People v. Peer, 5-20-10
(Kavanaugh, J.)
People v. Backus, 5-20-10
(Garry, J.)
In Peer, the defendant, pleaded guilty to a number of sex offenses and was sentenced to an aggregate term of seven years in prison. The County Court neglected to include a period of post-release supervision in the sentence. Upon the defendant's release from prison, he was identified as a "designated person" pursuant to Correction Law sec 601-d, was presented before County Court and was resentenced with the addition of five years post-release supervision.
In Backus, the defendant, was convicted of robbery in teh second degree (2 counts) and grand larceny in the fourth degree and sentenced to an aggregate 10 year prison term. County Court neglected to include the mandatory post-release supervision onto the defendant's sentence. The defendant's convictions were affirmed on appeal. Upon his release from prison, the defendant was identified as a "designated person" pursuant to Correction Law sec. 601-d and the defendant was resentenced with the addition of five years post-release supervision.
On appeal, the Third Department held that where a defendant is released from prison and the time to appeal has expired or the appeal was finally decided, he has a "legitimate expectation that the original sentence is final." This renders any attempt to add a term of post-release supervision a violation of the prohibition of double jeopardy. The Court also noted that preservation was not a bar on account of the fact that this error affects the court's jurisdiction over the defendant.
Monday, May 24, 2010
Friday, April 30, 2010
Conviction Reversed on Business Record to Hearsay Exception Error
The People of the State of New York v. Burdick
Appellate Division, Third Dept.
March 23, 2010
Peters, J.
The defendant, a manager at a convenience store, was charged with grand larceny in the third degree based upon an allegation that she stole $22,245 in lotter tickets.
Appellate Division, Third Dept.
March 23, 2010
Peters, J.
The defendant, a manager at a convenience store, was charged with grand larceny in the third degree based upon an allegation that she stole $22,245 in lotter tickets.
Saturday, July 21, 2007
Update on People v Hall
The Albany District Attorney's Office has made a motion seeking leave to appeal to the Court of Appeals in this case.
As an aside, sorry about the delay, with summer I took a slight break from posting.
As an aside, sorry about the delay, with summer I took a slight break from posting.
Friday, June 8, 2007
Criminal Law: Spontaneous Statement Can Not Save an Oral Statement Made Following Temporally Proximate un-Mirandized Written Confession
The case of People v Hall, (a case appealed by Matthew C. Hug, Esq. -- the author of Slip Op.), presented the issue of whether a spontaneous statement exception exists in subsequent Miranda statement scenarios. In Hall, the defendant had been interrogated by police officers for approximately five hours -- without being Mirandized -- concerning a rash of burglaries officers believed he was a participant. Defendant was kept in an interrogation room for the entirety of the evening, save for a single cigarette break. At the end of the interrogation, defendant signed a written statement confessing to a number of burglaries.
At the immediate conclusion of the signing of the written statement, a fellow officer -- whom had been in the interrogation room for the entire interrogation -- issued defendant his Miranda warnings. According to the officer, while he was conducting the booking procedure, defendant asked which crime he was being charged with, to which the officer replied "the one with the basement window." Defendant then retorted "oh yeah, some old lady was knocking on the window and shewed (sic) me away."
At the suppression hearing, County Court suppressed the written statement as it was taken prior to the Miranda warning was issued. The Court, however, refused to supress the oral statement during the booking procedures claiming that it was a spontaneous statement and immune from the rules relating to subsequent Mirandized statements.
Briefly digressing, it is well settled that statements -- in order to be effective, must be preceded by Miranda warnings. Where, however, "an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a 'single chain of events,' there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005]). That is not to say that the subsequent statement may never be admissible, as it can be if said subsequent statement is made following a "pronounced break in questioning so as to provide the defendant with sufficient time to reflect upon the situation and return him or her to the status of one who is not under the influence of questioning'" (People v Durrin, 32 AD3d 665, 668 [2006], quoting People v Chapple, 38 NY2d 112, 115 [1975]).
