People v Grice, 2012 NY Slip Op 05848 [3d Dept 2012] [available here]
A court is not allowed to punish a defendant for exercising his or her rights. If a defendant decides to shut up and not talk to the police, the prosecutor is not allowed to argue that his silence is evidence of guilt. If a defendant rejects a plea deal and goes to trial, the court is not supposed to ratchet up the defendant's sentence more than the facts warrant after trial.
And if a defendant exercises his right to appeal, and wins on some issues and loses on others, the trial court is not allowed to treat the defendant more harshly on remand.
In People v Grice, the defendant was convicted after trial of first-degree robbery (#1) and sentenced by the trial judge (as a second felony offender) to 15 years in prison. The appellate court tossed the first-degree robbery conviction, reducing it to second-degree robbery (#2) and "remitted the matter to County Court for resentencing." (Grice at *1.)
The County Court promptly gave the defendant 15 years, the exact same sentence previously imposed when the defendant stood convicted of a much more serious crime. The defendant appealed again, this time arguing "that the resentence was motivated by vindictiveness for exercising his right to appeal." (Id. at *1.) In a one-sentence holding, the Third Department upheld the resentence, finding "no indication in the record that County Court acted vindictively in imposing the resentence, as opposed to relying on defendant's extensive criminal history." (Id.)
This begs the question: short of tricking the trial judge into saying, on the record, something along the lines of, "You try my patience with your endless legal wrangling, good sir . . . with all the vindictiveness I can muster, I sentence you to 15 years," how is a defendant supposed to make a record of vindictiveness? If every fact at resentencing is the same except the degree of crime for which the defendant stands convicted--same underlying facts of the crime, same criminal history, same attitude of remorse, etc.--then isn't the fact that the trial imposes the exact same sentence for a much less serious crime evidence of vindictiveness per se?
The Third Department says no. No it is not.
#1: The worst kind of robbery, typically involving relieving a person of his or her property at a gunpoint (or knifepoint, or whatever).
#2: The second-worst kind of robbery, usually not involving the use of a gun or other dangerous weapon.
11 September 2012
10 September 2012
Lawyer gets around page limit by filing cartoon
Via the New York Times (and many others), comes the story of an attorney filing a 5-page cartoon in the Apple e-book litigation because the judge would not let him file a standard-length 25-page brief. (Article here, full cartoon brief here.) More amazing, the cartoon does an excellent job of covering the attorney's points, and doing so in a thoroughly understandable, funny way. If this catches on, I am completely on board with going back to art school to become a certified legal cartoonist.
07 September 2012
AD1 rejects existential causation in slip-and-fall case
Wood v City of New York, 2012 NY Slip Op 06100 [1st Dept 2012] [available here]
With a glut of law school graduates and not enough work to go around, these are hungry times for lawyers. How else to explain the lawsuit in Wood v City of New York? The plaintiff in Wood "tripped and fell on a crack in the sidewalk and hit his head on a muni-meter." (Wood at *1.) Nothing unusual so far; pretty standard slip-and-fall fair. Only the Wood case did not involve a lawsuit by the plaintiff against the owner of the property responsible for maintaining the cracked sidewalk. Instead, the plaintiff in Wood sued the owner of the next lot down, where some construction work was going on that narrowed the sidewalk in front of the adjacent lot. Note, however, that the plaintiff fell before reaching the narrowed area of the sidewalk.
The plaintiff's theory? In anticipation of the narrowed sidewalk, the plaintiff changed direction, and the owner of the adjacent property should answer in damages because "the narrowing of the sidewalk in front of the construction site directed him toward the cracked sidewalk." (Wood at *1.)
The trial court, being located in plaintiff-friendly New York County, refused to dismiss the complaint. The First Department reversed and tossed the plaintiff's case. Even if the adjacent landowner was negligent in allowing its construction activities to encroach on the sidewalk, it is not enough that an act of negligence is simply a link in the chain of causation. There is not butterfly effect in tort law. The negligence must be the proximate cause of the injury; that is, a fairly direct, substantial cause.
