Can you hear the sirens now?

Once upon a time in New York, the police could only issue a ticket for using a cell phone while driving if the motorist also committed some additional, different violation of the Vehicle & Traffic Law.  A cop could always pull you over if he saw you chatting on your cell phone, but if you were not otherwise breaking the law, the worst the officer could do was give you a warning and send you on your way.

That all changed this summer.  The Legislature amended the VTL to upgrade "Use of a mobile telephone" while driving to a primary offense, meaning  that an officer may issue a ticket for using a cell phone while driving even if he observes no other violation of the VTL.  (See N.Y. Veh. & Traffic Law 1225-c.)  The revisions were effective July 12, 2011.

Simply "holding a mobile telephone to, or in the immediate proximity of, the user's ear" is considered "using" a cell phone for the purposes of the law. (See Veh. & Traf. 1225-c[1][c].)  A driver holding a cell phone "to, or in the immediate proximity of his or her ear while such vehicle is in motion" is presumed to be "engaging in a call" for purposes of the law.  (See Veh. & Traf. 1225-c[2][b].)  This eliminates the popular "you can't prove I was making a call" defense.  The section does not apply if the motorist is using the cell phone for certain emergency calls, or to police officers using a cell phone "in the performance of their official duties."  (See Veh. & Traf. 1225-c[3].)

The maximum fine for a cell phone ticket is $100, and a violation adds 2 points to the driver's DMV record.  (See here for the full table of points for specific traffic violations.)   

Prompt means prompt: navigating New York's prompt suspension law

In New York, if you are arrested for DWI and your blood alcohol content is over .08% , you must surrender your license at arraignment* if the judge finds "that the accusatory instrument** is sufficient on its face" and there is "reasonable cause to believe that the driver operated a motor vehicle with a blood alcohol level in excess of [.08] of 1% as evidenced by the results of a chemical test."  (Schermerhorn v Becker, 64 AD3d 843, 846 [3d Dept 2009]; VTL 1193[7]b].)  A defendant is entitled to a hearing to determine if reasonable cause exists to believe his or her BAC is above .08%.  

The timing of the prompt suspension is important, but often overlooked.  The prompt suspension must happen at arraignment.  If the arraignment concludes--i.e. if the defendant enters a not guilty plea and the judge does not expressly hold the arraignment open--then the judge loses the power to suspend the defendant's license pending prosecution under the prompt suspension law.  (See VTL 1193[7][b] ["The suspension . . . shall occur not later than at the conclusion of all proceedings required for the arraignment"].) 

Often, the arraignment happens within hours or days after arrest, and the Court simply does not receive the supporting paperwork necessary to establish a BAC of .08 or higher--typically the certified breathalzyer results for a breath test, or lab results for a blood draw--in time for the arraignment.  The Court should not suspend a defendant's license if it does not have reliable, first-hand evidence of the defendant's BAC level.   

But what if the judge decides to go ahead with the arraignment without suspending a defendant's license, but later receives the appropriate supporting documents?  Can the judge suspend the defendant's license at a later court date once it receives evidence that the defendant's blood alcohol content exceeds .08%?

No.  Clark Zimmermann, Jr. a partner in my office, recently had just such a case.  The judge who arraigned his client in Town Court did not suspend the client's license, because the Court had not received the paperwork establishing the BAC level.  The client pleaded not guilty, concluding the arraignment. 

At the next court date, a different judge took over the matter, and indicated he had now received the BAC paperwork and was going to suspend our client's license pending prosecution at the next court date.  We brought an Article 78 proceeding in Supreme Court, basically asking a Supreme Court judge to prohibit the Town Court from suspending our client's license, as arraignment was concluded and under the plain language of the statute the Town Court judge no longer had the authority to suspend our client's license.

The Town Court judge, to his credit, conceded in his response papers that he had no authority to suspend our client's license and would not attempt to do so.  As a result, our client gets to keep his license while his case unfolds. 

As with most aspects of a DWI case, the devil is in the details.  The New York statutory DWI scheme is complex, and it pays to know what your rights are at every step of the way.  Far too many defendants simply hand their licenses over to the judge at arraignment, believing that they have no choice but to do so.  The Court wants to suspend your license based on a BAC level of over .08%?  Make them prove it.  If the Court can't prove the BAC level at arraignment, you get to keep your license while the case unfolds.  Period.

