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Bar News - October 15, 2014

Supreme Court At-a-Glance


Petition of Gregory Malisos to the New Hampshire Retirement System
No. 2013-434
Sept. 12, 2014
  • Whether an individual, although legally separated from a covered retiree, qualifies as a spouse for the purposes of eligibility for the medical subsidy benefit under RSA 100 A:52

Petitioner Gregory Malisos retired from the Windham Police force after more than 24 years months as an officer, effective July 1, 2008. His retirement benefits included his ability to continue his and his spouse’s health insurance coverage through Windham’s participation in the Local Government Center’s Health Trust insurance plan.

On Sept. 17, 2009, Malisos and his spouse legally separated. The New Hampshire Retirement System (NHRS) received notice of the separation in March 2011. On April 18, 2011, NHRS informed the petitioner by letter that he was no longer eligible to receive the NHRS medical subsidy benefit for his spouse because of the separation agreement. Further, the letter advised the petitioner that NHRS reduced his medical subsidy benefit to the one-person amount effective April 2011, and the NHRS would retroactively adjust his future benefit due to the overpayment from the date of the separation decree through March 2011.

The petitioner administratively appealed the April 18 notice before a hearings examiner. The hearing was nonevidentiary and the parties stipulated to the facts stated above. The parties agreed that RSA 100:A does not define the word “spouse.” The hearings examiner looked to RSA 458 to determine the effect of legal separation on an individual’s eligibility to receive retirement benefits and concluded that a legal separation “shall have in all respects the effect of a divorce.” Under RSA 458:26, I (2004), the hearings examiner found that NHRS was required “to treat the Petitioner’s legal separation... as if it were a divorce.” The hearings examiner recommended that the NHRS Board uphold the determination by NHRS that the petitioner’s spouse was no longer eligible for the retirement subsidy after the date of the separation agreement. The board approved the recommendation of the hearings examiner and denied petitioner’s motion for reconsideration. Petitioner appealed to the New Hampshire Supreme Court by writ of certiorari.

The Supreme Court used the following standard of review: “whether the Board acted illegally with respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably, or capriciously.”

Under review, the Supreme Court disagreed with the board and the hearings examiner and held that without contradictory limiting language in RSA 100 A:52, the Legislature intended that an individual, although legally separated from a retiree, should qualify as a spouse for purposes of eligibility for the medical subsidy benefit, until the separated spouse’s death or remarriage.

Petitioner Gregory Malisos pro se. Foley Law Office, of Concord (Peter Foley on the brief), for the respondent.

Criminal Law
The State of New Hampshire v. Timothy McKenna
No. 2013-009
September 12, 2014
Reversed and remanded
  • Whether the defendant was in custody for purposes of Miranda when he was questioned on his property by two uniformed police officers and a third officer articulated where they could and could not go

In October 2010, the Newmarket Police Department received a report that KL had been sexually abused by the defendant several years earlier. A police lieutenant and sergeant investigated the allegations and obtained a warrant for the defendant’s arrest. On Oct. 22, 2010, the officers, accompanied by a New Hampshire state trooper, went to a campground and restaurant owned by the defendant in Errol.

The uniformed police officers arrived in two vehicles, one fully marked State Police cruiser and one unmarked Ford Expedition. The campground and restaurant were located in a secluded area, not visible from the road and surrounded by woods. The State Trooper was visibly armed with his service weapon and the other officers’ service weapons were concealed. The officers arrived at the campground and restaurant and asked to speak to the defendant alone to discuss a private subject. The defendant opted to walk around the property and talk.

The record does not contain any evidence that the defendant was provided with Miranda warnings; that the officers informed him that he was free to ask them to leave the property or that he was not required to answer their questions.

The officers interrogated the defendant about the sexual assault allegations for about an hour and 15 minutes. The record reflects that the officers were questioning the defendant under the presumption that the defendant was guilty. The officers did not allow the defendant to leave the State Trooper’s line of sight.

At one point, when the defendant began to walk into the woods, the lieutenant said: “Hold it [defendant], we’re not walking out there. I don’t want to leave the sight of the trooper.”

The defendant did not verbally respond to the lieutenant but he stopped walking into the woods and changed direction. After about an hour of questioning, the officers elicited incriminating statements from the defendant regarding the molestation allegations. The officers arrested the defendant, and a jury later convicted him.

