Fourth Department

Fourth Department Reverses Trial Court's Suppression Ruling

In People v. James, 2006 NY Slip Op 01941, the cocaine at issue was discovered by officers while in the process of executing an arrest warrant for the codefendant in this case.  The codefendant allowed officers into the apartment and was accompanied to her bedroom by an officer so that she could obtain identification.  While there, he saw cash and a number of glassine baggies on the bed. 

He and another officer then "investigated further" and discovered additional baggies protruding from a shaving bag on the dresser.  They then discovered crack cocaine inside a zippered compartment of the shaving bag. 

The trial court denied Mr. James' motion to suppress the cocaine on the grounds that the baggies were in plain view, and that:

"[o]nce the [shaving] bag that held the glassine envelopes was seized, it was immaterial that the cocaine secreted in a closed portion of the bag was not visible." The court further concluded that "the glassine envelopes allow the inference that the closed portion of the bag was a storage area for narcotics or more packaging material."

The Fourth Department disagreed and concluded that:

Even assuming, arguendo, that the two officers were lawfully permitted to return to the bedroom, we conclude that the cocaine secreted in the zippered compartment of the shaving bag was not in plain view. Additionally, the discovery of the cocaine by unzipping the closed compartment was not inadvertent rather than anticipated. We therefore conclude that the cocaine was illegally seized and must be suppressed. Defendant's statements must also be suppressed as fruit of the poisonous tree. (Internal citations and quotations omitted.)

In my opinion, the Fourth Department's decision was correct.  Although glassine baggies are "commonly used" for packaging drugs, there are many other innocent uses for the baggies.  The cash and the baggies alone were not enough to justify the search of the shaving bag.

I'm sure that some of you might disagree and I'd be very interested in hearing the basis for your disagreement...

Adverse Inference Charge Sufficient to Cure Spoliation of Evidence

In Enstrom v Garden Place Hotel, 2006 NY Slip Op 01938, the plaintiff, a guest at the defendant's hotel, was injured when the handle came off of the wall of the whirlpool tub as he grabbed onto it while attempting to exit the tub.  Following the fall, the handle (along with all other tub handles in the hotel) was eventually replaced with a stronger handle and the original handle was disposed of.  Thereafter, the plaintiffs moved to strike the defedant's Answer as a sanction for spoliation of evidence.

The Fourth Department noted that:

Spoliation sanctions may be appropriate even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] ... was on notice that the evidence might be needed for future litigation, amended on other grounds 20 AD3d 944). Striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprive[s] the moving party of the ability to establish his or her defense or case.  (Internal citations and quotations omitted.)

The Court concluded that the trial court's spoliation sanctions were excessive and than an adverse inference charge against the hotel was a more appropriate sanction, because:

(P)laintiffs are not required to prove the specific defect in order to present a prima facie case of defective design, and because their expert's opinion "exclude[s] all causes of the accident not attributable" to product defect, we conclude that plaintiffs are able to present a prima facie case based on defective design despite the spoliation of evidence.

Fourth Department Holds Sentence Improperly Enhanced by Trial Court

In People v. Chapman, 2006 NY Slip Op 02072, the defendant entered a guilty plea to Criminal Possession of a Controlled Substance in the Fourth Degree, was placed in a drug treatment program and advised that if he successfully completed the program, the current charge against him would be dismissed, but that if he failed to complete the program "for whatever reason," he would be sentenced to the maximum term of 1 to 3 years incarceration.  The defendant successfully completed the program, but failed to pay the service fee of $201.  As a result, the trial court refused to allow the defendant to withdraw his guilty plea and sentenced him to 5 years probation.

The Fourth Department concluded that the trial court abused its discretion in doing so.  The Court stated that:

In support of the motion, defendant asserted that he had completed the drug treatment program and in addition had otherwise complied with all other terms of the plea agreement. It is well settled that, [w]hile the decision to allow a defendant to withdraw a plea of guilty generally rests in the sound discretion of the trial court, a plea induced by an unfulfilled promise either must be vacated or the promise honored.  Here, the payment of the service fee in order to complete the drug treatment program was not a condition of the plea agreement. (Internal citations and quotations omitted.)

Not surprisingly, I agree with the Court's decision, not only because Mr. Chapman successfully completed the treatment aspect of the program, but because I find it inherently objectionable that he was penalized by the trial court for his indigent status.   

Fourth Department Consideres Whether Homeowner Exemption Inapplicable

In Freeman v. Advanced Design Prods., Inc., 2006 NY Slip Op 01957, the Fourth Department considered the issue of whether the homeowner exemption was applicable thus shielding the defedants from liaiblity for the plaintiff's Labor Law s. 240(1) claim.  The Court concluded that the homeowner exemption did not apply and thusthe trial court properly denied the defendants' motions for summary judgment.