 

* An arraignment is the first court appearance.  The defendant typically pleads not guilty to whatever charge he/she is facing, bail is set (if appropriate), and the matter is adjourned. 

**  The accusatory instrument is nothing more than the piece of paper alleging that the defendant committed a specific crime and how he committed it.  Every element of the crime, and facts sufficient to establish every element, must be alleged.

SCOTUS: "straw" witness not enough to satisfy confrontation clause

Bullcoming v New Mexico, 564 US __ [available here]

The United States Supreme Court, in a 5-4 majority decision by Justice Ginsberg, held that a forensic laboratory report certifying "that defendant's blood alcohol concentration was well above the threshold for aggravated DWI" is inadmissible unless the analyst who conducted the tests and certified the results testifies at trial.  The prosecutor at trial tried to get around the confrontation clause requirement by having "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample" testify about the test results and introduce the lab report in evidence.  Justice Ginsberg says:  nice try, but "that surrogate testimony does not meet the constitutional requirement."  You need the testimony of the analyst who actually performed the test and certified the results.

Brian Shiffrin has his take on the decision over at New York Criminal Defense.  As Brian points out, Justice Sotomayor filed a separate concurrence, and was nice enough to point out all the ways a prosecutor might work around a defendant's confrontation rights in a way that might gain her blessing (and thus tip the balance 5-4 the other way by the time the next confrontation case reaches the high court).         

When good dogs go bad

A creepy abundance of decisions from the last Fourth Department packet involving domestic animals turning on their human minders and inflicting all manner of injury and mayhem.  Like the dog who invaded the next yard over and chased his neighbor into his house, causing the neighbor to trip "over the threshold of his front door and injure his knee." (Barone v Phillips, 2011 NY Slip Op 03395 [4th Dept 2011].)  Or the dog who ran into the road and caused a motorcycle accident.  (Rockwood v Labate, 2011 NY Slip Op 03406 [4th Dept 2011].)  Or the dog who "ran into the road and collided with plaintiff's bicycle, causing plaintiff to be propelled over the handlebars."  (Smith v Reilly, 2011 NY Slip Op 03357 [4th Dept 2011].)

And its not just dogs.  Even baby horses are up to no good these days.  (Krieger v Cogar, 2011 NY Slip Op 03433 [4th Dept 2011] [six-day old colt knocked a woman to the ground].)

So when is an owner liable for the wanton destruction caused by Fido?  The rule is the same no matter the type of domestic animal, and hinges on what the animal owner knew or should have known about his animal's ability and inclination to get up to mischief.  "It is well settled that 'the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.'"  (Barone, 2011 NY Slip Op 03395.)  The term "vicious propensities" does not really have its plain meaning under the case law--your dog does not have to be the second coming of Cujo for liability to attach.  "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities--albeit only when such proclivity results in the injury giving rise to the lawsuit."  (Id. at *1.)

So:  the owner of the dog with a history of charging the road is potentially liable for causing an accident.  (Smith, 2011 NY Slip Op 03357.)  No liability attaches to the owner of a dog who is usually kept securely fenced, and pulled a Houdini for the first time on the day of the accident.  (Rockwood, 2011 NY Slip Op 03406.)  And the owner of the dog who charged his neighbor and causing him to bravely flee into his own home is not liable where the record contained "no evidence suggesting that the dog had a propensity to run at people."  (Barone, 2011 NY Slip Op 03395, although Justice Gorski dissented and would have found the dog's history of playfully jumping on people established enough of a propensity to survive summary judgment.)

The same rule extends to horses, who are considered "domestic animals" under the Agriculture and Markets Law, and that's good enough for the Fourth Department.  A six-day-old colt that exhibits normal "avoidance" behavior while being halter trained--described clinically (but still sort-of-heart-breakingly) by the Court as a newborn colt's tendency "to avoid human contact and seek the protection of his mother"--does not have vicious propensities that would expose his owner to liability.  (Krieger, 2011 NY Slip Op 03433.)        

Labor Law update

Cases interpreting and applying New York's Labor Law are legion, largely fact-specific, and in isolation, not particularly helpful. The whole body of law sort of creeps along, a great blob oozing its way over the casebooks and search engines and annotations. Rather than pull individual cases from the sludge, I present them the way God and the appellate courts intended: as one big pile. But every pile has a top, so we start with the most recent offering from the Court of Appeals, followed by the latest from the Fourth Department.


