New York Law Review

Tag: constructive knowledge

  • People v. Henriquez, 6 N.Y.3d 784 (2005): Constructive Knowledge of Prior Attorney Contact and Right to Counsel

    People v. Henriquez, 6 N.Y.3d 784 (2005)

    When determining whether police should be charged with constructive knowledge of a suspect’s prior assertion of the right to counsel, courts consider the passage of time, record availability, and whether the same officers were involved in prior investigations.

    Summary

    Henriquez was convicted of homicide after admitting in 2001 that she paid her brother to murder her husband in 1990. She argued that the admission of these incriminating statements violated her right to counsel because an attorney had contacted police in 1998 during a polygraph examination related to the same murder, asserting representation. The New York Court of Appeals affirmed the conviction, holding that the police in 2001 neither knew nor reasonably should have known of the attorney’s prior entry in 1998. The court considered the passage of time, the destruction of records in the regular course of business, and the lack of involvement of the same officers in the subsequent interrogation.

    Facts

    In 1990, Henriquez’s husband was murdered.
    In 1998, Henriquez was questioned about the murder after her former lover’s suicide note implicated her.
    An attorney, previously hired by Henriquez’s sister, contacted the police during a polygraph examination in 1998, stating he represented Henriquez and asking that the examination cease. Henriquez was informed of the attorney’s call but stated she did not need an attorney.
    In 2001, Henriquez went to the police and confessed to paying her brother to commit the murder.

    Procedural History

    The trial court denied Henriquez’s motion to suppress the 2001 confession.
    Henriquez was convicted of homicide.
    On appeal, Henriquez claimed the admission of the 2001 statements violated her right to counsel.
    The Appellate Division affirmed her conviction.
    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the incriminating statements Henriquez made in 2001 violated her right to counsel, given that an attorney had contacted police in 1998 asserting representation during questioning related to the same crime.

    Holding

    No, because the police who questioned Henriquez in 2001 neither knew, nor reasonably should have known, of the attorney’s entry in 1998.

    Court’s Reasoning

    The Court of Appeals relied on the principle established in People v. Carranza, 3 NY3d 729, 730 (2004), that “[w]here a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions.” The court emphasized that either actual or constructive knowledge by the interrogating officers is sufficient to perpetuate the indelible right to counsel.

    In assessing whether the police can be charged with knowledge, the court considered several factors: the three-year gap between the 1998 phone call and the 2001 interrogation; the fact that the Highland State Police had destroyed their closed case file concerning the 1998 investigation, which would have contained the attorney’s contact; the lack of a record of the 1998 interview in the Brooklyn South Homicide Squad’s file; and that none of the officers involved in the 1998 incident participated in the 2001 interrogation. The court noted that since no charges were brought in 1998, the attorney had no further contact with the police.

    Because of these factors, the Court determined that the 2001 interrogating officers neither knew, nor should reasonably have known, of the attorney’s prior involvement. Therefore, any right to counsel that might have attached in 1998 did not prevent Henriquez from waiving counsel and speaking to the police in 2001. The Court also declined to review the suppression court’s finding that Henriquez was not in custody prior to the administration of Miranda warnings, as that was a mixed question of law and fact and supported by the record.

  • Richjen Restaurant Corp. v. New York State Liquor Authority, 52 N.Y.2d 849 (1981): Liquor License Revocation Based on Constructive Knowledge

    Richjen Restaurant Corp. v. New York State Liquor Authority, 52 N.Y.2d 849 (1981)

    A liquor license revocation based on “suffering or permitting” illegal activity on the premises requires substantial evidence that the licensee or a principal of the licensee knew or should have known of the activity.

    Summary

    Richjen Restaurant Corporation had its liquor license suspended and then revoked by the New York State Liquor Authority (SLA) based on charges of narcotics trafficking and possessing a loaded shotgun on the premises. The Court of Appeals found substantial evidence supported the suspension regarding the shotgun because it was in plain view for an extended period, implying the owner knew about it. However, the Court held that there was insufficient evidence to support the narcotics trafficking charge because there was no proof that the licensee or a principal of the licensee knew or should have known about the drug sales. The Court modified the judgment, limiting the punishment to the 10-day suspension and remitting the matter for reconsideration of the license renewal application.

