain paperwork is processed before the prisoner is "State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.
In response to these circumstances, the Sheriffs commenced this CPLR article 78 proceeding seeking to (1) compel the Department to accept all prisoners and parole violators within 48 hours after they become State-ready, (2) compel the Division of Parole to timely process parole violators, (3) require the State to compensate the counties where the Department does not timely accept State-ready prisoners or the Division of Parole does not timely process parole violators, and (4) enjoin *303the Commission from enforcing regulations prohibiting overcrowding in county facilities so long as the Department has not removed State-ready prisoners from the county facilities. Respondents answered, opposing the relief sought, and counterclaimed seeking an order directing petitioners to construct additional jails or apply to create substitute jails. Supreme Court dismissed petitioners’ claim for monetary compensation, the cause of action against the Division of Parole and the counterclaim. Supreme Court also ordered, inter alia, that, absent exigent circumstances, the Department must accept prisoners, including parole violators, within 10 days after notification that they are State-ready and enjoined the Commission from enforcing its minimum standards to the extent that overcrowding is caused by State-ready prisoners and adjudicated parole violators remaining in the county facilities beyond the 10-day period set forth above. The Department and the Commission (hereinafter collectively referred to as respondents) appeal, challenging the affirmative relief ordered by Supreme Court and the dismissal of their counterclaim.* Petitioners appeal from Supreme Court’s dismissal of the claim against the Division of Parole.
We turn first to respondents’ claim that Supreme Court erred in holding that the Department must accept prisoners within 10 days after they are State-ready. The basis for petitioners’ position in this regard is CPL 430.20 (1), which provides in pertinent part: "When a sentence of imprisonment is pronounced * * * the defendant must forthwith be committed to the custody of the appropriate public servant and detained until the sentence is complied with.” This statute has been held to require that the public servant to whom custody of the defendant has been committed accept the defendant without delay (see, Crespo v Hall, 56 NY2d 856, 858; County of Nassau v Cuomo, 121 AD2d 428, mod on other grounds 69 NY2d 737). Further, in several recent cases, courts have mandated that State officials accept certain persons committed to their custody within a specific time period (see, Crespo v Hall, supra [10 days]; Matter of Dooley v Coughlin, 134 AD2d 350 [14 days]; Matter of County of Monroe v Cuomo, 132 AD2d 1003, lv denied 70 NY2d 608 [14 days]; County of Nassau v Cuomo, supra [10 days]). However, each of those cases involved *304a court tailoring relief to the specific facts and circumstances of the case. In Dooley, County of Monroe and County of Nassau, the relief concerned specific county detention facilities. In Dooley, the proof established that State-ready inmates had remained in Suffolk County Correctional Facility for months awaiting acceptance by the Department, resulting in a dangerously overcrowded situation at that facility. Likewise, in County of Monroe and County of Nassau, proof established that the county facilities were filled to capacity. In another recent case involving Erie County, the Supreme Court set a 10-day period but only when the county facility’s population exceeded 500 inmates (Matter of Higgins v New York Dept. of Correctional Servs., Sup Ct, Erie County, Aug. 17, 1987, Kane, J.). The relief ordered in Crespo was State-wide, but was limited to commitments to the State Division for Youth and was based on proof regarding not only the capacity of New York City detention facilities but also facilities of the State Division for Youth. The instant case is very different and such difference strikes at the heart of the distinction between legislation and adjudication.
The Legislature has the authority to amend CPL 430.20 (1) to define "forthwith” as a specific time period, and it may do so based on whatever policy considerations it deems appropriate. The judiciary may use the equitable remedy of injunction to define "forthwith” as a specific time period, but only where, based on evidence presented in a particular dispute, such extraordinary relief is necessary to give the statute any meaning and to provide relief to the prevailing party. Such is the situation in the above-discussed cases. In the instant case, Supreme Court established a time period with State-wide applicability. Yet, the proof in the record does not demonstrate that every county correctional facility in the State holds State-ready inmates for a prolonged period of time with the result that every such facility is overcrowded. Indeed, the petition states that only 28 of the 58 local correctional facilities are operating beyond capacity. Nor is there any evidence indicating that 10 days is appropriate for every local facility. Thus, unlike the cases discussed earlier, the proof in the record does not warrant the extraordinary relief ordered by Supreme Court. Without disputing the wisdom of such relief, it is more properly a legislative remedy, not an adjudicatory one.
Next, respondents claim that Supreme Court erred in enjoining the Commission from enforcing its minimum stan*305dards to the extent that overcrowding is caused by the failure of the Department to accept State-ready prisoners. The regulations of the Commission provide a maximum capacity for each local correctional facility and prohibit the placement of prisoners in excess of such capacity (see, 9 NYCRR part 7040). Petitioners’ argument is that it is inequitable for them to be penalized for failure to comply with the regulations where such failure is caused by the Department’s refusal to timely accept State-ready inmates. This argument appears at first glance to have merit: the Department is charged with the responsibility of housing prisoners and it would be inappropriate for it to solve its overcrowding problem by the expedient of foisting the prisoners on the counties. However, the considerations behind 9 NYCRR part 7040 are broader than simply the relationship between the counties and the Department. The Commission is charged with establishing minimum standards for the care, custody, treatment and supervision of inmates in the local correctional facilities as well as State correctional facilities (Correction Law § 45 [6]). This legitimate concern of the Commission does not become irrelevant simply because the overcrowding situation is the fault of the Department rather than the counties. The Commission lawfully promulgated 9 NYCRR part 7040 and the fact that the Department may have caused the overcrowding does not provide legal justification for interfering with the Commission’s authority.
We agree with Supreme Court that petitioners do not have standing to challenge the timeliness of parole revocation procedures. In order to establish standing, a petitioner must show, not only that delay in parole revocation proceedings will have a harmful effect on them, but also that the interest asserted by them is arguably within the zone of interest to be protected by the statute (see, Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 414). Here, the statute sets forth certain time periods within which parole revocation procedures must take place (see, Executive Law § 259-i [3]). It is clear that these procedures were designed to protect the due process rights of parolees (cf., Morrissey v Brewer, 408 US 471, 485, 488). Petitioners have offered nothing to demonstrate that the Legislature also intended to benefit counties by reducing the time that alleged parole violators are in their facilities.
Finally, the counterclaim filed by respondents is patently frivolous and was properly dismissed. It seeks to compel *306petitioners to take steps to alleviate overcrowding at county correctional facilities. To the extent that respondents seek to compel petitioners to construct sufficient additional jails, there is nothing in the record to demonstrate that individual County Sheriffs have the authority to undertake such action. On the contrary, it is elementary that such action may be taken only by the governing body of the county. To the extent that the counterclaim seeks to direct petitioners to obtain permission to designate substitute jails pursuant to Correction Law § 504, it is likewise without merit. Since such action by the Sheriffs would clearly be discretionary in nature (see, Correction Law § 504 [1]), it could not be the subject of a proceeding in the nature of mandamus to compel. Further, the use of mandamus to review to challenge a discretionary act is only available to review a specific decision alleged to be arbitrary and capricious. There has been no such specific decision which is being challenged herein.
Respondents also appeal from Supreme Court’s denial of their motion to dismiss for failure to join the remaining Sheriffs in the State as necessary parties. Because of our resolution of this matter, it is unnecessary to address this issue. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902152/ | Yesawich, Jr., J.
(concurring in part and dissenting in part). We would affirm Supreme Court’s judgment.
The term "forthwith” is not discretionary (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 430.20, at 309), it means "without delay” (Crespo v Hall, 56 NY2d 856, 858; County of Monroe v State of New York, 123 AD2d 141, 142, lv denied 69 NY2d 612) and not merely whenever the Department of Correctional Services deems it prudent to receive State-ready inmates. By in effect defining "forthwith” to mean promptly, only if the county jail is full, otherwise at the leisure of the Department, the majority has effectively amended CPL 430.20 (1) because the statute does not make overcrowding of a county facility a prerequisite to the transfer of prisoners.
That Supreme Court’s determination that 10 days is the outer limit of time, unless exigent circumstances justify a further limited delay, that the Department can constrain counties to retain State-ready prisoners is rational is borne out by respondents’ acknowledgment in this litigation that this is precisely the period required by the Department to meet its "logistic needs * * * for the receipt of new inmates”, and from the fact that the 10-day limit is not a rigid deadline and the further fact that, under proper circumstances, "forthwith” may entail a much shorter period as occurred in Benjamin v Malcolm (629 F Supp 713, affd 803 F2d 46) where the Department was enjoined to accept "state readies” within 48 *307hours. In our view, Supreme Court’s determination provides the flexibility inherent in the Legislature’s choice of the term "forthwith” (see, Crespo v Hall, supra, at 859) for it allows a delay of more than 10 days where appropriate exigent circumstances—those occasioned by other than overcrowding conditions in the Department’s facilities (see, Matter of County of Monroe v Cuomo, 132 AD2d 1003, lv denied 70 NY2d 608)— are shown to exist. In short, the determination explicitly and rightly recognizes that, where the Department’s claimed exigency is based on the lack of facilities which the State is obligated to furnish, the Department has no more authority to cut off the flow of prisoners into its facilities (see, CPL 430.20) than Sheriffs have to control what prisoners they must take or how many they can accommodate (see, Howell v McGinity, 129 AD2d 60, 66-67, lv denied 70 NY2d 607). Unless and until the Legislature directs otherwise, the Department is not at liberty to shirk its obligation under CPL 430.20 (1) to provide facilities for these inmates by administratively saddling the various counties of this State with the Department’s responsibility.
The interpretation of "forthwith” adopted by the majority is especially discomfiting when considered in conjunction with the authority reposed in the Commission to compel counties faced with overcrowded jails to build or otherwise provide additional cell space. While the courts cannot prohibit the Commission from performing its statutory mandate, they can, of course, prevent it from applying regulations in an arbitrary fashion (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). The Commission is empowered by Correction Law § 45 (6) to regulate the Department as well as the County Sheriffs in matters pertaining to the well-being of inmates (compare, 9 NYCRR 7000.1 et seq., with 9 NYCRR 7600.1 et seq.). It would be inequitable and capricious, to say the least, to permit the Commission to require counties to expand and construct jails and to retain additional personnel for the purpose of housing inmates who are properly the Department’s charges.
As we read Supreme Court’s decision, it does not prohibit the Commission from enforcing its regulations; it merely prevents the Commission from acting against County Sheriffs to the extent that the reason for doing so lies, not with any failure on the part of the Sheriffs, but on the Department to perform its statutory duty. Insofar as it is the Department’s conduct, in refusing to accept State-ready prisoners, which gives rise to a Commission decision to cause a county to provide additional jail space, the Commission’s action cannot *308be condoned, for it in essence shifts the responsibility to house these prisoners from the Department to the counties in contravention of CPL 430.20. Like any administrative agency, the Commission is powerless to promulgate regulations or enforce them in a way that conflicts with or alters, as here, an unambiguously imposed legislative obligation (see, McNulty v Chinlund, 62 AD2d 682, 688; see also, Servomation Corp. v State Tax Commn., 51 NY2d 608, 612). For these reasons, we find Supreme Court’s restriction of the Commission’s exercise of its authority to enforce 9 NYCRR part 7000 entirely appropriate.
Weiss and Mercure, JJ., concur with Mahoney, P. J.; Yesawich, Jr., and Harvey, JJ., concur in part and dissent in part in an opinion by Yesawich, Jr., J.
Judgment modified, on the law, without costs, by reversing so much thereof as (1) directed respondent Commissioner of Correctional Services to accept custody of State-ready prisoners and adjudicated parole violators within 10 days of becoming State-ready, absent exigent circumstances, and (2) enjoined enforcement of 9 NYCRR part 7000 in any manner; petition dismissed in its entirety; and, as so modified, affirmed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902153/ | OPINION OF THE COURT
Kane, J. P.
This is an action for medical malpractice.
On June 15, 1981, Edna M. Riley was seen at the medical offices of Nichols, Cooke, Beach and Wieman in the Village of Owego, Tioga County, complaining of rectal bleeding. Defendant Dr. Philip A. Nichols examined Riley and asked her to return three days later to have two additional tests performed, a sigmoidoscopy and a barium enema. She returned on June 18, 1981 and was seen by defendant Dr. Henry M. Wieman, who, after preparation by his assistant, performed the sigmoidoscopy. This test requires the insertion of an *311instrument six inches into the patient’s rectum to permit visual observation of the inside wall of the rectum. In order to make this observation easier and safer, Wieman introduced air into Riley’s rectum with a pump, similar to that used on a blood pressure cuff, to inflate the rectum away from the inserted instrument and thus permit better visibility. Upon the examination of Riley, Wieman observed a small "benign-looking” polyp and thrombosed hemorrhoids. The examination proceeded without incident. Wieman told Riley of the polyp and made arrangements for her to see defendant Dr. Jack M. Levene, a board-certified specialist in radiology, for a barium enema and an "air contrast study”.
When Riley arrived at Levene’s office, which is in the same building as Wieman’s, an X-ray technician prepared her for the "barium enema-air contrast procedure”. This procedure involves introducing barium into the patient’s large intestine while taking X rays to discover cancers, tumors or other irregularities. After the barium is removed, the doctor inflates the intestine to take more X rays. To keep the barium and air inside the patient, a balloon is placed just inside the patient’s rectum, which is inflated with a hand pump to form a seal. During the procedure, the examining doctor is able to see the patient’s intestine via a fluoroscope and a television monitor which continuously gives an X-ray picture. Levene, assisted by his technician, performed these procedures on Riley. The first part of the test, inflating the balloon, introducing the barium and taking X rays, apparently went without incident and revealed no problems related to Riley’s colon or rectum.
After these first X rays, Riley was required to discharge as much barium as possible, and then return to the examination table for the "postevacuation” X ray and the "air contrast study”. The postevacuation X ray was simply a picture of Riley’s intestine after she had discharged most of the barium. The air contrast study involved pumping air into her rectum and taking a series of X rays as the air slowly inflated her large intestine. Near the end of the air contrast study, Levene observed that the fluoroscope indicated that the was "air where it shouldn’t be”, i.e., outside Riley’s intestine. He also noticed that barium had leaked from Riley’s bowel, which indicated a rupture.
Levene took two of the X rays that had been processed and proceeded directly to Wieman’s office where he exhibited to Wieman the X rays depicting the escaped barium and the air outside Riley’s bowel. Wieman subsequently asserted that he *312saw barium in the bowel, but saw none outside Riley’s intestine, nor was he told of any by Levene. Wieman also claimed that Levene informed him that air outside the bowel signified a rupture, that it was not serious, the air would "resorb” into the intestine, and that he, Wieman, should prescribe antibiotics and carefully observe Riley. Levene, for his part, claimed that he told Wieman of the tear in the rectum, that there was barium outside the bowel, that the air would probably absorb, but that the mortality rate of patients with a torn bowel was approximately 50%.
Riley arrived at Wieman’s office several minutes later and both doctors conferred with her. Collectively, they informed her of the "complication”, that she would be given an antibiotic and that she should return the next day for another X ray to see if the air indeed absorbed or to call in the event she developed a fever. The doctors did not discuss hospitalization between themselves or with Riley, although Wieman said he personally considered it, but having no experience with bowel ruptures, he relied on Levene’s expertise. After Levene left his office, Wieman prescribed Keflex, an oral antibiotic, and sent Riley home.
That evening, when Riley’s husband, plaintiff, returned home after work, he found his wife in bed and in pain. He called his daughter, a nurse, then called Wieman’s medical office and spoke to Dr. David E. Kwiatkowski, who told plaintiff to bring his wife to the office. After a brief examination, Kwiatkowski admitted Riley to a hospital, where she came under the care of defendant Dr. John S. Raymond, a surgeon who, on June 18, 1981, performed surgery upon her perforated rectum trying to alleviate her septic condition. However, the infection continued until July 5, 1981, on which date Raymond transferred her to Upstate Medical Center in Syracuse where she came under the care of Dr. David Fromm. Fromm performed an additional operation on July 7, 1981, searching for the precise cause of her infection, which had worsened. Following this surgery, Riley went into septic shock, was placed in the intensive care unit where she began to recover from her infection. Suddenly, however, on July 15, 1981, she died from an arrhythmia of her heart, caused by the "overall septic course that she had gone through”. Fromm later stated that the perforation in Riley’s rectum following the barium enema was the initial cause of the circumstances leading to her death.
This action is brought by plaintiff, individually and as *313executor of his wife’s estate, against, among others, Wieman and Levene (hereinafter collectively referred to as defendants), alleging negligence in performing the barium enema, in failing to initially recognize the severity of the torn rectum and in operating to try to repair the perforation. Plaintiff seeks damages for his wife’s wrongful death, her pain and suffering and his loss of comfort and companionship.
At the trial of this action, plaintiff called four doctors to testify to defendants’ negligence, Fromm, Dr. Michael J. Wasco, Dr. Alexander R. Margulis and Dr. Kenneth K. Meyer, in addition to reading an examination before trial of Levene. Cumulatively, these witnesses testified that Levene negligently performed the barium enema (1) by overinflating the balloon and placing it "too high” in Riley’s rectum, (2) by not having an assistant present during the test, and (3) by not advising Wieman to immediately hospitalize Riley after he knew the rectum was perforated. A malpractice panel of doctors who examined defendants’ acts concluded that Levene was further negligent in failing to "press the issue with Dr. Wieman to admit the patient to the hospital”, but the panel did not find negligence in Levene’s performance of the barium enema. The panel did, however, concur with the testimony of expert witnesses who found Wieman negligent in prescribing an oral rather than an intravenous antibiotic and in failing to immediately hospitalize Riley. During the trial, Wieman admitted he was negligent, whereupon plaintiff moved for a directed verdict against Wieman based on this admission, which was denied by Supreme Court. The jury returned a unanimous verdict for plaintiff, finding Wieman 30% responsible and Levene 70% responsible and awarding $202,000 for wrongful death, $225,000 for conscious pain and suffering, and $75,000 to plaintiff, individually on his cause of action. This appeal ensued.
The thrust of defendants’* appeal seeking reversal is directed at the testimony of plaintiff’s expert witnesses and particularly at the videotaped testimony of Margulis, a board-certified radiologist and chairman of the department of radiology at the University of California at San Francisco. It was Margulis’ opinion that Levene breached the standards of acceptable medical care in the treatment of Riley and that *314breach caused her death. Specifically, he opined that it was improper to conduct a barium enema without an assistant, that barium should have been introduced into Riley’s intestine before inflating the balloon in order to see the balloon expand on the fluoroscope, and that use of the balloon procedure is very dangerous and should be employed on patients with conditions unlike those demonstrated by Riley. Defendants objected to this testimony on the ground that Margulis was incompetent to express such an opinion since, admittedly, he was unfamiliar with the generally accepted medical practice in the community where this action arose or with the practice in upstate New York as it existed in 1981. The objections were overruled and it is defendants’ contention that reversible error is present because of Supreme Court’s violation of the long-standing "locality rule” articulated in Pike v Honsinger (155 NY 201) providing that, in measuring a doctor’s performance in malpractice cases, the doctor is required to possess "that reasonable degree of learning and skill * * * ordinarily possessed by physicians and surgeons in the locality where he practices” (supra, at 209; see, Toth v Community Hosp., 22 NY2d 255, 262; Gibson v D'Amico, 97 AD2d 905, 906, lv denied 61 NY2d 603; Twitchell v MacKay, 78 AD2d 125, 128).
We cannot accept defendants’ strict application of the "locality rule” in view of leading current authority. Although the rule is still extant, the standards upon which it is based are no longer the same as articulated in Pike v Honsinger (supra). In Toth v Community Hosp. (supra), the Court of Appeals in discussing the locality rule observed that "conforming] to accepted community standards of practice usually insulates [the doctors] from tort liability” (supra, at 262). However, the court then applied the locality rule as a minimum standard, inserting the further requirement that doctors use their "best judgment and whatever superior knowledge, skill and intelligence [they have] * * * Thus, a specialist may be held liable where a general practitioner may not” (supra, at 262). The resulting two-tiered standard preserves the benefits of the locality rule while compelling doctors to use available methods that may exceed local standards (Prooth v Wallsh, 105 Misc 2d 653, 655).
Additional evidence of a retreat from strict application of Pike v Honsinger (supra) exists in the more broad language used in restating the locality rule. The standard for measuring conduct in malpractice cases is described as whether the doctors possess the knowledge and skill of the "average mem*315ber of their profession” (Ressis v Mactye, 108 AD2d 960, 961, lv dismissed 67 NY2d 601; see, Littlejohn v State of New York, 87 AD2d 951, 952; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Gould v New York City Health & Hosps. Corp. [Harlem Hosp.], 128 Misc 2d 328, 330), or whether the care is "acceptable in the professional community in which [they practice]” (Schrempf v State of New York, 66 NY2d 289, 295; see, Schoch v Dougherty, 122 AD2d 467, 468, lv denied 69 NY2d 605). These restatements of the locality rule accommodate the second tier of the test in Toth v Community Hosp. (supra) and impose a higher duty on doctors with knowledge and skill that exceeds local standards. Accordingly, Margulis’ testimony was properly admitted into evidence and, although the standards he would impose upon the treatment and care rendered by Levene were rebutted by the testimony of defendants’ local radiologist as not representative of the local norms, his testimony described the "superior knowledge, skill and intelligence” that Levene should possess as a board-certified specialist under the rule established in Toth. Since these standards are national standards and Levene’s practice included the practice of radiology in Georgia, New York City and Rochester, as well as Tioga County, it was for the jury to conclude whether he knew of these standards and should have complied with them.
Defendants also contend it was error for Supreme Court to refuse their request to require Dr. Kenneth Meyer of Sayre, Pennsylvania, an expert witness testifying for plaintiff, to produce a copy of a report he had prepared, in the form of a letter to plaintiff’s attorney, for use on cross-examination. Meyer did not have a copy of the report with him and plaintiff’s counsel had forwarded his only copy to the malpractice panel investigating the matter. Although the report would be admissible to impeach Meyer if it contained prior inconsistent statements (see, Matter of Hicksville Props. v Board of Assessors, 116 AD2d 717, 718), we do not view the court’s action as erroneous since a copy of the report could have been obtained from Dr. Marc Greenwald, a member of the malpractice panel and a witness who testified for defendants, by request or subpoena. In any event, the court permitted extensive cross-examination of Meyer and its refusal to require production of the report, which obviously was located in Pennsylvania, was not error.
We also reject Levene’s argument that the denial of plaintiff’s motion for a directed verdict against Wieman was *316incorrect and prejudicial to Levene. Although Wieman admitted, based upon hindsight, that his less than urgent advice to Riley was a departure from standard medical practice, he persistently maintained at trial that, at the time, he considered his conduct appropriate. Since the jury could have found that his reliance on Levene’s expertise was reasonable, we fail to perceive any prejudicial effect on the jury’s allocation of responsibility or on the amounts of the verdicts returned, which, under the circumstances, were fair and reasonable (see, Rush v Sears, Roebuck & Co., 92 AD2d 1072; DeLong v County of Erie, 89 AD2d 376, 385, affd 60 NY2d 296; Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 139).
Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.
Judgment affirmed, with costs.
It is noted that partners in Wieman’s medical practice were also named as defendants in the malpractice action. They have joined in Wieman’s and Levene’s appeal from the verdict. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902154/ | OPINION OF THE COURT
Casey, J.
At issue on this appeal is whether Supreme Court erred in *318finding that a valid common-law marriage exists between the parties under Pennsylvania law, a marriage which will be recognized by this State (see, Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289, 292). It is conceded that, since plaintiff was still married to another person when she began to cohabit with defendant in Pennsylvania, the relationship was illicit or meretricious at its inception. Under Pennsylvania law, such a relationship is presumed to continue in like manner until the obstacle to a valid marriage is removed, and a valid marriage is established by clear and convincing evidence (see, In re Gower’s Estate, 445 Pa 554, 284 A2d 742, 744; In re Cummings Estate, 330 Pa Super 255, 479 A2d 537, 542). Plaintiff testified that shortly after her divorce was finalized, she and defendant, while residing together in Pennsylvania, had a discussion about marriage and exchanged marriage vows. Specifically, plaintiff testified: "Well, we just decided that we would from that day on, as far as we were concerned in our hearts, we were man and wife, and we would consider ourselves a family and continue thus.” Plaintiff also presented the testimony of Arlan Briggs, who, at the time of trial, was married to but physically separated from plaintiff’s sister. Briggs testified that, during the relevant time period, he and plaintiff’s sister were present at the parties’ residence in Pennsylvania when plaintiff announced that she and defendant had exchanged marriage vows with each other. According to Briggs, defendant was present when plaintiff made the announcement and responded by saying, "Help me make it through the night.” Defendant denied ever exchanging marriage vows with plaintiff and testified that he did not recall the incident referred to by Briggs.
Marriage is a civil contract in Pennsylvania, but "[t]he contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time” (Estate of Gavula, 490 Pa 535, 417 A2d 168, 171). In our view, plaintiff’s testimony, if believed, constitutes clear and convincing proof that what began as an illicit relationship had been converted into a valid marriage by the parties’ agreement to be man and wife and to consider themselves "a family and continue thus”. Supreme Court had the opportunity to hear and observe the parties and Briggs as they testified, and we see no basis for disturbing its decision to credit the testimony offered by plaintiff.
The parties presented considerable proof concerning their *319cohabitation, their reputation of marriage and their statements and actions after they moved to New York. Such proof is merely circumstantial evidence as to whether a valid marriage existed (see, Pierce v Pierce, 355 Pa 175, 49 A2d 346, 348). The circumstantial proof in this case is equivocal at best, with some of it supporting plaintiffs claim of a marriage and some of it supporting defendant’s denial that a marriage existed, and it would be insufficient standing alone to rebut the presumption that the parties’ relationship, illicit at its inception, continued to be illicit during subsequent cohabitation (In re Estate of Dodge, 361 Pa Super 188, 522 A2d 77; In re Cummings Estate, 330 Pa Super 255, 479 A2d 537, supra). Pennsylvania courts have held that, where there is direct written proof which is sufficient to establish a valid marriage, there is no need to consider whether the circumstantial proof corroborates or establishes independently the validity of the marriage (In re Gower’s Estate, 445 Pa 554, 284 A2d 742, supra). Where the direct proof purports to establish an oral marriage contract, however, the Pennsylvania courts examine all of the proof, including the circumstantial evidence, to determine whether to credit the proof of an oral contract (In re Stauffer’s Estate, 372 Pa 537, 94 A2d 726, 728-729; In re Estate of Kovalchick, 345 Pa Super 229, 498 A2d 374, 377).
We reject defendant’s argument that the circumstantial proof herein requires reversal of Supreme Court’s finding. In particular, we find the cases relied upon by defendant to be distinguishable from this case. For example, in Commonwealth ex rel. Drebot v Drebot (199 Pa Super 439, 442, 185 A2d 617, 619), the appellate court reversed a finding of a valid common-law marriage, concluding that the uncorroborated testimony of the relatrix concerning a purported civil marriage ceremony was "vague, confused, and contradictory and, as a consequence, legally insufficient to support the finding based upon it”. In In re Estate of Kovalchick (supra, at 377), the appellate court affirmed a trial court ruling, concluding that the court had not "abused its discretion when it found that appellant had failed to meet the burden of proving a valid marriage”. Also present in the Kovalchick case and other cases involving claims against a decedent’s estate is the Pennsylvania rule requiring even closer scrutiny of a claimed common-law marriage "where one of the parties [to the purported marriage] is dead and the claim, so grounded, is to share in the distribution of the estate” (In re Estate of Gavula, 490 Pa 535, 417 A2d 168, 171, supra). In the case at bar, both *320parties are alive and testified before Supreme Court. Plaintiffs testimony that, after her divorce, she and defendant exchanged marriage vows in Pennsylvania was clear, concise and consistent. Her testimony was corroborated to some degree by Briggs, whose testimony was also clear, concise and consistent. Supreme Court elected to credit plaintiffs testimony and the mere fact that the circumstantial evidence presented by the parties is equivocal does not require appellate interference with that determination (see, In re Stauffer’s Estate, supra). Based upon a review of the record, we agree with Supreme Court that plaintiff met her burden of proof under Pennsylvania law. The order, therefore, should be affirmed.
Kane, J. P., Mikoll, Yesawich, Jr., and Levine, JJ., concur.
Order affirmed, with costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902155/ | OPINION OF THE COURT
Kane, J.
In this proceeding, petitioner disputes respondent’s assessment of taxes on certain real property located in the Town of Queensbury, Warren County, for the years 1979 through 1982. During those years, the property in question, a Federal Department of Housing and Urban Development (hereinafter HUD) low-income housing project (hereinafter the project), was owned by petitioner, a not-for-profit corporation. In contesting the assessment, petitioner filed separate petitions for each of the tax years at issue. These petitions were consolidated and heard together by Supreme Court. After hearing testimony and reviewing the appraisals and evidence submitted by both sides in support of their respective positions, the court, while not agreeing with all of petitioner’s assertions, did find certain errors in respondent’s assessment and accordingly ordered a reduction in the assessment. These cross appeals ensued.
Preliminarily, we address the question of whether the conditions imposed upon intervenor, Queensbury Union Free School District (hereinafter the school district), by Supreme Court were proper. In permitting the school district to intervene, the court was free to impose reasonable conditions on that intervention (see, 2 Weinstein-Korn-Miller, NY Civ Prac If 1013.03). Here, Supreme Court refused to permit the school district to call its own witnesses or to cross-examine petitioner’s witnesses. Unquestionably, the grant of intervention was proper, given the school district’s financial interest in the outcome of the proceeding in the form of potential liability to *324petitioner for a tax refund (see, Vantage Petroleum v Board of Assessment Review, 91 AD2d 1037, affd 61 NY2d 695). As a result, the school district’s interests were the same as those of respondent and, on that basis, we find no abuse of discretion in the conditions imposed by the court. Their effect was merely to restrict representation to the attorney for respondent, who, in arguing respondent’s position, adequately protected the school district’s interests as well (see, e.g., City of Buffalo v State Bd. of Equalization & Assessment, 44 Misc 2d 716, 718; Fleitman v Simpson, 9 Misc 2d 398, 401-402). Furthermore, the school district presented no appraisal of its own, relying instead on respondent’s. A party who fails to serve an appraisal report is precluded from offering expert testimony as to value (22 NYCRR 202.59 [h]; see, Matter of Expressway Vil. v Brearly, 112 AD2d 718, 719).
