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).