A front-end loader = power shovel /backhoe

St. Louis v Town of North Elba, 2011 NY Slip Op 02481

Plaintiff was part of a crew laying "twenty foot sections of snow-making pipe" at a winter sports complex in Lake Placid, New York. The crew suspended "one of the pipe sections in the air during the welding" process by means of a hydraulic clamshell clamp suspended from the bucket of a front-end loader. The plaintiff stood beneath the pipe, and banged the freshly welded seams with a hammer to remove excess metal. You can predict the result: the clamp opened, the pipe dropped, and plaintiff was pinned to the ground.


Plaintiff argued that the owner of the complex was liable under Labor Law 241(6) for failure to "comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." The specific safety regulation at issue was 12 NYCRR 23-9.4[3], but that regulation only applied to "power shovels and backhoes" that are used for material handling. The regulation required that any load suspended from the bucket of a shovel loader or backhoe be secured by wire rope.

The owner of the sports complex argued that the pipe at issue was suspended from the bucket of a front-loader, and not from the bucket of a backhoe or a shovel loader, and therefore the regulation did not apply and, by extension, there was no violation of Labor Law 241(6). The Court of Appeals rejected this narrow reading, instead holding that the function of the equipment, and not its name, was determinative. From the opinion:

[T]he preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code.

Judge Smith dissented, and would have read the regulations literally. He notes that the majority's approach "makes no sense at all in the context of a statute whose whole point, as we have interpreted it, is to give a remedy only for violation of a regulation's specific commands."


Refrigerator repair covered under Labor Law 240(1)

Ozimek v Holiday Valley, Inc., 2011 NY Slip Op 02568

The plaintiff in Ozimek "fell from a ladder while working on a commercial freezer" when the ladder allegedly slid out from under him. The defendants argued that Labor Law 240(1)--imposing strict liability on property owners for injuries sustained by workers < etc >--did not apply because plaintiff was engaged in routine maintenance in a non-construction, non-renovation context." The Court agreed with the general rule exempting routine maintenance, but held that plaintiff was "investigating a malfunction," and such activity is not merely routine maintenance and is therefore protected by Labor Law 240(1). Defendants survived plaintiff's cross-motion for summary judgment, however, by submitting the affidavit of a witness that observed plaintiff fall because he simply "missed the ladder" when descending from the refrigerator.

The Court also held that the operator of the freezer was entitled to summary judgment on plaintiff's claims under Labor Law 200. Unlike the other sections of the Labor Law, section 200 merely codifies the "common law duty imposed upon an owner or general contractor to maintain a safe construction site," and does not impose strict liability. The operator of the freezer had no control over the premises where the action occurred, and therefore could not be held liable under section 200.

Down in a hole

Kobel v Niagra Mohawk Power Corp., 2011 NY Slip Op 02581

Plaintiff Tim Kobel "slipped and fell backwards while working at the bottom of a manhole." Niagra Mohawk owned . . . the hole, I guess. Plaintiff alleged violations of Labor Law 200 (general duty of owner to provide safe work site), and two claims under 241(6) (violation of specific regulations, in this case a regulation prohibiting work on a slippery surface and a regulation prohibiting work around hazardous openings). The trial court refused to grant NiMo summary judgment on any ground.

The Fourth Department affirmed in part. The Court kept alive the section 200 claim because NiMo failed to establish as a matter of law that it did not have actual or constructive notice of the dangerous condition at the bottom of the manhole. The Court also allowed the plaintiff to proceed under section 240(6) for a violation of the regulation prohibiting work on slippery surfaces, noting that the surface itself does not need to be elevated for the regulation to apply and that the regulation was sufficiently specific to support liability under section 240(6).

The Court did reverse, however, and grant NiMo summary judgment on one ground, holding that the "sump hole" plaintiff stepped in at the bottom of the manhole was not a "hazardous opening" under the regulations.