Next, we turn to the issues raised by respondent on its appeal. In making their appraisal reports of the project, both petitioner’s expert, Richard Kelley, and respondent’s expert, James McGuire, considered three valuation techniques: the income capitalization approach, the cost approach and the market data approach. In establishing the project’s value, Kelley emphasized the income approach while McGuire emphasized the market data approach. In rejecting the market data approach, Kelley found no "relevant” comparable sales. McGuire, however, took into account two basically simultaneous sales of the project that occurred on September 30, 1983. The first sale to an individual was for approximately $3.9 million with $160,000 to be paid directly to petitioner for reimbursement of original landsite cost and development and included an assumption of a $3.7 million HUD mortgage. This individual then immediately conveyed the project for $4.3 million to a limited partnership, of which he was a general partner, which assumed the $3.7 million HUD mortgage and a second mortgage for payment of over $300,000 in interest arrears to HUD and paid the $160,000 to petitioner. Kelley had rejected these sales, finding them to be inflated and noting that the present face value of the approximately $4.2 million mortgage would be about $1,260,000. In its decision, Supreme Court accepted the income approach as suggested by Kelley. Respondent argues that this was error and that the court failed to give proper consideration to the market data method. We disagree.
Even if the recent sales in this case are accepted as being at arm’s length and not abnormal, this is nevertheless not deter*325minative and a court may still consider alternative methods such as the income approach (see, Matter of Kings Mayflower v Finance Adm’r of City of N. Y., 63 AD2d 970). Furthermore, the income approach is generally regarded as the preferred method to determine the value of income-producing property such as petitioner’s (see, 41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325, 331). There is ample evidence in the record to support Supreme Court’s use of the income approach and its factual findings were within the range of testimony offered (see, Onondaga Sav. Bank v Cale Dev. Co., 63 AD2d 415, 418). Additionally, the court’s decision may also be upheld even if it did not supply an explanation of its reasoning as respondent contends (see, supra).
Further support for Supreme Court’s use of Kelley’s income approach is found in its rejection of McGuire’s appraisal report on the ground that it consistently made "conclusions without supporting calculations, rendering it impossible * * * to analyze” the report. The failure of an appraiser to identify or adjust allegedly comparable sales to the subject property prevents any possibility of review rendering such appraisal and supporting testimony insufficient (see, Matter of Estate of Taylor v State of New York, 39 AD2d 984, 985; Geffen Motors v State of New York, 33 AD2d 980). In writing his report, an appraiser is expected to set forth his explanations and adjustments (Matter of Estate of Taylor v State of New York, supra). The record supports Supreme Court’s conclusion that McGuire failed to satisfy these requirements. Among other things, he failed to set forth the location of the comparable sales, the names of other apartments in the same area of the project which could be used as comparables for market value, any dollar and cents adjustments to the subject sale and any factor he considered relevant to such necessary adjustments. There was also no breakdown for the figures listed as expenses. Thus, Supreme Court properly rejected McGuire’s appraisal.
We also reject respondent’s claim that Supreme Court improperly applied the income approach, the expense figures and the capitalization rates. As to the court’s computation of the capitalization rate, there is no fixed rule regarding such a rate’s use in valuing property under the income approach (see, Matter of Continental Assur. Co. v Mayor of Inc. Vil. of Lynbrook, 113 AD2d 795, 797, appeal dismissed 66 NY2d 915). Such a determination is a factual question and all that is required is that there be evidence to support the value arrived *326at by the court (see, Kurnick v State of New York, 54 AD2d 1098). Here, the court added the standard interest rate and the effective tax rate to arrive at the capitalization rate. Kelley’s appraisal had determined the rate by adding the basic interest rate to the tax factor. The rates arrived at by the court were within the range of rates suggested by Kelley and McGuire in their respective reports. Therefore, support for the court’s decision is again found in the record and, again, it was not required to supply an explanation of its reasoning (see, Matter of Schoeneck v City of Syracuse, 93 AD2d 988; Onondaga Sav. Bank v Cale Dev. Co., 63 AD2d 415, 418, supra).
Next, respondent claims that Supreme Court adjusted the income without taking into account an adjustment of expenses. However, although respondent’s witnesses disagreed with Kelley’s calculation of expenses, Kelley’s appraisal constitutes substantial evidence for the court’s acceptance of the expenses as stated therein (see, Matter of Schoeneck v City of Syracuse, supra). Thus, the court properly applied the income approach by considering the appropriate adjustments to alleged income and expenses and by using an appropriate capitalization rate. For the same reasons, we also reject petitioner’s contentions regarding the utilization of allegedly improper interest rates or capitalization rates as such were reasonable and supported by the record (see, Kurnick v State of New York, 54 AD2d 1098, supra).
Finally, we address the issues raised by petitioner on its appeal. It initially argues that Supreme Court improperly added $50 per month to the actual rental price of each of the project’s apartments. However, while actual rents often offer the best indication of fair market value, if actual rents are higher or lower, another figure may be adopted (Matter of City of Albany [Johnson], 136 AD2d 818, 819). Here, HUD fixed the rents for low-income tenants and respondent’s witnesses testified that such rents were far below fair market value. There was also testimony that the project was comparable to another apartment complex where the rents were approximately $50 higher. Thus, the record supports the figure chosen by the court (see, supra).
However, we do agree with petitioner’s claim that Supreme Court improperly added in the value of the land in applying the income approach to valuation. The use of an over-all capitalization rate implies that income is derived in equal shares from the land and buildings (see, Matter of City *327of New York [Oceanview Terrace], 42 NY2d 948, 950). Split capitalization rates, where two separate rates are given to the land and the buildings, is called for where there is evidence of a wide discrepancy between the. value of the land and the value of the buildings as to render uncertain the assumption that income is equally derived from the land and buildings (see, supra). No such evidence is presented in the case at hand; therefore, it was improper for the court to separately add in the value of the land in its calculations.
Supreme Court also erred in disallowing the vacancy allowances taken by Kelley in his appraisal report. Kelley noted that the vacancy rate was low and that there was a waiting list. He calculated the vacancy rate to be between 1% and 3%, which corresponded with petitioner’s actual vacancy rate. The court, however, disallowed these deductions, finding the 1% to 3% figure inconsistent with petitioner’s reference to a waiting list. However, as petitioner notes, vacancy losses may result from a variety of factors such as turnover lags and time lags in filling vacancies arid, therefore, are not necessarily inconsistent with the existence of a waiting list.
Mahoney, P. J., Casey, Weiss and Mercure, JJ., concur.
Judgment modified, on the law, without costs, by reversing so much thereof as (1) added the market value of the land to the fair market value of the project arrived at by the capitalization of income method, and (2) disallowed petitioner’s vacancy losses; matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision; and, as so modified, affirmed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902156/ | *329OPINION OF THE COURT
Per Curiam.
The respondent Kenneth F. Kaplan was admitted to practice in the Second Department on February 24, 1971 under the name Kenneth Franklin Kaplan. During the period herein pertinent, respondent maintained an office for the practice of law within the First Department.
The following facts are undisputed. Respondent was retained to represent Josephine Burton in a personal injury action which arose when she was struck by a van in the course of her employment duties. In settlement of the action, respondent received from the owner’s insurance company a check dated January 25, 1980, for $25,000 payable to "Josephine Burton and Kenneth Kaplan, as attorney.” Two days later respondent endorsed the check by signing both his and his client’s name, and deposited the proceeds in a passbook savings account entitled "Diane G. Sternlicht ITF Kenneth F. Kaplan.” (Ms. Sternlicht was then respondent’s fiancée; in August 1981 they were married.) We accept as true, for the purposes of this proceeding, respondent’s testimony that Mrs. Burton authorized him to endorse the check on her behalf.
The money in the account was used for personal expenses by respondent and Ms. Sternlicht, and the balance fluctuated as low as $8,601 in October 1980. Eventually, the account was closed. Between January 1980 and July 1985 respondent did not maintain any portion of the settlement proceeds in a special or escrow account.
Respondent’s explanation with respect to his handling of the funds in this manner was that Mrs. Burton had requested that she be paid her portion of the settlement proceeds in cash because she was then on welfare and receiving food stamps. Since he expected to pay her share within a short period of time, respondent claims that he converted the funds into cash by depositing the insurance check into Ms. Sternlicht’s bank account, and then segregating $25,000 into two envelopes containing $12,500 each, which he inscribed with Mrs. Burton’s name, from a larger amount of cash which he and Ms. Sternlicht kept in her safe-deposit box.
According to respondent, the money was kept in several safe-deposit boxes until July 1985, when it was deposited into a newly opened escrow account for Mrs. Burton’s benefit. *330(Mrs. Burton had filed a complaint against respondent with the petitioner Departmental Disciplinary Committee in October 1984.) It was stipulated at the hearing that if Ms. Sternlicht (now respondent’s wife) were called to testify, she would confirm the segregation of funds as testified to by the respondent. Respondent conceded that he was not a signatory on the safe-deposit boxes until August 1983, and until that date was only able to get access to the boxes through his fiancée.
During the 5Vi-year period that the funds were supposedly being maintained in successive safe-deposit boxes, respondent was encountering difficulties with regard to releasing the funds, due to his inadvertent failure to obtain the prior consent to the settlement of the third-party action of the workers’ compensation carrier of Mrs. Burton’s employer. Various proceedings, including an application to the Supreme Court under Workers’ Compensation Law § 29 (5) to obtain the carrier’s consent nunc pro tunc, were commenced to cure the error. These difficulties were not resolved until January 28, 1986, when a workers’ compensation Judge directed that the $16,666.67 net proceeds of the settlement ($25,000 less one-third attorney’s fees) be paid to Mrs. Burton. Mrs. Burton refused to accept respondent’s tender of $16,666.67, and a later tender by him of the full $25,000.
In April 1987, during the pendency of hearings before the Departmental Disciplinary Committee, respondent ascertained that in December 1979 Mrs. Burton had assigned her recovery in the personal injury action to the Department of Social Services on account of public assistance that she had received. Respondent thereupon forwarded his check for $16,666.67 to the Human Resources Administration, successor to the Department of Social Services.
Respondent was charged by the Departmental Disciplinary Committee with the conversion to his own personal use of the funds in question, in violation of DR 1-102 (A) (4) and (6), and DR 9-102 (B) (3) and (4) of the Code of Professional Responsibility. As noted above, respondent’s sole defense was that he had actually kept the funds segregated in safe-deposit boxes for 51/2 years because he expected all during this time that a turnover of the funds to Mrs. Burton was imminent. He further explained that he did not place the funds into a special or escrow account because he feared his former wife might attach such an account, and because bank officers had expressed a reluctance to engaging in cash transactions of *331$10,000 or more as that would entail filling out certain forms required by law in such cases.
After hearings held before a Panel of the Departmental Disciplinary Committee, the Panel issued its report unanimously rejecting respondent’s testimony regarding the segregation or allocation of $25,000 in safe-deposit boxes. After an extensive and cogent analysis of the evidence presented, the Panel concluded:
"The simple fact is that no part of his client Mrs. Burton’s money went into or came out of the safe deposit box. When the $25,000 check was realized upon in January 1980, no money went into the safe deposit box. When the Citibank Special Trust Account was set up in July 1985, no money came out of the safe deposit box to go into that account. For all the difference it made, the safe deposit box could just as well have been empty for those 5-Vi years.
"As we reject the whole story of the segregation of cash in the safe deposit box, it follows that we have a simple case of an attorney receiving a check from a third party in settlement of his client’s claim, depositing it in his fiancée’s account, to which the attorney did not even have signatory powers, using the money for personal purposes, and not setting up an escrow account for 5-Vi years, and then setting it up out of other funds. Thus, Respondent converted his client’s money, misappropriating the specific funds in which she had a specific property interest, and remitting her for 5-Vi years to a general creditor’s status, at the mercy of whatever financial vicissitudes Respondent might be subject to.”
The matter is now before us upon the Departmental Disciplinary Committee’s petition and motion seeking an order pursuant to 22 NYCRR 603.4 (d) confirming the Hearing Panel’s report, findings, conclusions and recommendations, and disbarring the respondent; and respondent’s cross motion to disaffirm the report and dismiss the petition. The petitioner’s motion is granted, and the respondent’s denied. We confirm in toto the Hearing Panel’s report, findings, conclusions and recommendations, and, accordingly, need not reach the question of whether conversion would have been established if respondent had been able to demonstrate to the Panel’s and this court’s satisfaction that the funds had in fact been held segregated in a safe-deposit box throughout the period in question. Respondent’s contention that the Hearing Panel "impeached its determination” has been considered and is rejected as being without merit.
*332The respondent, having been found guilty of conversion, should be disbarred. (Matter of Levine, 101 AD2d 49.)
Sandler, J. P., Carro, Milonas, Ellerin and Smith, JJ., concur.
Respondent is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective July 7, 1988. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902157/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) *1046to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with smuggling, possession of drugs, possession of a weapon and failing to comply with facility visitation guidelines after an investigation revealed that he solicited an acquaintance to brings drugs into the correctional facility where he was incarcerated during a visit. Following a tier III disciplinary hearing, petitioner was found guilty of smuggling and possession of drugs and not guilty of the other charges. This determination was upheld on administrative review and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and supporting documentation, which indicated that the acquaintance brought heroin and marihuana into the facility, the transcripts of petitioner’s telephone conversations and the testimony of the author of the misbehavior report, a narcotics investigator who testified that the transcripts contained coded words for contraband, provide substantial evidence supporting the determination of guilt (see Matter of Randall v Fischer, 94 AD3d 1302, 1302 [2012]; Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]). To the extent that petitioner argues that he did not actually possess the drugs at issue, this “does not negate petitioner’s guilt, as [the] violation of [the relevant] rules occurred when petitioner solicited and conspired with another to bring the drugs into the facility” (Matter of Brown v Fischer, 98 AD3d 778, 779 [2012]). Contrary to petitioner’s contention, the misbehavior report was sufficiently detailed to give him notice of the charges to enable him to prepare a defense (see Matter of Kimbrough v Fischer, 96 AD3d 1256, 1257 [2012]; Ross v Prack, 95 AD3d 1579, 1580 [2012]). Finally, we reject petitioner’s contention that he received inadequate employee assistance, as petitioner was provided certain documents he requested or they were read into the record by the Hearing Officer. In any event, petitioner has not demonstrated that he was prejudiced by any alleged deficiencies (see Matter of Vines v Goord, 19 AD3d 951, 953 [2005]; Matter of Smith v Selsky, 294 AD2d 629, 630 [2002]). Petitioner’s remaining contentions are either unpreserved for our review or have been examined and found to be lacking in merit.
Peters, P.J., Rose, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826224/ | OPINION
MEROW, Judge:
Defendant has moved for summary judgment on two of three counts set forth in plaintiffs amended complaint and to dismiss the remaining count on jurisdictional grounds. Plaintiff opposes defendant’s motions. Defendant’s motions are granted for the reasons stated below.
Facts
On February 12, 1983, plaintiff entered into a contract with the United States Postal Service (USPS) to perform certain mechanical work required for the construction of a general mail and vehicle maintenance facility in Phoenix, Arizona. Plaintiff’s bid of $4,498,155 for the contract was the lowest of the 13 bids submitted in response to the invitation for bids. Plaintiff’s bid made no provision for state and local taxes. The government had originally estimated that the work would cost $6,549,900 to perform. However, the highest bid submitted for the work was only $5,880,000.
A pre-construction conference was held on February 16, 1983, after the contract was awarded to plaintiff. The parties agree that contract paragraph 29 (Federal, State and Local Taxes) was discussed at the conference. Subparagraph 29(a) provides: “Except as may be otherwise provided in this contract, the contract price includes all applicable Federal, state and local taxes and duties.” In response to a question by plaintiff, the parties both state that plaintiff was told that it was responsible for all applicable taxes.
More than a year and a half later, by letter dated October 26, 1984, plaintiff wrote the USPS that only recently had it come to plaintiff’s attention that its assumption that the project was exempt from state and local taxes may have been in error. In that letter, the plaintiff requested that, pursuant to subparagraph 29(e) of the contract, the government provide it with evidence establishing that the project it was working on was exempt from state and local taxation. Subparagraph 29(e) provides: “Unless there does not exist any reasonable basis to sustain an exemption, the Postal Service upon the request of the contractor shall, without further liability, furnish evidence appropriate to establish exemption from any Federal, State or local tax * *
By memorandum of November 5, 1984, the government responded that the issue of state tax exemption was covered under clause 29 of the General Provisions of the contract and that each contractor “by virtue of clause 29, paragraph (a) was to include all applicable federal, state and local taxes and duties in his contract price.” The memorandum also noted that, according to the “Arizona Privilege Sales Tax Bulletin — Contracting,” paragraph 3, “[cjontracts performed for the United States government are taxable in the same manner as contracts performed for individuals.” 1 The USPS stated it did not have *347any evidence the project plaintiff was working on was exempt from state and local taxes and, in addition, the USPS noted that all of plaintiffs contract modifications had included the “applicable” taxes from which plaintiff was now stating it had assumed its project was exempt.
Subsequently, by letter of December 5, 1984, plaintiff informed the USPS that the contractor had been “audited by the State of Arizona for Sales Tax” on the project. Plaintiff requested either a Tax Exempt Certificate from the government or, in the alternative, an adjustment to the contract price for the amount of the taxes since those taxes were not included in its bid.
In support of this request, plaintiff cited to 111.02 of Section 01100 of the General Requirements of the contract, which states:
DIVISION I — GENERAL REQUIREMENTS
SECTION 01100 — MISCELLANEOUS REQUIREMENTS
1.02 STATUS OF U.S. POSTAL SERVICE: For the Contractor’s information the Postal Service is “... an independent establishment of the executive branch of the Government of the United States ...” (39 U.S.C. 201) and, as such, has the same status as other federal departments and agencies insofar as the applicability of federal, state and local taxes and local requirements for building permits are concerned.
By letter dated January 9, 1985, the contracting officer furnished documentation to plaintiff stating that plaintiff was the contractor of record on the contract, that plaintiff and its subcontractors were “agents” of the USPS for purposes of the project, and that the Postal Service should be treated for federal, state and local tax purposes in the same manner as other federal government agencies.
By letter dated January 2, 1985, plaintiff submitted a certified claim to the contracting officer for $107,355.28. The claim stated that plaintiff had been assessed sales tax on the contract in that amount for the period of April 1, 1983 to January 31, 1984. Plaintiff claimed that no amount of state sales tax had been included in its bid based upon the contractor’s assumption that work performed for the USPS was exempt from all state and local taxation. Plaintiff indicated it had relied on a number of contract provisions to support that assumption. The contracting officer issued his final decision denying the claim on February 22, 1985, concluding that the claim was without merit. The contracting officer relied on General Provisions 29 and 6 of the contract.2 Based on these provisions, the contracting officer concluded that the contractor was responsible “for determining which taxes will be applicable to its performance and including an appropriate amount in its bid and resulting contract price” and “for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof.” He continued that, “[a]ny failure by the contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the Postal Service.” With regard to paragraph 1.02, relied upon by plaintiff, the contracting officer stated that section “indicates that the Postal Service is entitled to any exemptions that would be available to other federal agencies. * * * [It] does not represent that your purchases for performance on the project would be exempt.”
Plaintiff submitted a second, supplemental certified claim to the contracting officer on August 21, 1985. Relying on the rea*348soning set forth in its earlier claim, plaintiff sought an additional $35,454.17, which amount included the interest assessed by the state for untimely payment of sales tax, additional sales tax payments made subsequent to the filing of its earlier claim, and projected tax payments for the duration of the contract. The contracting officer issued his final decision denying this claim on October 22, 1985, based on grounds set forth in his earlier decision.
Plaintiff then timely filed its complaint in the Claims Court, requesting a judgment of $142,809.45 plus interest. Plaintiffs complaint and amended complaint contain three counts. Count 1 alleges that the invitation to bid and the contract misstated or otherwise failed to disclose the contractor’s obligation with respect to the payment of sales tax. Count 2 alleges that the government has been unjustly enriched because it has neither directly paid the sales tax to the state of Arizona nor indirectly paid the tax through the contract. Count 3 seeks reformation of the contract, claiming that the contractor made a mistake when it submitted its bid by not including an amount for state sales tax and that defendant was aware, or should have been aware, of the error. Defendant has moved for summary judgment on counts 1 and 3 and to dismiss count 2. Plaintiff opposes each motion.
Discussion
Plaintiff in count 1 alleges that defendant misrepresented the liability of the contractor for state and local taxes through untrue or misleading statements made by defendant to plaintiff. In this connection, plaintiff argues defendant had a duty to disclose any and all information available to it which would clarify or explain all statements contained in the contract and bid proposal that were subject to reasonable misinterpretation. Plaintiff claims the government failed to fulfill this duty by not informing plaintiff that the contract was subject to the state sales tax. Plaintiff argues that, while the contract states the contractor must pay all applicable state and local taxes, it contains other provisions which make it unclear whether the project would be subject to state and local taxes, and thus the invitation to bid and the contract are misleading. Plaintiff relies on the provision which states that the USPS has the same status as other federal agencies in regard to the applicability of state, taxes and claims this provision misled it into assuming the contract was exempt from state tax. {See 1.02 of Section 01100, GENERAL REQUIREMENTS, supra.) Plaintiff also points to subparagraph 29(b) as evidence defendant considered the contract work was free from state taxes. According to plaintiff, this clause provides for an adjustment to the contract price “should the Contract be deemed to be subject to taxation, at a later date.”3
The other clause plaintiff relies on to establish that the contract language was not clear and that it was reasonable in not providing for state and local taxes in its bid *349is subparagraph 29(e), supra. This clause provides that the USPS will supply evidence, at the contractor’s request, to establish exemption from federal, state or local tax. In sum, plaintiff claims defendant had a duty to determine whether a bidder would misunderstand or misinterpret any provision contained in the bid solicitation since the government encourages the contractor to rely upon the contract text it provides, and “the liability for any damage resulting from an ambiguous term contained in the contract issued by the United States Government shall be bom[e] by the Government.”
Defendant responds that plaintiff has failed to identify a single provision stating that plaintiff is not liable for Arizona sales tax so that plaintiffs assumption of state tax exemption would have been reasonable under the circumstances. Defendant proffers that paragraph 29 clearly and unambiguously provides information to the contrary, i.e., the contract price bid includes all federal, state and local taxes.
In Boyd International, Ltd. v. United States, 10 Cl.Ct. 204 (1986), the court considered an identical provision to the one at issue herein and found the government need not reimburse plaintiff for taxes it should have included in its bid since clause 29 was clear and unambiguous that the bid should have covered those taxes. The court held that “[t]he burden of determining whether the exemption provided in paragraph 29(f) [29(e) herein] applies to work performed under any particular contract, however, rests with the contractor.” Furthermore, the court held that, since “clause 29 is designated as a general provision for use in numerous jurisdictions * * * rather than being inconsistent with the general rule in paragraph 29(a), paragraph 29(f) merely provides an exception for use in appropriate jurisdictions.” 10 Cl.Ct. at 205. Paragraph 29(f) in Boyd International, Ltd. provided that exemption certificates will be issued by the government “[u]nless there does not exist any reasonable basis to sustain an exemption. The Government upon the request of the Contractor shall, without further liability, furnish evidence appropriate to establish exemption from any Federal, State, or local tax * * *.”
Similarly, in this case, clause 29(e) is not inconsistent with clause 29(a) nor is any ambiguity created by a reading of the two clauses. Neither specifically refers to whether or not the state of Arizona imposes sales tax on the contract work. The contract provisions are general. In order to determine what “applicable” taxes the contractor must include in its bid price, the revenue laws in the particular state where the work is to be performed must be considered. In this case, plaintiff, based on its incorrect assumption that work for the USPS is exempt from Arizona sales tax, neglected to determine what the law actually provided. Now, plaintiff requests the court to find the government had a pre-con-tract obligation to determine whether Arizona would impose a sales tax on the contract work and then inform the bidders. That is, plaintiff states the government should have this burden because it drafted the bid documents and had a duty to explain any unclear or ambiguous provisions. However, as found in Boyd International, Ltd., the contract provisions referenced by plaintiff do not create an ambiguity. They are general provisions which cover all jurisdictions. Paragraph 29(a) provides that a contractor is to pay all applicable taxes and is to include the cost thereof in its bid price. There is nothing unclear about this provision. In fact, plaintiff does not claim this provision is unclear in and of itself. Clause 29(e) is also clear. Pursuant to this clause, the USPS was to furnish an exemption certificate at the contractor’s request. Plaintiff says the USPS furnished the certificate misleading the contractor even further into believing the work was exempt from tax. However, a provision directing the USPS to supply this certificate at the contractor’s request is not a statement that a particular state provides an exemption from tax for the contract work. Whether a particular state has such an exemption is simply not covered by subparagraphs 29(a) and (e).
Rather, the burden of inquiry as to the tax law of the state concerned rests with *350the bidder.4
Accordingly, this case involves plaintiffs knowledge, or lack thereof, concerning “applicable” state law. Plaintiff had an equal opportunity to ascertain whether the contract work was exempt from state or local tax. It was simply a matter of checking the Arizona state revenue code to determine what were the applicable taxes to be included in the contractor’s bid price. Indeed, General Provision 6, quoted in n. 2, swpra, required that the contractor ascertain the local conditions affecting cost of the work, and that any failure to do so “will not relieve him from responsibility for successfully performing the work without additional expense to the Postal Service.” Thus, plaintiff cannot claim that it had no responsibility under the terms of the bid solicitation to ascertain that there were applicable state and local taxes which could affect the cost of the work and thus its bid price. Furthermore, the fact that it is a provision of Arizona law which is involved also weighs heavily against plaintiff’s position. Persons are charged with knowledge of the law. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947).
Moreover, even if the Postal Service had misrepresented Arizona sales tax law, plaintiff’s position would still lack validity. See Mills v. United States, 187 Ct.Cl. 696, 410 F.2d 1255 (1969); Airmotive Engineering Corp. v. United States, 210 Ct.Cl. 7, 13, n. 3, 535 F.2d 8, 11 (1976).
In addition, plaintiff did not bring its bidding position to the Postal Service’s attention until after the contract was awarded. If an ambiguity were present, a bidder’s obligation is to bring it to the government’s attention in writing prior to bidding. Space Corp. v. United States, 200 Ct.Cl. 1, 5, 470 F.2d 536, 538 (1972); S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 128, 546 F.2d 367 (1976). If plaintiff had questions regarding the issue of applicable taxes, it should have made its questions publicly known prior to bidding.
Accordingly, this is a situation where plaintiff made an assumption that there were no applicable state and local taxes, and that assumption was in error. However, the government cannot be held to have misled the plaintiff regarding the applicability of sales tax to the contract which is, in any event, a requirement of Arizona law for which plaintiff must be charged with knowledge. See Foster Construction C.A. v. United States, 193 Ct.Cl. 587, 602, 435 F.2d 873 (1970) (in misrepresentation, the wrong consists of misleading the contractor by a knowingly or negligently untrue representation of fact or a failure to disclose where a duty requires disclosure). Defendant’s motion for summary judgment is granted as to count 1.
Defendant has also moved for summary judgment as to count 3 wherein plaintiff requests that reformation of the contract be allowed because there was a mistake at the time the contract was executed regarding whether the contract work was subject to sales tax in Arizona. In support, plaintiff states that the USPS knew or should have known plaintiff had made a mistake when it did not provide for payment of sales tax in its bid. According to plaintiff, defendant should be charged with knowing it had made a mistake in its bid because of the disparity between the government’s estimate of the cost of the job and the bids submitted by plaintiff and some of the other contractors. The government’s estimate was $6,549,900; plaintiff’s bid was $4,498,155, which was almost $2 million less than the government’s estimate. However, seven of the other 12 bids received were within $500,000 of plaintiff’s bid. Citing to Chernick v. United States, 178 Ct.Cl. 498, 372 F.2d 492 (1967), plaintiff claims the large disparity between its bid price and defendant’s estimate should have led the contracting officer to request the bidders to verify their bids to insure that no mistakes had actually been made. According to plaintiff, reformation of the contract is warranted be*351cause of the failure of the contracting officer to act to verify the bids when the government knew or should have known that plaintiff had made a mistake in bidding. In addition, plaintiff claims that since the USPS drafted the bid documents, it bears the responsibility for any misinformation contained therein. On this basis, it is asserted that, even if plaintiff was negligent in not providing for sales tax in its bid, reformation should not be barred. Finally, plaintiff submits that it had no obligation to make inquiries of the state taxing authorities as it had the right to rely on defendant’s representations in the contract and invitation to bid. Thus, if this is a case involving negligence, any negligence should be imputed to defendant.
Defendant opposes plaintiff’s claim that the contracting officer, based on the bids submitted, knew or should have known that plaintiff was mistaken in its bid. Defendant states that plaintiff's mistake was in business judgment and was not the type of mistake for which contract reformation is usually allowed. United States v. Hamilton Enterprises, Inc., 711 F.2d 1038, 1048 (Fed.Cir.1983). Defendant also states that, if plaintiff had included in its bid the entire amount it now claims, plaintiff would not have been the low bidder for the work. Thus, defendant argues that, since plaintiff was awarded the contract because it was the low bidder, plaintiff should not be allowed to recover the contract monies which it had excluded from its bid in order to obtain the contract. Moreover, defendant claims that, even if plaintiff were to prevail on this count, its recovery, under case precedent, would be limited to $1,845, the difference between its bid and the next lowest bid.
Considering this last point first, in United States v. Hamilton Enterprises, Inc., 711 F.2d 1038, 1048 (Fed.Cir.1983), the court adopted the rule established by the Court of Claims that, on reformation, because of mistake in the contractor’s bid, the recovery may not exceed the difference between the contractor’s mistaken bid and the next lowest bid.5 Plaintiff does not directly respond regarding this limitation on its recovery. Rather, plaintiff appears to suggest that the next lowest bidder and the next lowest bidders after it also were mistaken and failed to account for sales tax. However, no support is offered such as would be necessary to create a triable issue as to that suggestion were it necessary to resolve the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).
In Aydin Corp. v. United States, 229 Ct.Cl. 309, 316, 669 F.2d 681 (1982), the court, citing to Wender Presses, Inc. v. United States, 170 Ct.Cl. 483, 485, 343 F.2d 961 (1965), stated, at 316, that “[w]here * * * a mistake in bid is not alleged until after the contract is awarded, * * * ‘[i]t is plain that plaintiff may recover only if defendant’s responsible officials, knew or should have known of the mistake at the time the bid was accepted.’ ” In this case, plaintiff does not allege the contracting officer had actual knowledge, at the time the bid was accepted, that it had made a mistake in its bid. Thus, plaintiff’s claim is that the contracting officer should have known of the mistake. The court, in Chernick v. United States, 178 Ct.Cl. 498, 372 F.2d 492 (1967), stated the test for constructive notice in cases dealing with mistake in bids. In considering all facts and circumstances of the case, a court is to determine whether “there were any factors which reasonably should have raised a presumption of error in the mind of the contracting officer * * 178 Ct.Cl. at 504. *352Plaintiff claims that defendant should have known it had made a mistake due to the $2 million difference between its bid and the government’s estimate. However, based on the record, the next lowest bid was only $1,845 more than plaintiffs and seven of the other 12 bids were within $500,000 of plaintiff’s bid. According to defendant, although the government’s estimate was appreciably higher than plaintiff’s bid, the estimate was also much higher than the other bids received. In that connection, the government’s estimate exceeded the highest bid submitted by more than $640,000. Thus, the defendant claims, based on these facts, the government’s estimate would more likely be perceived by the contracting officer as erroneous rather than the seven closely spaced bids. In United States v. Hamilton Enterprises, Inc., 711 F.2d 1038 (Fed.Cir.1983), the court reviewed a board decision that the Navy had to request contractor verification because the vast disparity between the government’s estimate and Hamilton’s bid should have raised the suspicion that a mistake had been made. The court affirmed the board’s finding that the government’s request for verification of the bid was inadequate. However, since contract reformation had been requested, the court continued, stating at 1046, “[a] contract will not be reformed because of a unilateral mistake in bid unless the contractor establishes that the error resulted from a ‘clear-cut clerical or arithmetical error, or a misreading of the specifications.’ Aydin Corp. v. United States, [229 Ct.Cl. 309] 669 F.2d 681 (Ct.Cl.1982); Ruggiero v. United States, [190 Ct.Cl. 327] 420 F.2d 709 (Ct.Cl. 1970).” The court reversed the board’s holding that Hamilton made the kind of mistake entitling the contractor to reformation. Instead, the court agreed with the government’s argument that Hamilton bid the price it intended to bid. The court concluded that the error in Hamilton’s bid resulted from an error in judgment on the part of its president,6 which did not entitle the contractor to reformation of its contract.