And as the First Department noted, "while the narrowed path may have furnished a setting encouraging plaintiff to step aside to avoid oncoming pedestrians, there were too many intervening facts to find that the construction shed proximately caused plaintiff's injury."
Even as I write this, the plaintiff's attorney is probably bringing a lawsuit against New York City, for not padding the parking meters.
With a glut of law school graduates and not enough work to go around, these are hungry times for lawyers. How else to explain the lawsuit in Wood v City of New York? The plaintiff in Wood "tripped and fell on a crack in the sidewalk and hit his head on a muni-meter." (Wood at *1.) Nothing unusual so far; pretty standard slip-and-fall fair. Only the Wood case did not involve a lawsuit by the plaintiff against the owner of the property responsible for maintaining the cracked sidewalk. Instead, the plaintiff in Wood sued the owner of the next lot down, where some construction work was going on that narrowed the sidewalk in front of the adjacent lot. Note, however, that the plaintiff fell before reaching the narrowed area of the sidewalk.
The plaintiff's theory? In anticipation of the narrowed sidewalk, the plaintiff changed direction, and the owner of the adjacent property should answer in damages because "the narrowing of the sidewalk in front of the construction site directed him toward the cracked sidewalk." (Wood at *1.)
The trial court, being located in plaintiff-friendly New York County, refused to dismiss the complaint. The First Department reversed and tossed the plaintiff's case. Even if the adjacent landowner was negligent in allowing its construction activities to encroach on the sidewalk, it is not enough that an act of negligence is simply a link in the chain of causation. There is not butterfly effect in tort law. The negligence must be the proximate cause of the injury; that is, a fairly direct, substantial cause.
And as the First Department noted, "while the narrowed path may have furnished a setting encouraging plaintiff to step aside to avoid oncoming pedestrians, there were too many intervening facts to find that the construction shed proximately caused plaintiff's injury."
Even as I write this, the plaintiff's attorney is probably bringing a lawsuit against New York City, for not padding the parking meters.
06 September 2012
When keeping it real goes wrong
Killon v Parrotta, 2012 NY Slip Op 06095 [3d Dept 2012] [available here]
You can't start a fight, and then claim you were acting in self-defense and therefore not liable for the other guy's injuries. Case in point, from the Third Department, is Killon v Parrotta. The defendant in Parrotta allegedly beat the plaintiff with a baseball bat, and when sued for battery claimed that he only did so in self-defense.
Small problem: the defendant admitted that he was "upset and angry when he received two threatening phone calls from plaintiff shortly after midnight," hopped in his pick-up truck, drove to the plaintiff's house "with the intention of settling their ongoing dispute 'man to man,'" parked his truck in the plaintiff's driveway with the headlights "shining on plaintiff's front door," and got out to confront the plaintiff.
The plaintiff armed himself with a "maul handle," so the defendant retrieved a baseball bat from his truck. Undeterred, the defendant escalated things further by walking towards the house. The plaintiff "yelled to his chained dog to 'sic'(#1) defendant as he approached the house," but defendant (in his one half-way clever act that night) simply "skirted the limited range of the dog's chain and continued to advance on the porch with the bat in his hand as each man yelled taunts and challenges at the other." (Killon, *2.) The Third Department explains what happened next:
(Id.)
A jury found that the defendant acted in self-defense. The Third Department reversed, first noting that the "defense of justification is not available to the initial aggressor," and concluding that "there is no dispute that defendant drove to plaintiff's home and then advanced on plaintiff's front porch with a bat in his hand demanding a fist fight." (Id. at 2-3.) On those facts, the Court concluded that "the jury's conclusion that defendant was not the first to threaten the immediate use of physical force is unreachable on any fair interpretation of the evidence." (Id..)
It is interesting to note that this was a civil case for damages. If the defendant had been convicted of assault for beating the plaintiff, there would have been no need for a trial; the result from the criminal case would have simply been carried over to the civil side, as the criminal courts hew to a much greater standard of proof and defendant would have been prevented from re-litigating the liability question in civil court. That means the defendant was not prosecuted at all, or if he was, that the jury in the criminal case bought the self-defense argument.