Against the well settled backdrop, came the distinct wrinkle in this case. If a statement is characterized as spontaneous, despite the fact that it follows an un-Mirandized confession, can it be admitted without recourse to the Paulman and Chapple standard? The Appellate Division found that any statement, even if characterized as spontaneous, must be viewed through the lens of Paulman and Chapple, if it is given following an un-Mirandized confession.
In this case, the Court found that defendant's statement to police was given in such a close temporal proximity to the unwarned confession, that County Court erred in refusing to suppress the statement based upon its determination that it was spontaneous. Thus, whenever a Mirandized statement is made in close temporal proximity to an un-Mirandized statement, the courts must engage in the Chapple analysis even if the statement is characterized as spontaneous.
At the immediate conclusion of the signing of the written statement, a fellow officer -- whom had been in the interrogation room for the entire interrogation -- issued defendant his Miranda warnings. According to the officer, while he was conducting the booking procedure, defendant asked which crime he was being charged with, to which the officer replied "the one with the basement window." Defendant then retorted "oh yeah, some old lady was knocking on the window and shewed (sic) me away."
At the suppression hearing, County Court suppressed the written statement as it was taken prior to the Miranda warning was issued. The Court, however, refused to supress the oral statement during the booking procedures claiming that it was a spontaneous statement and immune from the rules relating to subsequent Mirandized statements.
Briefly digressing, it is well settled that statements -- in order to be effective, must be preceded by Miranda warnings. Where, however, "an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a 'single chain of events,' there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005]). That is not to say that the subsequent statement may never be admissible, as it can be if said subsequent statement is made following a "pronounced break in questioning so as to provide the defendant with sufficient time to reflect upon the situation and return him or her to the status of one who is not under the influence of questioning'" (People v Durrin, 32 AD3d 665, 668 [2006], quoting People v Chapple, 38 NY2d 112, 115 [1975]).
Against the well settled backdrop, came the distinct wrinkle in this case. If a statement is characterized as spontaneous, despite the fact that it follows an un-Mirandized confession, can it be admitted without recourse to the Paulman and Chapple standard? The Appellate Division found that any statement, even if characterized as spontaneous, must be viewed through the lens of Paulman and Chapple, if it is given following an un-Mirandized confession.
In this case, the Court found that defendant's statement to police was given in such a close temporal proximity to the unwarned confession, that County Court erred in refusing to suppress the statement based upon its determination that it was spontaneous. Thus, whenever a Mirandized statement is made in close temporal proximity to an un-Mirandized statement, the courts must engage in the Chapple analysis even if the statement is characterized as spontaneous.
Thursday, May 24, 2007
Real Property: Actual Knowledge of an Easement does not Foreclose Ability of a Purchaser from Seeking Damages for Breach of Deed Covenants
The case of Webster v Ragona, reads like a law school examination fact pattern. The facts of the case were as follows: the defendant, Walter Peeters owned adjacent parcels of land. He sold parcel A to the defendant, Ragona, together with an easement along the driveway which cut between the two parcels leading to a parking area in the rear of the property. Before the easement was recorded, Peeters sold parcel B to the plaintiff, Webster. Additionally, the warranty deed from Peeters to Webster omitted any reference to the easement. Webster, however, had actual knowledge of the easement's existence.
The issue on appeal was whether Webster possessed a claim against Peeter based upon the deed covenants (it had been previously determined, in an earlier appeal, that the Ragona's despite not having recorded the easement, were able to continue using it due to the fact that Webster had actual knowledge of the easement). The Court, citing an ancient Court of Appeals case held that the plaintiff's actual knowledge of the easement did not provide the defendant with a defense to the cause of action for breach of their deed covenants (see Callanan v Keenan, 224 NY 503, 508 [1918]). While peculiar, this case establishes the strength of the deed covenants -- they are actionable even if you have notice that they are being breached when you purchase the property.
