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).
25 February 2011
24 February 2011
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.
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:
The bad news: the federal court found the error harmless, and ultimately denied Narrod's petition.
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. [...](Narrod v Napoli, 2011 WL 378244.)
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.
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.
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.
18 February 2011
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.]
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.]
14 February 2011
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.
11 February 2011
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.
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.
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