#1 It is unclear whether the correct spelling is "sic", or "sick," but I am guessing the Third Department just punted rather than going with "sic (sic)" for the quote from the record. One thing is clear: if you are going to sic or sick your dog on an intruder, make sure the mutt is unleashed.
You can't start a fight, and then claim you were acting in self-defense and therefore not liable for the other guy's injuries. Case in point, from the Third Department, is Killon v Parrotta. The defendant in Parrotta allegedly beat the plaintiff with a baseball bat, and when sued for battery claimed that he only did so in self-defense.
Small problem: the defendant admitted that he was "upset and angry when he received two threatening phone calls from plaintiff shortly after midnight," hopped in his pick-up truck, drove to the plaintiff's house "with the intention of settling their ongoing dispute 'man to man,'" parked his truck in the plaintiff's driveway with the headlights "shining on plaintiff's front door," and got out to confront the plaintiff.
The plaintiff armed himself with a "maul handle," so the defendant retrieved a baseball bat from his truck. Undeterred, the defendant escalated things further by walking towards the house. The plaintiff "yelled to his chained dog to 'sic'(#1) defendant as he approached the house," but defendant (in his one half-way clever act that night) simply "skirted the limited range of the dog's chain and continued to advance on the porch with the bat in his hand as each man yelled taunts and challenges at the other." (Killon, *2.) The Third Department explains what happened next:
When defendant reached the porch steps and was almost face to face with plaintiff, more angry words were exchanged and defendant again challenged plaintiff to drop his weapon and come down from the porch for a fist fight. Instead, plaintiff remained on his porch, told defendant to get off his property and swung the maul handle. In response, defendant struck plaintiff with the bat.
(Id.)
A jury found that the defendant acted in self-defense. The Third Department reversed, first noting that the "defense of justification is not available to the initial aggressor," and concluding that "there is no dispute that defendant drove to plaintiff's home and then advanced on plaintiff's front porch with a bat in his hand demanding a fist fight." (Id. at 2-3.) On those facts, the Court concluded that "the jury's conclusion that defendant was not the first to threaten the immediate use of physical force is unreachable on any fair interpretation of the evidence." (Id..)
It is interesting to note that this was a civil case for damages. If the defendant had been convicted of assault for beating the plaintiff, there would have been no need for a trial; the result from the criminal case would have simply been carried over to the civil side, as the criminal courts hew to a much greater standard of proof and defendant would have been prevented from re-litigating the liability question in civil court. That means the defendant was not prosecuted at all, or if he was, that the jury in the criminal case bought the self-defense argument.
#1 It is unclear whether the correct spelling is "sic", or "sick," but I am guessing the Third Department just punted rather than going with "sic (sic)" for the quote from the record. One thing is clear: if you are going to sic or sick your dog on an intruder, make sure the mutt is unleashed.
05 September 2012
Fourth Department upholds pretextual, warrantless "parole" search
People v Taylor, 2012 NY Slip Op 05463 [4th Dept 2012] [available here]
With very few exceptions, the police need a warrant before entering and searching your home. It is a protection built into our system as a hedge against police power, a requirement that a neutral judge review the available evidence and determine that there is probable cause that the house will contain evidence of a crime (or a criminal) before signing off on the search.
In Taylor, the police stumbled on a handy way around the warrant requirement. The main suspect in a robbery was also on parole. According to the decision, "[a]t approximately 11:00 p.m. on the night of the robbery, the police officers contacted the parole officer whose duty it was to locate parolees, in order to obtain defendant's most recent address." The parole officer then informed the investigating officers that, as it happened, he was just on his way over to the suspect's house to have a little looksie-do and make sure the suspect was not violating his curfew. Also very conveniently, "it was the policy of the Division of Parole to have at least two officers present for any home visit made after 10:00 p.m.," and therefore "the parole officer asked the police officers if they would accompany him."
How fortunate! The Fourth Department took the serendipitous version of events at face value, concluded that the warrantless search of the suspect's home was lawful as related to "parole-related objectives," and upheld the trial court's refusal to suppress the handgun found in the apartment.
Interestingly, the Court did reverse the trial court's ruling that the handgun was admissible in evidence at trial. The gun was inoperable, and was in no way connected to the fresh robbery. The trial court let the gun in anyway to "explain statements" made by the defendant, but the Fourth Department held that "the probative force of that evidence did not outweigh its potential for prejudice." (Taylor at *2.)
