You are here: / JURY-NOTE ERROR REQUIRED REVERSAL; ALL INDICTMENT COUNTS WERE TAINTED ...

Search Results

/ ,

JURY-NOTE ERROR REQUIRED REVERSAL; ALL INDICTMENT COUNTS WERE TAINTED BY THE JURY-NOTE ERROR; UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY.

The Second Department, reversing defendant’s conviction, determined (1) there was no evidence the trial judge gave counsel notice and a chance to respond to a jury note, (2) the jury-note error affected all the counts of which defendant was convicted, and (3) the videotaped statement of an unsworn witness was properly admitted based upon proof the witness was unavailable due to defendant’s intentional misconduct:

Here, the jury submitted a note stating, “Please clarify 1st degree assault; 2nd degree assault; 2nd degree manslaughter [and] 2nd degree murder.” The Supreme Court did not read the contents of the note into the record at any point, and there is no record indication that the court communicated to the parties that a jury note had been received. Instead, after a recess for deliberations, the court merely stated “let us revisit these counts,” and then it gave the charges for those offenses. The court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error … , which requires reversal of the judgment and a new trial … . …

When the error at issue relates to a mistake in the court’s charge to the jury, the primary focus is on any effect the error “might have had on the jury’s ability to deliberate fairly on the non-tainted counts, although attention must of course be paid as well to the evidentiary relationship between the tainted counts and the non-tainted counts” … . Reversal is required if “there is a reasonable possibility’ that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way'” … . In this case, given the evidentiary relationship between the tainted counts and the weapon possession count, it cannot be said that there is no reasonable possibility that the jury’s decision to convict on the other counts did not influence its guilty verdict on the weapon possession count … . …

In a criminal case, the out-of-court statements of a witness may be admitted as direct evidence at trial where, inter alia, the witness is unavailable to testify and proof establishes that the witness’s unavailability was procured by intentional misconduct on the part of the defendant … . People v Thomas, 2017 NY Slip Op 00497, 2nd Dept 1-25-17

 

CRIMINAL LAW (JURY-NOTE ERROR REQUIRED REVERSAL, ALL COUNTS TAINTED BY THE JURY-NOTE ERROR, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)/JURY NOTES (CRIMINAL LAW, JURY-NOTE ERROR REQUIRED REVERSAL, ALL COUNTS TAINTED BY THE JURY-NOTE ERROR, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)/EVIDENCE (CRMINAL LAW, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)

/ ,

EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT, CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the evidence before the grand jury was legally sufficient to support the indictment (intimidating a victim or witness). The court explained the applicable standard of proof:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” … . ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether the Grand Jury could rationally have drawn the guilty inference’. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference'” … . People v Franov, 2017 NY Slip Op 00482, 2nd Dept 1-25-17

CRIMINAL LAW (EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT, CRITERIA EXPLAINED)/EVIDENCE (CRIMINAL LAW, EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT, CRITERIA EXPLAINED)/GRAND JURY (EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT, CRITERIA EXPLAINED)

/ ,

ERRONEOUS SANDOVAL RULING REQUIRED REVERSAL.

The Second Department, reversing defendant’s conviction, over a dissent, determined the Sandoval ruling erroneously allowed cross examination about a prior crime. The defendant chose not to testify and the proof was deemed far from overwhelming. During the prior crime (robbery) defendant held a knife to the victim’s throat. In the rape trial at issue, it was alleged the defendant held a knife to the victim’s throat:

While we recognize that, under Sandoval and its progeny, the mere similarity of crimes or conduct to the charge for which a defendant stands trial does not automatically preclude inquiry, here, under the particular facts and circumstances of this case, a proper balancing of the probative value of the defendant’s prior conduct of placing a knife to the robbery complainant’s neck, in connection with the issue of credibility, against the risk of unfair prejudice to the defendant, should have resulted in a ruling precluding the People’s proposed line of questioning … . Moreover, the error was not harmless … . The proof of the defendant’s guilt was far from overwhelming, and the defendant was the only available source of material testimony in support of his defense (see People v Sandoval, 34 NY2d at 378). Inasmuch as the pretrial ruling affected the defendant’s decision whether to testify and denied the jury potentially significant material evidence, the Supreme Court’s Sandoval ruling cannot be considered harmless … . People v Calderon, 2017 NY Slip Op 00479, 2nd Dept 1-25-17