    Facts

    Richjen Restaurant Corporation operated a liquor establishment in New York City. On March 2, 1978, the SLA initiated proceedings to revoke Richjen’s license, alleging: 1) the premises was allowed to become a site of narcotics trafficking on March 19, 1977, and 2) a loaded shotgun was maintained on the premises, both violations of Alcoholic Beverage Control Law § 106(6). During the alleged drug trafficking incident, a patron openly sold cocaine from a pouch on the bar while a bartender was present or the premises was unsupervised. The loaded shotgun belonged to the father of Richard Jenkins, an officer of Richjen, who had a permit for it, but possessing a loaded shotgun in public in NYC is unlawful.

    Procedural History

    The SLA initiated both a revocation proceeding and a nonrenewal (recall) proceeding. The hearing officer sustained both charges in the revocation proceeding, leading to a 10-day suspension for the shotgun and cancellation for narcotics trafficking. The SLA then commenced the nonrenewal proceeding, relying on the same specifications to recall Richjen’s license. The Appellate Division confirmed both determinations. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether substantial evidence supported the finding that Richjen “suffered or permitted” narcotics trafficking on the premises.
    2. Whether the State Liquor Authority improperly relied on the narcotics charge when deciding not to renew Richjen’s liquor license.

    Holding

    1. No, because there was no evidence that Richard Jenkins (the licensee) knew or should have known of the drug transactions, nor was there evidence that the bartender was a manager or principal whose actions could be imputed to the corporation.
    2. Remanded to the State Liquor Authority to determine the extent to which the narcotics charge was relied upon in the non-renewal application.

    Court’s Reasoning

    The Court found that the 10-day suspension for the shotgun was supported by substantial evidence because the shotgun was in plain view for at least a year, and Richard Jenkins, as principal, must have known of its illegal presence. However, the Court distinguished the narcotics charge, stating, “There was no evidence that Richard Jenkins knew, or should have known of the specified transactions, nor was there any evidence that the bartender was a manager or corporate principal, the activities of whom could be imputed to the corporate licensee.” The Court cited Matter of Triple S Tavern v New York State Liq. Auth., 31 NY2d 1006 and Matter of Martin v State Liq. Auth., 41 NY2d 78. Because the extent to which the SLA relied on the narcotics charge in denying renewal was unclear, the Court remitted the matter for reconsideration of the renewal application. This case underscores the importance of proving knowledge or constructive knowledge on the part of the licensee or a corporate principal to sustain a revocation based on “suffering or permitting” illegal activity. The Court effectively limited the reach of the “suffer or permit” standard under the Alcoholic Beverage Control Law, requiring a direct nexus between the licensee’s knowledge and the illegal activity. This protects licensees from being penalized for actions they could not reasonably prevent or were unaware of.

  • Migliaccio v. O’Connell, 307 N.Y. 566 (1954): Defining “Suffer or Permit” in Alcohol Beverage Control Law Violations

    Migliaccio v. O’Connell, 307 N.Y. 566 (1954)

    To establish that a licensee “suffered or permitted” gambling on their premises in violation of the Alcoholic Beverage Control Law, there must be evidence that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the gambling activity.

    Summary

    This case addresses the level of knowledge required to prove that a licensee violated the Alcoholic Beverage Control Law by suffering or permitting gambling on their premises. The court found that for a violation to stand, the licensee must have had actual or constructive knowledge of the gambling activity. The court annulled the suspension of the petitioner’s license because there was no evidence that the licensee or their employees were aware of the gambling activity occurring on the premises. This case emphasizes that mere occurrence of gambling is insufficient; the licensee’s complicity, actual or implied, is required.

    Facts

    An undercover police officer observed a woman patron engaging in apparent gambling activities (taking money and making notations on paper) at the petitioner’s bar over a period of several days. On one occasion, the officer returned with a search warrant and found the same woman with a slip containing horse-racing plays. There was no evidence that the bartender or the licensee, who was present for only about an hour on one of the days, saw or knew about the woman’s activities.

    Procedural History

    The New York State Liquor Authority suspended the petitioner’s license for violating Section 106, subd. 6 of the Alcoholic Beverage Control Law, alleging that the licensee suffered or permitted gambling on the premises. The Appellate Division annulled the suspension, finding a lack of evidence of knowledge on the part of the licensee. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the evidence presented was sufficient to establish that the licensee “suffered or permitted” gambling on the licensed premises, thereby violating Section 106, subd. 6 of the Alcoholic Beverage Control Law.

    Holding

    No, because there was no evidence to demonstrate that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the gambling activity.