In this case, the defendant claims that plaintiff’s error was an error in judgment and thus plaintiff is not entitled to reformation. Plaintiff, of course, disputes that its error was one of judgment because it claims it was misled by language in the contract and the invitation to bid, which were provided by the government. However, as mentioned with respect to count 1, the language cited by plaintiff, although general, was not unclear or ambiguous. There was no actual representation that Arizona either had or did not have an applicable sales tax. This was clearly something that needed to be determined by reference to the Arizona state code. Also, plaintiff was on notice that it had to ascertain local conditions before submitting its bid. Plaintiff erroneously assumed that the contract work was not subject to the sales tax in Arizona. Thus, the mistake herein was a mistake in judgment. Plaintiff, although charged with knowledge of the law, did not determine whether there was an applicable sales tax either by obtaining legal advice and/or advice from the state taxing authorities. Therefore, it is determined that this is not the kind of mistake for which reformation may be granted.
Furthermore, there are factors why the contracting officer reasonably would not have had a suspicion that plaintiff was mistaken in its bid and thus did not request bid verification. In this regard, as already noted, plaintiff is claiming about $143,000 based on this mistake while the disparity between its bid and the government’s estimate was about $2 million; there were seven other bids within $500,000 of plaintiff’s bid; and, the government’s estimate substantially exceeded the highest bid submitted so that the estimate would have been viewed with askance by the contracting officer. Based on those undisputed facts and circumstances, no valid basis has been shown to charge the contracting offi*353cer with constructive knowledge that the plaintiff had made a mistake in its bid.
Thus, defendant’s motion for summary judgment is granted as to count 3.
Defendant has moved to dismiss count 2 of plaintiffs amended complaint on jurisdictional grounds. In count 2, plaintiff claims the government will be unjustly enriched if plaintiff does not recover the $142,809.45, as the government neither had to pay the sales tax directly to the state of Arizona nor indirectly in the contract price, although the government received the benefit of the contract work. Defendant argues that claims of unjust enrichment are premised upon the existence of contracts implied-in-law and the court has no jurisdiction over a claim founded on a contract implied-in-law. Plaintiffs response does not address the point at issue, but argues that this claim is based on an implied-in-fact contract, which would be within the court’s jurisdiction.
As has been held numerous times, the claim of unjust enrichment is based on “the theory that the defendant ought to be bound to repay plaintiff, not that it validly agreed to do so, and is therefore based upon a contract implied in law, over which this court has not been given jurisdiction.” Southern States Henry Co-operative, Inc. v. United States, 4 Cl.Ct. 370, 372-73 (1984); see also, e.g., Aetna Casualty and Surety Co. v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047 (1981). There is no real dispute that there was an express agreement between the parties which encompasses the matter at issue. Plaintiff cannot recover on an implied-in-law contract theory. See Algonac Manufacturing Co. v. United States, 192 Ct.Cl. 649, 673-74, 428 F.2d 1241 (1970). Thus, count 2 of plaintiff’s amended complaint is dismissed.
Conclusion
It is concluded that defendant’s motion for summary judgment as to counts 1 and 3 of plaintiff’s amended complaint and motion to dismiss count 2 are granted. Accordingly, it is ORDERED that final judgment shall be entered dismissing the complaint with no costs to be assessed.
. Title 15, Revenue, of the Arizona State Code, provides:
"Article 6. Sales Tax — Contracting Classification
R-15-5-604. Contracts with Government agencies
Construction projects performed for the United States Government, State, or counties, or any agencies thereof, are taxable.”
. General Provision 6 provides as follows:
"6. CONDITIONS AFFECTING THE WORK
The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the Postal Service. The Postal Service assumes no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of this contract, unless such understanding or representations by the Postal Service are expressly stated in the contract."
. Paragraph 29(b), which is concerned with the Federal excise tax, not state taxes, provides as follows:
"(b) Nevertheless, with respect to any Federal excise tax or duty on the transactions or property covered by this contract, if a statute, court decision, written ruling, or regulation takes effect after the contract date, and—
(1) results in the Contractor being required to pay or bear the burden of any such Federal excise tax or duty or increase in the rate thereof which would not otherwise have been payable on such transactions or property, the contract price shall be increased by the amount of such tax or duty or rate increase, provided the Contractor warrants in writing that no amount for such newly imposed Federal excise tax or duty or rate increase was included in the contract price as a contingency reserve or otherwise; or
(2) results in the Contractor not being required to pay or bear the burden of, or in his obtaining a refund or drawback of, any such Federal excise tax or duty which would otherwise have been payable on such transactions or property or which was the basis of an increase in the contract price, the contract price shall be decreased by the amount of the relief, refund, or drawback, or that amount shall be paid to the Postal Service as directed by the Contracting Officer. The contract price shall be similarly decreased if the Contractor, through his fault or negligence or his failure to follow instructions of the Contracting Officer, is required to pay or bear the burden of, or does not obtain a refund or drawback of, any such Federal excise tax or duty.”
. This is not a situation where superior knowledge or actual or imputed knowledge of a mistake-in-bid is involved. See Petrochem Services, Inc. v. United States, 837 F.2d 1076 (Fed.Cir.1988), regarding the government’s duty to disclose when it has superior knowledge.
. See also 48 C.F.R. § 14.406-4 (1987) Mistakes After Award, which provides:
"If a contractor’s discovery and request for correction of a mistake in bid is not made until after the award, it should be processed under * * * the following:
******
(b) * * * agencies are authorized to make a determination—
******
(2) To reform a contract * * *
(ii) to increase the price if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original invitation for bids; * *
. In Hamilton, the company's president was aware that the number of meals to be served under the contract in issue would be greater than the number served during the contractor’s previously performed contract but erroneously assumed the services required could be provided with the same number of manhours of labor. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902161/ | Casey, J. P.
(concurring). It is my opinion that County Court does not have the power to vacate a prior judgment of conviction obtained in that court to accommodate a plea bargain, the sole purpose of which is to avoid the consequences of the second felony offender statute. Accordingly, I agree with the majority that the judgment in this action should be reversed and defendant’s guilty plea vacated since the court lacks the authority to fulfill a promise which induced the guilty plea (see, People v Pinaud, 132 AD2d 580, lv denied 70 NY2d 802).
Conceding that County Court would have the inherent power to correct errors in one of its final judgments, such power of correction is limited to mistakes or irregularities (cf., People v Minaya, 54 NY2d 360, cert denied 455 US 1024; Herpe v Herpe, 225 NY 322) and does not include the inherent power to amend a judgment of conviction in a matter of substance, absent fraud or misrepresentation (cf., Matter of Lyons v Goldstein, 290 NY 19). Where, as here, a prior judgment of conviction for a felony has been entered and no appeal has been taken therefrom, the only statutory procedure provided for vacatur of the prior judgment of conviction is a motion pursuant to CPL 440.10. We have held that, "A court does not have unlimited jurisdiction to entertain motions pursuant to CPL 440.10. The motion must be made upon one or more of the eight grounds set forth in the section (CPL 440.10 [1])” (People v Cooks, 113 AD2d 975, 976, affd 67 NY2d 100). Similarly, the Court of Appeals recently stated, "A posttrial motion to vacate a plea is only warranted when the error is not apparent from the record” (People v Angelakos, 70 NY2d 670, 673).
Here, the proposed vacatur of the judgment of conviction was not to be based upon any error, but solely for the purpose of circumventing the requirement of Penal Law § 70.06 (2) in regard to the sentence to be imposed upon a subsequent felony conviction. Plea bargaining is not one of the specified grounds in CPL 440.10 (1); nor is the interest of justice a ground for vacating the prior conviction under CPL 440.10 (1), so an inquiry into the fairness and reasonableness of the plea bargain is irrelevant. It is also noteworthy that CPL 400.21 *345provides the procedure for determining whether a defendant is a second felony offender, and one of the purposes of that statute is to provide a more timely and convenient alternative to coram nobis with respect to a prior State conviction (People v Di Giacomo, 96 AD2d 1127).
Assuming that County Court has some "inherent judicial authority to embrace and address and indeed fashion, as may be necessary and appropriate in a given situation, a post-judgment remedy outside the four corners of [CPL 440.10]” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 440.10, at 319), public policy would prohibit the exercise of such authority to vacate a prior conviction solely for the purpose of accommodating a plea bargain in a subsequent felony prosecution. Granting such authority would not only permit the circumvention of the clear and unequivocal legislative mandate embodied in the predicate felony offender statutes, it would also add a new element, ripe with the potential for abuse, to the already complex process of plea bargaining. In addition, there would be constitutional implications in permitting a defendant to plea bargain away a prior felony conviction where the subsequent felony prosecution occurs in the same court as the prior conviction, but denying such a plea bargaining tool to a defendant whose subsequent prosecution is in a different court than that in which the prior conviction was obtained.
For all of these reasons, I concur in the reversal of the judgment and the vacatur of defendant’s guilty plea. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902162/ | Levine, J.
(dissenting). I respectfully dissent. The plea agreement which was entered into here, to which defendant, the prosecution and County Court were all parties, was a reasonable and fair resolution of the pending charges. Defendant did not have an extensive prior record, and the crime had its genesis in his drug addiction, which, at the time of the criminal proceedings, he was making genuine efforts to overcome. The prosecutor could, therefore, reasonably conclude that the interest of justice would be served by a disposition which would enable defendant to avoid incarceration by making restitution. The prior felony conviction in the same court stood in the way of that disposition (see, Penal Law § 70.06 [2]). Hence, the agreement was made whereby the prior conviction would be vacated, on motion, the guilty plea to the prior felony withdrawn and a plea to a misdemeanor substituted.
*346The majority holds, nevertheless, that the stipulation was void because it was beyond the power of the prosecutor to agree to a vacatur of the prior felony conviction and that this vitiated defendant’s guilty plea pursuant to the stipulation. The majority cites no express statutory prohibition against the prosecutor’s agreement to consent to the revocation of the conviction, relying entirely on the fact that such a procedure does not fall within the ambit of the grounds for vacatur under CPL article 440. In my view, however, the absence of any express statutory authority for the District Attorney to move for or consent to the vacatur of a conviction over which he has prosecutorial jurisdiction is not conclusive. To the contrary, such authority falls within the District Attorney’s inherent power, unless expressly prohibited by statute.
Historically, as the courts have repeatedly recognized, a prosecuting officer has virtually unfettered discretion in deciding whether, whom and how to prosecute, and limitations on that power are not to be presumed by implication. "The responsibility is upon [the District Attorney] to conduct all prosecutions for crimes triable in his county * * * And for that purpose it would seem that unless the performance of that duty is restricted by some other statute it was * * * within his power to do that which was essential to such prosecution; and that is a matter necessarily to a great extent dependent upon his judgment” (People ex rel. Gardenier v Board of Supervisors, 134 NY 1, 5 [emphasis supplied]). Similarly, in Matter of McDonald v Sobel (272 App Div 455, affd 297 NY 679) it was stated: "At common law no part of the power to accuse a person of crime or to prosecute a person for crime was vested in a court. These powers were vested elsewhere. The power to prosecute crime and control the prosecution, after formal accusation had been made, was reposed in a prosecuting officer, an Attorney-General or a District Attorney * * * It may not be presumed that the Legislature intended to disrupt the basic general plan for the administration of justice or envelop it in conflict and contradictions by sanctioning change by implication” (supra, at 461 [emphasis supplied]).
These inherent, traditional powers have been reaffirmed in more recent times (see, Matter of Holtzman v Goldman, 71 NY2d 564, 573; People v Di Falco, 44 NY2d 482, 486; People ex rel. Doe v Beaudoin, 102 AD2d 359, 365; People v Mackell, 47 AD2d 209, 217, affd 40 NY2d 59; People v Harding, 44 AD2d 800, 801). Accordingly, it has been held that the courts may not interfere with a prosecutor’s discretion to refuse to prose*347cute (Matter of Hassan v Magistrates’ Ct., 20 Misc 2d 509, appeal dismissed 10 AD2d 908, lv dismissed 8 NY2d 750, cert denied 364 US 844; see, Inmates of Attica Correctional Facility v Rockefeller, 477 F2d 375, 380, 382), to consent to the acceptance of a lesser plea (Matter of McDonald v Sobel, supra) or to dismiss pending charges in an indictment in order to effectuate a plea bargain (People v Pettway, 131 Misc 2d 20, 24). The recognized discretionary authority of the District Attorney to control the prosecution before conviction is, in my opinion, indistinguishable from similar authority with respect to postconviction criminal proceedings, such as those at issue here (see, People v Johnson, 127 Misc 2d 386, 389).
Of course, the Legislature may limit, and has on occasion restricted, prosecutorial control over criminal disposition by express statutory provision. Certain powers have been transferred to the court (e.g., permission to withdraw a guilty plea) (see, CPL 220.60 [3]; People v Selikoff, 35 NY2d 227, 241). Other powers by specific legislative provision may only be exercised by the prosecutor in conjunction with the court (e.g., acceptance of a reduced plea [CPL 220.10 (3), (4)]). To the extent that any such statutory limitations on prosecutional discretion are applicable here, however, they are obviated by the fact that County Court itself was also a party to the plea agreement.
I am equally unpersuaded by the rationale for reversal advanced in the concurring opinion, namely, that vacatur of the prior conviction was beyond the power of County Court because it was not based upon one of the grounds set forth in CPL 440.10. Of course, the court could not vacate that conviction without a specific statutory basis if the District Attorney had not moved for or concurred in vacatur (see, Matter of Holtzman v Goldman, supra; Matter of McDonald v Sobel, supra). The point is, however, that no express statutory provision prevented County Court, in which the prior conviction occurred, from acceding to the inherent power of the District Attorney to control all phases of the prosecution, including those postconviction (see, People v Pettway, supra).
Since in every other respect the points defendant raises on appeal are essentially the same as the contentions made (and rejected) in the companion appeal (see, People v Felman, — AD2d — [decided herewith]), I would affirm the judgment of conviction.
Mikoll and Yesawich, Jr., JJ., concur with Weiss, J.; *348Casey, J. P., concurs in a separate opinion; Levine, J., dissents and votes to affirm in an opinion.
Judgment reversed, as a matter of discretion in the interest of justice, defendant’s plea of guilty vacated and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this court’s decision. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902163/ | OPINION OF THE COURT
Smith, J.
This is an appeal from two orders of the Supreme Court concerning a building located at 72-74 Madison Avenue in New York County. The first order, dated December 30, 1986 and entered March 13, 1987, granted the motion of the defendant seller, Leslie Page, to cancel a notice of pendency unless the plaintiff purchaser, Andesco, Inc., filed an undertaking in the sum of one million dollars at or before 2:00 p.m. on December 30, 1986. Plaintiff filed the undertaking and appeals from that order.
In the second order, dated July 17 and entered July 29, 1987, the Supreme Court granted a further motion by the defendant seller to cancel plaintiff’s notice of pendency upon *352the posting by the defendant of an undertaking in the sum of $500,000. The July 29 order also denied partial summary judgment, as well as other relief requested by both parties. Plaintiff appeals from this order except from the denial of defendant’s motion for summary judgment.
We reverse the March 13, 1987 order. We also modify the July 29, 1987 order to the extent of increasing the undertaking required of the defendant seller to $1,000,000, of permitting plaintiff purchaser to submit an undertaking of $2,500,000, of limiting the first counterclaim to the sum of $500,000 and of striking the second and third counterclaims for abuse of process and defamation, respectively.
On September 23, 1986 defendant, the owner of a building located at 72-74 Madison Avenue, and plaintiff purchaser Andesco, Inc., a New York corporation wholly owned by one Angelo Slabakis, entered into a contract for the sale of the building. The purchase price was $6,990,000 with a $500,000 down payment and a closing date of December 8, 1986. Paragraph 43 of the contract prohibited the purchaser from adjourning the closing date and provided that failure to close constituted a default if the seller was ready, willing and able to close. Specifically, paragraph 43 stated the following: "Purchaser shall not be permitted to adjourn closing and his failure to close as scheduled shall be deemed a default provided Seller is ready willing and able to close under the terms of this contract.”
Paragraph 44 permitted the seller to retain the $500,000 down payment as liquidated damages upon the purchaser’s default. Specifically, paragraph 44 stated the following: "In the event Purchasers [sic] default in performing the terms of this agreement on their part to be performed, in accordance with the terms and provisions of this contract of sale, Sellers may retain any and all monies paid by the Purchasers to the Seller or in escrow pursuant to this agreement as liquidated damages and in full settlement of any other claims for damages to Seller, and upon Seller retaining said monies this agreement shall become null and void and of no other force and effect, and thereupon each of the parties shall be deemed to be released by the other party or parties, and each of the parties shall have no further obligation to the other. The $500,000 deposit paid as liquidated damages to the Seller shall be the sole obligation of the Purchaser [sic] ”
Paragraph 49 (1) of the contract further permitted the *353purchaser to inspect the premises between the contract and closing dates. Specifically, paragraph 49 (1) stated the following: "Purchaser may inspect premises between contract and closing during normal business hours upon reasonable notice and shall not unreasonably interfere with Seller’s operation of his business.”
On December 8, 1986 the purchaser (plaintiff) canceled the closing. The defendant seller, by letter dated December 8, 1986, declared the purchaser in default and stated that the $500,000 was "deemed forfeited”. On December 15, 1986 plaintiff filed a notice of pendency against the premises and, several days later, filed a complaint. The first cause of action sought specific performance of the contract, alleging that defendant failed to permit plaintiff to inspect the premises and denied plaintiff a reasonable adjournment of the closing. The second and third causes of action sought damages for the alleged breach of contract and the fourth sought return of the down payment. Defendant’s answer asserted three affirmative defenses and three counterclaims. The affirmative defenses alleged respectively: (1) that the causes of action were barred by the contract of sale; (2) that plaintiff breached the contract when it failed to close on December 8; and (3) that the action was without merit and brought in bad faith. Defendant’s counterclaims alleged breach of contract, abuse of process and defamation.
Having found another purchaser, defendant sought, by order to show cause, to cancel plaintiff’s notice of pendency pursuant to CPLR 6515. The motion court (Justice Parness), in an order dated December 30, 1986 and entered March 13, 1987, granted the application to the extent of conditioning the continuance of the lis pendens upon plaintiff filing in proper form an undertaking in the amount of $1,000,000 on or before 2:00 p.m. on December 30, 1986. An undertaking in said sum was filed.
On January 8, 1987 the defendant served a notice of exception to the surety in the undertaking. On January 26, 1987 plaintiff moved for an order setting aside the exception to the surety. The motion was argued before the Supreme Court (Justice Andrew Tyler) on January 30, 1987. On or about February 10, 1987, plaintiff was informed by Justice Tyler’s chambers that the motion to justify the surety was denied.
On February 12, 1987 plaintiff moved in this court for an interim stay pending appeal of the December 30, 1986 order. *354An interim stay was granted pending a determination of the motion by a full Bench, the stay to be vacated upon the filing of an undertaking which was fixed by an appropriate Judge under CPLR 6515, but without prejudice to plaintiff’s right to appeal separately from an order of the Supreme Court vacating the lis pendens upon the giving of such an undertaking.
On March 24, 1987, this court granted plaintiff’s motion for a stay pending appeal on condition that plaintiff perfect the appeal for the September 1987 term and without prejudice to any proceeding by the defendant in the motion court pursuant to CPLR 6515.
The December 30, 1986 order, which was entered on March 13, 1987, improperly imposed an undertaking on the plaintiff only, whereas CPLR 6515 requires that the moving party, the defendant, post an undertaking. Specifically, CPLR 6515 reads as follows:
"In any action other than one to foreclose a mortgage or for partition or dower, the court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, upon such terms as are just, whether or not the judgment demanded would affect specific real property, if the moving party shall give an undertaking in an amount to be fixed by the court, and if:
"1. the court finds that adequate relief can be secured to the plaintiff by the giving of such an undertaking; or
"2. in such action, the plaintiff fails to give an undertaking, in an amount to be fixed by the court, that the plaintiff will indemnify the moving party for the damages that he may incur if the notice is not cancelled.” (Emphasis supplied.)
The March 13, 1987 order must, therefore, be reversed.
By an order to show cause dated February 20, 1987, the defendant seller moved, pursuant to CPLR 6515 (1), to cancel the notice of pendency filed by the plaintiff upon the defendant giving an undertaking in an amount to be fixed by the court. In an affidavit accompanying the motion, the defendant stated that the undertaking given by the plaintiff, pursuant to the December 30, 1986 order of the Supreme Court, was a "bogus” undertaking in that plaintiff’s president, Angelo Slabakis, did not own the property used as security for the undertaking. Plaintiff opposed the motion.
While the defendant’s motion to cancel the notice of pendency was still pending, defendant moved for summary judg*355ment on its first counterclaim, which alleged breach of contract, and for dismissal of all four causes of action in the complaint. Plaintiff, by a notice of motion dated April 21, 1987, cross-moved for an order (1) granting partial summary judgment on the first cause of action compelling defendant to specifically perform the contract of sale; (2) striking the three affirmative defenses as insufficient as a matter of law; and (3) dismissing the three counterclaims as insufficient as a matter of law.
All of the motions were decided in a decision/order entered July 29, 1987. The court granted defendant’s motion to cancel the notice of pendency on condition that defendant file a $500,000 undertaking and denied the motion and cross motion for partial summary judgment and other relief. This court granted a stay of the cancellation of the notice of pendency in an order dated August 24, 1987.
On this appeal, plaintiff argues that its motion for partial summary judgment compelling defendant seller to specifically perform the contract, striking the three affirmative defenses and dismissing the three counterclaims should have been granted. It further argues that the motion court erred when it granted defendant’s motion to cancel the lis pendens on condition that defendant file an undertaking in the sum of $500,000.
In arguing that the motion court should have granted its motion for summary judgment directing specific performance of the contract, plaintiff contends that defendant improperly denied it access to the premises prior to the closing date of December 8, 1986, a necessary step for it to secure financing for the sale. Defendant denies that access to the premises was limited and argues that, therefore, issues of fact exist concerning access. He contends, further, that plaintiff has an adequate remedy at law, i.e., money damages, and that plaintiff has made no showing that it would have been able to pay the purchase price at the closing. The motion court correctly determined that a question of fact exists as to whether plaintiff was denied access and whether the denial was a material breach of the contract. Plaintiff further bases its entitlement to summary judgment on defendant’s refusal to grant its reasonable request for a 30-day adjournment. Specifically, plaintiff contends that it had a right to an adjournment since the contract did not state that time was of the essence. The argument fails as a careful reading of the contract reveals that time was of the essence. "It is fundamen*356tal that time is never of the essence * * * unless the contract specifically so provides or special circumstances surrounding its execution so require” (Tarlo v Robinson, 118 AD2d 561, 565 [2d Dept 1986]). In the case at bar, paragraph 43 clearly barred adjournment. Further, special circumstances existed in that, effective January 1, 1987, Federal capital gains taxes were to increase. It is thus clear that despite the absence of the words, time was of the essence.
Turning to the affirmative defenses, the first, which contends that the causes of action were barred by the contract of sale, the second, which claims that plaintiff breached the contract when it failed to close on December 8, and the third, which alleges that plaintiff acted in bad faith in filing the notice of pendency, all raise questions of fact which must be determined at a trial.
The motion court did not specifically address that branch of plaintiff’s motion concerning the counterclaims. Plaintiff correctly argues that the first counterclaim, which seeks $7,000,000 for breach of contract, is barred by paragraph 44 of the contract which limits its liability to the $500,000 down payment.
As to the second counterclaim, for abuse of process, the defendant has not pleaded the requisite elements for abuse of process and it must be dismissed. The second counterclaim alleges that plaintiff’s filing of the notice of pendency and its failure or refusal to voluntarily cancel said notice constitute abuse of process. There are three essential elements of the tort of abuse of process. They are as follows: "First, there must be regularly issued process, civil or criminal, compelling the performance or forebearance of some prescribed act. Next, the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification (cf. James v Board of Educ. of Cent. School Dist. No. 1 of Towns of Orangetown & Clarkstown, 37 NY2d 891). Lastly, defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process.” (Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 403 [1975]; see also, Curiano v Suozzi, 63 NY2d 113 [1984]; Raved v Raved, 105 AD2d 735 [2d Dept 1984].)
In this action defendant has failed to allege any facts other than plaintiff’s effort to stop the sale of the property, a *357legitimate use of the notice of pendency. For example, in Board of Educ. v Farmingdale Classroom Teachers Assn. (supra), the Court of Appeals upheld a complaint by the Board of Education against a teachers’ association that the association abused process in subpoenaing 87 teachers to appear at a hearing before the Public Employment Relations Board without staggering the appearances. Defendant has thus failed to allege facts sufficient to establish that process was diverted from its lawful purpose (Raved v Raved, 105 AD2d 735 [2d Dept 1984]). Rather, plaintiff has utilized the process in a manner consonant with the purpose for which it was designed, even though a malicious impulse may simultaneously have been satisfied (Raved v Raved, supra; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 404 [1974], supra). Further, the filing of a notice of pendency is not process "compelling the performance or forebearance of some prescribed act” (Board of Educ. v Farmingdale Classroom Teachers Assn., supra, at 403).
The third counterclaim for defamation makes the conclusory allegation that the "notice of pendency was false and defamatory.” The absence of factual allegations to support the claim of defamation compels the dismissal of the third counterclaim.
Plaintiff buyer argues further that in this action for specific performance of a contract for real property, the motion court erred in canceling the lis pendens pursuant to CPLR 6515 (1), rather than continuing it upon plaintiff posting a bond pursuant to CPLR 6515 (2). The motion court relied entirely upon CPLR 6515 (1) in canceling the notice of pendency upon the defendant seller giving a bond in the sum of $500,000.
Although the language of CPLR 6515 makes both subdivisions applicable to actions where "the judgment demanded would affect specific real property,” the preferred course in a claim for specific performance is the utilization of subdivision (2) by canceling the notice of pendency upon an undertaking by the defendant seller unless plaintiff buyer posts an undertaking which will indemnify defendant. (See, Ansonia Realty Co. v Ansonia Assocs., 117 AD2d 527 [1st Dept 1986].) This "double bonding” choice is preferable even when plaintiffs likelihood of success is doubtful. (See, Ansonia Realty Co. v Ansonia Assocs., supra.)
Presently the $500,000 undertaking imposed upon the defendant by the July 29, 1987 order is inadequate to provide *358plaintiff security. An undertaking of $1,000,000 will adequately indemnify plaintiff. There is an indication in the record that the appraised value of the property was $9,400,000 on November 24, 1986 while the purchase price was $6,990,000, a difference of $2,410,000. Similarly, an undertaking of $2.5 million, together with the $500,000 in escrow, will adequately indemnify defendant seller for increased capital gains taxes incurred after January 1, 1987, the cost of maintaining the nearly vacant building and the loss of interest on the $6.5 million contract price to the other prospective purchaser.
Therefore, the March 13, 1987 order should be reversed, on the law and the facts, without costs, because no obligation for a bond was placed on defendant seller. The July 29, 1987 order should be modified, on the law and the facts and in the exercise of discretion, to the extent of (1) granting defendant’s motion to cancel the notice of pendency on condition that it post an undertaking of $1,000,000 within 30 days, unless plaintiff posts an undertaking of $2.5 million within the same 30-day period, which will continue the notice of pendency pending determination of the action; (2) granting plaintiff’s motion for summary judgment to the extent of limiting the first counterclaim to $500,000 damages; and (3) dismissing the second and third counterclaims in their entirety, and otherwise affirmed, without costs.
Sandler, J. P., Carro and Milonas, JJ., concur.
Order, Supreme Court, New York County, entered on March 13, 1987, unanimously reversed, on the law, on the facts, without costs and without disbursements, because no obligation for a bond was placed on defendant seller, and the order entered on July 29, 1987 from said court, is unanimously modified, on the law and facts and in the exercise of discretion, to the extent of (1) granting defendant’s motion to cancel the notice of pendency on condition that it post an undertaking of $1,000,000 within 30 days, unless plaintiff posts an undertaking of $2.5 million within the same 30-day period, which will continue the notice of pendency pending determination of the action; (2) granting plaintiff’s motion for summary judgment to the extent of limiting the first counterclaim to $500,000 damages; and (3) dismissing the second and third counterclaims in their entirety, and otherwise affirmed, without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902164/ | OPINION OF THE COURT
Yesawich, Jr., J.
Following physical examinations required for qualification as a police officer (see, Civil Service Law § 58 [1] [c]; 9 NYCRR 6000.1 et seq.) with respondent Village of Watkins Glen in Schuyler County, petitioner was appointed to that position on August 8, 1985 despite a question apparently raised as to his hearing acuity. Subsequent testing by a certified audiologist revealed "a mild to moderate bilateral high frequency sensorineural hearing loss” which, based on regulations promulgated by respondent Municipal Police Training Council [hereinafter MPTC) (see, 9 NYCRR 6000.3 [e] [4]), disqualified petitioner from serving as a police officer. Respondent Schuyler County Civil Service Commission thereupon notified the village that petitioner’s employment as a police officer had to be terminated. The village unsuccessfully sought review of petitioner’s qualifications by respondent State Department of Civil Service and the State Bureau of Municipal Police of the Division of Criminal Justice Services. An additional hearing examination, requested by the County Civil Service Commission, confirmed the earlier results, but the examiner opined that petitioner’s hearing impairment "would not typically interfere with any vocational responsibilities” (emphasis in original).