On the Catwalk

Timmons v Barrett Paving Materials, Inc., 2011 NY Slip Op 02605

It is a great irony that so many plaintiffs seeking protection of the Labor Law--a statutory scheme that seeks to encourage safe practices at construction sites--engage in some truly reckless practices. Enter plaintiff Timmons. He tack-welded a cat-walk in place, and discovered after doing so that the whole structure was tilting a bit to starboard. Rather than un-tack the weld and try again, "Timmons' coworker attempted to level the catwalk by pushing down on it with a manlift while Timmons, who was standing on a lower catwalk, prepared to weld a support gusset underneath the tack-welded catwalk."

This worked out about as well as you would expect. The cat-walk broke free, striking Timmons and pinning him between the catwalks. The Fourth Department held that Labor Law 240(1) did not apply, because the catwalk was "not an object being hoisted or secured," i.e. there was no elevation-related risk.

The Court went on to hold that the owner could not be held liable under Labor Law 200 because, while the owner's plant superintendent generally oversaw the work and was generally in charge of job safety, such a general oversight duty is not sufficient to hold the owner liable for "dangerous conditions aris[ing] from the contractor's methods."

The collateral consequences of pot possession

In New York, the direct penalty for possessing a very small amount of un-burned marijuana is slight.  Unlawful Possession of Marijuana (UPM) is a violation, not a crime, and the maximum penalty for a first-time offense is $100.*  However, given that a UPM charge is probably where most otherwise-law-abiding high school and college kids will intersect with the criminal justice system, there is one more important consequence to consider before pleading guilty, handing your Ben Franklin over to the friendly Town Court clerk, and going on your way.

A UPM conviction could result in a suspension of federal financial aid for college students.  Under 20 USC 1091[r][1], any conviction for simple drug possession "during a period of enrollment" results in ineligibility for federal financial aid.  The period of ineligibility is 1 year for a first offense, 2 years for a second offense, and indefinite ineligibility for a third offense.

Losing federal financial aid eligibility for getting caught with a joint is a bit draconian, but it is a very real consequence that a student facing a UPM charge needs to be aware of.

* Second offense is a higher fine, and a third offense carries potential jail time.

Give 'em the Boot

Webb v Salvation Army, 2011 NY Slip Op 02592 [available here]

This just in: we live in litigious times. Case in point: a customer sued the Salvation Army "seeking damages for injuries she sustained when she fell in defendant's parking lot after stepping on a small boot of a doll." The boot "measured 1.75 inches in both height and width."*

And here's the kicker: the trial court refused to grant the defendant store summary judgment (i.e. refused to toss out the plaintiff's case) . . . and the Fourth Department affirmed. Meaning that, at some point next fall, a jury in Buffalo will be treated to a full-blown trial about the perils of ill-laid doll accessories.

To be fair to the Fourth Department, it was bound by the defendant's concession that "the doll boot constituted a dangerous condition." And the Court did toss out plaintiff's cause of action based on inadequate lighting in the parking lot, holding that the plaintiff acknowledged "she was not looking down as she was walking and that she had walked only a 'little distance' after getting out of the vehicle before she fell."

The surviving issue for trial is whether "the doll boot had . . . been in the parking lot for a sufficient period of time to permit an employee to discover and remove it."

     *  The doll settled with plaintiff after completion of discovery and therefore was not a party to the appeal.

Fourth Department stats and case summaries

The Hiscock Legal Aid Society has a great, useful blog that breaks down each packet of decisions from the Fourth Department, with full stats and case summaries (here).  If you have a criminal appeal pending, and want to be depressed, check out the reversal rate from the first quarter of 2011 (80% affirmed, about 5% reversed or dismissed).   

8 years

In answer to the post below and the poll to the left, the real-life Becky was sentenced as an adult after her assault conviction, and is currently serving an 8-year prison sentence.  As the New York Times notes in an article up today (here), by the end of the year New York will probably be one of only two states in the nation that still allow 16-year-olds to be sentenced as adults.  The article cites "studies that concluded that older adolescents differed significantly from adults in their capacity to make sound decisions, and benefited more from systems focused on treatment rather than on incarceration."

It is hard to know what the judge was thinking in Becky's case.  The probation department, after reviewing all of the facts and interviewing both Becky and the victim, concluded that a probation sentence with youthful offender treatment was appropriate.  But the probation folks don't wear black robes, and the department's recommendation was ignored in Becky's case. 

I'm working on the appeal for "Becky," and will be arguing it later this year.  Hopefully we'll have better luck with the judges down on East Avenue than we did at the Hall of Justice.    