CRIMINAL LAW (ERRONEOUS SANDOVAL RULING REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, ERRONEOUS SANDOVAL RULING REQUIRED REVERSAL)/SANDOVAL (CRIMINAL LAW, ERRONEOUS SANDOVAL RULING REQUIRED REVERSAL)

/ , ,

ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW WAS PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS.

The Second Department, reversing Supreme Court, determined the town’s action pursuant to the Environmental Conservation Law seeking reimbursement for litigation costs incurred in defense of discrimination suits was properly and timely brought. Supreme Court had ruled the town should have brought an Article 78 action in Supreme Court:

In 1991, the New York State Legislature adopted article 44 of the Environmental Conservation Law (hereinafter the Greenway legislation), which created the Hudson River Valley Greenway (hereinafter the Greenway). The purpose of this article was to “protect and enhance the special places of scenic, cultural and ecological importance” in the Hudson River Valley (ECL 44-0101). Among other things, the Greenway legislation created a regional planning council and gave communities within its range the opportunity to enter into the “Greenway Compact,” a voluntary regional compact among municipalities to facilitate cooperative planning (see ECL 44-0103[2], [4]; 44-0119). To encourage communities to participate in the compact, the State of New York agreed that participating communities (as defined by ECL 44-0103[10]) would be entitled to indemnification in actions arising from their participation in the compact (see ECL 44-0119[7]). In 1992, this provision was amended to limit the indemnification in actions alleging, among other things, unlawful discrimination. The amendment provided that communities would be entitled to reimbursement for all reasonable attorneys’ fees and litigation expenses only if they prevailed in the underlying action. * * *

… ECL 44-0119(7) speaks of reimbursement and indemnification, and expressly states that, “[i]n any claim against a participating community of unlawful discriminatory practice, the attorney general shall not represent” the Town. Instead, pursuant to ECL 44-0119(7), if the Town prevails in litigating against “any claim” of unlawful discriminatory practice, it “shall” be reimbursed by the State for all reasonable attorneys’ fees and litigation expenses incurred in the defense of the action. … [T]he gravamen of the Town’s claim herein was for reimbursement of attorneys’ fees and litigation costs incurred by it in the defense of the two subject actions. The Town’s claim at bar is one for money damages against the State—a claim that was timely brought in the Court of Claims, which has exclusive jurisdiction of such matters … . Town of Rhinebeck v State of New York, 2017 NY Slip Op 00502, 2nd Dept 1-25-17

 

COURT OF CLAIMS (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/MUNICIPAL LAW (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/ENVIRONMENTAL LAW (ENVIRONMENTAL CONSERVATION LAW, ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)

/

FORMER GOLDMAN SACHS EMPLOYEE’S CONVICTION FOR UNLAWFUL USE OF SCIENTIFIC MATERIAL (COPYING PROPRIETARY COMPUTER SOURCE CODE) SHOULD NOT HAVE BEEN SET ASIDE, VERDICT REINSTATED.

The First Department, in a full-fledged opinion by Justice Richter, determined defendant’s conviction for unlawful use of secret scientific information should not have been set aside:

Defendant was formerly employed by Goldman Sachs as a computer programmer. Prior to leaving Goldman to work for a potential competitor, defendant made a digital copy of Goldman’s proprietary computer source code by uploading and saving it to a hard drive of a server located outside the Goldman network. After surreptitiously uploading the source code, defendant transferred copies of it to several of his personal computing devices, and subsequently shared it with his new employer. As a result, defendant was charged with unlawful use of secret scientific material (Penal Law § 165.07). After a jury convicted defendant of this crime, the trial court set aside the verdict.