As an additional matter, the Court addressed a issue of first impression, and held that the plaintiffs could recover counsel fees incurred in quieting title. While the law is well-settled that a "grantee forced to defend title warranted by the grantor may recover legal fees," here, the plaintiffs commenced action against the Ragona's, and not the grantor. After stating that the law was unsettled with respect to this novel issue, the Court held that where "the covenantees had a reasonable basis to presume the action would be successful," counsel fees may be awarded.
The issue on appeal was whether Webster possessed a claim against Peeter based upon the deed covenants (it had been previously determined, in an earlier appeal, that the Ragona's despite not having recorded the easement, were able to continue using it due to the fact that Webster had actual knowledge of the easement). The Court, citing an ancient Court of Appeals case held that the plaintiff's actual knowledge of the easement did not provide the defendant with a defense to the cause of action for breach of their deed covenants (see Callanan v Keenan, 224 NY 503, 508 [1918]). While peculiar, this case establishes the strength of the deed covenants -- they are actionable even if you have notice that they are being breached when you purchase the property.
As an additional matter, the Court addressed a issue of first impression, and held that the plaintiffs could recover counsel fees incurred in quieting title. While the law is well-settled that a "grantee forced to defend title warranted by the grantor may recover legal fees," here, the plaintiffs commenced action against the Ragona's, and not the grantor. After stating that the law was unsettled with respect to this novel issue, the Court held that where "the covenantees had a reasonable basis to presume the action would be successful," counsel fees may be awarded.
Criminal Law: Conviction of Depraved Indifference Murder May Be Upheld Despite Acquittal on Intentional Murder for Point Blank Shooting
Can a point blank shooting logically result in an acquittal of intentional murder and, yet, form the basis for a conviction of depraved indifference murder? Apparently, yes. In People v Carter, the Third Department tackled this strange issue.
Following an evening of alcohol consumption, the defendant began jawing with another bar patron, when defendant repeatedly hit-on said patron's female companions. Ultimately, defendant was escorted out of the bar. When the patron later left the bar with his companions, defendant was standing outside. Defendant then pulled out a gun and fired eight shots -- at point blank range -- at the patron. Four of the bullets fired struck the victim, killing him. Miraculously, no one else was hit. Following a jury trial, defendant was acquitted of intentional murder, but was convicted of depraved indifference murder.
Due to the fact that defendant failed to preserve the issue of whether the evidence supported only an intentional murder charge and, not a depraved indifference charge, the Court did not reach it. The Court did, however, address the weight of the evidence issue. Defendant argued that point blank shooting of an individual could only be intentional murder.
The Court disagreed. But before it did, it pointed to the fact that the presence of third persons is insufficient to convert an intentional homicide directed at a particular person into depraved indifference murder unless the others are actually endangered. The Court also noted that the greater number of shots fired, the more likely it becomes that there was an intent to kill (i.e. intentional murder). Although the circumstances of this case certainly cut in favor of the defendant, the Court, nevertheless, held that the jury's conclusion in this case was rational.
While the Court obviously acknowledged that the jury could have concluded that this was intentional murder, due to the fact that defendant had an argument with the victim, waited outside the bar and fired eight shots at him, hitting him with four bullets, it also concluded that the jury could have rationally concluded that the killing of the victim was not intended by the defendant, but rather the product of his depraved indifference. To rationally reach that conclusion, the jury would have had to conclude that defendant was intoxicated, was lying in wait outside the bar in hopes of being allowed back in to consume more alcohol, that a friend handed him a gun while he was waiting outside the bar and that he wildly shot the gun as a show of bravado, not intending to harm anyone. Practically speaking, this is a stretch, as common sense would tell us that anyone that waits outside a bar awaiting an individual he had just argued with (to the point of being thrown out of the establishment), pulled out a gun and, at point blank range, fired eight shots, killing the victim and harming no one else, intended to kill said victim.
In addition to leaving this case scratching your head, one should probably come away with this: weight of the evidence arguments are extremely difficult to win.