Guess that sentence

Consider the following facts, and pay attention:  there is a quiz (of sorts) at the end.  It is about 8:30pm on a Saturday night.  A 16-year old girl--we'll call her Becky--is at an all-ages event at a downtown Rochester night club.  No alcohol, no drugs, just a bunch of local high school kids listening to DJs and dancing.  Becky is with one of her friends.  Let's call the friend Kate.  For the first half-hour or so the night is uneventful.  Becky and Kate dance and have a good time.  

Then, Kate sees a girl from her school--we'll call this other girl Jane.  Kate has issues with Jane.  Just a few weeks ago, Kate was suspended for fighting with Jane in school.

Kate and Jane start talking trash to each other.  Jane advances toward Kate, and then, well, all hell breaks loose.  Piecing the exact sequence of events together after the fact is all but impossible; Becky's friends say one thing, Jane's friends say another.  But everyone agrees that when the dust settles, Jane is bleeding from her right eye.  Jane is taken to the hospital, and later that night loses her sight in that eye.  She never gets it back.

According to Jane, Becky hit her in the face with a stiletto heel.  Jane's eye injury is consistent with a thin heel penetrating the space between the eye and the orbital bone, right near the bridge of the nose.  Jane's optic nerve was crushed, causing the loss of vision.  

Becky is arrested and charged with felony assault.  A jury hears from Jane and her friends, and ultimately believes Jane's version of events.  Becky is convicted of felony assault.

Now the question:  what is a fair punishment for Becky?  She has no criminal record.  She has never been arrested and has no history of violence.  She was 16 years old at the time of the fight.  She was out of jail while the trial was pending, and did all the right things:  continued her education, went to counseling.  On the other hand, Jane is blind in one eye, and Becky has been convicted of causing her injury.  

So you are the judge:  what sentence do you impose?  

You could adjudicate Becky a youthful offender.  If you do that, Becky will not have a felony on her record.  The YO sentence can be anything from probation to 1 1/3 to 4 years in prison.

Or, you can sentence Becky as an adult.  The felony will stay on her record.  The minimum prison sentence is 5 years; the max is 25.  

You can vote in the poll over to the left.  The fact pattern is based on a real case.  I'll reveal the sentence the real-life Becky is currently serving next week.      

SCOTUS: Dying victim's ID of shooter not testimonial; Scalia goes appropriately crazy in dissent

Michigan v Bryant, __ US ___, 09-150 [available here]

In a 6-2 decision, the Supreme Court yesterday held that a dying shooting victim's identification of his shooter, in response to direct police questioning, is not "testimonial" under Crawford and its progeny, and therefore the officer's testimony about the identification did not violate the Confrontation Clause.  The majority (in a decision written by Justice Sotomayor) holds that the primary purpose of the officer's questioning was not to elicit testimony or develop evidence that could be used to prosecute the shooter, but rather to meet an ongoing emergency, i.e. to apprehend the shooter and to protect the public from a gun-toting fugitive.

Justice Scalia--proud poppa of Crawford and chief architect of the recent Confrontation Clause jurisprudence-- calls shenanigans in a blistering dissent.  He calls the majority's interpretation of the facts "so transparently false that professing to believe it demeans this institution . . . In its vain attempt to make the incredible plausible, today's opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles."

The New York times has an article up about the decision here.  

CA Decision Dump: groping, insurance fraud, and gun scuffles

A quick download of the latest batch of decisions from the Court of Appeals before we take this thing into the weekend:

People v Boothe, 2011 NY Slip Op 01365 [available here]

In a decision by Judge Pigott, the Court holds that ripping off Medicaid is not punishable as a "fraudulent insurance act" under the Penal Law because "the Legislature plainly failed to criminalize the conduct at issue."  It probably should be a crime, but the Legislature screwed up when it drafted the legislation that attempted to include Medicaid fraud in the crime of insurance fraud.  The Court was simply not willing to re-write the law to fix what is pretty clearly a legislative oversight.

People v Alonzo, 2011 NY Slip Op 01363 [available here]

"[W]here the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse."  So says a unanimous Court, in an opinion by Judge Smith.  To hold otherwise "would offer a temptation to abuse: Where there were 10 swings of a fist, a prosecutor might obtain 10 convictions growing out of a single incident--and could even seek 10 consecutive sentences."