Petitioner thereupon commenced this CPLR article 78 proceeding seeking, primarily, a judgment directing respondents to refrain from terminating his employment as a police officer; he does not challenge the fact that he failed to meet the *361hearing standard established by MPTC. The village, though denominated a respondent, supports the petition. The Attorney-General moved on behalf of the State-level respondents to dismiss the petition for, inter alia, failure to state a cause of action. Supreme Court denied the motion, concluding that to the extent MPTC hearing standards conflict with the Human Rights Law (Executive Law art 15) regarding the employment of disabled people, they are invalid. Respondents were granted 10 days, as requested, to file an answer, after which a factual hearing was to be had to determine whether petitioner’s hearing defect would impair his ability to perform reasonably as a police officer. On reargument, the court granted respondents permission to appeal in advance of the hearing while adhering to its original decision.
It is necessary to look first to the statute mandating physical fitness requirements for police officers. Civil Service Law § 58 (1) states in relevant part:
"Notwithstanding any other provision of this law or any general, special or local law to the contrary, no person shall be eligible for provisional or permanent appointment * * * as a police officer * * * unless he shall satisfy the following basic requirements * * *
"(c) he satisfies the height, weight and physical fitness requirements prescribed by the municipal police training council pursuant to the provisions of section eight hundred forty of the executive law”.
The initial clause evinces a legislative intent to insulate the qualifying criteria for police officers from the effects of other statutes that might mitigate these requirements. Thus, valid job-related physical fitness standards promulgated by MPTC pursuant to Civil Service Law § 58 (1) (c) are enforceable legislative exceptions to the application of the Human Rights Law. To conclude otherwise would render ineffective and meaningless legislation specifically passed to insure that those employed to perform the demanding duties needed to protect the public safety are physically capable of doing so (Civil Service Law § 58; Executive Law § 840).
It is also not without significance that in enacting the Human Rights Law the Legislature did not see fit to supersede the fitness requirements imposed on applicants for municipal police positions by Civil Service Law § 58 (1) (c). This is not to say that the fitness standards established by MPTC are beyond judicial review (see, Matter of Guardian Life Ins. Co. v Bohlinger, 308 NY 174, 183) or that the petition must be *362dismissed. Petitioner has charged that the hearing standard by which he was judged is arbitrary and capricious, arguing essentially that the standard is unnecessarily strict, that it erects an artificial barrier to employment or that it does not allow a reasonable amount of latitude to accommodate exceptional circumstances (cf., 9 NYCRR 6000.1 [f]). However, unlike proceedings invoking the bona fide occupational qualification test under the Human Rights Law (see, Executive Law § 296 [1] [d]) where the employer or employment agency carries the burden of proving that the employee’s disability precludes him from reasonably doing what the job requires (see, New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 367, affd 29 NY2d 921; cf., Matter of Miller v Ravitch, 60 NY2d 527, 532), here petitioner must show that MPTC acted arbitrarily in adopting the subject hearing regulation, which petitioner claims is more stringent than necessary for the efficient performance of police duties (see, Executive Law § 840 [2]; Pascal v County of Orange, 104 AD2d 865, 866).
Kane, J. P., Mikoll, Harvey and Mercure, JJ., concur.
Order modified, on the law, without costs, by deleting therefrom so much thereof as directed a hearing; respondents are directed to file an answer within 10 days after service of a copy of the order to be entered upon this court’s decision with notice of entry; and, as so modified, affirmed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902165/ | OPINION OF THE COURT
Thompson, J. P.
After a jury trial, the defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 (1). The defendant’s conviction was largely ensured by the introduction at trial of inculpatory statements made by him to law enforcement authorities. His midtrial motion to suppress these statements was denied by Criminal Term, after a hearing. On appeal, the defendant’s principal contention is that Criminal Term erred in allowing his statements to be admitted into evidence because they were procured by means of a custodial interrogation and without any prior advisement of his Miranda rights (Miranda v Arizona, 384 US 436). For the reasons which follow, we agree with the defendant that he was in custody at the time he made his incriminating statements. The failure to advise the defendant of his Miranda rights prior thereto rendered the statements inadmissible. Accordingly, Criminal Term erred in denying the defendant’s suppression motion. We therefore reverse the judgment of conviction and order a new trial.
The relevant facts are as follows: On November 8, 1981, the body of 56-year-old Zinaida Turkenich, a recent Russian immigrant who was crippled from childhood from the effects of *365polio, was found lying face up on a couch in the apartment in Brooklyn she had shared with her son, the defendant Igor Turkenich. Her body was discovered by Daniel Devlin, a social worker employed by the New York City Department of Social Services who had been assigned to the Turkenich case after it was referred to his agency by the New York Association for New Americans (hereinafter NY ANA), a group that aids Russian immigrants in making the transition to life in this country. An autopsy revealed the victim’s death was caused by a skull fracture in combination with older as well as more recent contusions of the face, skull, arms, back and legs.
New York City Police Detective Pasquale Tennariello launched an investigation into the homicide. In the course of his investigation, Detective Tennariello sought to interview the defendant whom he learned had been confined in the psychiatric ward of Metropolitan Hospital after having been picked up by the police for causing a disturbance in front of the Russian Embassy. On November 14, 1981, Detective Tennariello and his partner went to Metropolitan Hospital for the purpose of questioning the defendant concerning his mother’s death. The defendant, who spoke only Russian, was brought into a room at the hospital in which three doctors, Detective Tennariello and his partner, Detective Michaels, were seated. One of the doctors, Dr. Gabay, served as the translator. Detective Tennariello testified at the suppression hearing that he wanted to advise the defendant of his rights under Miranda v Arizona (supra) because he believed the defendant might become a subject of his investigation. Upon being informed of the detective’s intention, Dr. Davidson, who was present in the interview room, stated that Detective Tennariello should not "bother” to inform the defendant of his rights because he lacked the capacity to understand them. Notwithstanding the defendant’s diminished mental capacity, Detective Tennariello proceeded to interrogate the defendant for about 20 to 30 minutes without first administering Miranda warnings. During this questioning, the defendant confessed that on October 30, 1981, the last time he had seen his mother, he hit her with her crutch following an argument regarding his mother’s refusal to let him return to Russia. Detective Tennariello further testified that at times during the questioning the defendant denied hitting his mother. Many of the defendant’s answers to the police inquiries were incoherent. The defendant was not arrested at the conclusion of the initial inquiry. He was later transferred to Manhattan *366Psychiatric Center, and escaped from that facility. Consequently, the defendant’s arrest was not effected until November 10, 1982.
The defendant sought suppression of any statements made by him to Detective Tennariello at the hospital without the benefit of the Miranda warnings. Following a Huntley hearing held during the trial, but outside the presence of the jury (see, People v Huntley, 15 NY2d 72, on remand 46 Misc 2d 209, affd 27 AD2d 904, affd 21 NY2d 659), Criminal Term granted the motion to suppress finding that the statements were the product of an interrogation which was essentially custodial and without the benefit of Miranda warnings. The court further found that exclusion of the statements was mandated by the defendant’s mental condition and the absence of any facts from which to determine the accuracy of the Russian translation of Detective Tennariello’s questions and the defendant’s responses. Upon those facts, Criminal Term ruled that the prosecution failed to sustain its burden of proving the voluntariness of the defendant’s statements beyond a reasonable doubt.
Subsequently, the trial court permitted reargument of its suppression ruling. In a complete reversal of its prior determination, Criminal Term found that the defendant was not in custody at the time he spoke to Detective Tennariello, thereby obviating the need for the administration of the Miranda warnings.
On appeal, the defendant’s position is that the conditions under which he was questioned constituted the practical equivalent of custodial interrogation and, therefore, the statements he made without being informed of his Miranda rights were inadmissible. We are compelled to conclude, contrary to Criminal Term’s ruling upon reargument, that the defendant’s statements were the product of a custodial interrogation and that, since he was not given Miranda warnings prior thereto, his statements must be suppressed.
Implicit in our inquiry is the principle that only statements made as a result of custodial interrogation must be preceded by Miranda warnings. Neither formal arrest nor mere investigatory focus is the hallmark of whether interrogation is custodial. Rather, an individual is deemed to be in custody when he has been "deprived of his freedom of action in any significant way” (Miranda v Arizona, supra, at 444). In deciding whether the accused was in custody prior to being interro*367gated, the subjective beliefs of the accused are not determinative. The appropriate test is "what a reasonable [person], innocent of any crime, would have thought had he been in the [accused’s] position” (People v Yukl, 25 NY2d 585, 589, mot to amend remittitur denied 26 NY2d 845, 883, cert denied 400 US 851; Matter of Kwok T., 43 NY2d 213, 219-220). Generally, the determination of whether an interrogation is custodial is an issue of fact (People v Williamson, 51 NY2d 801; People v McIntyre, 138 AD2d 634). As such, the suppression court’s findings are afforded great deference and should not be disturbed unless they are unsupported by the evidence (see, People v McIntyre, supra; People v Oates, 104 AD2d 907).
Applying these principles to the case before us, we conclude that the hospital interrogation was conducted in an atmosphere and in physical surroundings which were inherently coercive. Therefore the interrogation was custodial in nature. It follows then that the defendant could not be questioned until he received preinterrogation Miranda warnings. The defendant’s confinement at Metropolitan Hospital was apparently pursuant to an involuntary commitment order (see, Mental Hygiene Law § 9.41). As Criminal Term recognized, although the defendant was not confined to a prison ward, he was not free to leave the hospital. Thus, the Miranda language defining custody as the deprivation of an accused’s freedom in any significant way is clearly relevant. The circumstances of the interrogation may be said to have substantially affected the defendant’s " 'will to resist and compelled] him to speak where he would not otherwise [have done] so freely’ ” (People v Rodney P., 21 NY2d 1, 11; see also, People v Phinney, 22 NY2d 288). Also noteworthy in determining the issue of custody is the fact that the defendant had apparently become the focus of the police investigation as reflected in Detective Tennariello’s avowed desire to administer the Miranda warnings prior to questioning. The inherently coercive atmosphere was accentuated by the defendant’s recent immigration to the United States from a country with a vastly different political structure and by his inability to speak or understand the language of his inquisitor.
Our conclusion that these facts preclude the admission into evidence of the defendant’s inculpatory statements is fully supported by the decision of the United States Court of Appeals for the District of Columbia Circuit in the case of United States v Robinson (439 F2d 553), upon which the *368defendant herein relies. In Robinson the defendant, an inmate of a mental hospital, was questioned by the police without being given Miranda warnings in connection with an investigation of the brutal killing of a female employee of the hospital in which he was confined. The police investigation had focused upon the defendant in that case because of the similarity of the crime under investigation with an earlier rape with which the defendant was charged and upon which he was confined to the mental hospital under a verdict of not guilty by reason of insanity. At the initial police inquiry, the defendant conceded his presence at or near the crime scene at the time of its commission, after being told by the interrogating officer that two witnesses had seen him near the crime scene. Thereafter, the defendant made incriminating statements to two doctors at the hospital also without being advised of his Miranda rights. The Court of Appeals determined that the inculpatory statements were the product of an interrogation which was essentially custodial and, therefore, the defendant’s statements made before he was advised of his rights were involuntary and inadmissible. The court also ruled inadmissible the incriminating statements made by the defendant to the doctors under the rule excluding involuntary confessions. With respect to the police interrogation, the Robinson court found that "[t]he situation of [the defendant] during the interrogation cannot in any rational manner be distinguished from custodial interrogation” (United States v Robinson, supra, at 560). The defendant was also found to have been in custody when he made his statements to his doctors. No factual distinction was drawn under the circumstances between the statements made to the doctors and those made to the police. Comparing the situation under which the statements were made to the facts of the Miranda decision, the court reasoned: "While the confession in Miranda was elicited during interrogation in police custody, appellant’s position was even more conducive to compulsion than Miranda’s. As the testimony indicates, though he was competent to understand what he was doing, he was a mental patient who was clearly no less subject to [the doctor’s] influence than Miranda was to the influence of the police” (United States v Robinson, supra, at 560-561).
Similarly, in People v Tanner (31 AD2d 148) the Appellate Division, First Department, held inadmissible a confession obtained without prior Miranda warnings from the accused while he was confined to a hospital bed undergoing intrave*369nous feeding and physically incapable of movement. Although the defendant was restrained by factors independent of the police activity, the Tanner court held the interrogation to be custodial.
The People’s reliance on certain decisions of this and other jurisdictions to support their position that the defendant was not in custody for Miranda purposes when questioned by the police is misplaced (see, People v Phinney, 22 NY2d 288, supra; People v Romano, 139 Ill App 3d 999, 487 NE2d 785; State v Hoskins, 292 Minn 111, 193 NW2d 802; State v Fields, 294 NW2d 404 [ND]). The only relevant similarity between the Phinney, Romano, Hoskins and Fields cases and the facts of the instant matter is that each case involved interrogation of an accused in a hospital environment. Unlike the situation at bar, the defendant in each of those cases was admitted to the hospital strictly for medical treatment of a physical condition. No question was raised concerning the mental capacity of the individual defendants nor was the atmosphere of the respective inquiries rendered coercive by the presence of the treating physicians and the police. In any event, as noted, the instant matter involves special factors peculiar to this case involving as it does a foreign-born, non-English-speaking defendant with an undisputed mental illness. Those characteristics rendered the defendant herein particularly vulnerable to the coercive pressures of a police interrogation. Under these circumstances, the police should have taken greater care to ensure that the rights of the suspect were protected. We believe that an innocent man in the defendant’s position reasonably would have believed that he was in custody and, accordingly, the statements made without preinterrogation warnings must be suppressed.
We conclude for an additional reason that the defendant’s statements could not be validly admitted into evidence. If the defendant’s mental state was such that he could not understand the nature of the Miranda warnings, it would necessarily follow that the defendant lacked the mental capacity to understand the nature and consequences of his statements to the police. Moreover, in his testimony Detective Tennariello stated that the defendant made exculpatory as well as inculpatory statements and some of the defendant’s responses were unintelligible. The evidence indicates that the nature of the defendant’s mental condition was such as to render his inculpatory statements involuntary (cf., People v Schompert, 19 NY2d 300, cert denied 389 US 874). Further *370impacting upon the voluntariness of the defendant’s admissions is the failure of the police prior to questioning to ensure that the doctor who served as the interpreter was possessed of adequate skill in the Russian language. The evidence fails to demonstrate that the translations provided were sufficient to give the defendant an understanding of the police inquiry (cf., People v Medrano, 133 Misc 2d 811).
Accordingly, the judgment of conviction should be reversed, on the law and the facts, the motion to suppress the defendant’s statements should be granted, and a new trial should be ordered.
In light of our determination, we need not reach the defendant’s claims of trial error.
Brown, Eiber and Sullivan, JJ., concur.
Ordered that the judgment is reversed, on the law and the facts, the motion is granted, and a new trial is ordered. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902166/ | OPINION OF THE COURT
Carro, J.
This is an action for judicial partition of a cooperative apartment and raises the novel question of whether such a partition is one of real property or personal property and whether this action may be maintained pursuant to RPAPL article 9.
The subject apartment is the sixth-floor apartment of 519 Broadway, New York, New York, a cooperatively owned apartment building. Plaintiffs Blomback and Chiang, husband and wife, and defendant Chang own, as tenants in common, 16 shares of 515 Broadway Corporation, which shares are allocated to the sixth-floor apartment. The parties do not dispute, and the stock certificate confirms, that defendant Chang owns a one-half interest in the shares and the other half interest is owned by Chiang and Blomback as joint tenants. Ownership of the shares entitles the owners to a proprietary lease, granting them a leasehold interest in the subject apartment for the period of time from November 1,1979 to December 31, 2025.
As a result of differences which have arisen between the plaintiffs and the defendant, plaintiffs commenced this action seeking partition of the apartment or, alternatively, sale of the "property”, should partition be unfeasible, and a division of the proceeds between the parties according to their respective rights and interests. By notice of motion dated February 12, 1987, plaintiffs sought summary judgment declaring that they have equal right and title with defendant Chang to the subject property or referring the action to a Referee to take proof and make findings, inter alia, on the parties’ respective rights and interests to the property and on whether the property may feasibly and legally be partitioned or must be sold as an entire unit. Defendant Chang opposed the motion, contending primarily that a cooperative apartment may not *373be partitioned under RPAPL article 9. The IAS court denied the motion for summary judgment and, upon searching the record, dismissed the complaint. The court concluded that only real property could be partitioned, and shares to a cooperative apartment, being personal property, could not be partitioned.
Partition is "the act or proceeding by which co-owners of property cause it to be divided into as many shares as there are owners, according to their interests therein, or if that cannot be equitably done, to be sold for the best obtainable price and the proceeds distributed according to the respective interests.” (24 NY Jur 2d, Cotenancy and Partition, § 116, at 376.) It is an action between tenants in common or joint tenants* and may be effected voluntarily by mutual consent of the parties or by judicial order upon the application of one or more co-owners.
Specific statutes governing the judicial partition of estates in real property have existed in this country since the time of the colonial governments. Indeed, so ancient is the history of judicial partitions, and so favored are partitions that it is now beyond contention that, independent of any statute, a court of equity has the inherent power to issue a decree of partition or require the sale of jointly owned property. (Hewlett v Wood, 62 NY 75, 76; Croghan v Livingston, 17 NY 218, 220; Mead v Mitchell, 5 Abb Prac 92, affd 17 NY 210; Baldwin v Baldwin, 74 Hun 415, 417-418.)
It is also a generally held view that absent an express agreement to the contrary, a testamentary restriction against partition, or extreme prejudice to a co-owner, a partition is a matter of right of a co-owner who no longer desires to hold or use the property in common. (Chew v Sheldon, 214 NY 344, 348-349; but see, Barol v Barol, 95 AD2d 942, 943; Ripp v Ripp, 38 AD2d 65, 68-69, affd 32 NY2d 755 [partition of real property following a divorce decree is subject to a consideration of the equities between the parties].)
Contrary to the mistaken belief of the IAS court, actions for partition are not limited to real property any more than ownership as joint tenants or tenants in common is limited to *374real property. Actions for partition of estates in real property may perhaps be more common, and in New York are specifically governed by RPAPL article 9, but the right to seek partition of personalty in an action in equity is uncontrovertedly established in New York. (Loker v Edmans, 204 App Div 223, 227-228 [savings account]; Shehan v Mahar, 17 Hun 129, 130 [a horse]; Andrews v Betts, 8 Hun 322, 325 [sea vessel]; Cart v Cart, 176 Misc 457, 459 [bank account]; Rush v Rush, 144 Misc 489, 491-492 [investments].)
Neither is it the case that a partition or sale of real property pursuant to RPAPL article 9 is restricted to co-owners who hold title in fee simple. An action for partition under article 9 may be commenced by "[a] person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years” (RPAPL 901 [1] [emphasis added]). Accordingly, an action for partition or sale of a leasehold estate is specifically within the purview of this statute. (See, e.g., George v Bridbord, 113 AD2d 869, 870-871; Deeb v Goryeb, 258 App Div 93, 94.) So flexible are the equitable principles which guide all actions for partition, even those governed by statute (Grody v Silverman, 222 App Div 526, 529-530), that in the interests of equity co-owners may even seek partition of both realty and personalty in one action. (Eisner v Curiel, 20 Misc 245, 246; Haight v Haight, 7 Hun 87.)
What makes the partition of the joint ownership interests in a cooperative apartment unique is its susceptibility of treatment as a partition of both realty and personalty. As the Court of Appeals noted in Matter of State Tax Commn. v Shor (43 NY2d 151, 154): "The ownership interest of a tenant-shareholder in a co-operative apartment is sui generis. It reflects only an ownership of a proprietary lease, and therefore arguably an interest in a chattel real, conditional however upon his shareholder interest in the co-operative corporation, an interest always treated as personal property. The leasehold and the shareholding are inseparable. For some special purposes, the real property aspect may predominate (see Grenader v Spitz, 573 F2d 612, 617-620, cert den 429 US 1009; cf. United Housing Foundation v Forman, 421 US 837, esp 854-860, reh den 423 US 884).”
This unique dualism of personalty and realty interests has engendered numerous legal complexities in determining which property interest shall predominate in different types of actions involving cooperative apartments. Eschewing any rigid *375characterization of a cooperative apartment as either realty or personalty, even for purposes of uniformity, the Court of Appeals in Shor, though noting that the stock certificate and proprietary lease are "inseparably joined” and cannot really "be viewed or valued in isolation from the other”, nevertheless concluded that a determination of which property interest on a given issue dominates will depend on such factors as the manner or conduct of economic affairs at issue, the perceptions and expectations that members of society have in conducting their affairs (citing Cardozo, Nature of the Judicial Process, at 60-64) and the interests being advanced by any statutes applicable or relevant to the subject matter before the court. (Matter of State Tax Commn. v Shor, supra, at 157.)
In Shor the court determined that as far as statutory priorities of judgment creditors was concerned, the property interest of a judgment debtor in his cooperative apartment "fit better, legally and pragmatically, although with imperfect linguistic formulation, into the statutory framework governing personal property” (supra, 43 NY2d, at 154). The personal property interest of a cooperative apartment also assumed priority in the context of determining that UCC 2-713 was applicable in measuring damages for breach of a contract of sale of the shares to a cooperative apartment. (Weiss v Karch, 62 NY2d 849, 850.) However, the sale or conveyance of an interest in a cooperative apartment has been held to be a contract for the sale or conveyance of real property, thereby requiring a writing pursuant to the Statute of Frauds (General Obligations Law § 5-703; Moloney v Weingarten, 118 AD2d 836, 837, lv denied 69 NY2d 608). Similarly, the United States Supreme Court has ruled that the sale of stock of an apartment house cooperative corporation does not constitute the sale of a "security” for purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934 and should be treated instead as the sale of an interest in realty. (United Hous. Found, v Forman, 421 US 837, esp 854-860, reh denied 423 US 884; Grenader v Spitz, 537 F2d 612, esp 617-620, cert denied 429 US 1009.)
For our purposes, whether we deem the controlling aspect of a partition or sale of a cooperative apartment as the partition or sale of realty or of personalty, that determination will not hinder the power of the Supreme Court to issue a decree of partition or sale, since the court has jurisdiction under RPAPL article 9 to order the partition or sale of a leasehold estate and has jurisdiction in equity to issue a *376decree of partition or sale of the stock. (See, discussion ante.) The relevance of this discussion, then, is to clarify whether the action may be brought pursuant to RPAPL article 9 and to provide uniformity of procedure.
Of major significance is the fact that a statutory procedure already exists in the RPAPL specifically governing the partition of leasehold estates. This comprehensive statutory framework should not be disregarded merely because the sale of stock will be an ancillary aspect of this action. Governed as it is by equitable principles, this statutory framework is flexible enough to accommodate this dual sale of personalty and realty interests. (Cf., Eisner v Curiel, supra; Haight v Haight, supra.) The advantage of uniformity of procedure additionally favors the commencement of these actions under the RPAPL.
Moreover, in reflecting on the expectations that co-owners of a cooperative apartment have with respect to their property interest and the personal conflicts which trigger an action for partition, common sense tells us that the differences arising between co-owners that would compel one owner to seek to alienate his property interest could have little, if anything, to do with their ownership of stock. Those differences will, in all likelihood, involve conflicts concerning such issues as use and occupancy of the apartment, disagreements as to each owner’s respective financial obligations regarding the apartment, or disagreements as to entitlement to income tax deductions for payment of real property taxes or mortgage interest. Simply put, judicial intervention is sought because there has been a breakdown in the relationship between the co-owners impinging on their ability to enjoy peacefully their occupancy rights to the apartment, making the focus of the action for partition, quite naturally, the apartment, not the stock. There is absolutely no reason, then, not to have this action governed by RPAPL article 9.
One final point is that summary judgment should have been granted declaring that plaintiffs and defendant Chang have equal rights and interests in the 16 shares and the proprietary lease. From the shareholders’ certificate, the pleadings and the parties’ answers to interrogatories, there is no disputing that defendant Chang owns a one-half interest in the shares allocated to this apartment as a tenant in common with Chiang and Blomback, who together own the other half interest as joint tenants.
Accordingly, the order of the Supreme Court, New York *377County (William P. McCooe, J.), entered May 28, 1987, which denied plaintiffs’ motion for summary judgment and dismissed their complaint, should be reversed, on the law, without costs, summary judgment granted declaring that plaintiffs have equal rights and title with defendant Chang to the shares of stock allocated to their cooperative apartment and to the proprietary lease, and the matter remanded to a Referee for further proceedings consistent herewith pursuant to RPAPL article 9.
Murphy, P. J., Ross, Asch and Milonas, JJ., concur.
Order, Supreme Court, New York County, entered on May 28, 1987, unanimously reversed, on the law, without costs and without disbursements, summary judgment granted declaring that plaintiffs have equal rights and title with defendant Chang to the shares of stock allocated to their cooperative apartment, and to the proprietary lease, and the matter remanded to a Referee for further proceedings consistent with this court’s opinion herewith pursuant to RPAPL article 9.
A tenancy in common exists when two or more persons each own and possess an undivided interest in property, real or personal. (Tarbox v Hulett, 272 App Div 633, 635.) Joint tenants also own and possess an undivided interest in property, real or personal, but have the additional advantage of a right of survivorship. (Matter of McKelway, 221 NY 15, 19.) | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902167/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
As the result of an authorized mail watch, correction officials discovered an outgoing letter written by petitioner that contained numerous gang-related references and code terms. Accordingly, petitioner was charged in a misbehavior report with violating prison disciplinary rules relating to gang activity and organizing a prohibited demonstration. Following a tier III disciplinary hearing, petitioner was found guilty of the charge relating to gang activity and was found not guilty of the demonstration charge. The disposition was upheld upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, copy of the letter, mail watch authorization form and hearing testimony—including petitioner’s admission that he authored the letter—provide substantial evidence to support the determination (see Matter of Williams v Fischer, 93 AD3d 1051, 1052 [2012]; Matter of Santana v Fischer, 78 AD3d 1364, 1364 [2010]). Contrary to petitioner’s contention, the record reflects that the letter was intercepted pursuant to a properly authorized mail watch (see 7 NYCRR 720.3 [e] [1]; Matter of Williams v Fischer, 93 AD3d at 1052). Finally, we are not convinced that petitioner was denied any relevant witnesses, and his claim that he was denied access to the mail watch authorization is belied by the record.
Peters, P.J., Rose, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902168/ | OPINION OF THE COURT
Levine, J.
In May 1985, petitioner preferred disciplinary charges against one of its police officers. Thereafter, in June 1985, petitioner’s Board of Trustees (hereinafter the Board), acting pursuant to its authority under Civil Service Law § 75 (2), appointed a Hearing Officer to hear the case. This prompted the Hempstead Police Benevolent Association (hereinafter PBA) to file an improper practice charge with respondent alleging that petitioner violated Civil Service Law § 209-a (1) (d) by unilaterally changing disciplinary procedures. Specifically, the PBA alleged that petitioner’s appointment of a Hearing Officer was in derogation of an established past practice under which the Board had itself conducted the hearings in all disciplinary cases. The Administrative Law Judge (hereinafter ALJ) sustained the charge following a hearing in which the parties stipulated to the facts in the record. In its review of the ALJ’s decision, respondent concluded that if there was a past practice of not appointing Hearing Officers in disciplinary cases, then petitioner could not depart from such a practice without negotiation. Respondent, however, found that the stipulation of facts was unclear as to whether a past practice actually existed and it remanded the matter to the AU to take further evidence on this issue.
Petitioner then commenced this CPLR article 78 proceeding to review respondent’s determination. Respondent moved to dismiss the proceeding on the ground that it was premature. Supreme Court refused to dismiss the proceeding and, at the same time, granted the PBA leave to intervene. Thereafter, Supreme Court granted petitioner’s application to annul respondent’s decision, concluding that, in the absence of modification under the collective bargaining agreement in effect, Civil Service Law § 75 (2) gave petitioner absolute discretion to choose the appropriate hearing procedure. The PBA and respondent appeal.
On appeal, respondent contends that the proceeding should have been dismissed since there has been no final administrative determination. We agree. Judicial review was initiated here prior to the resolution of the ultimate issue raised by the charge, i.e., whether petitioner was guilty of an improper employer practice based on its unilateral departure *381from an alleged past practice of holding disciplinary hearings before the Board. The determination challenged in the instant proceeding was limited to a ruling that if such a past practice is established in a future hearing, petitioner was not free to change it without negotiation. In our view, this represents a classic nonfinal order which is not reviewable under CPLR 7801 (1) (see, Matter of Martin v Ambach, 85 AD2d 869, 870-871, affd 57 NY2d 1001; see also, Siegel, NY Prac § 558, at 779).
Where, as here, the present litigation would be rendered academic by a final determination that no past practice existed, policy favors dismissal of a CPLR article 78 proceeding as premature (see, Matter of Samuel v Ortiz, 105 AD2d 624, 626). Moreover, the ruling challenged by petitioner has no coercive impact whatsoever. Petitioner’s only burden at this time is to proceed with a hearing to determine the relevant factual issues. The absence of any substantial impact on petitioner militates against CPLR article 78 review at this stage (see, Matter of Edmead v McGuire, 67 NY2d 714, 716; Matter of Carville v Allen, 13 AD2d 866, 867).
Petitioner, nonetheless, contends that the matter is ripe for review, citing Civil Service Law § 213 (a), which provides that: "Orders of [respondent] * * * shall be deemed to be final against all parties * * * unless reversed or modified in proceedings for enforcement or judicial review * * * Such orders shall be * * * reviewable under article seventy-eight of the civil practice law and rules upon petition filed * * * within thirty days after service * * * of a copy of such order.” Although the language of this provision would superficially appear to dictate that every order of respondent be deemed a final order for purposes of CPLR article 78 review,1 in our view, there is nothing to indicate that this statute was intended to modify the finality requirement contained in CPLR 7801 (1). The legislative history of the amendment which created Civil Service Law § 213 in its present form (L 1971, ch 503, § 13) evidences that it was intended to put the onus on the nonprevailing party in a dispute brought before respondent to promptly challenge the merits of respondent’s determination by commencing a CPLR article 78 proceeding within 30 days, or else be foreclosed from challenging the merits of the *382order in a subsequent enforcement proceeding2 (see, Governor’s Bill Jacket, L 1971, ch 503, Report of Div of Budget, June 16, 1971; mem of NY State School Bds Assn. June 4, 1971; mem of Assn of Towns of State of NY, June 4, 1971; mem of County-Officers Assn of State of NY, May 28, 1971; see also, Matter of New York State Pub. Employment Relations Bd. v Board of Educ., 39 NY2d 86, 90-91). Moreover, nothing in the Bill Jacket indicates that Civil Service Law § 213 was intended to permit review of intermediate orders of respondent, akin to the Appellate Division’s power to review nonfinal orders in civil actions (see, CPLR 5701 [a] [2]). This type of change should not be lightly inferred as it would be totally disruptive of orderly and expeditious administrative functions to permit challenges as of right to all interlocutory orders of respondent (see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7801:8, at 37).