The defendant filed a motion to suppress his statements from this interrogation and argued that the officers violated his rights under both the New Hampshire and United States Constitutions by subjecting him to a custodial interrogation without informing him of his Miranda rights.

The above facts were part of the record from the evidentiary pre-trial suppression hearing. The trial court concluded that the defendant was not in custody because of his familiarity with his surroundings, the presence of only two officers, and the lack of physical restraint. A jury convicted the defendant of six counts of aggravated felonious assault under RSA 632:A2. The defendant appealed the trial court’s denial of his motion to suppress.

The NH Supreme Court analyzed this issue under the New Hampshire Constitution and did not reach the analysis under the United States Constitution because the defendant prevailed under the State Constitution.

The Supreme Court observed that interrogations are fluid and a number of factors must be considered to determine whether an individual is in custody during a police interrogation, including: (1) the degree to which the officers restrained the defendant’s movement; (2) the level of control the officers exercised over the defendant during the interrogation. Here, the Court considered (1) that the defendant was told that he was not under arrest (supported a finding of no custody); (2) the lack of evidence that he was told he was free to terminate the interrogation (supported a finding of custody); (3) the accusatory nature of the questioning and accusatory statements made by the officers (supported a finding of custody); (4) the fact that there were only two officers questioning the defendant (supported a finding of no custody); and (5) the fact that the police initiated the contact with the defendant (supported a finding of custody). The Court stated that the length of the interrogation in this case did not weigh for or against a finding of custody.

The court concluded that, while it was a close call, the defendant was in custody for Miranda purposes after the lieutenant instructed him to not enter the woods and the defendant obeyed. Therefore, under Part I, Article 15 of the New Hampshire Constitution, any incriminating statements made by the defendant after the lieutenant’s instruction not to enter the woods must be suppressed.

The Court was unable to determine as a matter of law whether the interrogation was custodial prior to the lieutenant’s instructions. Therefore, the court remanded for the trial court to make specific findings and rulings regarding the admissibility of any incriminating statements made by the defendant after his initial responses, and before lieutenant’s instruction not to enter the woods.

Joseph Foster, attorney general (Elizabeth Woodcock, assistant attorney general, on the brief and orally), for the state. Andrew Cotrupi of Hampton, by brief and orally, and Samdperil & Welsh of Exeter (Richard Samdperil on the brief), for the defendant.

The State of New Hampshire v. James Perry
No. 2013-136
Sept. 12, 2014
Affirmed in part, vacated in part, and remanded
  • Whether a trial court can admit an in-court identification without a prior out-of-court identification
  • Whether a trial court can sentence a defendant found guilty of attempted kidnapping under the more severe statutory kidnapping provision when the indictment failed to allege and the jury was not instructed to find a fact necessary for that level of offense

At trial, a jury convicted the defendant on one count of attempted kidnapping and one count of criminal restraint. These counts arose from a single course of conduct on Dec. 14, 2011. The trial court sentenced the defendant only on the attempted kidnapping conviction and held the criminal restraint conviction pending the outcome of any appeal.

The trial court record reflected that the single course of conduct that occurred when the defendant displayed a weapon and approached the victim while she was standing at her driver side door. The defendant told the victim to unlock the rear door and she refused. The defendant then dove across her lap while she was seated in the driver seat. Under the circumstances, the victim believed that this action constituted a substantial step toward the commission of kidnapping.

On appeal, the defendant argued that the trial court erred in two ways. First, by admitting the victim’s in-court identification when she had not made a prior out-of-court identification and, second, by sentencing him for a Class A felony, when the indictment failed to allege, and the jury was not instructed to find, that he did not “voluntarily release” the victim without serious bodily injury and in a safe place prior to trial. The NH Supreme Court reviewed both issues de novo.

The court rejected the defendant’s first argument and affirmed the admission of the in-court identification evidence. At a sidebar conference at trial, the defendant argued that in-court identification would be “unconstitutionally suggestive” and inadmissible under the analysis of Neil v. Biggers (1972). The trial court found that the Biggers analysis is inapplicable under the NH Supreme Court’s holding in State v. King (2007) (“a defendant does not have the right to a lineup, whether conducted before or during trial”). The Supreme Court agreed with the trial court and found that King controlled.