People v Smith, 2011 NY Slip Op 01364 [available here]

A majority of the Court affirms defendant's conviction for assault in the first degree, rejecting defendant's argument that he was denied his right to present a defense when the trial court prevented his attorney from arguing to the jury during summation that the shooting occurred when the defendant and the alleged victim were wrestling over the gun, and that it was the victim who first produced the gun.  According to the majority, "the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim."  Any error in precluding argument that the shooting occurred while the defendant and victim were scuffling over the gun was harmless.

Judge Jones wrote a long dissent.  Defense counsel should be given wide latitude to argue on behalf of his or her client during closing argument, and if the evidence or any favorable inference supports the argument, it should be allowed.  In the case at hand, according to Judge Jones, the evidence "lent itself to several interpretations" and the trial court's ruling deprived the jury "of an opportunity to accept or reject the theory defense counsel sought to advance--an argument that could have sharpened and clarified the issues for resolution by the jury."

Fieldston Property Owners Association, Inc. v Hermitage Insurance Company, Inc., 2011 NY Slip Op 01361 [available here]

In an appeal in declaratory judgment action to determine the rights of two insurers--Hermitage and Federal--regarding their respective responsibility for the cost of defending a mutual insured, the Court holds that "Hermitage had the primary duty to defend" the mutual insured "to the exclusion of any duty owed by Federal."  Luckily for me, my friend and former colleague Kevin Merriman has a full dissection of the opinion up at National Insurance Law Forum (here).    

CA: rule against perpetuities only applicable to confuse law students

Bleecker St. Tenants Corp. v Jones, 2011 NY Slip Op 01360 [available here]


In a decision that gives me flashbacks to Professor Welsh's first-year property lecture, the Court of Appeals holds "the rule against perpetuities does not apply to options to renew leases."  I'm glad we have that settled.  Judge Read concurs and writes separately in order to discuss a 1715 case from the House of Lords.  Judge Graffeo dissents, and would have kept a more narrow, case-by-case exception to the rule against perpetuities rather than the broad exception adopted by the majority.        

Ghosts of Affirmed Convictions Past

Over five years ago, I argued the direct appeal of Dustin Narrod's murder conviction.  He was convicted without the jury ever hearing that the police originally suspected another man, Fred Taylor, of committing the murder, or that the police focused on Taylor for months after the murder as the prime suspect, and developed a sizable amount of circumstantial evidence pointing to Taylor as the killer. 

The evidence of Taylor's potential involvement was excluded because the prosecutor told the trial judge that a heightened standard of admissibility applied, and the defense needed to demonstrate a "clear link" between Taylor and the killing before the evidence could be allowed in front of the jury.  One problem:  the Court of Appeals had rejected the "clear link" standard for third-party culpability evidence over a year before Narrod's trial.  Worse, the prosecutor cited to the Court of Appeal's decision rejecting the "clear link" standard as authority for requiring the application of the heightened standard.

The Fourth Department affirmed Narrod's conviction in a two-paragraph memorandum decision.  Despite the fact that both the prosecutor and court exclusively used the rejected "clear link" standard, the Fourth Department held that, really, the trial court applied to appropriate probative/prejudicial balancing test.  (See People v Narrod, 23 AD3d 1061 [4th Dept 2005].) 

Earlier this month, the Western District of New York handed down an almost 50-page decision on Narrod's pro se habeus corpus petition.  The good news for Narrod:  the federal court agreed that the trial court's application of the "clear link" standard to exclude evidence of Taylor's guilt was an unreasonable application of clearly established Supreme Court precedent.  From the Western District's decision:

This Court is not as sanguine as the Appellate Division, for it appears to this Court that there is no basis for concluding that the trial court did not apply the "clear link" standard rejected by the Court of Appeals in Primo.  [...]

Give the present record I am compelled to conclude that the trial court applied a heightened standard of probity--the disavowed "clear link" standard--rather than the general balancing test that has been employed by the Supreme Court in its seminal cases on the right to present a defense.

(Narrod v Napoli, 2011 WL 378244.)  

The bad news:  the federal court found the error harmless, and ultimately denied Narrod's petition.     