The Court stated that:

The record establishes that, for the seven or eight years preceding the fire, defendants had used the property exclusively for commercial purposes, i.e., as rental property; that the fire had rendered the premises unoccupied and indeed uninhabitable for the duration of the work; that defendants had contracted for that work for the explicit purpose of renovating the house for sale to a third party; and that defendants had sold the house upon the completion of the work. Under those circumstances, defendants are not entitled to the benefit of the homeowner exemption.

Court Concludes Assumption of Risk Does Not Include All Risks

In Martin v Fiutko, 2006 NY Slip Op 01981, the Fourth Department considered whether the trial court properly granted the defendant's motion for summary judgment based upon the doctrine of assumption of the risk.  In this case, the plaintiff, a snowboarder, was injured when the defendant skied into him.   

The Court set forth the relevant law and noted that a voluntary participant in a sport:

consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.  However, a participant will not be deemed to have assumed the risks of reckless or intentional conduct. [D]ownhill skiing [and snowboarding] ... contain[] inherent risks including, but not limited to, the risks of personal injury ... which may be caused by ... other persons using the facilities, (General Obligations Law § 18-101), and thus there generally is an inherent risk in downhill skiing and snowboarding that the participants in those sports might collide.  (Internal case citations and quotations omitted.)

The Court concluded that the trial court erred in granting the defendant's motion for summary judgment, since there were issues of fact as to whether the defendant's conduct rose to the level of recklessness.

I decided to post about this case, since it sets forth a good summary of the applicable law relating to the assumption of the risk for voluntary participants in a sport.  That, and the fact that I thought it was more than ironic that a snowboarder was injured by a skier.   What is this world coming to?  It's absolute craziness, I tell you.  Next thing you know, someone from the Bush administration will admit that thousands of tactical errors have occurred in Iraq.

Fourth Department Considers Application of VTL s. 1103(b)

The Fourth Department's decision in a recent case, Haist v Town of Newstead, 2006 NY Slip Op 01984, centered around the issue of whether a snowplow driver was liable for the plaintiffs' injuries.  Since the snowplow driver was employed by the Town of Newstead, VTL s. 1103(b) was applicable, and thus the town could be held liable only if the snowplow was operated with reckless disregard for others. 

This is an important VTL provision to be aware of, since it holds a driver liable only for reckless conduct, as opposed to negligent conduct, for an accident caused by a vehicle "engaged in work on a highway."

In this case, the Court denied the defendants' motion for summary judgment since it concluded that there were issues of fact regarding whether the operator of the snowplow acted with reckless disregard for others.

Fourth Department Orders New Trial

In People v. Ramos, 2006 NY Slip Op 01931, the Fourth Department considered the issues of whether the trial improperly allowed testimony regarding the defendant's status as a parolee and whether statements made to the arresting officer, the defendant's parole officer, should have been suppressed.

The trial court initially ruled that the defendant's status as a parolee was not admissible, but sua sponte reversed its decision after the defendant's mother testified to a sequence of events preceding the arrest that differed from the parole officer's testimony.  The Court concluded that the trial court's ruling was improper and stated that:

We conclude that the testimony of defendant's mother in no way misled the jury with respect to the prior criminal history or current status of defendant, and thus the court erred in determining that her testimony "opened the door to [the highly prejudicial information that defendant was a parolee at the time of his arrest] by offering evidence ... [that] might ... mislead the factfinder."

The Court also concluded that the defendant's statements made to his parole officer while  handcuffed and seated in the back of the police vehicle should have been suppressed since he had not yet been Mirandized.  The Court held:

"[O]nce defendant was physically taken into custody and handcuffed, the potential for coercion was as great as that which inheres in custodial interrogation by a police officer, and ... administration of the Miranda warnings was required to dispel that potential coercion in order for defendant's statement to be admissible in a criminal trial."

Seems like a fairly open and shut decision to me, although I'm sure that a few ex-prosecutors that read this blog might disagree with me...

Indignant Indigent also posted about this case here.

Keep On Truckin'

Goins v Rome City School Dist., 2006 NY Slip Op 02004, is an interesting case that was decided by the Fourth Department on March 17th.  The plaintiff sued the school district defendant on behalf of her daughter, a student at the school who was required to participate in a "trucker buddy" program, as part of a school geography project.  Pursuant to that program, a trucker received her daughter's name in order to correspond with her and also was alleged to have received a class photograph.