Yet, alas, still no joy for the defendant: the Fourth went on to hold that the error in admitting the gun was harmless, given the other evidence of defendant's guilt (including a positive identification by an "ex crack head who had a criminal history").
With very few exceptions, the police need a warrant before entering and searching your home. It is a protection built into our system as a hedge against police power, a requirement that a neutral judge review the available evidence and determine that there is probable cause that the house will contain evidence of a crime (or a criminal) before signing off on the search.
In Taylor, the police stumbled on a handy way around the warrant requirement. The main suspect in a robbery was also on parole. According to the decision, "[a]t approximately 11:00 p.m. on the night of the robbery, the police officers contacted the parole officer whose duty it was to locate parolees, in order to obtain defendant's most recent address." The parole officer then informed the investigating officers that, as it happened, he was just on his way over to the suspect's house to have a little looksie-do and make sure the suspect was not violating his curfew. Also very conveniently, "it was the policy of the Division of Parole to have at least two officers present for any home visit made after 10:00 p.m.," and therefore "the parole officer asked the police officers if they would accompany him."
How fortunate! The Fourth Department took the serendipitous version of events at face value, concluded that the warrantless search of the suspect's home was lawful as related to "parole-related objectives," and upheld the trial court's refusal to suppress the handgun found in the apartment.
Interestingly, the Court did reverse the trial court's ruling that the handgun was admissible in evidence at trial. The gun was inoperable, and was in no way connected to the fresh robbery. The trial court let the gun in anyway to "explain statements" made by the defendant, but the Fourth Department held that "the probative force of that evidence did not outweigh its potential for prejudice." (Taylor at *2.)
Yet, alas, still no joy for the defendant: the Fourth went on to hold that the error in admitting the gun was harmless, given the other evidence of defendant's guilt (including a positive identification by an "ex crack head who had a criminal history").
04 September 2012
AD3: school not liable for assault on unsupervised first grader
Geywits v Charlotte Valley Central School District, 2002 NY Slip Op 05992 [3d Dept 2012] [available here]
A school and its teachers cannot guarantee the safety of their students. But teachers do owe their students the same duty as parents, and "liability will be established where the school fails to supervise its students with the same degree of care as parent of ordinary prudence in comparable circumstances and such negligent supervision was the proximate cause of the plaintiff's foreseeable injuries." (Geywits at *4.)
Given that standard, consider the following facts*1:
A K-12 school allows its 6-year-old first-graders to walk from the cafeteria to their classrooms unattended. All of the school's students, from 5-year-old kindergarten students to 18-year-old high school seniors, share the same building, and high school students share the hallways with the much younger students. On the way back from the cafeteria, a couple of the six-year-old first-graders are dragged into a bathroom by a high school sophomore and sexually assaulted.
Is the school potentially liable? Did the teachers' decision to allow the 6-year-old students to walk from the cafeteria to their classrooms fall below the supervision one would expect of a reasonably on-the-ball parent?
A majority of the Third Department held that the school could not be liable under those facts, because the sophomore at issue "was a good student, had no significant or recent disciplinary history, and had no prior instances of sexually inappropriate or physical conduct." (Geywits at *3.) The intentional assault by a third-party, without actual or constructive notice to the school, is enough to break the causal connection and result in the dismissal of the plaintiff student's action against the school.
Justice Stein dissented. He would have held that while teachers "cannot reasonably be expected to guard against every sudden or spontaneous act that occurs between students on a daily basis," in this case a jury should have decided whether the school could have foreseen that its failure to supervise first-graders in transit from class to lunch could result in the children being assaulted or injured by older students.
This is an extremely close fact pattern, involving the application of relatively recent Court of Appeals case law regarding the extent of a school's duty of care to its students. It would not surprise me to see the Court of Appeals take up this case.
*1 The facts are stated in a light most favorably to the plaintiff. Obviously the school, and the sophomore, vigorously disputed that any sexual assault took place. Indeed, the lack of proof that any sexual assault occurred was an alternate ground for the majority's holding affirming the dismissal of plaintiff's claims.