The Supreme Court accepted the defendant’s second argument. The defendant argued that the applicable portion of the kidnapping statute provides: “Kidnapping is a class A felony unless the actor voluntarily releases the victim without serious bodily injury and in a safe place prior to trial, in which case it is a class B felony.” RSA 633:1.

Here, the defendant contended that the indictment failed to allege either that the defendant attempted to commit a class A felony kidnapping, or allege the element that, if completed, would have made the underlying crime a class A felony. The State argued that jurisdictions tasked with interpreting similar kidnapping statutes – Alaska, Arizona, Wyoming, and Vermont – have permitted trial courts to sentence defendants guilty of attempted kidnapping under the more severe statutory provision. The Supreme Court rejected the state’s argument and declined to follow the other jurisdictions.

The Supreme Court affirmed the defendant’s kidnapping conviction, vacated his sentence, and remanded for sentencing consistent with class B felony standards.

Joseph Foster, attorney general (Geoffrey Ward, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

The State of New Hampshire v. Paul A. Costella
No. 2013-071
Sept. 12, 2014
  • Whether the state must prove the victim’s actual status as a member of a protected class for a court to extend a defendant’s sentence under RSA 651:6(I)(f), the “hate crime statute”
  • Whether the trial court erred in excluding character evidence under NH R. Ev. 404(a) by the defendant’s daughter that the defendant was not motivated by hostility toward Judaism

After trial by jury, the defendant was convicted on two counts of criminal threatening and one count of disorderly conduct arising out of an incident at the Tilton Wal-Mart. The two criminal threatening convictions were subject to an extended term of imprisonment under RSA 651:6(I)(f), the “hate crime statute.”

RSA 651:6(I)(f) provides: “A convicted person may be sentenced according to paragraph III if the jury also finds beyond a reasonable doubt that such person... was substantially motivated to commit the crime because of hostility towards the victim’s religion, race, creed, sexual orientation as defined in RSA 21:49, national origin or sex.”

On appeal, defendant argued that the Superior Court erred when it (1) denied his motion to dismiss the hate crime enhancement, and (2) excluded his daughter’s character testimony that he was not motivated by hostility toward Judaism.

The Superior Court record reflected that on Nov. 29, 2010, the defendant brought his car to Wal-Mart for an oil change. The two victims were Wal-Mart employees. The first victim, Sylvestre, was the employee responsible for bringing the defendant’s car to the service bay. While in the defendant’s vehicle, Sylvestre noticed a photo of the defendant and his daughter. In the photo, the two were standing in front of a red flag emblazoned with a large swastika. Sylvestre described that the two appeared to be doing the “heil Hitler.”

Sylvestre informed the defendant that she had a right to refuse him service because she was uncomfortable. The record reflected that the defendant asked Sylvestre if she was Jewish. She did not respond, but explained that she was offended, because her uncle was burned alive by the Nazis in World War II, while her mother was forced to watch.

The record reflected that the defendant said the following: “not enough Jews were killed in World War II,” “a good Jew is a dead Jew,” and, after calling Sylvestre a “gypsy Jew,” he said “the worst thing in the world is a gypsy Jew.”

The situation escalated when the defendant began making references to the gun he had in his car. He asked Sylvestre if she had seen his “Jew-killing gun.”

Two other employees were present. One, the second victim, was the manager, Allard. The defendant made multiple references to his Jew-killing gun. After the manager attempted to intervene, the defendant asked the manager if he was Jewish. Allard did not respond. The defendant told both victims that he was going to “kill both of you Jews.”

The manager phoned the police, who arrived and arrested the defendant on one count of criminal threatening for each of the two victims. The defendant’s sentence was enhanced under the hate crime statute.

On appeal, the defendant raised two issues: (1) that his sentence should not have been enhanced under the hate crime statute because there was no evidence in the record that either victim was Jewish, and (2) the Superior Court erred when it excluded character evidence by the victim’s daughter at trial.

The court affirmed the sentence enhancement under the hate crime statute. The defendant argued that for 651:6(I)(f) to apply, the state must prove that the victim is a member of a protected class.

The state argued that such a requirement would require a trial within a trial to prove the victim’s membership in such a class and that many factors would need to be considered. The court reasoned that the “significant community harm resulting from a hate crime flows from the defendant’s bias-motivated actions, rather than the victim’s actual status as a member of a protected class.” The court found the evidence sufficient for such a finding and noted that the defendant did not dispute his “substantial motivation.”