In our view, the case of Matter of State of New York (Ins. Dept. Liquidation Bur.) v Public Employment Relations Bd. (68 NY2d 695, revg on dissenting mem below 114 AD2d 734, 736), relied on by petitioner, does not dictate a contrary result. That case involved an appeal from a decision of respondent which found the petitioner to be a public employer for purposes of a representation proceeding under Civil Service Law § 207. A CPLR article 78 proceeding was commenced challenging respondent’s decision, which was ultimately held to be reviewable as a final administrative determination. The reviewability of respondent’s decision in that case was supported by the fact that the determination to be reviewed, the petitioner’s status as a public employer, had been finally resolved and would not be mooted by further administrative proceedings. In addition, the decision had a significant impact on the petitioner, who was at that point impelled to " 'incur the time and expense required in the certification process * * * which would not be required if the [employer] is subsequently deemed to be a non-public employer’ ” (Matter of State of New York [Ins. Dept. Liquidation Bur.] v Public Employment Relations Bd., 114 AD2d 734, 736 [dissenting mem], revd on dissenting mem below 68 NY2d 695, supra). As we have already discussed, in the matter presently before us the determination challenged has a minimal impact on petitioner and *383may be rendered moot by the resolution of factual issues. Hence, in our view, Matter of State of New York (Ins. Dept. Liquidation Bur.) v Public Employment Relations Bd. (68 NY2d 695, supra) is distinguishable from petitioner’s case.
Based on the foregoing, we conclude that Supreme Court erred in not dismissing the petition. However, even if we were to reach the merits we would find that respondent’s determination is not arbitrary and capricious. Neither side contests that disciplinary procedures, such as those at issue in this appeal, are a mandatory subject of collective bargaining (see, Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, 17, affd 46 NY2d 1034). In addition, it is permissible for negotiated disciplinary procedures to modify and/or supersede the specific provisions of Civil Service Law § 75 (2), which permits an employer to either hear disciplinary charges itself or designate an independent Hearing Officer to do so (see, Matter of Marin v Benson, 131 AD2d 100). It is also clear that substantive rights may arise not only through collective negotiations, but also through consistently followed past practices (see, Matter of State of New York [Governor’s Off. of Employee Relations] v New York State Pub. Employment Relations Bd., 91 AD2d 718). Furthermore, when such a past practice is shown to exist, the employer is not free to discontinue it without prior negotiation (see, Matter of Board of Coop. Educ. Servs. Sole Supervisory Dist. v New York State Pub. Employment Relations Bd., 82 AD2d 691, 693-694).
In the instant case, respondent ruled that petitioner’s unilateral appointment of a Hearing Officer, if in derogation of a past practice of the Board hearing disciplinary charges, would constitute an improper employer practice. Petitioner contends that this determination is arbitrary and capricious in view of case law holding that a past practice cannot vary explicit statutory language (see, Matter of Town of Shandaken v State Bd. of Equalization & Assessment, 63 NY2d 442; Doctors Council v New York City Employees’ Retirement Sys., 127 AD2d 380; Matter of Catapano v Goldstein, 64 AD2d 88, revd on dissenting opn below 45 NY2d 810). In our view, however, these cases are inapposite as they do not address past practices which arise in the specialized context of public sector employment relations on matters which are the subject of mandatory collective bargaining.
Petitioner also contends that respondent’s decision is arbitrary and capricious as it is inconsistent with a line of prior decisions of respondent (see, Matter of Field Delivery Serv. *384[Roberts], 66 NY2d 516). Examination of the decisions relied on by petitioner, however, discloses that these cases are distinguishable in that they involve the exercise of an option by the employer which was specifically provided for in the labor contract (see, Matter of Suffolk County, 19 PERB fj 4514; Matter of City of White Plains, 7 PERB fl 3031) or a change instituted by the employer which was held not to affect any term or condition of employment and, hence, was not subject to mandatory negotiation (see, Matter of County of Nassau [Police Dept.] 20 PERB If 3040). Accordingly, if we were to reach the merits, Supreme Court’s order would be reversed and respondent’s determination confirmed.
Kane, J. P., Casey, Mikoll and Yesawich, Jr., JJ., concur.
Judgment reversed, on the law, without costs, and petition dismissed as premature.
. Narrow exceptions are, however, set forth in Civil Service Law § 213 (b) relating to interim determinations leading to final certification of an employee organization under Civil Service Law § 207.
. Included in this legislation was the provision permitting the merits of an order to be challenged in an enforcement proceeding only if the proceeding was commenced prior to the expiration of the 30-day period (Civil Service Law § 213 [c], as added by L 1971, ch 503, § 13, eff July 1,1971). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902169/ | OPINION OF THE COURT
Per Curiam.
The respondent Steven Winston was admitted to the Bar of the State of New York on February 23, 1972 in the Second Judicial Department. Pursuant to an order of that court dated December 12, 1984, a disciplinary proceeding against the respondent was transferred to the Departmental Disciplinary Committee for the First Judicial Department (DDC).
Respondent was charged with three specifications of misconduct. First, it was alleged that on August 1,1983 he submitted a $35 check to the Clerk of the Supreme Court for an index number in a civil action, that the check was returned for insufficient funds, and that respondent did not make good on the bounced check until a complaint was filed with the DDC. Second, it was alleged that respondent failed to cooperate with the DDC in its investigation into his bounced check. The third, and by far the most serious charge against the respondent, alleged that during the period February through June of 1984 respondent converted to his own use a $12,500 escrow deposit in a real estate transaction.
After extensive hearings, comprising over 1,000 pages of testimony, the DDC Panel submitted a report to this court recommending that the charges be sustained, and that the respondent be disbarred. The matter is now before us upon *387the DDC’s motion to confirm, and the respondent’s motion to disaffirm, the findings and recommendations in the Hearing Panel’s report. Our review of the record, including several prior motions in this court, establishes the following facts which we find pertinent to an appropriate disposition of the motions now before us.
Respondent’s problems had their genesis in 1978, when he first tried cocaine ostensibly for the purposes of elevating his mood during periods of depression, and giving him energy to work long hours. In a progressive scenario, which unfortunately has become all too familiar among persons who have triéd cocaine upon the grave misconception that it was nonaddicting and relatively harmless, the devastating consequences of cocaine use eventually began to manifest in his life.
Respondent needed constantly increasing dosages of cocaine to counteract the depressions which resulted when the stimulant effects of the drug wore off. He lost his automobiles, money and personal property, the mother of his child left him, taking their child with her, he became heavily indebted to a loan shark, and his law partners locked him out of their offices. Various witnesses, including psychiatrists, described respondent’s severely deteriorated mental state during the period encompassed by the charges as psychotic, delusional and out of contact with reality.
In February 1986, when the disciplinary hearings commenced, respondent contended that because he was suffering from thought dysfunctions associated with a cocaine abstinence syndrome, he was unable to participate meaningfully in his defense. We accordingly issued an order temporarily staying the hearing before the DDC except for psychiatric testimony addressed to the respondent’s competence, and suspending him until further order of this court. (Matter of Winston, 116 AD2d 264.) Thereafter, upon review of the evidence taken pursuant to the aforesaid order, this court found respondent not competent to aid in his defense, stayed the disciplinary hearings during the period that he remained a full-time resident of Daytop Village (a well-known drug rehabilitation center), and continued his suspension pending further order of this court (Matter of Winston, 121 AD2d 996). On February 5, 1987, after almost a year of his residence at Daytop Village, we vacated the stay of the disciplinary hearings upon consent of the respondent and the DDC.
As previously noted, the matter is now before us upon cross *388motions to confirm and disaffirm the findings and recommendations contained in the report by the DDC Hearing Panel. We confirm the findings that respondent is guilty of each of the specified charges. The only question remaining is the appropriate sanction to be imposed under all the circumstances. In this regard, after reviewing the testimony as it pertains to the respondent’s mental state during the period herein pertinent, we find that the respondent was delusional and out of contact with reality to an extent sufficient to raise before us serious doubts as to the willfulness of his actions, and whether his actions were to a significant extent caused by cocaine induced mental illness.
Respondent’s mental illness, which we find to have been a significant contributing cause of his actions, does not by any means excuse his serious misconduct (Matter of Samuels, 22 AD2d 564, 567). However, we have recently observed that where a mental or physical infirmity is the cause of an attorney’s misconduct, that factor may be considered in mitigation of the sanction to be imposed. (See, Matter of Levine, 101 AD2d 49; Matter of Driver, 129 AD2d 119.)
We consider, in addition, uncontradicted evidence establishing that respondent has remained drug free for over two years since his enrollment in the drug rehabilitation program at Daytop Village, and that he has become an increasingly valued member of its paid staff performing a broad range of Services to Daytop residents. He also makes speaking appearances before governmental agencies and various civic and professional groups with regard to drug abuse and related subjects. Respondent is repentant, and appears to be firmly committed to continuing his own rehabilitation, helping other unfortunates who have been addicted to drugs, and eradicating the evil that brought disgrace upon himself and his profession.
We accordingly conclude, upon consideration of all these circumstances, that respondent should be suspended for a period of three years, effective April 16, 1986. Any motion for reinstatement shall be conditioned upon evidence demonstrating to the satisfaction of this court respondent’s continued rehabilitation, and shall include a physical and psychiatric report attesting that he is physically and mentally capable of resuming the practice of law.
*389Kupferman, J. P., Sandler, Carro, Kassal and Smith, JJ., concur.
Respondent is suspended from practice as an attorney and counselor-at-law in the State of New York for a period of three years, effective April 16, 1986, and until the further order of this court. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902170/ | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
As the result of an authorized mail watch, correction officials discovered an outgoing letter written by petitioner that contained numerous gang-related references and code terms. Accordingly, petitioner was charged in a misbehavior report with violating prison disciplinary rules relating to gang activity and organizing a prohibited demonstration. Following a tier III disciplinary hearing, petitioner was found guilty of the charge relating to gang activity and was found not guilty of the demonstration charge. The disposition was upheld upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, copy of the letter, mail watch authorization form and hearing testimony—including petitioner’s admission that he authored the letter—provide substantial evidence to support the determination (see Matter of Williams v Fischer, 93 AD3d 1051, 1052 [2012]; Matter of Santana v Fischer, 78 AD3d 1364, 1364 [2010]). Contrary to petitioner’s contention, the record reflects that the letter was intercepted pursuant to a properly authorized mail watch (see 7 NYCRR 720.3 [e] [1]; Matter of Williams v Fischer, 93 AD3d at 1052). Finally, we are not convinced that petitioner was denied any relevant witnesses, and his claim that he was denied access to the mail watch authorization is belied by the record.
Peters, P.J., Rose, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902171/ | *391OPINION OF THE COURT
Kupferman, J. P.
At approximately 5:00 p.m. on April 6, 1982, as he was crossing the intersection of East 167th Street and Grant Avenue in The Bronx, plaintiffs decedent was struck and gravely injured by a bus owned by defendant New York City Transit Authority (T.A.) and operated by its subsidiary corporation, defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). He died of his injuries that same day. A timely notice of claim was served upon defendants on June 1, 1982 pursuant to General Municipal Law § 50-i. However, this wrongful death action was not commenced until April 2, 1984.
In their verified answer, defendants erroneously admitted that this action was commenced within 1 year and 90 days of its accrual. Thereafter, defendants sought leave to amend their answer to include the affirmative defense of Statute of Limitations, which motion was granted by the order appealed from.
Public Authorities Law § 1212 (2) requires that an action "founded on tort” shall not be commenced against defendant authorities more than 1 year and 90 days "after the happening of the event upon which the claim is based”.
At one time, there was no uniform time limit within which to commence an action against a municipality. In 1959, however, General Municipal Law § 50-i was enacted (L 1959, ch 788, § 1), which, like Public Authorities Law § 1212, required that any action for personal injury or property damage sustained by reason of the negligence or wrongful act of a municipality had to be commenced within 1 year and 90 days after the happening of the event.
In Collins v City of New York (55 NY2d 646), where a wrongful death action against a municipality was commenced within 2 years of, but more than 1 year and 90 days after, the decedent’s death, the Court of Appeals held that the term "personal injury” does not include within its scope actions for wrongful death and that plaintiffs claim against the defendant city was governed by the two-year period of limitations for wrongful death actions found in EPTL 5-4.1. In so ruling, the court further noted that General Municipal Law § 50-i had recently been amended (L 1981, ch 738, § 2, eff Sept. 1, 1981) to provide specifically for the inclusion of a two-year limita*392tion period for wrongful death actions against municipalities (55 NY2d, supra, at 648).
Unlike General Municipal Law § 50-i, however, Public Authorities Law § 1212 was never similarly amended. In D'Andrea v Long Is. R. R. Co. (117 AD2d 10), a wrongful death action commenced less than two years but more than one year after plaintiff’s decedent was struck and killed by a L.I.R.R. train, Justice Lawrence J. Bracken, writing for a unanimous Second Department, concluded that, for purposes of Public Authorities Law § 1276 (2), which requires that an action against the Metropolitan Transportation Authority or its subsidiaries "founded on tort” shall not be commenced more than one year after the cause of action therefor shall have accrued, such an action accrues upon the death of the decedent.
In so ruling, the court noted that it is now settled that the one-year Statute of Limitations contained in Public Authorities Law § 1276 (2), and not the two-year limitation period prescribed by EPTL 5-4.1 applies in a wrongful death action against the MTA or its subsidiary (117 AD2d, supra, at 13, citing Andersen v Long Is. R. R., 88 AD2d 328, affd 59 NY2d 657). Any doubt which may have existed that Andersen was distinguishable because the determinative factor there was not that the death action was untimely commenced (it was commenced within one year of the defendant’s death), but that no demand or claim had been made upon the railroad at least 30 days prior to the commencement of the action and no mention of such notice was placed in the complaint as required by section 1276 (1), was dispelled by the Court of Appeals affirmance of D'Andrea v Long Is. R. R. Co. (supra) for the reasons stated in Justice Bracken’s opinion (70 NY2d 683).
While section 1276 (2), applying to the MTA and its subsidiary L.I.R.R., requires actions founded on tort to be commenced no more than "one year after the cause of action therefor shall have accrued”, whereas section 1212 (2), which applies to the T.A. and its subsidiary MABSTOA, requires such actions to be commenced no more than "one year and ninety days after the happening of the event upon which the claim is based”, the holding of D'Andrea v Long Is. R. R. Co. (supra) is clearly applicable to the instant case and binding on this court.
Thus, while constrained to agree that plaintiff’s action is governed by the l-year-and-90-day period of limitations of *393Public Authorities Law § 1212 (2), we "can only remark the seeming injury to the sense and symmetry of the law” (Matter of Rathscheck, 300 NY 346, 352 [Fuld, J., concurring]) and call the attention of the Law Revision Commission to Justice Bracken’s apt description of "the morass which is comprised of the several statutory provisions limiting the time in which a wrongful death action may be commenced” (D'Andrea v Long Is. R. R. Co., 117 AD2d 10, 11, supra), urging it to remedy the anomaly presented by this and other cases, where the timeliness of wrongful death actions commenced on behalf of the estates of otherwise similarly situated decedents hinges on the fortuitous fact that the decedent was struck and killed by a vehicle owned and operated by a public authority rather than one owned and operated by a municipality. There appears no cogent reason for such lack of uniformity and disparity of treatment.
Accordingly, the order of the Supreme Court, Bronx County (Barry Salman, J.), entered March 5, 1987, which granted defendants’ motion for leave to amend their answer to add the affirmative defense that plaintiff failed to comply with Public Authorities Law § 1212 should be affirmed, without costs.
Ross, Carro, Rosenberger and Smith, JJ., concur.
Order, Supreme Court, Bronx County, entered on March 5, 1987, unanimously affirmed, without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902172/ | OPINION OF THE COURT
Asen, J.
Prior to his appointment as conservator of Leon Heilman, *396appellant Dr. Levine found $40,000 in undeposited checks scattered within the Heilman home, and deposited these checks into appellant Rubenstein’s special account. From these proceeds Dr. Levine paid outstanding real estate taxes, fees and insurance premiums. Because of the beneficial tax consequences, the conservator, without court authorization, paid Mr. Rubenstein, the attorney for Dr. Levine, $10,000 for approximately 40 hours of service previously rendered. These services saved the conservatee’s estate $2,000 in total income taxes for the 1986-1987 years.
The conservatee had two group life insurance policies which had to be converted to individual ones or be allowed to lapse. The conservator converted them for the maximum amount available, requiring an initial expenditure of $9,000 in premiums based on an assessment of Heilman’s physical condition. Heilman died suddenly when the conservatorship was only seven months old and, as a result of these conversions, the estate realized more than $300,000.
Appellants conservator and attorney moved, in connection with approval of a final account, for final commissions and fees of $35,667.94 and $19,500, respectively. The Supreme Court, in the order appealed from, reduced both amounts sought to $14,678.80 and $12,500, respectively. The court found the commissionable basis of the conservator’s calculations too high, as it included amounts the conservator had turned over to the preliminary executor. These amounts were deemed noncommissionable on the ground that they did not constitute a disbursement for the benefit of the conservatee, now deceased. Thus, commissions were allowed only on principal received upon appointment, income disbursements, and insurance policies providing for payment upon retirement, not payable upon death, for a total commission of $14,678.80.
The compensation of a conservator (see, Mental Hygiene Law §§ 77.27, 78.21) is calculated on the commissionable amounts received and disbursed (SCPA 2307). There is no dispute as to the applicable rates but only as to what is commissionable.
None of the $640,000 in insurance death benefits are properly commissionable since, upon the conservatee’s death, the conservator ceased having any power to reduce that property to his possession (see, Matter of Wallace, 172 App Div 544). Further, a $3,300 Individual Retirement Account, which the conservator did not have to invade to provide for the conserva*397tee, is not commissionable since this asset was also never received by the conservator (see, Matter of Reich, 94 Misc 2d 319). This is consistent with a previous concession by appellants that a substantial Totten trust was not commissionable. In addition, appellants have also previously conceded that the $900,000 home of the conservatee is not commissionable, as the real estate was not sold during the conservatorship. Thus, the proper amount of commissionable assets received by the conservator was limited to $285,295 (less than that calculated by the nisi prius court).
Appellants contend that the commissionable disbursements include amounts turned over by the conservator to the executor. This position is the same taken by the Second Department (see, Matter of Gottlieb, 117 AD2d 668). This court has not previously addressed the issue. However, the IAS court disallowed disbursements to the executor, following the practice enunciated in Matter of Roshke (NYLJ, Sept. 30, 1977, at 14, col 2 [Sup Ct, Bronx County]). This practice was based on the principle that the conservatee obtains no benefit from amounts paid over to the executor and that the obligation to turn over funds to the executor does not arise from the conservatorship, but applies generally to all persons in possession of assets of the decedent.
We find that the Second Department rule is the better practice. Roshke (supra) relied in part upon In re Hermance (120 NYS2d 562), which barred commissions on the balance of moneys transferred by one committee to a successor committee. The delivery of assets by a conservator to an executor is distinguishable from that situation. Here, the conservatee does enjoy a benefit, having his assets passed on to his designated beneficiaries or heirs at law. In addition, while Roshke correctly notes that a committeeship of an incompetent terminates on the death of the incompetent, the duties of the committee (or conservator) herein do not end to the extent the committee must account and turn over property in its possession to the proper person. Application of the Roshke rule would unfairly diminish the commissions of a conservator simply because the conservatee has died rather than recovered from his incapacity.
Including the amounts disbursed to the executor, the commissionable disbursements would then be the same as the commissionable receipts, $285,295. Commissions for receiving and disbursing are $6,225.90 each, for a total of $12,450.80. Deducting the $6,988.03 actually paid to the conservator *398previously (rather than $7,690.77, as erroneously found by the court), a balance of $5,463.77 would remain. These amounts are less than that awarded by the IAS court in the order appealed from. Thus, in the absence of a cross appeal by the preliminary executor or any other party, we affirm the commission award of $14,678.80.
As the appellants properly note, several aspects of the IAS court’s criticism of the administration of the assets were unjustified. Thus, the 1986 payment of a $10,000 counsel fee was not for anticipated future services, as the court stated, but rather for services rendered. It was disclosed to the court in the final account and motion for a fee and clearly resulted, as noted, in an income tax savings.
The court’s conclusion that the conservator overrelied upon counsel also does not appear justified on the sparse record herein. The conservatee’s affairs at the time of the appointment were in a deplorable condition, raising complex legal questions.
With respect to the conservator’s exercise of options to take the maximum amount of individual life insurance, upon expiration of two group life insurance policies at the time of the conservatee’s retirement due to disability, the court’s criticism that this modified an act of the ward prior to the adjudication of incompetency misinterprets what transpired. The option arose for the first time after the adjudication of incompetency, upon retirement, and there is no evidence at all that the conservatee had previously made any determination or had any intention of discontinuing his insurance. Further, the court’s finding that such exercise improperly benefited the heirs over the conservatee is not well-founded in the context of this substantial estate, more than sufficient to meet the conservatee’s needs (most of these needs were covered by Medicare). Certainly the conservatee’s "needs” under these circumstances also included financial provision for a dependent adult son and a minor daughter.
The court was correct, however, in its criticism of appellants for the 1986 payment of counsel fees, without prior court evaluation of the 1986 services, and the commingling of the conservatee’s assets with the attorney’s special account prior to adjudication of incompetency. These problems are compounded by the counsel’s statements on the present appeal claiming that he had sought approval of a fee of $29,500 ($19,500 after deduction for the prior payment) and that the *399IAS court cut this request by more than half. A reading of the papers upon the motion clearly shows that he requested a total fee of $19,500. His affidavit submitted upon the motion described in detail services rendered by him throughout the entire period of the conservatorship. Under all the circumstances herein, the award of $12,500 to the attorney was neither arbitrary nor unreasonable and, therefore, should not be disturbed by us (Matter of Bernheimer, 61 AD2d 761, lv denied 45 NY2d 710).
Accordingly, the order of the Supreme Court, Bronx County (Barry Salman, J.), entered December 7, 1987, allowing the conservator a total commission of $14,678.80 of which $6,998.03 remained to be paid, and awarding his attorney a total fee of $12,500 of which $2,500 remained to be paid, should be affirmed, without costs or disbursements.
Sullivan, J. P., Carro, Kassal and Wallach, JJ., concur.
Order, Supreme Court, Bronx County, entered on December 7, 1987, unanimously affirmed, without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902173/ | Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered September 15, 1986, which clarified the court’s prior order entered July 30, 1986, by granting defendant-respondent’s motion for a protective order except as to items 1 and 2 in the September 25, 1985 notice and demand, and by denying plaintiff-appellant’s cross motion to compel compliance with the outstanding discovery requests, unanimously modified, on the law and in the exercise of discretion, to grant appellant’s motion to compel to the extent of requiring respondent to comply with items 4 through 9, inclusive, of said notice and demand, and to answer items 6 through 13, inclusive, of the interrogatories, and otherwise affirmed, without costs. The appeal from the order entered July 30, 1986 is dismissed as superseded, without costs.
Appellant, the issuer of an excess insurance policy, seeks to recover damages from respondent, issuer of the primary insurance policy, for respondent’s alleged bad-faith refusal to settle a claim against appellant’s insured prior to trial. Following a jury verdict against the insured, the claim was settled for $132,500 of which appellant paid $112,500. Appellant now challenges Supreme Court’s decision to grant respondent’s untimely motion for a protective order. Respondent maintains that the order was properly granted because appellant’s notice and demand was overly broad and because the material sought is privileged under CPLR 3101.
We note at the outset that respondent’s failure to timely seek a protective order forecloses all inquiry into the propriety of appellant’s discovery demands unless they are "palpably improper” (Wood v Sardi’s Rest. Corp., 47 AD2d 870, 871 [1st *402Dept 1975]). Although appellant’s discovery requests are framed in the broadest of terms, the documents sought relate to a specific subject matter and are therefore sufficiently identifiable to satisfy the requirements of CPLR 3120 (a). (Matter of Bird, 100 AD2d 784 [1st Dept 1984]; Scheinfeld v Burlant, 98 AD2d 603 [1st Dept 1983].) The requests in the notice of demand were not, therefore, palpably improper and respondent should have been ordered to comply therewith.
Respondent’s assertion of the litigation and work product privilege for the materials sought by appellant is unavailing in this bad-faith action between issuers of primary and excess insurance policies. In Hartford Acc. & Indent. Co. v Michigan Mut. Ins. Co. (93 AD2d 337 [1st Dept 1983], affd 61 NY2d 569 [1984]), this court reaffirmed that the primary carrier owes the same fiduciary obligation to the excess insurer which the primary insurer owes to its insured. Where it is alleged that the insurer has breached that duty to its insured, the insurer may not use the attorney-client or work product privilege as a shield to prevent disclosure which is relevant to the insured’s bad-faith action (Colbert v Home Indem. Co., 24 AD2d 1080 [4th Dept 1965], affg 45 Misc 2d 1093). Thus, the same principle obtains in a bad-faith action between the excess insurer and the primary insurer. Respondent’s insured, the owner of the vehicle, and the driver of the vehicle who is also covered under the owner’s policy, and appellant’s insured, the driver’s employer, were all represented by the law firm retained by respondent. The litigation materials prepared for the liability trial and counsel’s work product relevant to that action were prepared on behalf of all three of those defendants, including appellant’s insured. Respondent does not claim that there was any conflict of interest among the three defendants which required separate strategies or materials for their defenses.
We agree that the first five interrogatories were improper as they relate to the enforcement of a judgment which may be rendered against respondent. Other arguments raised by the parties on appeal have been considered and rejected. Concur— Murphy, P. J., Sullivan, Ross, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902174/ | Appeal from judgment, Supreme Court, New York County (Clifford A. Scott, J., at pretrial Huntley hearing, trial, and sentence), rendered March 11, 1985, which, after a jury trial, convicted defendant of the crime of murder in the second degree (Penal Law *403§ 125.25) and sentenced him to an indeterminate term of imprisonment from 25 years to life, is held in abeyance, and the matter remanded for a hearing, as to whether defendant was denied the effective assistance of counsel.
Order of the same court and Justice, entered October 24, 1986, which denied, without a hearing, defendant’s motion, pursuant to CPL 440.10, to vacate the judgment, is unanimously reversed, on the law and the facts, and the motion is granted to the extent of remanding the matter to Trial Term to hold an evidentiary hearing on the issue of whether the defendant was denied the effective assistance of counsel.
Sometime after midnight on July 18, 1984, pursuant to information he had received from a private citizen, New York City Police Officer Joseph Clanton went to the rear courtyard of 1505 St. Nicholas Avenue, between 185th and 186th Streets, Manhattan, where he found the body of a person, later identified as Mr. Wilson Cabrera (Mr. Cabrera), lying in a pool of blood. A subsequent autopsy indicated that Mr. Cabrera’s death had been caused by a .38 caliber bullet to the brain.
During the following week, New York City Police Detective John Grunert (Detective Grunert) led a police team investigating Mr. Cabrera’s homicide. On July 24, 1984, in connection with this investigation, Detective Grunert sought a warrant to search defendant’s person and his dwelling place, which was a room located in a basement apartment used as a brothel, for a loaded firearm. In his affidavit, in support of the application for the search warrant, Detective Grunert stated, in pertinent part, that during the past week (note: July 18th through July 24th) he had several conversations with a woman, whom he referred to in the affidavit by the name of "Jane Doe”; Ms. "Jane Doe” informed him that she worked as a prostitute in the subject brothel, and she told him: the brothel operated from 11:00 p.m. to 5:00 a.m.; the defendant, who was known to her by the nickname "Pedro”, lived in the brothel and was employed as the brothel’s bartender and bouncer; inside the brothel, on the evening of July 20, 1984, and into the early morning hours of July 21, 1984, she observed "Pedro” in possession of a loaded firearm; and, when the brothel is open, the firearm is kept inside those premises. On the basis of the allegations contained in Detective Grunert’s affidavit, a New York City Criminal Court Judge issued a search warrant, dated July 24, 1984, which authorized the police to search the defendant’s person, and the subject basement apartment, for a loaded firearm.
Thereafter, at approximately 3:00 a.m. on July 25, 1984, *404Detective Grunert and several police officers went to the basement apartment brothel to execute the search warrant. Even though they were armed with a search warrant, and not an arrest warrant, and although these officers did not find a loaded firearm or other contraband on the person of the defendant, or in his dwelling place inside the brothel, or anywhere else in the brothel, they arrested defendant, and transported him in handcuffs to the 34th Precinct for interrogation.
While in custody, and for most of the time in handcuffs, at the precinct, defendant was advised of his Miranda rights in Spanish, and he agreed to speak to the police. Subsequently, during the interrogation, which was conducted over many hours, defendant confessed, in both oral and written statements, that he had shot victim Mr. Cabrera in the head. Later, defendant accompanied the police to the scene of the crime and reenacted the details of the murder. Finally, defendant described the killing to an Assistant District Attorney (ADA) in a videotaped statement.
Following defendant’s indictment for the crime of murder in the second degree, and his arraignment on that charge, defendant’s trial counsel moved for a pretrial Huntley hearing to suppress the statements defendant made to the police and the ADA. After the Huntley hearing, at which the People as well as the defense presented evidence, the court denied defendant’s suppression motion.
On January 8, 1985, the defendant proceeded to trial on the charge. During the trial, defendant put in a defense, which included his own testimony. Thereafter, on January 17, 1985, a jury found him guilty of murder in the second degree, and he was sentenced, as mentioned supra.
Subsequently, defendant moved to vacate the verdict, pursuant to CPL 440.10, on the ground that his trial counsel had provided him with ineffective counsel, since that counsel had neither in the pretrial stages of the case, nor during the trial, raised the issue of whether the police had legally arrested the defendant. Without holding a hearing, the trial court denied defendant’s motion. Subsequently, by order dated November 25, 1986, this court granted leave to defendant to appeal the denial of that motion.
We held in People v Ferguson (114 AD2d 226, 230 [1st Dept 1986]) that "[a] determinant of the adequacy of [defense] counsel’s performance is the degree to which counsel’s errors impact on 'basic points essential to the defense’ (see, People v Droz, 39 NY2d 457, 462; People v Roff, 67 AD2d 805)”.
*405Since in the instant case the police never recovered the murder weapon, or found an eyewitness to the crime, the incriminating statements made by defendant, after his arrest, obviously furnished the basis for the indictment and conviction of defendant. Therefore, we find that the issue of the legality of defendant’s arrest should have been a cornerstone of the defense, in view of the fact that, if the arrest was held to be illegal, then the incriminating statements resulting from such an illegal arrest would have been suppressed, under the "fruit of the poisonous tree” doctrine (see, United States v Crews, 445 US 463, 471-473 [1980]; People v Dodt, 61 NY2d 408, 417 [1984]).