Following an evening of alcohol consumption, the defendant began jawing with another bar patron, when defendant repeatedly hit-on said patron's female companions. Ultimately, defendant was escorted out of the bar. When the patron later left the bar with his companions, defendant was standing outside. Defendant then pulled out a gun and fired eight shots -- at point blank range -- at the patron. Four of the bullets fired struck the victim, killing him. Miraculously, no one else was hit. Following a jury trial, defendant was acquitted of intentional murder, but was convicted of depraved indifference murder.
Due to the fact that defendant failed to preserve the issue of whether the evidence supported only an intentional murder charge and, not a depraved indifference charge, the Court did not reach it. The Court did, however, address the weight of the evidence issue. Defendant argued that point blank shooting of an individual could only be intentional murder.
The Court disagreed. But before it did, it pointed to the fact that the presence of third persons is insufficient to convert an intentional homicide directed at a particular person into depraved indifference murder unless the others are actually endangered. The Court also noted that the greater number of shots fired, the more likely it becomes that there was an intent to kill (i.e. intentional murder). Although the circumstances of this case certainly cut in favor of the defendant, the Court, nevertheless, held that the jury's conclusion in this case was rational.
While the Court obviously acknowledged that the jury could have concluded that this was intentional murder, due to the fact that defendant had an argument with the victim, waited outside the bar and fired eight shots at him, hitting him with four bullets, it also concluded that the jury could have rationally concluded that the killing of the victim was not intended by the defendant, but rather the product of his depraved indifference. To rationally reach that conclusion, the jury would have had to conclude that defendant was intoxicated, was lying in wait outside the bar in hopes of being allowed back in to consume more alcohol, that a friend handed him a gun while he was waiting outside the bar and that he wildly shot the gun as a show of bravado, not intending to harm anyone. Practically speaking, this is a stretch, as common sense would tell us that anyone that waits outside a bar awaiting an individual he had just argued with (to the point of being thrown out of the establishment), pulled out a gun and, at point blank range, fired eight shots, killing the victim and harming no one else, intended to kill said victim.
In addition to leaving this case scratching your head, one should probably come away with this: weight of the evidence arguments are extremely difficult to win.
Thursday, May 17, 2007
Labor Law: Is the Failure to Allege the Existence of a Safety Device that would have Prevented an Accident Fatal to a 240[1] Claim?
In a a case sure to be heard by the Court of Appeals, the Third Department -- over two dissents -- affirmed the dismissal of the plaintiff's claim pursuant to Labor Law 240(1) arising out of the plaintiffs fall from a stack of steel trusses laying on a flat bed truck (Berg v Albany Ladder Co., (slip op. May 17, 2007). The facts of the case were simple: plaintiff was helping to unload steel trusses from a flatbed truck, when the trusses gave way and slid forward, causing the plaintiff to fall to the ground -- approximately 10 feet -- sustaining numerous injuries.
Writing for the majority, Justice Lahtinen, opined that "in the absence of some risk-enhancing circumstance that a statutory device would address, the special statutory protection [of Labor Law 240(1)] does not apply to a worker falling from the back of a truck or trailer." In concluding that the plaintiff failed to state a claim under 240(1), the majority first observed that, while the plaintiff did not technically fall from a truckbed (he fell from trusses placed on the truckbed), he had been able to safely ascend and descend from the position prior to the accident. It placed special emphasis, however, on the fact that the plaintiff acknowledged that there were no particular safety devices that could have prevented the accident. Based upon the fact that there were no alleged safety devices that were lacking, the majority concluded that the accident did not involve "the special risks protected by Labor Law 240(1)" and, thus, occurred as a result of the ordinary dangers present at construction sites.