    Court’s Reasoning

    The court emphasized that the phrase “suffer or permit” implies knowledge or the opportunity through reasonable diligence to acquire knowledge. Quoting People ex rel. Price v. Sheffield Farms, the court stated, “Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.” The court found that the record did not support a conclusion that there was a fair measure of continuity and permanence in the gambling activity, nor was there any evidence that the licensee or the barmaid were aware of it.

    The court distinguished the case from situations where an employee is directly involved in the gambling activity, noting that here, the initiator was a customer. The court noted the absence of evidence suggesting any complicity, actual or implied, by the licensee in permitting gambling. The court found that holding the licensee responsible for the actions of a patron, based on alleged constructive notice on the part of the bartender, would be an overreach, especially since there was no evidence that the employee was aware of the gambling.

    The court reinforced that the gravamen of the charge under section 106 is the licensee’s complicity, actual or implied, in permitting gambling and said that the record lacked sufficient evidence to support the licensee’s implied acquiescence in any such activity. This means the state has to prove that the licensee knew about the gambling, or that they were negligent in not knowing about it.

  • Matter of Versaggi v. New York State Liquor Authority, 27 N.Y.2d 153 (1970): Annulment of Liquor License Requires Proof Licensee Knew or Should Have Known of Disorderly Conduct

    Matter of Versaggi v. New York State Liquor Authority, 27 N.Y.2d 153 (1970)

    To annul a liquor license based on disorderly conduct on the premises, the New York State Liquor Authority must demonstrate that the licensee knew or should have known of the disorderly conduct.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s decision, holding that the evidence presented by the New York State Liquor Authority (SLA) was insufficient to prove that the licensee, Versaggi, knew or should have known of the alleged disorderly conduct on her premises. The court emphasized that merely proving a solicitation for lewd and immoral purposes is not enough; the SLA must establish that the licensee was aware or should have been aware of the behavior. The case highlights the importance of proving a licensee’s knowledge or constructive knowledge when seeking to annul a liquor license for allowing a disorderly premises.

    Facts

    A police officer testified that he observed approximately 30 males in Versaggi’s establishment, some wearing makeup and engaging in behavior such as sitting on each other’s laps and kissing. The licensee allegedly locked the door and used a buzzer system to control entry after the officer had been on the premises for about a half hour. The SLA sought to annul Versaggi’s liquor license, arguing that she permitted the premises to become disorderly.

    Procedural History

    The SLA annulled Versaggi’s liquor license. The Appellate Division affirmed the SLA’s determination. The New York Court of Appeals reversed the Appellate Division’s order and remitted the matter to the Special Term for further proceedings.

    Issue(s)

    Whether the evidence presented by the SLA was sufficient to prove that the licensee, Versaggi, knew or should have known of the disorderly conduct on her premises, thereby justifying the annulment of her liquor license.

    Holding

    No, because the SLA failed to present substantial evidence that Versaggi knew or should have known of the disorderly conduct. The evidence of locking the door and using a buzzer system did not sufficiently demonstrate her awareness of the specific behavior cited as disorderly.

    Court’s Reasoning

    The court stated that to annul a liquor license under section 106(6) of the Alcoholic Beverage Control Law, the SLA must show that the licensee “suffered or permitted” the premises to become disorderly. The court emphasized that proof of solicitation for lewd purposes alone is insufficient. The licensee must have “knowledge, actual or constructive, of the alleged disorder.”

    The court found that the locking of the door and use of the buzzer system were as consistent with an effort to maintain order as with a tacit approval of the conduct alleged. The court distinguished this case from others where the licensee’s involvement in the disorderly conduct was more direct or obvious. The court cited Matter of Migliaccio v. O’Connell, 307 N.Y. 566, emphasizing the need for substantial evidence showing the licensee should have known a disorderly condition prevailed, beyond a brief occurrence.

    The dissenting opinion argued that the overt nature of the behavior, combined with the licensee’s control over who entered the premises, made it inconceivable that she was unaware of the disorderly conduct. The dissent cited the officer’s testimony regarding the patrons’ attire and behavior, stating, “Even if we credited the licensee’s statements that she did not, in fact, observe the behavior which the officer described, nevertheless his description of the premises was such that it was not unreasonable for the Authority to conclude that the licensee should have known of the disorderly conduct taking place in her establishment.”

    The majority, however, found that the evidence was not substantial enough to impute knowledge or constructive knowledge to the licensee. The key takeaway is that the SLA must present concrete evidence linking the licensee to the disorderly conduct, not merely evidence of the conduct itself.