After reviewing the record, we find that there are numerous legal grounds upon which defense counsel could have challenged the legality of the arrest in the instant case. We set forth several of these grounds, as follows:
1. In view of the fact that the search warrant was issued based only on information furnished by a prostitute, who was referred to as "Jane Doe”, defense counsel could have contended that the warrant was issued without probable cause (see, Dunaway v New York, 442 US 200 [1979]);
2. In the case of Barr v County of Albany (50 NY2d 247, 255 [1980]), the Court of Appeals ruled that: "While it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon. A search warrant and an arrest warrant serve distinct functions in the law (compare CPL art 690, with CPL art 120)”. Examination of the search warrant issued herein indicates that, while it authorized the search of the premises, mentioned supra, it did not authorize the police, who execute the search warrant, "to * * * arrest * * * those persons found [on the premises]” (Barr v County of Albany, supra, at 255). The police did not recover any firearm from either the defendant’s person, or his dwelling place, or anywhere else in the brothel. Since the subject search warrant did not authorize any arrest, defense counsel could have contended the arrest of defendant was without probable cause;
3. The United States Supreme Court held, in the case of Payton v New York (445 US 573 [1980]), that, except in the presence of consent or exigent circumstances, an arrest is tainted if the police arrest a defendant in his dwelling place without an arrest warrant. Since, it is undisputed, in the *406instant case, that defendant was not arrested upon the basis of an arrest warrant, again defense counsel could have contended the arrest lacked probable cause; and
4. During the trial, Detective Richard Nieves (Detective Nieves) testified as a rebuttal witness for the People. In the course of his testimony, Detective Nieves admitted that, while assisting in the execution of the search warrant, he, without provocation from the defendant, punched the defendant in the face, and subsequently handcuffed him. In view of the testimony of Detective Nieves, mentioned supra, defense counsel could have moved to reopen the Huntley hearing upon the basis that defendant’s arrest was illegal.
Based upon our analysis, supra, we find that Trial Term erred in denying defendant’s motion, without a hearing, since it is not clear from the record whether defense counsel’s failure to raise the issue of the legality of defendant’s arrest was due to ineffectiveness of counsel or trial strategy (People v Brown, 45 NY2d 852, 854 [1978]).
Accordingly, we hold the appeal from the judgment in abeyance, and grant defendant’s CPL 440.10 motion to the extent of remanding the matter to Trial Term for an evidentiary hearing. Concur—Murphy, P. J., Sullivan, Ross, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129314/ | Order affirmed, with costs. Opinion by
Bocees, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129316/ | Judgment affirmed, with costs. Opinion by
Learned, P. J.;
Boardman, J., not acting. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129318/ | Judgment affirmed, with costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902177/ | Judgment, Supreme Court, Bronx County (Daniel J. Sullivan, J.), rendered January 28, 1983, convicting defendant, upon his plea of guilty, of two counts of criminal possession of a weapon in the third degree and sentencing him as a predicate felony offender to concurrent indeterminate terms of from 3 Vi to 7 years’ imprisonment, affirmed. Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered March 6, 1986, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and a violation of section 436-5.0 (h) (1) of *409the Administrative Code of the City of New York ([possession of a loaded rifle or shotgun] now § 10-131 [h] [1]) and sentencing him as a predicate felony offender to an indeterminate term of from Slá to 7 years’ imprisonment on the weapons conviction and a concurrent definite term of one year’s imprisonment on the firearms misdemeanor, reversed, on the law, the judgment vacated and defendant’s appeal therefrom dismissed as moot. Concur—Kupferman, J. P., Ross, Kassal, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902180/ | Judgment, Supreme Court, New York County (Albert Williams, J.), rendered June 4, 1986, which convicted defendant, after jury trial, of two counts of robbery in the first degree, robbery in the second degree, and assault in the first degree, and sentenced him to four concurrent 3-to-9-year prison terms, unanimously reversed, on the law, and the case remanded for a new trial.
During the trial, at the conclusion of the charge but before the jury began its deliberations, the trial court, over defendant’s objection, distributed to the jurors 12 written copies of what it termed "the statutory law of the case” that it had earlier "read into the record.”
As the People concede, this written submission to the jury requires reversal, in light of the clear holding of the Court of Appeals that where defense counsel objects, it is improper for a trial court, after reciting its instructions orally, to distribute only certain portions of that charge in writing to the jury for use in its deliberations. (People v Owens, 69 NY2d 585.) Accordingly, we reverse and remand for a new trial. Concur— Asch, J. P., Rosenberger, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2074688/ | 896 A.2d 255 (2006)
In re Edith PERRUSO, Appellant.
No. 03-FM-159.
District of Columbia Court of Appeals.
Argued January 8, 2004.
Decided April 13, 2006.
*256 Kenneth H. Rosenau, Washington, DC, appointed by the court, for appellant.
Lynda S. Abramovitz, Assistant Corporation Counsel, with whom Robert J. Spagnoletti, Corporation Counsel, Edward E. Schwab, Deputy Corporation Counsel, and Tonya A. Robinson, Acting Deputy Corporation Counsel, were on the brief, for appellee District of Columbia.[*]
Before FARRELL, Associate Judge, and BELSON and TERRY, Senior Judges.[**]
TERRY, Senior Judge:
This is an appeal from a trial court order revoking appellant's outpatient commitment to Saint Elizabeths Hospital and committing her as an inpatient "for an indefinite period." We are satisfied that the order is amply supported by the evidence of record, and thus we affirm.
I
In August 2001 appellant was civilly "committed to the Department of Mental Health for an indefinite period to participate in an outpatient course of treatment," pursuant to Super. Ct. Mental Health Rule *257 16.[1] The court noted in its order the conditional nature of this outpatient status, stating "[t]hat if the Respondent fails to abide by the treatment regimen or if the mental condition of the Respondent deteriorates, respondent may be returned to inpatient hospitalization."[2]
About a year later, in August 2002, appellant was rehospitalized at Saint Elizabeths Hospital because of paranoid and delusional behavior. Appellant's refusal to take her medicine had caused her to become unstable and increasingly agitated, irritable, and confused. After the Department of Mental Health filed a timely notice of rehospitalization, the court found probable cause to keep her in the hospital pending the outcome of a full hearing.
Dr. Alican Dalkilic, appellant's treating psychiatrist, was the only witness at that hearing, which was held a few weeks later. He testified that appellant was brought to the hospital by the police after her case manager requested their aid because appellant had stopped taking her medication, started to become manic,[3] refused to let the ACT team[4] enter her home, and failed to attend an appointment with her treating psychiatrist. In addition, appellant became paranoid, stating that Dr. Hornett (one of her treating physicians), her case manager, and her guardian were "doing things behind her [back], trying to get into her bank accounts." She also asserted that "the nurses and doctors [were] trying to destroy her mind and poison her."
After appellant came to Dr. Dalkilic's ward, her paranoia and delusions "improved somewhat," but not enough to justify releasing her back into the community. The doctor stated that appellant's recent "marginal improvement" was directly connected to the resumption and adjustment of her medication following her readmission to the hospital in August 2002. According to Dr. Dalkilic, appellant's delusions become "very intense," causing changes in her behavior, when she stops taking her medication. In the past, appellant has demonstrated that she becomes "optimally stabilize[d]" only when she takes her medications. On at least five such occasions she was released into the community, but she soon stopped taking her medications and had to be returned to the hospital.
Dr. Dalkilic described a "multi-disciplinary team" made up of a social worker, one or more nurses, a psychiatrist, and treating residents who collectively determine whether a patient is fit to become an outpatient again by considering her general psychiatric history, her ability to function in the community, her ability to care for herself with the proper food, clothing, and shelter, and her ability to adhere to any ongoing treatment regimen. In appellant's case, the doctor said, there was no direct evidence that she would harm anybody *258 or put herself in danger. Appellant does not have a history of violence associated with her mental condition and probably would not be dangerous to others if released from the hospital in almost any condition. However, the doctor was unwilling to recommend her immediate release from the hospital because she acts on her delusions and thus "might very well put herself inadvertent[ly at] risk" of sustaining an injury "due to impaired judgment and psychotic behavior." Until she shows insight into her illness and recognizes that she must take her medication to prevent the delusions, Dr. Dalkilic opined, appellant should not be released.
At the time of the hearing, appellant was still suffering from delusions that impaired her judgment.[5] Dr. Dalkilic opined that she could put herself in danger by acting on those delusions. For example, the doctor cited a recent episode in which appellant left her apartment in the middle of the night without telling anyone where she was going. At other times, she randomly visited her neighbors' apartments because she thought they were spying on her. In addition, each time appellant has been released in the past,[6] she has stopped taking her medications at some point thereafter, thus making it necessary to hospitalize her again. Her failure to take her medications, the doctor said, led directly to increased delusions and hence an increased risk of hurting herself. Dr. Dalkilic urged the court to make sure that appellant would be stable and show insight into her disease before releasing her, so that she would have the optimal chance of remaining in outpatient status. Consequently, Dr. Dalkilic concluded that the least restrictive alternative for appellant would be inpatient hospitalizationat least for "another four to six weeks, until we optimally stabilize her."
The court stated that Mental Health Rule 16 required appellant's outpatient commitment to be permanently revoked to keep her in the hospital until she was optimally stable. "To accomplish the things that need to be accomplished for her to be safe at this time," the court said, revocation of her outpatient status was necessary because "she's not stable enough at this time to be released to outpatient treatment." The court concluded that revocation was "the least restrictive alternative" for appellant and urged her to "work with the doctors" so that she could go "back home soon." Finally, the court emphasized that no alternative other than revocation had been offered or proposed by either party. In the written order which followed, the court declared that appellant "continues to suffer from a mental illness," exhibiting "multiple symptoms," and that she "is currently in need of inpatient psychiatric hospitalization for an indefinite period, which is the least restrictive treatment alternative treatment for [her]."
II
Appellant argues that the evidence was insufficient to meet the "clear and convincing evidence" standard of D.C.Code § 21-548(a) (2005 Supp.), which must be met before a civilly committed outpatient *259 "may be transferred to a more restrictive treatment setting, including inpatient hospitalization."
Our standard of review is well settled. We must view the evidence "in the light most favorable to the government and give full weight to the factfinder's ability to weigh the evidence, determine the credibility of witnesses, and draw justifiable inferences." Rose v. United States, 535 A.2d 849, 850 (D.C.1987). When a case is heard by a judge sitting without a jury, as this one was, the judgment will not be overturned "unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (2001); see, e.g., Mihas v. United States, 618 A.2d 197, 200 (D.C.1992).
Cases such as this are governed by D.C.Code § 21-548, which provides in part:
(a) A person who has been committed under section 21-545 or section 21-545.01 and is receiving outpatient treatment may be transferred to a more restrictive treatment setting, including inpatient hospitalization . . . pursuant to a court order, after a hearing, upon the court finding, based upon clear and convincing evidence, that:
(1) The person who is committed has failed to comply with a material condition of his outpatient treatment and a more restrictive treatment alternative is required to prevent the person from injuring himself or others; or
(2) There has been a significant change in the mental illness of the person who is committed and a more restrictive treatment alternative is required to prevent the person from injuring himself or others.
Relying on this section,[7] appellant asserts that the trial court's conclusion that her outpatient status should be revoked was not supported by clear and convincing evidence We disagree.
Dr. Dalkilic testified that appellant had ceased taking her medication and seeing her psychiatrist. Either of these omissions, by itself, would be a violation of a material condition of her Outpatient Commitment Order (which is in the record); two such violations made the government's case doubly strong. The doctor's testimony was not rebutted; indeed, appellant presented no testimony at all. In addition, because appellant stopped taking her medication, her mental condition significantly worsened, which according to the doctor placed her at risk of injury to herself. This testimony likewise was not challenged or rebutted. Thus, under either subsection (1) or subsection (2) of section 21-548(a), appellant could lawfully be transferred to a more restrictive treatment setting if such treatment (1) was necessary to prevent appellant from injuring herself and (2) was the least restrictive treatment alternative that would prevent such injury. See In re James, 507 A.2d 155, 158 (D.C. 1986).
A trial court's revocation of outpatient commitment status resulting in inpatient hospitalization must be based on clear and convincing evidence that the patient would be "likely to injure herself . . . as a result of mental illness" if she were permitted to remain at liberty. In re Gahan, 531 A.2d 661, 664 (D.C.1987) (citations omitted). This court has "deliberately declined to overdefine the term `injure.' `The term . . . is sufficiently vague and the panoply of aberrant conduct requiring civil *260 commitment sufficiently unforeseeable that our only guidance for judges is to require them to [apply the term] on a case by case basis, in the common law tradition.'" Id. (citing In re Mendoza, 433 A.2d 1069, 1072 (D.C.1981)). Though the term "injury" may suggest some element of danger, that danger need not be physical in nature, nor need it involve violence. Gahan, 531 A.2d at 664. "All that is required is that the subject be found likely, by reason of mental illness, to `inadvertently place [her]self in a position of danger or . . . to suffer harm.'" Id. at 664-665 (citation omitted). Furthermore, "[t]he appropriate inquiry. . . is whether the subject is likely to injure herself in the future. This prediction does not depend on the individual having succeeded in causing injury to herself in the recent past." Id. at 666 (citation omitted).
In the instant case, the trial court applied the appropriate legal standard and found that the likelihood of self-injury was sufficient to justify involuntary hospitalization. There is sufficient evidence in the record to support this finding. Dr. Dalkilic, appellant's treating psychiatrist, testified that appellant was removed from the community and rehospitalized because she ceased taking her medication, which caused a significant alteration in her mental health: she had become delusional, paranoid, manic, agitated, irritable, and confused. Most alarming to Dr. Dalkilic was the fact that appellant was inadvertently exposing herself to a significant risk of injury when she acted on her delusions.[8] The delusions had caused appellant to leave her apartment in the middle of the night without informing anyone of her whereabouts, and to go about knocking on her neighbors' doors because she was under the impression that they were spying on her and plotting against her. In addition, because appellant was refusing to take her medication at the time she was rehospitalized, her mental condition would have worsened considerably, resulting in even more frequent and intense delusions had she not been returned to the hospital.
Appellant argues that knocking on neighbors' doors and leaving her apartment late at night are insufficient to justify the revocation of her outpatient status. Describing Dr. Dalkilic's view of the risks associated with acting on delusions as "speculative," appellant asserts that nothing she did before she was rehospitalized was any more dangerous than "any lawyer driving a car while thinking about a case, or crossing the street while engaged with a colleague and not paying attention to traffic." On a different record, such an argument might be somewhat persuasive. In this case, however, appellant presented no evidence to rebut Dr. Dalkilic's opinion that there was a risk of injury associated with acting on delusions. Furthermore, this court has made clear that the "risk of injury" requirement is easy to meet, and that the injury need not "be physical nor involve violence." See Gahan, 531 A.2d at 664. Dr. Dalkilic's opinion that outpatient status would result in increased frequency and severity of appellant's delusions (because she would cease taking her medication), when viewed in light of Gahan, was sufficient to enable the court to find a risk of injury that would justify revocation of her outpatient commitment.
Our decision in In re Stokes, 546 A.2d 356 (D.C.1988), does not require us to hold otherwise. In Stokes, as in this case, the trial court revoked an outpatient commitment, concluding that the patient's "condition remained unstable and [that] inpatient hospitalization was necessary." Id. at 359. *261 A majority of this court reversed, but only on the ground that the trial court had "failed to make a finding that inpatient commitment was the least restrictive alternative treatment to Ms. Stokes." Id. at 364 (Rogers, J., concurring).[9] The present case is distinguishable because the trial judge here made an express finding that revocation was "the least restrictive alternative" which would "accomplish the things that need to be accomplished for [appellant] to be safe at this time." Both the principal opinion and the dissent in Stokes also discuss other issues at some length, but the actual holding of the court is a narrow one, as the concurring opinion makes clear.
At the hearing below, appellant's counsel raised the point that appellant was currently taking her medication, arguing that this fact should result in her immediate return to outpatient status. Dr. Dalkilic explained, however, that until appellant gained insight into her disease, which she only does when she is optimally stable, she would simply stop taking her medication the moment she was released from the hospital. The doctor said it was especially unlikely that appellant would continue to take her medication if she were released at that time because she was still delusional; she viewed the doctors and nurses with distrust, believing that they were trying to poison her. She even spoke out of turn at the hearing, stating that the reason for her hospitalization was that a nurse deceived her and had her locked up for shopping at a local supermarket. Additionally, appellant had a history of non-compliance with her treatment regimen, a fact which was certainly relevant to the issue of whether she would continue to take her medicine if released.
Dr. Dalkilic therefore concluded that until appellant was optimally stable, meaning that she would no longer be delusional and would be able to maintain her medicated state, she should not be restored to outpatient status, which would in all likelihood expose her to a risk of injury.[10] The court was certainly entitled to rely on the doctor's opinion in making its ruling. See Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) ("Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists" (emphasis added)). Any suggestion that there would be no risk of injury to appellant if she were immediately released to outpatient status was sufficiently *262 refuted by the doctor's testimony, which went unrebutted at the hearing.
III
The doctor's testimony established (1) that appellant violated a material condition of her outpatient treatment by failing to take her medication; (2) that there was, as a result, a significant change in her mental state; (3) that she was at risk of injuring herself because she tended to act on her delusions, which had increased in severity and frequency since she stopped taking her medication; and (4) that the only way to eliminate this risk of injury would be to treat her as an inpatient until she became optimally stable. We hold that this evidence was sufficient to establish that the least restrictive treatment alternative for appellant was inpatient commitment. The trial court's order is therefore
Affirmed.
NOTES
[*] After oral argument in this case, the title of the District's chief attorney was changed. The Corporation Counsel is now officially known as the Attorney General for the District of Columbia. See Mayor's Order No. 2004-92 (May 26, 2004), 51 D.C. Register 6052.
[**] Judge Terry was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on February 1, 2006.
[1] Rule 16 sets forth detailed procedures regarding outpatient commitment and revocation proceedings.
[2] Appellant's treatment regimen included taking prescribed medications as well as abiding by a treatment schedule established by the Community Health Center, her case manager, and her treating physician or psychologist.
[3] According to Dr. Dalkilic, "manic" meant that "she had . . . rapid pressured speech, racing thoughts, disorganized behavior, and also she was using poor judgment. She lost her insight . . . . [B]asically she was claiming that she didn't have any mental illness, [that] she doesn't need to take any medications. And also she became paranoid, which is documented in the chart."
[4] The Assertive Community Treatment ("ACT") team visits an outpatient's home, provides medication, and supervises the administration of this medication to the outpatient.
[5] During the hearing, appellant interrupted Dr. Dalkilic's testimony several times to claim that she had no mental illness. She tried to make her point by walking out of the courtroom, saying, "Excuse me, Judge, may I be excused? . . . Let me get my purse." She did not actually walk out, but a few minutes later, appellant claimed that she was currently in the hospital because a male nurse did not like her and got her "locked up for shopping at the Safeway."
[6] According to Dr. Dalkilic, appellant had been previously hospitalized at least five times.
[7] Although this Code section in its present form did not take effect until April 2003, several months after appellant's hearing, this same language was in force at the time of the hearing under D.C. Law 14-131, a temporary amendment of section 21-548.
[8] Dr. Dalkilic also testified that appellant's mental illness left her with impaired judgment and psychotic behavior that could expose her to possible injury.
[9] Stokes was decided by a divided court. One judge dissented because he was satisfied that the trial court, at least implicitly, had made the necessary finding. See Stokes, 546 A.2d at 364-366 (Belson, J., dissenting).
[10] Because appellant's delusions were the result of her failure to take her medication, Dr. Dalkilic testified that the only way to avoid the risk of injury to herself would be to allow her to become optimally stable before granting her outpatient status:
Q. [on direct examination] Doctor, at this point, what is the least restrictive treatment alternative available for Ms. Perruso?
A. I think she still needs to be in the hospital maybe for another four to six weeks, until we optimally stabilize her medication and work out a plan. We hope that her insight will improve, so that we have a good chance when she leaves the hospital she would continue taking her medications.
* * * * * *
Q. [on cross-examination] Now, you said that Ms. Perruso, in your opinion, is not ready to return to the community, correct?
A. Yes.
Q. And you indicated that in your opinion she needs another four to six weeks of hospitalization, correct?
A. Yes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4147407/ | Fourth Court of Appeals
San Antonio, Texas
February 17, 2017
No. 04-17-00073-CV
IN THE INTEREST OF L.G., A CHILD,
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA02398
Honorable Peter A. Sakai, Judge Presiding
ORDER
This is an attempted appeal from an order terminating parental rights. On October 20,
2016, an associate judge signed an order terminating appellant’s parental rights. On October 31,
2016, appellant filed a request for a de novo hearing. On January 27, 2017, the referring court
signed a letter stating that the case was submitted for a de novo hearing. In this letter, the
referring court ordered appellant’s parental rights terminated and directed the Texas Department
of Protective and Family Services to draft a final decree. On February 7, 2017, appellant filed a
notice of appeal.
Section 201.015(a) of the Texas Family Code provides that a party may file a request for
a de novo hearing to be conducted by the referring court; however, the written request must be
filed “not later than the third working day after the party receives notice of the substance of the
associate judge’s report as provided by Section 201.011.” TEX. FAM. CODE ANN. § 201.015(a)(1)
(West Supp. 2016). Section 201.011 provides that “notice of the substance of the associate
judge’s report may be given to the parties in open court, by an oral statement or a copy of the
associate judges’ written report, including any proposed order.” Id. § 201.011(c)(1) (West 2014).
However, section 201.2041 provides that “[i]f a request for a de novo hearing before the
referring court is not timely filed . . . the proposed order or judgment of the associate judge
becomes the order or judgment of the referring court without ratification by the referring court.”
Id. § 201.2041.
Here, it appears that the appellant’s request for a de novo hearing was not timely filed.
The termination order shows that it was signed by the associate judge on October 20, 2016.1 The
order was approved by appellant’s trial counsel. Therefore, the record indicates that appellant
received notice of the substance of the associate judge’s report at least by October 20, 2016. See
In the Interest of M.P., No. 04-08-00881-CV, 2009 WL 2413694, at *1 (Tex. App.— 2009, no
1
We note that appellant’s request for a de novo hearing states that the associate judge’s termination order was signed
on October 28, 2016, but the order and the docket sheet state that the order was signed on October 20, 2016.
pet.) (providing that signature of appellant’s attorney on associate judge’s order established that
appellant had notice of the order). However, appellant’s request for a de novo hearing was not
filed until October 31, 2016, which is more than three working days after appellant received
notice of the substance of the associate judge’s report. Therefore, appellant’s request for a de
novo hearing appears to be untimely.
If appellant’s request for a de novo hearing was untimely, the associate judge’s
termination order became the judgment of the referring court and a final, appealable order. See
TEX. FAM. CODE. ANN. § 201.011; M.P, 2009 WL 2413694, at *1. Appellant’s notice of appeal
from the termination order was therefore due to be filed within twenty days after the associate
judge’s order was signed, which would have been November 9, 2016. See TEX. R. APP. P.
26.1(b). Appellant’s notice of appeal was not filed until February 7, 2017.
Absent a timely notice of appeal, this court is without jurisdiction to consider this appeal.
See In the Interest of A.P., No. 11-14-00278-CV, 2014 WL 6755631, at *1 (Tex. App.—
Eastland 2014, no pet.) (dismissing parental termination appeal for lack of jurisdiction when
notice of appeal was untimely).
We, therefore, ORDER appellant to show cause in writing by March 3, 2017 why this
appeal should not be dismissed for lack of jurisdiction.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 17th day of February, 2017.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5902183/ | Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 3, 2012, which ruled that claimant was entitled to receive unemployment insurance benefits.
Claimant was discharged from his employment as a property manager for allegedly using his work computer to “surf the Web,” in contravention of his employer’s written prohibition against the personal use of the Internet during work hours. The Unemployment Insurance Appeal Board thereafter determined that claimant’s actions had not risen to the level of disqualifying misconduct because the Internet use was unintentional, and awarded him unemployment insurance benefits. The employer now appeals.
We affirm. Claimant testified that he had never intentionally engaged in personal Internet use on his work computer. Rather, he stated that much of the usage was actually for work purposes, and that the remainder resulted from pop-ups beyond his control or the use of his computer by others. Claimant further admitted to using his smartphone for personal Internet access when away from the office, but stated that he was unaware that such was prohibited. The Board was free to credit this testimony, which provided substantial evidence for its determination that claimant had not committed disqualifying misconduct (see Matter of McKoy [LB&B Assoc., Inc.—Commissioner of Labor], 27 AD3d 922, 923 [2006]; Matter of Pitts [Reeb Millwork Corp. of N.Y.—Commissioner of Labor], 309 AD2d 1121, 1121 [2003]).
Peters, PJ., Mercure, Lahtinen, Stein and Garry, JJ., concur. Ordered that the decision is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902184/ | Per stipulation of the parties herein dated January 11, 1988, the appeal from the judgment of the Supreme Court, New York County (Dennis Edwards, Jr., J., at sentence; Harold Rothwax, J., at suppression hearing), rendered on August 6, 1985 is unanimously withdrawn, with prejudice. No opinion. Concur—Carro, J. P., Asch, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902188/ | Order of the Supreme Court, New York County (Edith Miller, J.), entered June 19, 1986 which, inter alia, denied the cross motion of plaintiff Judith M. Gilsten to vacate a prior order of the Supreme Court, New York County (Walter M. Schackman, J.), entered on or about January 13, 1986, which order, upon plaintiffs default, granted the motion of defendant Irwin R. Gilsten for a protective order vacating plaintiffs demand for a net worth statement and interrogatories, unanimously modified on the law, the facts, and in the exercise of discretion, plaintiffs cross motion to vacate the default is granted, so much of the prior order which granted defendant a protective order against the demand for a net worth statement is vacated, and that portion of the prior order which granted a protective order against the interrogatories is modified so as to provide that plaintiff may serve further interrogatories in proper form, and except as so modified, the appealed order is affirmed, without costs.
The parties were married in 1961. Plaintiff wife commenced the within action in June 1985 seeking a divorce on the *412ground of cruel and inhuman treatment and equitable distribution of the marital assets. The parties had, however, entered into a separation agreement in December 1983 purporting to settle their financial rights. The agreement, whose terms were to survive any subsequent judgment of divorce, provided in relevant part that the wife who then earned $12,000 a year as a travel agent would waive all maintenance but would receive $100 a week for the support of the younger of the parties’ two sons. The only marital property of substantial value mentioned in the agreement was the marital residence at 2621 Palisades Avenue in The Bronx owned by the parties as tenants by the entirety. Upon the sale of this property, the husband was to receive $25,000 and the wife the remainder, with the wife paying for the maintenance of the premises until the closing and for the costs of the sale.
In her complaint the wife alleges that the above-described agreement should be set aside. She claims that her husband did not make a full and fair disclosure of his actual financial worth at the time of the agreement’s execution, and, indeed, that he fraudulently deprived her of her interest in certain valuable real property which should have been distributed pursuant to the agreement. Specifically, it is alleged that on September 20, 1982, prior to the execution of the separation agreement, defendant husband placed before the plaintiff a document for her signature representing that it was an inconsequential business paper. Plaintiff claims that, unaware of the document’s true significance, she signed it in accordance with her husband’s wishes. In reality, the document was a deed conveying to one Helen Messinger, the wife of defendant’s then attorney, Monroe Messinger, real property owned by the parties situated at 24 Bungalow Walk, Ocean Beach, New York. It is further alleged that after the execution of the separation agreement in November 1984, Mrs. Messinger deeded the Ocean Beach property back to the defendant alone, apparently for nominal consideration. Thus, plaintiff urges that the defendant conspired to defraud her of her interest in the Ocean Beach property, and that at the time of the separation agreement defendant retained an equitable interest in the property which he failed to disclose. In addition to these' allegations respecting the Ocean Beach property, plaintiff makes less specific claims concerning defendant’s concealment of his equitable interest in real estate situated at 177 Riving-ton Street in Manhattan.
To substantiate these allegations and thereby have the separation agreement set aside and the marital property *413equitably distributed pursuant to statute, plaintiff has sought through pretrial discovery to obtain information respecting defendant’s finances; she has demanded from defendant a net worth statement covering a six-year period commencing November 1979 and has served defendant with a 31-page set of interrogatories making extensive inquiry into his financial circumstances.
Prior to the advent of the Equitable Distribution Law in 1980, the rule was that parties to a separation agreement were barred from obtaining financial disclosure in matrimonial proceedings so long as the support terms of their separation agreement remained in force (Shiffman v Shiffman, 57 AD2d 519, 520). The stringency of this rule was, however, moderated in Oberstein v Oberstein (93 AD2d 374). There we recognized that the newly enacted equitable distribution statute considerably enlarged the grounds upon which judicial scrutiny of separation agreements was warranted. Whereas previously, judicial review of such agreements was appropriate only in that narrow category of cases where there were specific allegations of fraud, undue influence, duress or overreaching, the new law required in addition, court examination of challenged separation agreements to assure that they were fair and reasonable when made and not unconscionable at the time of the entry of final judgment (Domestic Relations Law § 236 [B] [3]; Oberstein v Oberstein, supra, at 377-378). Recognizing that a court’s inquiry into the fairness or reasonableness of a separation agreement would not infrequently entail consideration of the relative financial circumstances of the parties, we held in Oberstein that the former rule categorically barring financial disclosure where there was a subsisting separation agreement purporting to settle financial issues should yield to a more flexible rule permitting such disclosure where there "is a real and legitimate presentation to vacate the support terms of the agreement on the basis of the criteria explicitly set forth in the statute.” (Oberstein v Oberstein, supra, at 380.)
The single substantive issue here to be addressed is whether the plaintiff has made the sort of showing required under Oberstein (supra) and is, therefore, entitled to the financial disclosure she seeks. We think that she has.
Unlike the allegations of the Oberstein plaintiff which were general and conclusory and which were found not to constitute a sufficient predicate for disclosure (Oberstein v Oberstein, supra, at 381), those made by the present plaintiff are notable for their specificity, particularly as they detail the conveyance *414and concealment of the Ocean Beach property. It is moreover the case that these allegations are in significant part admitted in the record before us; defendant acknowledges that the above-described transfers of the Ocean Beach property occurred. Certainly, these allegations must raise serious questions as to the fairness of the parties’ agreement at the time of its making. The transfers and the circumstances under which they are said to have taken place bespeak fraud, both independent and in connection with the separation agreement. Had plaintiff been apprised of defendant’s apparently retained equitable interest in the Ocean Beach real estate, it must be supposed that she would have insisted that the property be accounted for in the agreement and that she would not have as readily waived all maintenance when she had only a modest income of her own. Clearly, plaintiff has made a sufficient initial presentation to place in issue the fairness of the agreement and its provisions for maintenance, support and the division of the marital property. She should then be afforded discovery into defendant’s finances to the extent permitted by the statute. (See, Domestic Relations Law § 236 [B] [3], [4]; see also, Oberstein v Oberstein, supra, at 379-380.)