A school and its teachers cannot guarantee the safety of their students. But teachers do owe their students the same duty as parents, and "liability will be established where the school fails to supervise its students with the same degree of care as parent of ordinary prudence in comparable circumstances and such negligent supervision was the proximate cause of the plaintiff's foreseeable injuries." (Geywits at *4.)
Given that standard, consider the following facts*1:
A K-12 school allows its 6-year-old first-graders to walk from the cafeteria to their classrooms unattended. All of the school's students, from 5-year-old kindergarten students to 18-year-old high school seniors, share the same building, and high school students share the hallways with the much younger students. On the way back from the cafeteria, a couple of the six-year-old first-graders are dragged into a bathroom by a high school sophomore and sexually assaulted.
Is the school potentially liable? Did the teachers' decision to allow the 6-year-old students to walk from the cafeteria to their classrooms fall below the supervision one would expect of a reasonably on-the-ball parent?
A majority of the Third Department held that the school could not be liable under those facts, because the sophomore at issue "was a good student, had no significant or recent disciplinary history, and had no prior instances of sexually inappropriate or physical conduct." (Geywits at *3.) The intentional assault by a third-party, without actual or constructive notice to the school, is enough to break the causal connection and result in the dismissal of the plaintiff student's action against the school.
Justice Stein dissented. He would have held that while teachers "cannot reasonably be expected to guard against every sudden or spontaneous act that occurs between students on a daily basis," in this case a jury should have decided whether the school could have foreseen that its failure to supervise first-graders in transit from class to lunch could result in the children being assaulted or injured by older students.
This is an extremely close fact pattern, involving the application of relatively recent Court of Appeals case law regarding the extent of a school's duty of care to its students. It would not surprise me to see the Court of Appeals take up this case.
*1 The facts are stated in a light most favorably to the plaintiff. Obviously the school, and the sophomore, vigorously disputed that any sexual assault took place. Indeed, the lack of proof that any sexual assault occurred was an alternate ground for the majority's holding affirming the dismissal of plaintiff's claims.
23 August 2012
Empty plastic Tops bag enough to tie murder evidence together
People v Reed, 2012 NY Slip Op 05464 [4th Dept 2012] [available here]
The victim in Reed was "shot three times at close range in broad daylight on a public street in Rochester" in front of seven eyewitnesses. (P v Reed at *3.) One witness "testified that the shooter bent over the victim immediately after the shooting," but none of the eyewitnesses saw the shooter take anything from the victim.
The defendant in Reed was ultimately convicted of felony murder*1, but he was not the shooter; it was alleged he drove the Lincoln that the shooter got into after the shooting. At least some of the witnesses identified the defendant as the driver of a Lincoln that was seen leaving the scene.
The car was not found until the day after the shooting. As described in the dissent,
(P v Reed, at *3.)
The plastic bag turned out to be the key piece of evidence in the case. Why? Because the shooting vicitm's girlfriend told the police that, about 30 minutes before the shooting, she had put $40,000 in a plastic shopping bag, knotting it at the top before sending her boyfriend out to buy drugs. The bag found in the car was knotted, but other than that it was unremarkable; as described by the dissenters:
(P v Reed, at *3.)
The mere presence of the bag in the car was enough for the majority to conclude that the shooting victim had been robbed during the shooting, thus transforming a straight murder to felony murder, and putting the defendant on the hook for murder without having to prove that he actually shared the shooter's intent to kill the victim. According to the majority,
(P v Reed, at *2.)
Justices Fahey and Martoche dissented, relying on the special care taken by fact-finders in purely circumstantial evidence cases. As noted by the dissenters, "[w]hen the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (P v Reed, at * 2.) The supermarket bag "is a common item," and it could not be said that the bag found in the car was the same one used by the victim to carry his drug money. Coupled with the fact that "none of the seven eyewitnesses to the shooting--many of whom also saw the assailant's departure from the area of the shooting--saw the taking of property from the victim . . . none of those witnesses saw anyone walk from the vicinity of the victim's body carrying anything other than a gun." (P v Reed, at *3.) No evidence of the robbery, hence no underlying felony to support the felony murder conviction, says the dissent.