The court affirmed the trial court’s ruling on the exclusion of the character evidence provided by the defendant’s daughter. The court stated that the defendant failed to make a sufficiently specific offer of proof.

The court held that the proponent of the evidence bears the burden of making a contemporaneous offer of proof under NH R. Ev. 103(b)(2.

Here, the defense counsel never explained to the trial court whether the daughter would offer opinion, reputation, or specific instances of character testimony. NH R. Ev. 103(b)(2) provides that “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and... In case the ruling is one excluding evidence, the record indicates that the substance of the evidence was contemporaneously made known to the court by offer of proof.”

The defense counsel failed to explain how the question to which the state objected would elicit specific testimony relevant to the defendant’s motive, or the lack thereof, or to a pertinent trait of character admissible under Rule 404(a)(1). The Supreme Court held that because the trial counsel failed to make a sufficiently specific proffer, the defendant was precluded from raising this issue on appeal.

Joseph Foster, attorney general (Lisa Wolford, assistant attorney general, on the brief and orally), for the state. Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Labor Law
Appeal of Hillsborough County Nursing Home (NH Public Employee Labor Relations Board)
No. 2013-497
Sept. 12, 2014
  • Whether the County committed an unfair labor practice by refusing to participate in the arbitration of employment grievances filed outside of the time limits proscribed by the CBA

The Hillsborough County Nursing Home and the AFSCME Local 2715 union, which represents certain nursing home employees, are parties to a collective bargaining agreement (CBA). The applicable CBA expired June 30, 2013.

In June 2011, the county notified certain nursing home employees that their positions would be eliminated due to budget reductions. Four of the affected employees exercised their “bumping rights,” as defined in the CBA, and were moved into different departments and different positions. One was moved from a full-time position to a part-time position and the other three were advised their work schedules would change.

Four affected employees filed grievances under the CBA and asserted that the changes violated the CBA. Article 16.1 of the CBA defines grievance and proscribes a four-step grievance procedure. The four steps are: (1) Discuss grievance with immediate supervisor, (2) Present written grievance to administrator, (3) File written grievance with the county commissioners, and (4) submit written request to the PELRB to appoint an arbitrator to resolve the grievance.

Article 16.4 of the CBA provides: “If the grievance is not reported and/or processed within [the applicable time limits specified in the CBA], the matter shall be deemed waived and no further action will be taken with respect to such grievance, unless both parties mutually agree to an extension of said time limits.”

In January 2012, after the parties failed to resolve the grievances, the union sent a formal request, as required under the CBA, to the county for the appointment of an arbitrator. The county refused to arbitrate the grievances. The county alleged that the union had failed to follow the grievance procedure by failing to file a timely formal request and the grievances were therefore waived under Articles 16.1 and 16.4 of the CBA.

After an evidentiary hearing, the PELRB ruled that the county committed an unfair labor practice when it refused to participate in arbitration because the CBA provides for final and binding arbitration. The PELRB further found that whether the union properly adhered to the grievance procedure proscribed by the CBA was an issue of procedural arbitrability and must be decided by the arbitrator. The PELRB dismissed the county’s unfair labor practice complaint.

RSA Chapter 541 governs the authority of the NH Supreme Court to review decisions issued by the PELRB. The Supreme Court applied a de novo standard of review and stated that it would not set aside PELRB’s order, except for errors of law, unless the court was satisfied by a clear preponderance of the evidence that the order was unjust or unreasonable.

On appeal, the county argues that the PELRB erred when (1) it refused to rule on the threshold issue of procedural arbitrability and (2) it found the county committed an unfair labor practice. The county did not dispute that whether the union properly adhered to the CBA’s grievance procedure was an issue of procedural arbitrability but argued that the PELRB should have the authority to decide issues of procedural arbitrability. The county argued that the union committed an unfair labor practice by demanding arbitration outside of the CBA’s proscribed time limits and in violation of the CBA.

The Supreme Court concluded that a procedural challenge to arbitrability is a matter to be determined by the arbitrator. The PELRB did not err when it determined that the county committed an unfair labor practice when it refused to arbitrate the grievances. The PELRB did not err when it refused to make a threshold determination as to the procedural arbitrability of the grievances in this case.