Plaintiff has not yet obtained financial disclosure from defendant because defendant has sought and has been granted a protective order against plaintiff’s demand for a net worth statement and interrogatories. The protective order was granted on default and plaintiff’s subsequent motion to vacate the default was denied in the order here appealed. In view of the fact that plaintiff’s disclosure demand possesses clear merit and that, in our estimation, a sufficient explanation was offered by plaintiff’s counsel to excuse the default, we think that plaintiff’s motion to vacate the default should have been granted and that the original motion should have been decided on the merits. Accordingly, defendant’s motion for a protective order against the demand for a net worth statement should have been denied for the above-discussed reasons. That part of defendant’s motion seeking a protective order against the extensive interrogatories propounded by the plaintiff was, however, properly granted. In their present form, the interrogatories are unduly burdensome and prolix and are appropriately vacated in their entirety (see, Metzger v Brockman, 92 AD2d 499) but without prejudice to plaintiff’s service of further interrogatories in proper form. Concur—Murphy, P. J., Carro, Rosenberger, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129319/ | — • Order reversed, with costs, new commissioner to be appointed by Special Term. Opinion by
Boardman, J.;
Bocees, J., taking no part. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129320/ | Judgment affirmed, with costs. Opinion by
Bocees, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902218/ | Supreme Court, New York County (Kristin Booth Glen, J.), entered February 23, 1987, which denied the motion of defendant Jewelers Protection Service, Ltd. (Jewelers) and the cross motion of plaintiff Nuri Farhardi, Inc. for summary judgment, and granted the cross motion of defendant Albany Insurance Company for summary judgment, is unanimously reversed to the extent appealed from, on the law and on the facts, motion of Jewelers is granted, and the complaint is dismissed against Jewelers, without costs.
Nuri Farhardi, Inc. (Farhardi) operates a store at 920 Third *430Avenue, New York County, where it sells valuable antiques, jade and ivory figures to interior designers, dealers, and private persons. On June 15, 1984, at approximately 12:00 noon, Farhardi was the victim of an armed robbery, and the estimated loss was $350,000 in merchandise.
At the time of the robbery, an insurance policy was in effect between Farhardi and the Albany Insurance Company (Albany). In substance, Albany insured the goods in the store, in the amount of $400,000, against all risks of loss, damage, disaster or casualty. However, as to burglary and theft loss, Albany’s liability was limited to $25,000, by the terms of the policy, unless the subject premises were "protected by a Class 3A Certified Central Station Alarm”.
Thereafter, in order to obtain full insurance coverage, Farhardi satisfied the Albany condition, mentioned supra, by contracting with Jewelers Protection Service, Ltd. (Jewelers) to protect the premises by installing "a Class 3A Certified Central Station Alarm”.
Paragraph 5 of the contract between Jewelers and Farhardi contains an exculpatory and limitation of liability clause in favor of Jewelers, which provides, in substance, that Jewelers is not an insurer, since it does not insure Farhardi from loss or guarantee that a loss will not occur; is not liable, even if Jewelers negligently performs or fails to perform any obligation under the agreement; and, in any event, its liability, if any, is limited to six times the monthly service charge of $141 (note: $141 times 6 equals $846), or $250, whichever is greater.
Following the robbery, Albany sent an adjuster to Farhardi’s premises, and he allegedly found that the alarm installed by Jewelers did not qualify as "a Class 3A Certified Central Station Alarm”, which as mentioned supra, was required, by the Farhardi and Albany contract, for full coverage of $400,000. Therefore, Albany disclaimed liability for any amount in excess of $25,000.
Subsequently, in August 1985, plaintiff Farhardi (plaintiff) commenced an action against defendants Albany and Jewelers to recover the amount of its loss.
After issue was joined, all parties moved for summary judgment. While the IAS court denied the motion of defendant Jewelers and the cross motion of plaintiff for summary judgment, it granted the cross motion of defendant Albany for summary judgment, upon the basis that the action against Albany was time barred. Defendant Jewelers appeals from that part of the IAS order which denied its motion.
*431It is undisputed that the exculpatory clause herein was negotiated by the parties in a commercial setting, and we find the language of the clause to be "clear, unequivocal and [expressed in] unmistakable language” (Dubovsky & Sons v Honeywell, Inc., 89 AD2d 993, 994-995 [1982]). Furthermore, exculpatory clauses in alarm contracts are not prohibited by statute, and, in this case, there is "no special relationship between the parties that would warrant relieving plaintiff * * * of their contract” (Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795 [1980]).
Exculpatory clauses of the type contained in the subject alarm contract have been repeatedly enforced by the courts of this State, and claims for breach of these contracts have been dismissed, where the plaintiff has sought to recover damages for losses sustained, as a result of crimes such as burglaries (Sue & Sam Mfg. Co. v United Protective Alarm Sys., 119 AD2d 664 [1986]). However, "[t]o the extent that [exculpatory] agreements purport to grant exemption for liability for willful or grossly negligent acts they have been viewed as wholly void” (Gross v Sweet, 49 NY2d 102, 106 [1979]).
Our examination of the record, including the plaintiffs complaint, indicates to us "that the plaintiff, in opposing [Jewelers’] motion * * * has totally failed to present any evidence in admissible form which raises an issue of fact as to whether the defendant’s conduct constituted gross negligence * * * The plaintiff cannot rely on conclusory assertions of gross negligence, contained in the pleadings, to defeat a motion for summary judgment (see, Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338)” (Sue & Sam Mfg. Co. v United Protective Alarm Sys., supra, at 664-665).
In view of our analysis supra, we find that the IAS court erred in denying Jewelers’ motion.
Accordingly, we reverse, grant Jewelers’ motion for summary judgment, and dismiss the complaint against Jewelers. Concur—Ross, J. P., Asch, Milonas and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902191/ | Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 11, 2012 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging an August 2010 determination of the Board of Parole denying his request for parole release. Supreme Court dismissed the petition and this appeal ensued. The Attorney General has advised this Court that petitioner reappeared before the Board in August 2012 at which time his request for parole release was again denied. In view of this, the appeal must be dismissed as moot (see Matter of Rodriguez v Evans, 98 AD3d 1214 [2012]; Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010 [2012]). Contrary to petitioner’s claim, we do not find the exception to the mootness doctrine applicable here (see Matter of Marcelin v Evans, 86 AD3d 880, 881 [2011]; Matter of Borcsok v New York State Bd. of Parole, 76 AD3d 1167 [2010], lv dismissed 17 NY3d 773 [2011]).
Rose, J.P., Lahtinen, Spain, Garry and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902192/ | Resettled order of the Supreme Court, New York County (Bruce McM. Wright, J.), entered February *41619, 1987, which, inter alia, granted defendant Mobil Oil Corp.’s and defendant Sea Travelers Boat Sales’s cross motions for a final order of preclusion, is unanimously modified, on the law and facts and in the exercise of discretion, to the extent of granting defendants’ cross motions for preclusion unless within 30 days from the date of entry of the order herein plaintiffs’ attorney pays to defendants the sum of $250, in which event the said cross motions are denied, and the order otherwise affirmed, without costs or disbursements.
We find that plaintiffs’ failure to provide additional particulars to defendants respecting liability was not willful. Since plaintiffs did comply, albeit not in a timely fashion, with the prior order of the Supreme Court, in serving a bill of particulars dated May 16, 1986, we feel that the sanction of preclusion imposed by the IAS court was too severe, and modify accordingly. Concur—Kupferman, J. P., Sullivan, Ross, Asch and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902193/ | Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 11, 2012 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging an August 2010 determination of the Board of Parole denying his request for parole release. Supreme Court dismissed the petition and this appeal ensued. The Attorney General has advised this Court that petitioner reappeared before the Board in August 2012 at which time his request for parole release was again denied. In view of this, the appeal must be dismissed as moot (see Matter of Rodriguez v Evans, 98 AD3d 1214 [2012]; Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010 [2012]). Contrary to petitioner’s claim, we do not find the exception to the mootness doctrine applicable here (see Matter of Marcelin v Evans, 86 AD3d 880, 881 [2011]; Matter of Borcsok v New York State Bd. of Parole, 76 AD3d 1167 [2010], lv dismissed 17 NY3d 773 [2011]).
Rose, J.P., Lahtinen, Spain, Garry and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534603/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CITY OF DETROIT, UNPUBLISHED
May 14, 2020
Plaintiff/Counterdefendant-Appellant,
v No. 346798
Wayne Circuit Court
ROBERT JAMES GOLF MANAGEMENT, LLC, LC No. 18-004487-CK
doing business as VARGO GOLF DETROIT, also
known as VARGO GOLF COMPANY, LLC, also
known as VARGO GOLF GROUP, LLC, and also
known as VARGO GOLF HAMPTON,
Defendants/Counterplaintiffs-
Appellees.
Before: MURRAY, C.J., and RONAYNE KRAUSE and TUKEL, JJ.
PER CURIAM.
Plaintiff/counterdefendant, City of Detroit (hereinafter, “the City”), appeals as of right the
trial court’s order denying its motion for summary disposition, as counter-defendant, against
defendants/counterplaintiff Robert James Golf Management, LLC, doing business as Vargo Golf
Detroit, also known as Vargo Golf Company, LLC, Vargo Golf Group, LLC, and Vargo Golf
Hampton1 (together “the Golf companies”). The City, as counter-defendant, had opposed
summary disposition against it on the ground that it was protected from the Golf companies’ suit
by the doctrine of governmental immunity. The City argues on appeal, as it did below, that the
trial court erred by finding that governmental immunity was inapplicable; the trial court ruled that
the City was engaged in a proprietary function through the operation of public golf courses and,
therefore, that the City was not entitled to governmental immunity for its allegedly tortious
conduct. To the extent this Court has jurisdiction over the City’s appeal, we agree that the trial
court erred by denying the City’s motion for summary disposition as to the Golf companies’
tortious interference, misrepresentation, silent fraud, and business defamation claims. But we
1
To ensure clarity, we note that Vargo Golf Detroit is also known as each of Vargo Golf Company,
LLC, Vargo Golf Group, LLC, and Vargo Golf Hampton.
-1-
disagree with the City’s argument that the trial court erred by denying its motion for summary
disposition as to the Golf companies’ unjust enrichment and conversion claims. And we dismiss
the City’s arguments brought under MCR 2.116(C)(8) because we do not have jurisdiction over
an interlocutory appeal from an order issued under that rule. This appeal is being decided without
oral argument pursuant to MCR 7.214(E)(1).
I. UNDERLYING FACTS
In 2010, the City awarded the management and maintenance contracts for Chandler Park
Golf Course, Palmer Park Golf Course, Rouge Park Golf Course, and Rackham Golf Course
(together, “the golf courses”) to the Golf companies. Before 2010, the City contracted with
American Golf Corporation for management of the golf courses. After the 2010 management
contract was awarded to the Golf companies, the Golf companies and American Golf Corporation
entered into a purchase agreement under which the Golf companies purchased, for $125,000, items
from American Golf Corporation related to managing and running the golf courses. Between 2010
and 2017 no issues related to the golf courses arose between the City and the Golf companies. In
2017, the City and the Golf companies entered into a management contract for the Golf companies
to manage the golf courses from March 21, 2017 to March 21, 2018.
In relevant part, the 2017 contract required the Golf companies to manage and operate the
golf courses at their own expense. The City would be responsible for all “repairs of $5,000.00 or
more to buildings, parking lots and water mains,” but the Golf companies were responsible for all
other repairs. Finally, the 2017 contract required the Golf companies to pay the City based on the
“Gross Receipts” the golf courses generated in 2017.
Before the 2017 contract expired, on February 6, 2018, the City changed the locks at Rouge
Park and Chandler Park. The City claimed that this was done in error and on February 9, 2018,
provided the Golf companies with keys to access Rouge Park and Chandler Park. In March 2018,
the City awarded a contract for the future management of the golf courses to Signet Golf
Associates.2
The 2017 contract expired on March 22, 2018, and at that time the Golf companies no
longer had a contract with the City to manage the golf courses. At an unspecified time before
April 6, 2018, the Golf companies removed numerous items from the golf courses including ball
washers, tee signs, irrigation computers, picnic tables, benches, and refrigerators. According to
the City, the Golf companies also sold season passes for the 2018 golf season but did not give the
City any revenue from those sales. On April 6, 2018, the City sent a demand letter to the Golf
companies demanding the return of “all equipment, supplies, signage,” and other items removed
2
On October 1, 2018, after the 2017 contract had expired, a “request to close investigation
memorandum” from the City of Detroit Office of Inspector General found that there had been a
conflict of interest in the bidding process for management of the golf courses. Specifically, the
City of Detroit found that there was a connection between Sirius Golf Advisors, a subsidiary of
Signet Golf Associates, and one of the participants in a 2017 National Golf Foundation Consulting,
Inc. feasibility study of the golf courses.
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from the golf courses as well as an accounting for all 2018 season passes sold, and compensation
for those passes.
The Golf companies responded to the City’s demand letter on April 20, 2018. In their
response letter, the Golf companies claimed that the only property they removed from the golf
courses belonged to them. The Golf companies additionally claimed that the City was still in
possession of many items belonging to the Golf companies including picnic tables, tee signs, safes,
office chairs, and desks. The Golf companies demanded the return of their property and stated that
the 2018 season passes they sold would not be effective at the golf courses because the Golf
companies no longer managed the golf courses.
The City then filed a complaint and the Golf companies filed a countercomplaint. Only
the Golf companies’ countercomplaint is at issue on appeal. The Golf companies alleged that,
because the City retained custody of property owned by the Golf companies, the City was unjustly
enriched by its actions and that the City’s actions additionally constituted statutory and common
law conversion, tortious interference with a contract, misrepresentation and silent fraud, and
business defamation.
In response, the City moved for summary disposition under MCR 2.116(C)(7), (8), and
(10), arguing that the Golf companies’ claims were barred by governmental immunity and that the
Golf companies failed to plead in avoidance of governmental immunity. In response, the Golf
companies argued that the City was not entitled to governmental immunity because it was engaged
in a proprietary function through its ownership of the golf courses. The trial court denied the City’s
motion for summary disposition. This appeal followed.
II. ANALYSIS
This Court does not have jurisdiction over the order denying the City’s motion for summary
disposition under MCR 2.116(C)(8) because it was not a final order. This Court does, however,
have jurisdiction over the order denying the City’s motion for summary disposition under MCR
2.116(C)(7) and (10), pursuant to MCR 7.202(6)(a)(v). Because there are disputes of material fact
as to the Golf companies’ conversion and unjust enrichment claims, the trial court did not err in
denying the City’s motion for summary disposition under MCR 2.116(C)(7) and (10) as to those
claims. Finally, the trial court erred by denying summary disposition as to the Golf companies’
remaining claims because the Golf companies failed to plead in avoidance of governmental
immunity.
A. STANDARD OF REVIEW
A trial court’s summary disposition ruling is reviewed de novo. Walters v Nadell, 481
Mich. 377, 381; 751 NW2d 431 (2008).
A party may support a motion under MCR 2.116(C)(7) by affidavits,
depositions, admissions, or other documentary evidence. If such material is
submitted, it must be considered. MCR 2.116(G)(5). Moreover, the substance or
content of the supporting proofs must be admissible in evidence . . . . Unlike a
motion under subsection (C)(10), a movant under MCR 2.116(C)(7) is not required
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to file supportive material, and the opposing party need not reply with supportive
material. The contents of the complaint are accepted as true unless contradicted by
documentation submitted by the movant. [Maiden v Rozwood, 461 Mich. 109, 119;
597 NW2d 817 (1999) (quotation marks and citations omitted).]
Furthermore,
[w]e must consider the documentary evidence in a light most favorable to the
nonmoving party for purposes of MCR 2.116(C)(7). If there is no factual dispute,
whether a plaintiff’s claim is barred under a principle set forth in MCR 2.116(C)(7)
is a question of law for the court to decide. But when a relevant factual dispute does
exist, summary disposition is not appropriate. [Moraccini v City of Sterling Hts,
296 Mich. App. 387, 391; 822 NW2d 799 (2012) (citations and quotation marks
omitted).]
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich. 200, 205-206; 815 NW2d 412 (2012).
This Court reviews a motion brought under MCR 2.116(C)(10) “by considering the pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party.” Patrick v Turkelson, 322 Mich. App. 595, 605; 913 NW2d 369 (2018).
Summary disposition “is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Id. “There is a genuine issue of
material fact when reasonable minds could differ on an issue after viewing the record in the light
most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425;
751 NW2d 8 (2008). “Only the substantively admissible evidence actually proffered may be
considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich. App. 522, 525; 773 NW2d 57
(2009) (quotation marks and citation omitted). “Circumstantial evidence can be sufficient to
establish a genuine issue of material fact, but mere conjecture or speculation is insufficient.”
McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich. App. 1, 16; 891 NW2d 528 (2016).
The moving party has the initial burden to support its claim with documentary evidence
but, once the moving party has met this burden, the burden then shifts to the nonmoving party to
establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich. App. 255, 261;
704 NW2d 712 (2005). Additionally, if the moving party asserts that the nonmovant lacks
evidence to support an essential element of one of his or her claims, the burden shifts to the
nonmovant to present such evidence. Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 7; 890 NW2d
344 (2016).
Finally, “[i]ssues of statutory interpretation are reviewed de novo.” City of Riverview v
Sibley Limestone, 270 Mich. App. 627, 630; 716 NW2d 615 (2006). “Statutory provisions must be
read in the context of the entire act, giving every word its plain and ordinary meaning. When the
language is clear and unambiguous, we will apply the statute as written and judicial construction
is not permitted.” Driver v Naini, 490 Mich. 239, 246-247; 802 NW2d 311 (2011). Similarly,
“questions involving the proper interpretation of a contract or the legal effect of a contractual
clause are also reviewed de novo.” Rory v Continental Ins Co, 473 Mich. 457, 464; 703 NW2d 23
(2005).
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B. JURISDICTIONAL ISSUES
The City claims that this Court has jurisdiction over this appeal because the trial court’s
denial of its motion for summary disposition was a final order. The trial court’s order, however,
explicitly stated that it was not a final order and that it did not close this case. Consequently,
despite the Golf companies’ failure to file a brief on appeal in this case, this Court must determine
whether it has jurisdiction over the City’s appeal. See Walsh v Taylor, 263 Mich. App. 618, 622;
689 NW2d 506 (2004) (“The question of jurisdiction is always within the scope of this Court’s
review[.]”). This Court’s jurisdiction is based entirely in statute and is limited to final orders and
judgments. MCL 600.308; Walsh, 263 Mich. App. at 622.
MCR 7.203(A) establishes the jurisdiction of this Court and addresses appeals as of right:
(A) Appeal of Right. The court has jurisdiction of an appeal of right filed by an
aggrieved party from the following:
(1) A final judgment or final order of the circuit court, or court of claims, as
defined in MCR 7.202(6), except a judgment or order of the circuit court
(a) on appeal from any other court or tribunal;
(b) in a criminal case in which the conviction is based on a plea of
guilty or nolo contendere;
An appeal from an order described in MCR 7.202(6)(a)(iii)-(v) is limited to the
portion of the order with respect to which there is an appeal of right.
MCR 7.202(6)(a)(v), in turn, defines what establishes a “final order” in a case involving
governmental immunity:
(6) “final judgment” or “final order” means:
(a) In a civil case,
* * *
(v) an order denying governmental immunity to a governmental
party, including a governmental agency, official, or employee under
MCR 2.116(C)(7) or an order denying a motion for summary
disposition under MCR 2.116(C)(10) based on a claim of
governmental immunity[.]
“Court rules are interpreted using the same principles that govern statutory interpretation.
The Court gives the language of court rules their ‘plain and ordinary meaning.’ ” Lamkin v
Engram, 295 Mich. App. 701, 709; 815 NW2d 793 (2012) (citation omitted). The City moved for
summary disposition under MCR 2.116(C)(7), (8), and (10). Under MCR 7.203(A), “An appeal
from an order described in MCR 7.202(6)(a)(iii)-(v) is limited to the portion of the order with
respect to which there is an appeal of right.” (Emphasis added). MCR 7.202(6)(a)(v) in turn only
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grants this Court jurisdiction over an order denying a motion for summary disposition brought
under MCR 2.116(C)(7) or (10) on governmental immunity grounds, because such orders are final
orders. MCR 7.202(6)(a)(v) does not, however, establish that denial of a motion for summary
disposition brought under MCR 2.116(C)(8) based on a claim of governmental immunity is a final
order. Thus, this Court has jurisdiction over the City’s MCR 2.116(C)(7) and (10) claims, but it
does not have jurisdiction over the City’s appeal of the order denying its motion under MCR
2.116(C)(8). See MCR 7.202(A); MCR 7.203(6). Consequently, we dismiss the portion of the
City’s appeal relating to the denial of its motion for summary disposition under MCR 2.116(C)(8).
C. DISPUTE OF MATERIAL FACT
The trial court properly denied the City’s motion for summary disposition as to the Golf
companies’ statutory conversion and unjust enrichment claims because there are disputes of
material fact relating to those claims. See Wright v Genesee Co, 504 Mich. 410, 414; 934 NW2d
805 (2019) (recognizing unjust enrichment is not a tort). There are no disputes of material fact
relating to the Golf companies’ remaining claims.
The clearest dispute of material fact in this case arises out of the dispute between the City
and the Golf companies over who actually owns the property at issue in this case. The Golf
companies claim that they actually own property at the golf courses that the City refuses to return
to them. In contrast, the City argues that it actually owns the property in question. The only
evidence offered by either party tending to prove who owns what property is the 2010 purchase
agreement; but the parties have thus far failed to specifically identify the property at issue in this
case in such a way that it can be identified and compared to the property in the purchase agreement.
Thus, the parties dispute the material fact of who owns the property which the Golf companies
allege the City unjustly possesses.3 As such, the trial court did not err by denying the City’s motion
for summary disposition as to the Golf companies’ conversion and unjust enrichment claims
because both claims are based on the City allegedly having possession of and deriving benefit from
property belonging to the Golf companies.
The Golf companies additionally alleged that the City awarded the 2018 golf course
management contract to Signet Golf Associates despite a conflict of interest in the bidding process,
and that statements made by the City harmed the Golf companies’ business reputations. In their
brief in response to the City’s motion for summary disposition, the Golf companies also asserted
that the City had retained a marketing and business consulting firm regarding its operation of the
golf courses. The City did not respond to these allegations, as the only facts it disputed related to
ownership of the contested property. As such, there is not, strictly speaking, any raised any dispute
of material fact as to the Golf companies’ tortious interference, misrepresentation, silent fraud, and
business defamation claims, because ownership or possession of property is not an element of any
of these claims. See, e.g., Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268
Mich. App. 83, 89-90; 706 NW2d 843 (2005) (stating the elements for tortious interference); M&D,
Inc v WB McConkey, 231 Mich. App. 22, 27; 585 NW2d 33 (1998) (stating the elements for fraud);
3
The Golf companies’ unjust enrichment claim is based on the City taking possession of and using
the Golf companies’ property, not over any claimed breach of the 2017 contract by the City.
-6-
Northland Wheels Roller Skating Ctr, Inc v Detroit Free Press, Inc, 213 Mich. App. 317, 328; 539
NW2d 774 (1995) (stating the elements for defamation). However, as we discuss below, these
claims are subject to the GTLA.
D. THE GTLA’S APPLICATION TO THE GOLF COMPANIES’ CLAIMS
The GTLA applies to the Golf companies’ remaining claims. Under the GTLA
governmental agencies are generally granted immunity from tort liability:
Except as otherwise provided in this act, a governmental agency is immune from
tort liability if the governmental agency is engaged in the exercise or discharge of
a governmental function. Except as otherwise provided in this act, this act does not
modify or restrict the immunity of the state from tort liability as it existed before
July 1, 1965, which immunity is affirmed. [MCL 691.1407(1).]
Consequently, governmental agencies are immune from all tort liability unless an exception to the
GTLA applies. See, e.g., MCL 691.1413 (establishing the proprietary function exception). By its
very nature, however, the GTLA only grants immunity to governmental agencies for torts. See
MCL 691.1407.
The Golf companies’ common law conversion, tortious interference, misrepresentation,
silent fraud, and business defamation claims all sound in tort. See, e.g., Magley v M & W Inc, 325
Mich. App. 307, 314-315; 926 NW2d 1 (2018) (“Conversion is an intentional tort in the sense that
the converter’s actions are willful”) (citation and quotation marks omitted); see Knight Enterprises
v RPF Oil Co, 299 Mich. App. 275, 280; 829 NW2d 345 (2013) (“By definition, tortious
interference with a contract is an intentional tort.”); Hord v Environmental Research Institute of
Mich, 463 Mich. 399, 411; 617 NW2d 543 (2000) (characterizing misrepresentation as a tort);
Huron Tool & Engineering Co v Precision Consulting Servs, Inc, 209 Mich. App. 365, 370; 532
NW2d 541 (1995) (characterizing fraud as a tort); Kollenberg v Ramirez, 127 Mich. App. 345, 353;
339 NW2d 176 (1983)4 (characterizing defamation as a tort). As such, the GTLA applies to these
claims. See MCL 691.1407(1). Therefore, the City is immune to liability for these claims unless
an exception applies.
E. REQUIREMENT OF PLEADING IN AVOIDANCE OF GOVERNMENTAL IMMUNITY
As a general rule, governmental entities, such as the City, are entitled to immunity from
tort liability when they are engaged in a governmental function. MCL 491.1407(1). The Golf
companies have not contested at the trial court level or now on appeal that the City was engaged
in a governmental function when contracting with the Golf companies for the management and
operation of the golf courses. As such, we will not address that specific issue. “A plaintiff pleads
in avoidance of governmental immunity by stating a claim that fits within a statutory exception or
by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge
4
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority.” In re Stillwell Trust, 299 Mich. App.
289, 299 n 1; 829 NW2d 353 (2012) (citation omitted).
-7-
of a nongovernmental or proprietary function.” Id. at 204. The claims at issue in this case were
brought by the Golf companies as counterplaintiffs. Consequently, the Golf companies must plead
in avoidance of governmental immunity. See id. at 194, 204.
The Golf companies failed to even mention governmental immunity in their complaint. In
particular, the Golf Companies failed to plead anything tending to show that the City was engaged
in an activity for pecuniary profit. See Coleman v Kootsillas, 456 Mich. 615, 621; 575 NW2d 527
(1998) (establishing the requirements for the proprietary function exception to governmental
immunity). Accordingly, the Golf companies necessarily failed to plead in avoidance of
governmental immunity. Thus, because there were no disputes of material fact as to the Golf
companies’ tortious interference, misrepresentation, silent fraud, and business defamation claims,
the trial court erred by denying the City’s motion for summary disposition of those claims.
As noted, the Golf companies asserted in a brief that the City’s retention of a marketing
and business consulting firm showed that the City was “acting as a private company in trying to
manage its golf courses for profit.” A brief is not a pleading. MCR 2.110(A). Therefore, the
above assertion does not affect our conclusion that the Golf companies failed to plead in avoidance
of governmental immunity. However, because the Golf companies raised an argument in the trial
court that the City allegedly operated the golf courses for pecuniary profit, nothing in this opinion
should be construed as precluding the Golf companies from moving to amend their complaint on
remand. See Mack v City of Detroit, 467 Mich. 186, 203 n 20; 649 NW2d 47 (2002); Yono v Dep’t
of Transp (On Rem), 306 Mich. App. 671, 685; 858 NW2d 128 (2014), rev’d on other grounds 499
Mich. 636 (2016). We express no opinion as to what conclusions should be drawn from the Golf
companies’ asserted evidence or whether any such motion should be granted; and we impose no
restrictions upon the trial court’s discretion to entertain or decide any such motion, if made.
III. CONCLUSION
We affirm the trial court’s denial of the City’s motion for summary disposition as to the
Golf companies’ unjust enrichment and conversion, but we reverse the trial court’s denial of the
City’s motion for summary disposition as to the Golf companies’ tortious interference,
misrepresentation, silent fraud, and business defamation claims. We remand for proceedings
consistent with this opinion. We do not retain jurisdiction. No costs, no party having prevailed in
full. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Amy Ronayne Krause
/s/ Jonathan Tukel
-8- | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/6129321/ | — Judgment affirmed, with costs. Opinion by
Learned, P. J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129322/ | — Appeal discharged, with ten dollars cOsts and printing disbursements. Opinion by
Bockes, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129323/ | — Judgment affirmed, with costs. Opinion by
Bockes, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129324/ | — Judgment affirmed, with costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129325/ | Judgment of County Court reversed, and that of Justices’ Court affirmed, with costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129326/ | Judgment of County Court affirmed, with costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6712950/ | Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 3 April 1996. | 01-03-2023 | 07-20-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902195/ | Order and judgment (one paper), Supreme Court, New York County (William McCooe, J.), entered on or about August 18, 1987, unanimously affirmed for the reasons stated by William McCooe, J. Respondent shall recover of appellant $75 costs and disbursements of this appeal. Concur—Murphy, P. J., Sullivan, Carro, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902196/ | Judgment, Supreme Court, New York County (Jacqueline Silbermann, J.), rendered on July 24, 1986, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted. (See, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.) We have reviewed this record and agree with appellant’s assigned counsel that there are no nonfrivolous points which could be raised on this appeal. Concur—Murphy, P. J., Kupferman, Carro, Asch and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902199/ | Motion to direct payment of a certain refund denied in its entirety. Concur—Murphy, P. J., Sandler, Sullivan and Ross, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902200/ | Kupferman, J.,
dissents in a memorandum, as follows: This matter is scarcely of great moment and unlikely to occur again, involving only $200, but, in law and equity, the defendant-appellant’s motion should be granted.
The issue is the filing fee demanded by the Clerk of our court and paid by counsel for defendant-appellant, under protest.
Enacted last year, as a revenue measure, CPLR 8022 provides the following: "Fee on civil appeal. The clerks of the appellate divisions of the supreme court and the clerk of the court of appeals are entitled, upon the filing of a record on a civil appeal or a statement in lieu of record on a civil appeal, as required by rule 5530 of this chapter, to a fee of two hundred dollars, payable in advance.”
The record for this appeal was filed on or about October 26th, prior to the effective date of the statute.
On or about December 14th, when counsel attempted to file *419the brief and appendix, the Clerk took the position that the filing of the appendix was within the meaning of the section when it referred to a "record on a civil appeal”.
There is no reference to an appendix in CPLR 5530. The appendix is referred to in CPLR 5528. The appendix is a shorthand form of the record, but in this case, the record itself was filed prior to the effective date of the statute, and, accordingly, the fee was not due. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129327/ | — Order affirmed, with costs. Opinion by
Learned; P. J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129328/ | Judgment affirmed, with costs. Opinion by
Learned, P. J.,
and'by Bockes, J., dissenting. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129329/ | Judgment affirmed, with costs. Opinion by
Learned, P. J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129332/ | Order reversed, without costs. Opinion by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129333/ | — Judgment affirmed, with costs. Opinion by
Bockes, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902201/ | Appeal from a judgment of the Supreme Court (McNamara, J.), entered July 2, 2012 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
In 1992, petitioner robbed the realty office where he used to work and fatally shot the owner. As a result, petitioner was convicted of murder in the second degree, two counts of robbery in the first degree and criminal possession of a weapon in the second degree, and was sentenced as a second violent felony offender to an aggregate term of 25 years to life in prison. In 2011, he made his third appearance before the Board of Parole seeking to be released to parole supervision. At the conclusion *1050of the hearing, his request was denied and he was ordered held for an additional 24 months. After this determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.