It is probably good that the Fourth Department does not hear argument on cases during the summer. There were a lot of lengthy dissents this packet, and I imagine some of the panel conferences were getting pretty frosty. Maybe a nice break, some summer downtime, and the Justices will come back in the fall ready to get back to the normal business of affirming convictions unanimously.
*1 Basically, felony murder may be charged where somebody dies during the commission of a felony, whether or not the felons intended to kill anyone. Think security guard dropping dead during a bank robbery where the robbers were armed with realistic squirt guns.
The victim in Reed was "shot three times at close range in broad daylight on a public street in Rochester" in front of seven eyewitnesses. (P v Reed at *3.) One witness "testified that the shooter bent over the victim immediately after the shooting," but none of the eyewitnesses saw the shooter take anything from the victim.
The defendant in Reed was ultimately convicted of felony murder*1, but he was not the shooter; it was alleged he drove the Lincoln that the shooter got into after the shooting. At least some of the witnesses identified the defendant as the driver of a Lincoln that was seen leaving the scene.
The car was not found until the day after the shooting. As described in the dissent,
The interior of the Lincoln was, as defense counsel aptly noted on summation, "in a state of disarray" at that time, and in that vehicle the police discovered various grocery items, including "one or two packages of sausage biscuits," an empty Snapple bottle, and a number of lottery tickets. Police also took from the Lincoln a plastic Tops supermarket bag, the handles of which were knotted and the bottom of which appeared to have been "ripped out."
(P v Reed, at *3.)
The plastic bag turned out to be the key piece of evidence in the case. Why? Because the shooting vicitm's girlfriend told the police that, about 30 minutes before the shooting, she had put $40,000 in a plastic shopping bag, knotting it at the top before sending her boyfriend out to buy drugs. The bag found in the car was knotted, but other than that it was unremarkable; as described by the dissenters:
No fingerprints or bodily fluids were found on the bag, nor was any hair. Moreover, defense counsel noted on summation, without objection, that there are "thousands, tens of thousands of Tops bags in [Rochester]," some of which were even carried by jurors during the trial.
(P v Reed, at *3.)
The mere presence of the bag in the car was enough for the majority to conclude that the shooting victim had been robbed during the shooting, thus transforming a straight murder to felony murder, and putting the defendant on the hook for murder without having to prove that he actually shared the shooter's intent to kill the victim. According to the majority,
It has long been the law in New York that evidence that a defendant possessed a wrapper or container that had held property before it was stolen is sufficient to support a conviction for stealing that property. Consequently, "this evidence, although circumstantial, was nevertheless more than sufficient to lead a reasonable person to conclude that defendant" or one of his accomplices stole the cash from the victim. The evidence also establishes that the victim was shot and killed while that cash was being taken from him, thus providing legally sufficient evidence with respect to the remaining elements of the charges of which defendant was convicted.
(P v Reed, at *2.)
Justices Fahey and Martoche dissented, relying on the special care taken by fact-finders in purely circumstantial evidence cases. As noted by the dissenters, "[w]hen the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (P v Reed, at * 2.) The supermarket bag "is a common item," and it could not be said that the bag found in the car was the same one used by the victim to carry his drug money. Coupled with the fact that "none of the seven eyewitnesses to the shooting--many of whom also saw the assailant's departure from the area of the shooting--saw the taking of property from the victim . . . none of those witnesses saw anyone walk from the vicinity of the victim's body carrying anything other than a gun." (P v Reed, at *3.) No evidence of the robbery, hence no underlying felony to support the felony murder conviction, says the dissent.
It is probably good that the Fourth Department does not hear argument on cases during the summer. There were a lot of lengthy dissents this packet, and I imagine some of the panel conferences were getting pretty frosty. Maybe a nice break, some summer downtime, and the Justices will come back in the fall ready to get back to the normal business of affirming convictions unanimously.
*1 Basically, felony murder may be charged where somebody dies during the commission of a felony, whether or not the felons intended to kill anyone. Think security guard dropping dead during a bank robbery where the robbers were armed with realistic squirt guns.
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