CA: high-speed chase fatality not depraved indifference murder

People v Prindle, 2011 NY Slip Op 01320 [available here]

The defendant in Prindle was caught loading a stolen snowplow blade into the back of his van.  He took off, and led police on a chase into the city of Rochester.  The chase ended when "defendant smash[ed] his van into another vehicle and kill[ed] a passenger."  At the time of trial, Register had yet to be explicitly overruled, and therefore the old standard for depraved indifference murder applied, i.e. whether the killing occurred under circumstances evincing a depraved indifference to human life.  The majority had little trouble concluding that, at most, defendant was guilty of reckless manslaughter, and simply failed to act with the depravity required to support the equivalent of an intentional murder conviction.

Judge Pigott wrote for the three dissenters.  The dissent is a bit overwrought, dwelling on facts that, while sad, have nothing to do with legal issue before the court.   The dissent notes that the victim was "returning from a baby shower" and suffered for days before "succumbing to her injuries."   Emotional, sad stuff, to be sure, but absolutely irrelevant to whether defendant's actions evinced the required depravity to human life.

Congrats to Special Assistant Public Defender Drew Dubrin, on the brief for Mr. Prindle.  Read the D&C's article about the decision here.

UPDATE:  Drew has his thoughts on the decision up here, over at New York Criminal Defense.

CA: February Decision Dump

A few quick hits from the latest batch of decisions from the Court of Appeals:

People v Harnett, 2011 NY Slip Op 00744 [available here]

The majority (in a decision written by J. Smith) held "that failing to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) does not automatically invalidate the guilty plea."  The mere potential for indefinite civil committment under SOMTA is not a direct consequence of the guilty plea, and therefore SOMTA consequences do not necessarily need to be included in the plea colloquy.  A defendant may still vacate a plea based on the failure to include SOMTA consequences, but he must make a motion at the trial level to vacate the plea on that ground and demonstrate that he would not have taken the plea if he had known about the potential SOMTA consequences. 

Justice Ciparick dissented.  While recognizing that the "direct consequence" ship sailed with the Court's prior holding in People v Gravino (SORA registration not direct consequence of guilty plea), the dissent would have held that, because of SOMTA, "defendant exposed himself to the possibility that he would be confined after expiration of his prison sentence, perhaps indefinitely" and therefore "County Court should have confirmed defendant's awareness of that fact before accepting his guilty plea."

Update:  New York Criminal Law's take on the decision is here.

Mandarin Trading Ltd. v Wildenstein, 2011 NY Slip Op 00741 [Jones, J.] [available here] [the trial court properly dismissed claims sounding in fraud, negligent misrepresentation, breach of contract and unjust enrichment for failing to plead sufficient facts in support of the respective theories]

Lehman v North Greenwhich Landscaping, LLC, 2011 NY Slip Op 00746 [available here] [defendant snow removal contractor, "in contracting to render snow removal services to property owner [...], did not assume a duty of care toward third parties who used the property"]

People v Aponte, 2011 NY Slip Op 00742 [Pigott, J.] [available here] [attempted stalking in the third degree is a legally cognizable offense: "While the conduct penalized is defined as engaging in 'a course of conduct . . . likely to cause' certain consequences, there is nothing impossible about attempting to engage in such a course of conduct."]

People v Liggins, 2011 NY Slip Op 00743 [available here] [Appellate Division decision affirmed because no appropriate legal issue to review from reversal; Justice Pigott dissented.]

New rule: judges barred from hearing cases of large attorney campaign donors

Under a new adminstrative court rule, lawyers who have contributed $2,500 or more to a judge's campaign will be barred from appearing in front of that judge for two years.  (Link:  New York Times, New York Law Journal.)  Firms donating more than $3,500 will be barred, as well.  The rule was announced today by Chief Judge Lippman.  According to the Times article, a computer program will check public donor databases against the names of the attorneys when the judge is assigned.  This would seem to suggest that the rule will be applied prospectively.  Judge Lippman is expected to outline the specifics of the new rule during his State of the Judiciary speech tomorrow.

Happy Birthday, Abe.

"Give me six hours to chop down a tree and I will spend the first four sharpening the axe."  (Abraham Lincoln.)

A quiet day, as the Hall of Justice is closed for Lincoln's birthday.  Both the Court of Appeals and the Fourth Department released decisions yesterday, so I have a lot of content in the hopper.  Stay tuned. 