In this appeal, we are asked to decide whether defendant’s actions constitute legally sufficient evidence to establish that he made a “tangible reproduction or representation” of the source code, and did so with the “intent to appropriate . . . [its] use,” within the meaning of the unlawful use statute. We conclude that, viewed in the light most favorable to the People, the evidence was legally sufficient as to both of these elements. Accordingly, we reverse the trial court’s decision, reinstate the jury’s verdict and remand the matter for sentencing. People v Aleynikov, 2017 NY Slip Op 00449m 1st Dept 1-24-17

 

CRIMINAL LAW (FORMER GOLDMAN SACHS EMPLOYEE’S CONVICTION FOR UNLAWFUL USE OF SCIENTIFIC MATERIAL SHOULD NOT HAVE BEEN SET ASIDE, VERDICT REINSTATED)/UNLAWFUL USE OF SCIENTIFIC MATERIAL (FORMER GOLDMAN SACHS EMPLOYEE’S CONVICTION FOR UNLAWFUL USE OF SCIENTIFIC MATERIAL SHOULD NOT HAVE BEEN SET ASIDE, VERDICT REINSTATED)/CODE (COPYING PROPRIETARY COMPUTER SOURCE CODE, FORMER GOLDMAN SACHS EMPLOYEE’S CONVICTION FOR UNLAWFUL USE OF SCIENTIFIC MATERIAL SHOULD NOT HAVE BEEN SET ASIDE, VERDICT REINSTATED)/COMPUTERS (COPYING PROPRIETARY COMPUTER SOURCE CODE, FORMER GOLDMAN SACHS EMPLOYEE’S CONVICTION FOR UNLAWFUL USE OF SCIENTIFIC MATERIAL SHOULD NOT HAVE BEEN SET ASIDE, VERDICT REINSTATED)

/

DOCTRINE OF RES IPSA LOQUITUR PRECLUDED SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE.

The First Department determined defendant’s motion for summary judgment in this elevator accident case was properly denied. The doctrine of res ipsa loquitur applied:

The motion court properly concluded that the doctrine of res ipsa loquitur precludes the award of summary judgment in defendant’s favor in this action where plaintiff was injured when the elevator in which he was riding came to a sudden and abrupt stop. Elevator malfunctions ordinarily do not occur in the absence of negligence … , and defendant has failed to demonstrate as a matter of law that it lacked exclusive control over the subject elevator at the time of the accident. Defendant’s argument that vandalism was the cause of the elevator’s malfunction, lacks support in the record, and there is no evidence that plaintiff’s actions played a role in the cause of the accident. Galante v New York City Hous. Auth., 2017 NY Slip Op 00430, 1st Dept 1-24-17

NEGLIGENCE (ELEVATOR ACCIDENT, DOCTRINE OF RES IPSA LOQUITUR PRECLUDED SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE)/ELAVATORS (DOCTRINE OF RES IPSA LOQUITUR PRECLUDED SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE)/RES ISPA LOQUITUR (ELEVATOR ACCIDENT, DOCTRINE OF RES IPSA LOQUITUR PRECLUDED SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE)

/

NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE.

The First Department determined the escalator-fall case against defendant Macy’s and (apparently) defendant ThyssenKrupp (responsible for escalator maintenance) was properly dismissed. The defendants demonstrated they had no notice of a problem with the escalator (either before or after the accident). The doctrine of res ipsa loquitur did not apply because plaintiff did not show the alleged skidding and shaking of the escalator could only have resulted from defendants’ negligence:

Macy’s operations manager and ThyssenKrupp’s elevator mechanic both testified that they did not receive any reports of the escalators shaking or stopping and starting before the date of plaintiff’s accident; nor did anyone, including plaintiff, before her July 2009 accident, observe the escalators stop and start several times in succession … . … The fact that Macy’s made service calls to ThyssenKrupp on January 15, 2009 and February 15, 2009, because the escalator from the basement to the main level was not running, does not raise an issue of fact as to notice, since there is no evidence that those calls were occasioned by the type of malfunctioning plaintiff describes … . * * *