Carolyn Kirby, of Goffstown, by brief, for Hillsborough County Nursing Home. Law Offices of Shawn Sullivan of Concord (Shawn J. Sullivan on the brief), for AFSCME, Local 2715.

Real Property Law
Ralph P. Gallo & a. v. Susan Traina & a.
No. 2013-652
Sept. 12, 2014
  • Multiple issues on appeal pertaining to the elements of adverse possession and how one defeats a claim to adverse possession

The Gallos initiated this action by filing a petition to Quiet Title in the Superior Court. After a two-day evidentiary hearing, the Superior Court made findings of fact and rulings of law. Respondents, the Trainas, attempted to have the rulings of Superior Court reconsidered, and this appeal followed.

This case is the result of a deep-rooted dispute between neighbors regarding their respective property rights. The parties are neighbors with adjacent parcels. The Superior Court found the following facts:

The Gallos purchased their parcel in 1986. They tore down the existing structures and built their home in 1987. They built a garage in 1988. Since 1986, the Gallos have accessed their land by using a looped driveway. In 1989, the Gallos installed a cement retaining wall and a decorative stone wall, planted a “burning bush” inside the stone wall, and planted various flowers and other vegetation along one side of the paved driveway.

Susan Traina purchased her parcel in 1997 (the parcel has since been transferred to herself and her husband as joint tenants, the “Trainas”).

In 2004, as part of a settlement agreement with her cousin, she became the owner of a strip of land immediately to the east of the Gallos’ property, which includes a paved area directly in front of the Gallos’ walkway to their home and garage, a portion of their retaining wall and decorative stone wall, and the “burning bush.”

Traina’s cousin had acquired an easement to use the strip of land between the Gallos’ property and his own property. That strip of land is owned by the Iannalfos and includes the paved driveway and plantings. Traina’s cousin conveyed an easement deed to her, purporting to convey the easement on the Iannalfos’ strip.

The Gallos filed a petition to quiet title and sought a declaration in the Superior Court that they had a prescriptive easement to use their paved driveway located on the strip of land owned by the Iannalfos and that they had the right, by adverse possession, to maintain their retaining and decorative stone walls and plantings on the Trainas’ land.

The Superior Court found that the Gallos acquired title by adverse possession to the land, on which the walls and the bush sit. The Superior Court rejected the Trainas argument that the Trainas interfered with the Gallos exclusive use of the property (by installing a granite post and fence in 2007 to the south of the retaining wall and occasional yard work around the burning bush.)

The Superior Court held that “to interrupt adverse possession, the record owner must perform some act which constitutes an ouster of the adverse claimant.” This was not done here.

The Superior Court also determined that the Gallos have only a prescriptive easement to use the paved area in front of their driveway and walkway, which is located on the land in dispute. The Superior Court ruled that the easement allowed the Gallos to access their property over the paved area. The Superior Court concluded that “[c]onsistent with their 20 years of notorious, open, and adverse use of [the] land, the Gallos may also maintain this paved portion by having it repaved, refinished, plowed, or other similar actions necessary to maintain the access in the manner that [they] have been using it since 1989.”

Nevertheless, because the land itself belongs to the Trainas, the Superior Court ruled that the Gallos could not “block the paved area or engage in any other actions that would restrict the Trainas’... use of their property.”

The Superior Court found that the Gallos extinguished the Trainas easement over the Iannalfo strip. The Superior Court held that “because the Gallos have openly, notoriously, and adversely used the easement area west of the paved driveway for more than 20 years, their adverse possession of this area, vis-a`-vis Susan..., has extinguished any right [she] may have obtained to pass over this area.”

The Trainas appealed the decision of the Superior Court and argued that the Superior Court erred when it determined that (1) the Gallos owned by adverse possession the land underneath the retaining and stone walls and the burning bush and that (2) their easement was extinguished by the Gallos’ adverse possession of the strip of land owned by the Iannalfos.

The NH Supreme Court applied a de novo standard of review and stated it would uphold the findings of the trial court, unless they were erroneous as a matter of law or unsupported by the evidence. After review, the Supreme Court affirmed the findings of the trial court. The Supreme Court rejected the Trainas arguments and stated the Trainas did not meet their burden of demonstrating reversible error.

Brown and LaPointe of Epping (Scott LaPointe on the brief and orally), for the petitioners. Casassa and Ryan, of Hampton (Daniel Hartley on the brief and orally), for the respondents.

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