So much for the honeymoon period

People v Weaver, 2011 NY Slip Op 00745 [available here]

I bet when most people imagine a perfect wedding, it does not end with the groom being tased in the street by a cop after an obscenity-laced tirade against his new bride.  But that is just what happened in People v Weaver, and the issue for the Court of Appeals was whether the groom "recklessly created a risk" of "public inconvenience, annoyance or alarm" to support his conviction for Disorderly Conduct under Penal Law 240.20.  A unanimous court (in an opinion by Judge Graffeo) found the groom's actions--yelling obscenities in the street, verbally abusing his new wife and police officers, and generally creating a drunken ruckus--were sufficient to establish that defendant recklessly created a risk of a public disturbance sufficient to justify his conviction. 

Defendant argued that his confrontation with his wife was a private matter, and the fact that the fight occurred in the middle of the night in a small town limited the risk of public annoyance or alarm.  The Court rejected the argument, noting that "[a]lthough there was no testimony at trial from onlookers, there was evidence that a number of people were in the immediate vicinity, whether pumping gas, using the ATM or working at the mini-mart.  It can also reasonably be inferred that guests were sleeping in the nearby motel."

More later on the other decisions handed down by the Court of Appeals today.

Don Thompson: still making the rest of us look bad

The Daily Record has a great article up today about Don Thompson, local freer of the wrongfully convicted, pillar of the Rochester criminal defense bar, and all-around good guy.  Go check it out.     

AD4: factory owner not strictly liable under Labor Law 240(1) for fall from building within a building

Dahar v Holland Ladder & Manufacturing Company, 2010 NY Slip Op 09646 [available here]

A building owner is strictly liable for injuries sustained by workers "in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure [...]." Labor Law 240(1). The plaintiff in Dahar worked at a factory that made . . . prefabricated buildings. He fell from a ladder while cleaning a "wall module" of one of these prefab buildings. The wall module was still inside the factory when the accident happened. The plaintiff sued the owner of the factory under 240(1), alleging that the factory owner was strictly liable because plaintiff fell from a height while "cleaning" a "building or structure," i.e the prefab wall module.

The Court thus confronted a bit of a Russian nesting doll, building-within-a-building problem: while the worker was technically cleaning a "structure," he was not really engaged in the construction, demolition or repair work of the owner's building that typically falls within the reach of section 240(1). The Fourth Department, in a majority memorandum opinion (joined by Justices Scudder , Smith, and Carni), held the plaintiff could not recover under Labor Law 240(1). The "plaintiff was engaged in a 'normal manufacturing process' at a factory building" and therefore "not engaged in a protected activity pursuant to Labor Law 240(1)." That the factory made actual buildings was not enough to transform plaintiff's action into a strict liability Labor Law claim.

Justices Green and Lindley dissented. Under the plain language of the statute, the owners of the factory were "owners," and the plaintiff was "cleaning" a "structure" at the time of the accident, albeit in a very literal sense. The dissenters would have read Labor Law 240(1) broadly, noting that "liability turns on whether the particular [cleaning] task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against."

Because what the world needs now is another blog.

I have been out of the blogging business for over three years now. When I started Indignant Indigent in April 2005, I was an assistant public defender, toiling away in the appellate section of the Monroe County Public Defender's office. The blog started as a case digest, a straight review of new appellate decisions, and eventually incorporated more commentary on unsettled, substantive criminal law issues.

I left for private civil practice in September 2007, and left the blog behind. The firm I went to had no real criminal practice to speak of, and blogging about recent developments in criminal law no longer complimented my day job. Indignant Indigent was left in good hands, and is still plugging along.

I recently joined Trevett Cristo Salzer & Andolina, P.C., and to my great delight find myself once again practicing criminal law, and once again sifting through criminal appellate decisions. I split my time between criminal practice and general civil litigation.

So, I have decided to dust off the Blogger account and start this blog, RocLaw. Content-wise, expect a good bit of resemblance to the Indignant Indigent days, but with a broader scope that covers develoments in both criminal and civil law in New York.

The blog landscape has changed quite a bit since I first started in 2005. Back then, it was I.I. and Sui Generis, and that was about it. Now there are many, many fine blogs providing tips and commentary for New York practice, including my friends over at New York Criminal Defense. My hope is this blog will avoid redundancy and bring something useful to the mix.