Petitioner points out that he was convicted of felony murder under Penal Law § 125.25 (3) and contends that the Board relied upon erroneous information that he committed depraved indifference murder under Penal Law § 125.25 (2) in reaching its decision to deny him parole release. This claim is not supported by the record. While the Board commented that petitioner’s behavior exhibited a depraved indifference to human life, there is no indication that it misunderstood his underlying murder conviction. In addition to the violent nature of the crimes committed by petitioner, the Board considered petitioner’s criminal history, prior parole violations, prison disciplinary record, program accomplishments and postrelease plans in denying him release. These were all appropriate statutory factors for the Board to take into account under Executive Law § 259-i (see Matter of Valentino v Evans, 92 AD3d 1054, 1055 [2012]; Matter of Veras v New York State Div. of Parole, 56 AD3d 878, 879 [2008]), and it was not required to give each factor equal weight (see Matter of MacKenzie v Evans, 95 AD3d 1613, 1614 [2012], lv denied 19 NY3d 815 [2012]; Matter of Wright v Alexander, 71 AD3d 1270, 1271 [2010]). Accordingly, inasmuch as the Board’s decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.
Peters, P.J., Mercure, Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902202/ | Judgment, Supreme Court, Bronx County (Peggy Bernheim, J.), rendered on October 17, 1985, unanimously affirmed. Motion by appellant for leave to submit a pro se supplemental brief denied. No opinion. Concur—Sandler, J. P., Ross, Kassal, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902203/ | Appeal from a judgment of the Supreme Court (McNamara, J.), entered July 2, 2012 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
In 1992, petitioner robbed the realty office where he used to work and fatally shot the owner. As a result, petitioner was convicted of murder in the second degree, two counts of robbery in the first degree and criminal possession of a weapon in the second degree, and was sentenced as a second violent felony offender to an aggregate term of 25 years to life in prison. In 2011, he made his third appearance before the Board of Parole seeking to be released to parole supervision. At the conclusion *1050of the hearing, his request was denied and he was ordered held for an additional 24 months. After this determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.
Petitioner points out that he was convicted of felony murder under Penal Law § 125.25 (3) and contends that the Board relied upon erroneous information that he committed depraved indifference murder under Penal Law § 125.25 (2) in reaching its decision to deny him parole release. This claim is not supported by the record. While the Board commented that petitioner’s behavior exhibited a depraved indifference to human life, there is no indication that it misunderstood his underlying murder conviction. In addition to the violent nature of the crimes committed by petitioner, the Board considered petitioner’s criminal history, prior parole violations, prison disciplinary record, program accomplishments and postrelease plans in denying him release. These were all appropriate statutory factors for the Board to take into account under Executive Law § 259-i (see Matter of Valentino v Evans, 92 AD3d 1054, 1055 [2012]; Matter of Veras v New York State Div. of Parole, 56 AD3d 878, 879 [2008]), and it was not required to give each factor equal weight (see Matter of MacKenzie v Evans, 95 AD3d 1613, 1614 [2012], lv denied 19 NY3d 815 [2012]; Matter of Wright v Alexander, 71 AD3d 1270, 1271 [2010]). Accordingly, inasmuch as the Board’s decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.
Peters, P.J., Mercure, Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902204/ | Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered March 27, 1987, denying defendant’s motion to dismiss the amended complaint for failure to state a cause of action, unanimously affirmed, without costs or disbursements.
On argument, plaintiffs’ counsel stated that the cause of action as pleaded is for breach of contract only, notwithstanding the complaint’s reference to fraud. Taking counsel at his word, we find, in the circumstances, that the complaint adequately gives notice of the transaction giving rise to the contract action. Any paucity of detail may be remedied through a bill of particulars and discovery. Concur—Murphy, P. J., Sullivan, Carro, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902206/ | Order of the Supreme Court, New York County (Ethel B. Danzig, J.), entered September 18, 1987, which granted, inter alia, expanded visitation for the infant child with the paternal grandparents and participation by defendant father in this visitation, is unanimously modified, on the law and facts and in the exercise of discretion, to reverse that portion providing for participation by defendant in visitation with the grandparents, and that portion which provided for weekend visitation with the grandparents, and to remand for a full evidentiary hearing with respect to visitation by the defendant and the paternal grandparents, either in a separate hearing or in the course of the trial of this action, which *424appears imminent, and otherwise affirmed, without costs or disbursements.
It was improper for the Supreme Court to grant defendant father visitation in conjunction with the paternal grandparents’ visits without any evidentiary hearing or demonstration of a change in circumstance occurring since the prior order which terminated his visitation privileges. Nor should the court have extended the previously agreed-upon grandparents’ visitation to include weekends, without first conducting a hearing to determine whether this would be in the best interests of this three-year-old child (see, Lo Presti v Lo Presti, 40 NY2d 522, 527). Accordingly, we modify to vacate those portions of the order and to direct an evidentiary hearing on these issues. The trial of the actiqn appears imminent, and if so, such hearing may be conducted in the course of the trial. Our modification leaves intact, as a temporary measure, visitation three times a month with the grandparents at which defendant will not be in attendance. Concur—Kupferman, J. P., Ross, Asch, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129335/ | Judgment and order affirmed, with costs. Opinion by
Bockes, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129336/ | — Order reversed, with costs, and proceeding sent back for trial. Mem. by
Boardman, J. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823511/ | Nuclear power station. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902208/ | Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered December 15, 1986 in favor of the defendants-respondents after a jury trial, in an action to recover damages for personal injuries, unanimously reversed, on the law, without costs, and the case is remanded for a new trial.
In an action for personal injuries sustained when a portion of plaintiffs bathroom ceiling, allegedly weakened by a longstanding leak, fell on plaintiff, the plaintiff appeals from a judgment in favor of the defendants-respondents entered upon a jury verdict.
In our opinion reversible error occurred when the trial court did not permit plaintiffs counsel to examine fully prior to cross-examination the report of a medical witness called on behalf of the respondents without any prior notice to plaintiff and without plaintiff having previously received his report.
The witness had examined plaintiff previously on behalf of other defendants in a separate action brought by plaintiff arising out of an event that occurred some time prior to the incident that gave rise to this lawsuit. The examination was conducted, however, after the events with which we are concerned. The testimony of this witness was clearly important. It not only rebutted as to damages the testimony of plaintiffs expert, but, in addition, in that part of his testimony describing the symptoms claimed by plaintiff and her responses to his questions, the witness gave testimony that could have been viewed by the jury as severely impairing plaintiffs credibility.
While we find appropriate the trial court’s decision to permit the witness to testify although there had been no *427previous notification to plaintiff nor any exchange as to him of medical reports, we think the circumstance of the witness being called without such prior notification made it particularly important that plaintiff’s counsel be permitted to examine carefully the doctor’s report prior to cross-examination.
Apparently disturbed, and justifiably so, by the delayed appearance of plaintiff’s counsel on the morning of the testimony of this witness, the trial court treated with excessive literalness counsel’s request for "one minute” to examine the report. The record is clear that counsel was directed to commence his cross-examination before he had read the entire report. In view of the importance of the testimony of this witness, which conceivably could have been decisive in the case, we think the failure to permit plaintiff’s counsel to examine the entire report prior to cross-examination was reversible error.
In view of this conclusion, we think it unnecessary to consider the other issues raised on this appeal on behalf of plaintiff. Concur—Sandler, J. P., Sullivan, Carro, Milonas and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902210/ | Perstipulation of discontinuance dated November 10, 1987, the appeal and cross appeal from the order of the Supreme Court, New York County (Elliott Wilk, J.), entered on May 30, 1986, unanimously withdrawn, with prejudice and without costs to any party against the other. No opinion. Concur—Sandler, J. P., Asch, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902214/ | Order, of the Supreme Court, Bronx County (Harold Tompkins, J.), entered on July 15, 1987, which, inter alia, denied defendant’s motion for further physical and psychiatric examinations and deposition of plaintiff Kenyetta Mosley, is unanimously modified on the law, the facts and in the exercise of discretion, and defendant’s motion granted only to the extent of permitting an additional deposition of plaintiff Kenyetta Mosley and otherwise affirmed, without costs or disbursements.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Kenyetta Mosley on February 12, 1981 as the result of the malfunction of an electric blanket purchased from defendant Alexanders, Inc. and manufactured by third-party defendant Fieldcrest Mills, Inc. At the time of the accident, plaintiff was 12 years old; she is now 19 years of age. Following the commencement of the instant lawsuit in July of 1981, certain discovery proceedings were conducted, including depositions and physical examinations of Kenyetta Mosley. Thereafter, this case remained dormant for more than four years until it was reactivated in 1986 when plaintiffs noticed a second deposition of one of Fieldcrest’s employees whose prior deposition had apparently been incomplete. Defendant subsequently filed the motion which is the subject of the present appeal pursuant to which they sought, in part, to compel a further physical and psychiatric examination of *429Kenyetta Mosley, as well as to additionally depose her. In denying the motion, the Supreme Court stated that "[w]hile several years have elapsed since the depositions and physical examinations, no need has been demonstrated for such additional examinations. Plaintiff has not alleged any new injuries”.
Parties to a litigation are entitled to "full disclosure of all evidence material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]). As the Court of Appeals declared in Cynthia B. v New Rochelle Hosp. Med. Center (60 NY2d 452, 461), the "discovery provisions of the CPLR have traditionally been liberally construed to require disclosure 'of any facts bearing on the controversy which will assist [parties’] preparation for trial’ (see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). 'The test is one of usefulness and reason’ (id.)”. The "material and necessary” standard has been applied to allow for further depositions of parties in order to facilitate full disclosure and to prevent unfair surprise or prejudice (see, Loubeau v John Hancock Mut. Ins. Co., 123 AD2d 348; Keane v Ranbar Packing, 121 AD2d 601). In the situation before us, when Kenyetta Mosley was initially deposed some six years ago, she was still a child and, thus, unable to supply all of the information requested by defendant. Moreover, at that time she was still in the process of recovering from her purported injuries. Now she is an adult and in a much better position to respond to questions concerning the physical and emotional effects of her accident. Accordingly, the Supreme Court should have granted defendant’s motion to the extent of permitting an additional deposition of plaintiff Kenyetta Mosley. Concur—Murphy, P. J., Sandler, Carro, Milonas and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902215/ | Upon stipulation of parties dated January 22, 1988, appeal from order of Supreme Court, New York County (Robert White, J.), entered on February 27, 1987, unanimously withdrawn with prejudice, without costs and without disbursements. No opinion. Concur—Sandler, J. P., Carro, Milonas, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902216/ | Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered on January 6, 1986, unanimously affirmed. Motion by District Attorney, New York County, to strike certain points of defendant-appellant’s reply brief denied. No opinion. Concur—Sullivan, J. P., Ross, Kassal, Rosenberger and Smith, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129337/ | — Order reversed for defects in affidavit, without costs and without prejudice to renewal. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902219/ | Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 12, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.
Claimant was a maintenance worker at a truck stop and his duties included snow removal, mopping floors, cleaning showers and laundry service. On the night of a major snowstorm, he informed his supervisor that he was leaving early. The supervisor informed claimant that she needed him to work his entire *1052shift as she was shorthanded that night and, due to the snow storm, the truck stop was extremely busy. Claimant left his employment early after being warned that doing so would be considered an abandonment of his employment, and was terminated as a result. The Unemployment Insurance Appeal Board denied claimant’s application for unemployment insurance benefits on the ground that he voluntarily left his employment without good cause. Claimant appeals, and we affirm.
Substantial evidence supports the decision of the Board. “Leaving work early without authorization in disregard of a supervisor’s directive can disqualify a claimant from receiving unemployment insurance benefits and can be construed as job abandonment” (Matter of Shayo [Commissioner of Labor], 4 AD3d 663, 663 [2004] [citations omitted]; see Matter of Gorton [Genesee County Ch. NYSARC—Commissioner of Labor], 1 AD3d 682, 682 [2003]). Here, claimant’s supervisor testified that she informed claimant that he could not leave early and, if he did leave prior to the completion of his shift, it would be considered an abandonment of his employment. Claimant’s conflicting testimony that he had permission to leave early presented a credibility issue for the Board to resolve (see Matter of Petrov [Bragard Inc.—Commissioner of Labor], 96 AD3d 1339, 1339 [2012]; Matter of Messado [City of New York—Commissioner of Labor], 76 AD3d 740, 741 [2010]).
Peters, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902220/ | Judgment, Supreme Court, New York County (Allen Murray Meyers, J.), rendered November 19, 1986, convicting defendant, after a jury trial, of attempted robbery in the second degree and sentencing him to an indeterminate term of imprisonment of from iVz to AVz years, unanimously reversed, on the law, and the case remanded for a new trial.
During the course of his testimony, complaining witness *432Rajendra Singh was permitted to testify he had seen defendant during two prior attempts by defendant to rob him. The prior incidents, which went unreported, were alleged to have occurred in the two-year period preceding the robbery attempt for which defendant was on trial. This evidence of uncharged crimes, to which defendant raised timely objection, was admitted for the purpose of establishing identity under the rule of People v Molineux (168 NY 264, 293).
It is well established that evidence of an uncharged crime may not be introduced as a Molineux "identity” exception in the absence of a unique modus operandi. (People v Robinson, 68 NY2d 541.) In order to qualify as such, a defendant’s method must have a "concurrence of common features” or be characterized by "distinguishing oddities”. (People v Johnson, 114 AD2d 210, 212.) This insures that the commission of the uncharged crime was accomplished in a manner sufficiently unique to aid in identifying the defendant. (People v Sanza, 121 AD2d 89, 95.)
Here, the People make no claim of a unique modus operandi and none may be gleaned from the record. In the attempted robbery which was the subject of the trial, defendant was alleged to have been 1 of 5 men who surrounded the complainant at approximately 2:10 p.m. on April 6, 1986 in a subway passageway. The men scattered and ran, after the complainant hit defendant in the stomach. In the earlier of the two prior incidents, defendant was alleged to have panhandled a dollar from complainant at approximately 6:00 p.m. in March 1984 and to have then followed his victim to a building where he grabbed him from behind, running off only when the complainant screamed. The second of the prior aborted robberies occurred in the early morning hours of December 24, 1984, when defendant allegedly grabbed the complainant from behind as the latter opened the front door to his building with a key, but the would-be victim escaped into the locked building.
Absent a unique modus operandi, it was an abuse of discretion for the trial court to admit evidence of prior robbery attempts for the purpose of establishing defendant’s identity. (People v Robinson, supra, at 550; People v Johnson, supra, at 212.) The record reveals that the People made a prudent offer to compromise by limiting the complainant’s testimony to merely stating that he had previously seen the defendant on two prior occasions. Such testimony, when preceded by careful instruction to the witness, could have been properly subjected to cross-examination without threat of disclosure of improper matter.
*433We have examined defendant’s remaining contention and find it to be without merit. Concur—Kupferman, J. P., Milonas, Kassal, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902221/ | Order, Supreme Court, New York County (Alfred M. Ascione, J.), dated October 6, 1986, which granted plaintiffs motion and third-party plaintiffs cross motion for summary judgment dismissing the counterclaims of third-party defendant, unanimously reversed, on the law, with costs, the motion and cross motion denied, and the counterclaims reinstated.
On May 25, 1983, third-party defendant Leon Fried was arrested and charged with two counts each of grand larceny in the second degree (then Penal Law § 155.35), forgery in the second degree (Penal Law § 170.10) and criminal possession of a forged instrument in the second degree (Penal Law § 170.25). Fried was held in custody for over 36 hours before being released in his own recognizance. On October 31, 1983, after 10 court adjournments over a five-month period, the charges against Fried were dismissed on the motion of the Assistance District Attorney, for lack of evidence.
Fried’s arrest, which is the subject of the dismissed counterclaims for malicious prosecution and false arrest, was the result of information provided to the police by Marc Gardner, president of plaintiff M.G. Sales, Inc. (M.G. Sales), and representatives of defendant and third-party plaintiff, Chemical Bank. The criminal court complaint which initiated the proceedings against Fried alleged that he had knowingly presented and tendered checks which had been forged and altered. The accusations were premised on Fried having deposited to his account with Chemical Bank, in January and February 1983, two checks drawn on the account of M.G. Sales in a different branch of Chemical Bank.
The checks, Nos. 4173 and 4174, each in the amount of $6,000, had been drawn in November 1981 by Gardner, who made them payable to himself, endorsed the backs of each, and then lost them. On November 16, 1981, Gardner placed stop-payment orders on the checks, describing them as unnumbered and bearing the date November 10, 1981. The stop-payment orders were valid for six months and required renewal thereafter. No renewal was ever sought.
In March or April 1983, after the two $6,000 debits to M.G. Sales’ account were discovered by Gardner and reported to *434Chemical Bank, Fried was questioned by a representative of the bank. He asserted that he had deposited the checks to his account as a favor to William Maxiculi, a close personal friend, who had no account with Chemical Bank and wanted the checks to clear quickly. When certain that the funds had been credited to his account, Fried had cashed his own checks for the amount in question and delivered the proceeds to Maxiculi.
By complaint dated June 1, 1983, M.G. Sales commenced an action against Chemical Bank seeking damages for alleged wrongful, unauthorized, and negligent payment on the checks. In turn, Chemical Bank commenced a third-party action against Fried in February 1984, for alleged breach of warranty and guarantee of prior endorsements, and for indemnification against M.G. Sales’ claims. In his answer, Fried asserted four counterclaims: malicious prosecution, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Each of Fried’s counterclaims was the subject of a prior motion by M.G. Sales to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. By order of the Supreme Court, New York County (Ira Gammerman, J.), filed May 30, 1985, the motion to dismiss for legal insufficiency was granted solely with respect to the counterclaims reciting negligence and intentional infliction of emotional distress. M.G. Sales appealed the denial of dismissal with respect to malicious prosecution and false arrest and, by order entered February 27, 1986, this court affirmed the lower court’s ruling without opinion [117 AD2d 1028],
M.G. Sales and Chemical Bank next moved, pursuant to CPLR 3212, for summary judgment on the remaining counterclaims. A careful reading of their pleadings, however, reveals that the motions are actually renewed challenges to the legal sufficiency of the counterclaims. The decision of the court below granting the relief requested likewise addresses a perceived failure to establish the necessary elements of false arrest and malicious prosecution.
It is well established that the drastic remedy of summary judgment does not lie unless there exist no triable issues of fact. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404.) It is further firmly established that once an issue is judicially determined, it is the law of the case and is not to be reconsidered in the course of the same litigation. (Holloway v Cha Cha Laundry, 97 AD2d 385, 386.)
*435Here, the legal sufficiency of Fried’s counterclaims for false arrest and malicious prosecution was previously challenged in a motion pursuant to CPLR 3211 (a) (7) and denied. The decision of Justice Gammerman fully discussed the necessary elements for these causes of action and determined that they had been properly pleaded. This court unanimously affirmed.
Nevertheless, M.G. Sales and Chemical Bank again urged legal insufficiency, albeit in pleadings styling this request, which was before a different Judge, as one for summary judgment pursuant to CPLR 3212. We reject this renewed challenge to legal sufficiency, and reverse on the ground that this action presents triable issues of fact.
Among the matters to be resolved are whether Gardner left the checks undated at the time of their making and, if not, what date or dates they carried. This critical issue bears on whether there was a good-faith basis for the accusation that the dates on the instruments were altered, which charge is contained in the criminal court complaint against Fried. Conflicting information on this point is provided by Gardner, who stated in the stop-payment orders that the checks were dated November 10, 1981 (the date also given in M.G. Sales’ complaint), but later gave deposition testimony and signed an affidavit in support of summary judgment claiming that the checks had been left undated. Adding to the controversy are two affidavits signed by Gardner on March 28, 1983, which state, on lines Gardner contends he left blank, that the date on check No. 4173 was fraudulently altered from December 30, 1981 to December 30, 1982 and that the date on check No. 4174 was fraudulently altered from January 30, 1982 to January 30, 1983.
Further factual dispute related to the counterclaims of false arrest and malicious prosecution arises as to whether Fried "confessed” to having committed the crimes, as claimed by respondent on the basis of a police detective’s statement. Since Fried denies having admitted any wrongdoing, and in view of the fact that the criminal charges against Fried were ultimately dismissed for lack of evidence, it appears that it is solely Fried’s voluntary acknowledgment that he deposited the checks to his account which was interpreted to be a confession.
Whether the criminal prosecution against Fried was actuated by malice provides yet another factual controversy, and questions of malice are generally unsuitable for summary disposition. (See, Thompson v Maimonides Med. Center, 86 AD2d 867.)
*436For these reasons, summary judgment, which addresses issue finding and not issue determination (Cruz v American Export Lines, 67 NY2d 1, 13), should not have been granted. Concur—Kupferman, J. P., Ross, Kassal, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902222/ | Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered on December 16, 1986, which, inter alia, denied plaintiffs’ cross motion compelling, in part, defendant to respond to plaintiffs’ second notice to produce, dated October 22, 1986, is unanimously modified on the law, the facts and in the exercise of discretion to the extent of granting an in camera inspection of any Civilian Complaint Review Board file relating to the prior firearm discharge incidents involving the subject police officer, and otherwise affirmed, without costs or disbursements.
Plaintiffs’ complaint seeks damages for personal injuries to plaintiff Mariano Rodriguez and the loss of consortium to his wife, Doris Rodriguez arising out of an incident which occurred on March 31, 1984 in Bronx County when Police Officers Theodore Young and Joseph Joglar allegedly negligently discharged their weapons, striking Mariano Rodriguez. In the course of discovery proceedings, following plaintiffs’ notice to produce and defendant’s cross motion for a protective order vacating some of plaintiffs’ discovery demands, defendant was directed to produce for an in camera inspection the personnel files of the two officers, as well as the records of the Civilian Complaint Review Board (CCRB) and the Internal Affairs Division (IAD) pertaining to the instant incident. One of the documents released to plaintiffs after the in camera inspection is a report prepared by the duty captain regarding the occurrence at issue herein, which contains a reference to three prior firearm discharge incidents involving Officer Young. Plaintiff thereafter moved, in part, for the discovery of information relating to these previous incidents, including CCRB and IAD records. Defendant opposed, arguing that the court was aware of the three incidents when it conducted its in camera examination but had denied discovery of the incidents as inappropriate. Plaintiffs, however, contend that they were unaware of the prior incidents until they received the duty captain’s report. The court denied plaintiffs’ motion, and plaintiffs have appealed. In that regard, it should be noted that notwithstanding defendant’s argument to the contrary, plaintiffs’ cross motion is appealable; since it is based upon *437information not known to plaintiffs at the time of the original motion, it is in the nature of a motion for renewal (see, Foley v Roche, 68 AD2d 558). As for the issue of plaintiffs’ discovery demand, the record of this case indicates that there is a sufficient factual foundation for an in camera inspection by the court of the CCRB records of the three earlier incidents in order to determine whether they contain any information relevant and competent to the present litigation and whether any further discovery and/or inspection would be warranted under the circumstances. Concur—Kupferman, J. P., Asch, Milonas, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902223/ | Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about May 6, 1987, which denied and dismissed petitioner’s CPLR article 78 petition challenging respondent’s determination denying her certain housing benefits, unanimously reversed, on the law, the petition reinstated and the matter remanded to the respondent for a hearing in accordance with the memorandum decision herein, without costs.
Petitioner Nirza Montalvo has resided for most of her life at 1246 Westchester Avenue in The Bronx or its adjoining building, number 1244, part of the same complex. At all relevant times, the City of New York at first owned and now exercises control over the building complex, its Department of Housing Preservation and Development (HPD) administering Federal "Section 8” benefits programs for the tenants in the building.
When petitioner’s second child was born, she moved from her previous apartment to apartment D at No. 1244, a two-bedroom apartment. She received section 8 benefits for this apartment. Petitioner claims that this apartment, situated directly above the malfunctioning boiler for the buildings, deteriorated into a serious state of disrepair with unsuitable living conditions, including black smoke from the boiler permeating the apartment, falling ceilings, cracks in the walls, continuous leaks, and fungus. Accordingly, when a larger and more suitable apartment became available, apartment 3D at No. 1246, petitioner sought to move into that apartment. According to petitioner, she asked her HPD caseworker, a Ms. Douglas, for permission to move in November 1985. Ms. Douglas checked with her supervisor and then informed petitioner that she could move into the apartment and keep her section 8 benefits.
*438On either January 6, 1986 (according to respondent) or February 25, 1986 (according to petitioner), the department head at HPD, one Zev Spiro, sent petitioner a notice determining that she was ineligible for section 8 benefits at apartment 3D for the sole stated reason that "You did not reside in your current apartment prior to rehabilitation and rent restructuring.” Petitioner obtained counsel from the Legal Aid Society and her attorney wrote Mr. Spiro a letter, dated April 4, 1986, seeking to appeal this determination and requesting a hearing. On April 10, 1986, Spiro wrote to petitioner’s attorney, stating that his letter "is in response to your letter of April 4,” listing six various reasons for the denial of Ms. Montalvo’s benefits, including the claim that she did not discuss her move with the HPD caseworker until after she moved in, and expressly inviting further questions about this case. On May 8, 1986, petitioner’s attorney wrote to Spiro in response to the April 10 letter. Counsel claimed that since Spiro’s version of the events differed from Ms. Montalvo’s, a factual hearing should be held. No response was forthcoming, so on July 15, 1986, Montalvo commenced the instant article 78 proceeding requesting alternatively that she be granted section 8 benefits at the apartment in which she now resides, or that at least she be granted an administrative hearing so that she might contest respondent’s determination of ineligibility.
The IAS court dismissed the petition as untimely. The court found that, "giving the petitioner the benefit of every doubt”, the agency’s determination was final and binding on February 25, 1986, and the four-month Statute of Limitations (CPLR 217) ran from that date. The court explicitly ruled that the period of limitations should not be dated from the April 10 letter denying her administrative appeal.
We disagree. An article 78 proceeding must be brought within four months after the determination to be reviewed becomes final and binding upon the petitioner (CPLR 217). Under the circumstances present here, the February 25 notice was not the final determination. The letter specifically advised of a right to an internal appeal and stated that "if you decide to appeal, we will fairly consider all information you or your representative wish to present to us * * * You or your representative * * * will be informed in writing of the final determination”. (Emphasis added.) Accordingly, by the respondent’s own admission, its determination was not final until Spiro’s April 10 letter denying the appeal. Arguably, this determination itself was not "final” since in the letter Spiro invited further comment. Where an ambiguity as to when a final *439determination has been made was created by the official body, any questions as to when the statutory period begins to run will be resolved in favor of the petitioner. (See, Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352; Matter of Castaways Motel v Schuyler, 24 NY2d 120.)
Here, the respondent invited petitioner to appeal and then acted upon the appeal on the merits. Petitioner should be entitled to rely on the agency’s instructions without being penalized for her forbearance in awaiting the outcome of the invited appeal before commencing an article 78 proceeding. In this regard, the cases relied on by the respondent and the court below are clearly distinguishable (e.g., Matter of De Milio v Borghard, 55 NY2d 216; Matter of Johnson v Christian, 114 AD2d 321). In those cases and others, requests for administrative reconsideration which were instigated by the petitioner were held not to toll or extend the four-month period of limitation from the date of the original determination. There, the concern was that a petitioner can thereby revive a stale claim by merely requesting administrative reconsideration. Here, the petitioner followed the agency’s instructions and has acted responsibly and expeditiously and deserves to have her petition heard on the merits.
As to the merits of her claim, it is clear that the petition raises a sharp question of fact regarding a crucial threshold issue of the case—whether HPD approved her move with the caseworker’s authorization. Accordingly, a hearing is required since a serious factual issue exists and the totality of the circumstances indicates that the petitioner may not have been treated fairly. (Cf., Johnson v City of New York, 63 AD2d 886, 887.)
Accordingly, we reverse and grant the petition to the extent of remanding the matter to HPD for a hearing. Concur—Asch, J. P., Rosenberger, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902224/ | Order and judgment (one paper), Supreme Court, Bronx County (Irma Vidal Santaella, J.), entered January 5, 1987, which directed defendant to pay, inter alia, the principal amount outstanding on a wraparound mortgage, plus interest, unanimously modified, on the law, the facts and in the exercise of discretion, to direct the additional payment of $60,000 in accrued interest and otherwise affirmed, without costs.
As correctly determined by the court below, this is a foreclosure proceeding and, thus, the prepayment penalty of $150,000 provided in paragraph 21 of the mortgage rider has not been invoked. The terms of paragraph 21 make clear that said sum is an obligation which becomes due and payable only if there is a voluntary exercise of the right to prepay. Given that the accelerated payment here is the result of plaintiffs mortgagees having elected to bring this foreclosure action, they may not exact a prepayment penalty. (George H. Nutman, Inc. v Aetna Business Credit, 115 Misc 2d 168.)
Separate and distinct from any prepayment penalty, however, is the obligation that defendant mortgagor incurred pursuant to the terms of the payment provision of the mortgage, which specifies monthly interest rates of 13.6365% and, in addition, that "the sum of $60,000 as additional accrued interest shall be paid on July 1, 1986”. Defendant agreed to this provision of the mortgage and is, accordingly, bound thereby. Concur—Murphy, P. J., Sullivan, Kassal, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902225/ | Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 20, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.
Substantial evidence supports the Unemployment Insurance Appeal Board’s finding that claimant voluntarily left her employment without good cause. Claimant worked as a machine operator for one shift, and quit after she had an asthma attack provoked by a chemical odor in the facility. She had not received medical advice to do so, however, and made no effort to address the problem by taking her prescribed asthma medication or inquiring if other work was available. We thus perceive no basis upon which to disturb the Board’s determination (see Matter of *1053Rose [Commissioner of Labor], 6 AD3d 951, 951 [2004]; Matter of Klein [Commissioner of Labor], 304 AD2d 897, 897 [2003]).
Peters, P.J., Rose, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129338/ | Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs on decision in Ætna Insurance Company v. Shuler (28 Hun, 338), on defendant stipulating not to sue for false imprisonment. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129339/ | — Order affirmed, with ten dollars costs and printing disbursements. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902227/ | Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 20, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.
Substantial evidence supports the Unemployment Insurance Appeal Board’s finding that claimant voluntarily left her employment without good cause. Claimant worked as a machine operator for one shift, and quit after she had an asthma attack provoked by a chemical odor in the facility. She had not received medical advice to do so, however, and made no effort to address the problem by taking her prescribed asthma medication or inquiring if other work was available. We thus perceive no basis upon which to disturb the Board’s determination (see Matter of *1053Rose [Commissioner of Labor], 6 AD3d 951, 951 [2004]; Matter of Klein [Commissioner of Labor], 304 AD2d 897, 897 [2003]).
Peters, P.J., Rose, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs. | 01-03-2023 | 01-13-2022 |
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