The Fourth Department concluded that the trial court properly dismissed the plaintiff's complaint.  The Court stated that the claim made under the Family Educational Rights and Privacy Act of 1974 was appropriately dismissed since the Act did not create personal rights to enforce pursuant to a civil rights action.  The Court stated that the Complaint did not establish a claim for extreme emotional distress since the plaintiff was not within the zone of danger that was alleged to threaten her daughter.  And finally, the Court concluded that the claim alleging substantive and procedural due process violations must also fail, since her daughter did not sustain actual injury in the first instance, and "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."

While the holding is certainly relevant, what I find most interesting about this case is the underlying facts.  What was the school district thinking?  I can envision any number of horror stories arising from this "trucker buddy" program.  I can certainly understand why the mother was upset, although I'm confidant that some other avenue aside from litigation would have been a more appropriate venue in which to express her angst;  especially in light of the fact that her daughter apparently suffered no harm as a result of the ill-conceived program.  All in all, this was one of the more factually entertaining cases from this term.

Fourth Department Suppresses Gun

In People v. Long, 2006 NY Slip Op 01918, the Fourth Department considered the issue of whether a statement made by the defendant and the gun subsequently discovered as a result of the statement was properly suppressed by the trial court. 

In this case, the defendant was stopped due to an expired registration.  The officer then advised Mr. Long that the car was going to be towed and asked him to exit his vehicle.  Mr. Long was then placed him in the back of the officer's patrol car, without any handcuffs, while he was issued a ticket.  The officer later testified that Mr. Long was not free to leave at that point.  He then asked Mr. Long if there was anything  in the car that he should know about, at which point Mr. Long advised that there was a gun in the car.

The Court first considered the issue of whether the defendant was in custody when the statements were made.  The Court stated that the relevant inquiry is what a reasonable person innocent of any crime would have thought if in the defedant's position.

The Court then held the defendant was in custody when he made the statements to the officer and had not yet been Mirandized, and thus the trial  court properly suppressed the gun and statements.  The Court also concluded that:

(T)he record supports the court's determination that the question to defendant was interrogatory and designed ... to elicit the defendant's inculpatory cooperation, particularly in view of the deference afforded the court's credibility determinations. Under the circumstances, the officer should have known that the question was reasonably likely to elicit an incriminating response from defendant.  (Internal citations and quotations omitted.)

Not a particularly surprising decision in light of the facts set forth in the decision.  I wonder why the decision was appealed and if there were any additional facts in the record that might offer a clue in that regard.

As an aside, the ADA in this case and I tried our very first jury trials against each other back in the late 90s.  And, the defense counsel was my Business Law professor in college.  It was an entertaining class, to say the least.

Who Had the Last Laugh After All?

On Friday, March 17, the Fourth Department handed down a number of decisions that are interesting, both factually and legally.  I'll be posting about the decisions over the next few weeks.

The first decision that caught my eye was Walter v. NBC Tel. Network, Inc., 2006 NY Slip Op 01929.  In this case, the plaintiff commenced an action against her former employer, Dorschel Automotive Group, Inc., a Rochester car dealership, and NBC Universal Inc., alleging, among other things, that the defendants violated her civil rights pursuant to Civil Rights Law ss. 50 and 51, as a result of Jay Leno's use of her photo during a comedic "Headlines" segment of "The Tonight Show".  This type of civil rights claim was previously discussed in this post.

In regard to NBC, the Court stated held that the the comedic component of the newsworthiness exception to CRL ss. 50 and 51 claims applied, and thus NBC was not liable to the plaintiff.  The Court stated:

Here, the use of plaintiff's photograph by the NBC defendants was not strictly limited to a commercial appropriation, and thus the use of the photograph does not fall within the ambit of those sections of the Civil Rights Law...A performance involving comedy and satire may fall within the ambit of the newsworthiness exception even if the performance is not related to a legitimate' news broadcast [or event].  (Internal citations and quotations omitted).

As to Dorschel, the Court concluded that it was not entitled to summary judgment pursuant to the newsworthiness exception:

Dorschel failed to establish as a matter of law that it did not submit plaintiff's photograph, which bore a caption listing the name of its business, its area code, and part of its telephone number, to the NBC defendants "for advertising purposes, or for the purposes of trade" (§ 50).

I wonder if any financial benefit obtained by Dorschel as a result of the Jay Leno show bit is now outweighed by the cost of legal fees in defending this matter?  I question whether this type of claim is covered by your average insurance liability policy, so the legal fees might very well be out of pocket.  Who's having the last laugh now?