Presiding Justice Cardona, penned a dissenting opinion (joined by J. Mugglin), taking issue with the majority's holding on the distinct issue of the Labor Law 240(1) claim. The dissent, asserted that on account of the fact that there were elevation differentials, the distance between the work surface and the ground was relevant (here about 10 feet). Insodoing, the dissent differentiated the Court of Appeals decision in Toefer v Long Island Railroad, 4 NY3d 399 [2005]. The Toefer decision stood for the principle that workers that fall from a truckbed (4-5 feet off the ground), may not -- as a matter of law -- recover under Labor Law 240(1), because it is not the sort of "elevation-related risk" contemplated by the statute. Here, the dissent accurately pointed out that the plaintiff here, did not fall from a truck bed, but, rather, from a bundle of trusses perched atop a truck bed (a total height of 10 feet).
The dissent also found that plaintiff's failure to identify a particular safety device that would have prevented the accident was not determinative. Moreover, the dissent found that had a safety device been provided, the plaintiff could have avoided climbing atop the trusses to complete the job (citing Worden v Solvay Paperboard, LLC, 24 AD3d 1187, 1188 [2005] [holding that a safety device, such as a lift, ladder or harness would have allowed the claimant from climbing on construction materials perched on a truck bed, and thus, claimant's resulting injury was the sort contemplated by the statute]).
Insofar as there is a 3-2 split, the Court of Appeals will likely hear the case (if the Appellant decides to do so). If so, the Court will have to engage in more judical line-drawing with respect to Labor Law 240(1). The interesting issue is whether the Court of Appeals will insert this new requirement, advocated by the majority, mandating dismissal if the claimant in a Labor Law 240(1) is unable to point to a specific safety device that would have prevented the accident.
Writing for the majority, Justice Lahtinen, opined that "in the absence of some risk-enhancing circumstance that a statutory device would address, the special statutory protection [of Labor Law 240(1)] does not apply to a worker falling from the back of a truck or trailer." In concluding that the plaintiff failed to state a claim under 240(1), the majority first observed that, while the plaintiff did not technically fall from a truckbed (he fell from trusses placed on the truckbed), he had been able to safely ascend and descend from the position prior to the accident. It placed special emphasis, however, on the fact that the plaintiff acknowledged that there were no particular safety devices that could have prevented the accident. Based upon the fact that there were no alleged safety devices that were lacking, the majority concluded that the accident did not involve "the special risks protected by Labor Law 240(1)" and, thus, occurred as a result of the ordinary dangers present at construction sites.
Presiding Justice Cardona, penned a dissenting opinion (joined by J. Mugglin), taking issue with the majority's holding on the distinct issue of the Labor Law 240(1) claim. The dissent, asserted that on account of the fact that there were elevation differentials, the distance between the work surface and the ground was relevant (here about 10 feet). Insodoing, the dissent differentiated the Court of Appeals decision in Toefer v Long Island Railroad, 4 NY3d 399 [2005]. The Toefer decision stood for the principle that workers that fall from a truckbed (4-5 feet off the ground), may not -- as a matter of law -- recover under Labor Law 240(1), because it is not the sort of "elevation-related risk" contemplated by the statute. Here, the dissent accurately pointed out that the plaintiff here, did not fall from a truck bed, but, rather, from a bundle of trusses perched atop a truck bed (a total height of 10 feet).
The dissent also found that plaintiff's failure to identify a particular safety device that would have prevented the accident was not determinative. Moreover, the dissent found that had a safety device been provided, the plaintiff could have avoided climbing atop the trusses to complete the job (citing Worden v Solvay Paperboard, LLC, 24 AD3d 1187, 1188 [2005] [holding that a safety device, such as a lift, ladder or harness would have allowed the claimant from climbing on construction materials perched on a truck bed, and thus, claimant's resulting injury was the sort contemplated by the statute]).
Insofar as there is a 3-2 split, the Court of Appeals will likely hear the case (if the Appellant decides to do so). If so, the Court will have to engage in more judical line-drawing with respect to Labor Law 240(1). The interesting issue is whether the Court of Appeals will insert this new requirement, advocated by the majority, mandating dismissal if the claimant in a Labor Law 240(1) is unable to point to a specific safety device that would have prevented the accident.
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