Plaintiff claims that the escalator skidded and shook causing her to fall forward. The evidence in this record establishes that the elevator never operated in this manner either before or after the alleged accident. Plaintiff was able, after her fall, to ride the escalator up to the next level without any further escalator malfunction. Without more, this proof is insufficient to establish that the event is of a kind that ordinarily does not happen in the absence of negligence … . Torres-Martinez v Macy’s, Inc., 2017 NY Slip Op 00429, 1st Dept 1-24-17

 

NEGLIGENCE (ESCALATOR FALL, NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE)/SLIP AND FALL (ESCALATOR FALL, NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE)/ESCALATORS (ESCALATOR FALL, NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE)/RES IPSA LOQUITUR (ESCALATOR FALL, NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE)

/

COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT CALCULATED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION.

The First Department determined Supreme Court properly set the compensation for a guardian (Goldstein) who served for about a month at $100,000, rejecting the guardian’s request for about $700,000. The Mental Hygiene Law requires only “reasonable” compensation, and does not require use of the compensation formula set out in the Surrogate’s Court Procedure Act (SPCA):

… [A]lthough the Mental Hygiene Law, as originally enacted, encouraged courts to consider a compensation plan similar to the guidelines set forth in the SCPA after the statute was amended in 2004, all references to the SCPA were eliminated. The Mental Hygiene Law does not provide any formula or guideline for the court to follow in setting compensation for an Article 81 guardian, nor does it refer to such compensation as a “commission.” * * *

… [W]e reject Goldstein’s argument that the court was required to find misfeasance or misconduct on his part in order to deny him a full commission calculated under the SCPA. Under the Mental Hygiene Law, Goldstein is entitled to no more than “reasonable compensation” for his services, and there is no mathematical formula in the mental hygiene law that the motion court failed to apply or disregarded. A court may, and in this case did, with respect to Goldstein’s services as temporary guardian, choose to compensate a guardian in quantum meruit, using an hourly rate … . Whether using the hourly rate approved by the court of $350 per hour or using his usual hourly rate of $495, Goldstein was well compensated for his time … . Matter of Goldstein v Zabel, 2017 NY Slip Op 00426, 1st Dept 1-24-17

 

MENTAL HYGIENE LAW (COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)/GUARDIANSHIP (MENTAL HYGIENE LAW, COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)/SURROGATE’S COURT PROCEDURE ACT (GUARDIANSHIP, MENTAL HYGIENE LAW, COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)

/

ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION.

The Third Department determined that, although claimant was injured in Florida, significant contacts with New York established subject matter jurisdiction:

“For the Board to have jurisdiction over a claim arising from a work-related injury that occurred outside New York, it must determine whether there were sufficient and significant contacts between the state and the employer to support a reasonable conclusion that the employment was to some extent sited in this state” … . To make this determination, the Board may consider various factors, including where the employee resides, where the employee was hired, the location of the employee’s employment and the employer’s offices, whether the employee was expected to return to New York after completing out-of-state work for the employer and the extent to which the employer conducted business in New York … . Upon due consideration of these relevant factors, if “it appears that the claimant’s employment had sufficient significant contacts with New York such that it may reasonably be concluded that the employment was located here, then subject matter jurisdiction exists” … .  While there is no dispute that claimant sustained her injuries while working in Florida, the record also establishes that claimant has maintained her primary and permanent residence in New York since 1983. Claimant testified that, in 2006, she was interviewed and hired at her employer’s residence located in New York and that her job duties included maintaining, and cooking for, that residence. Although claimant traveled with, and worked for, her employer in Florida for approximately eight months out of the year, claimant lived at her employer’s residence in New York for the balance of the year for five days a week while performing her job responsibilities. In addition, claimant testified that, throughout her employment, she considered New York her home. Matter of Barnett v Callaway, 2017 NY Slip Op 00366, 3rd Dept 1-19-17

WORKERS’ COMPENSATION LAW (ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)/JURISDICTION, SUBJECT MATTER (WORKERS’ COMPENSATION LAW, ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)

/

BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY.

The Third Department determined claimant, a biometric screener, was an employee of Summit, a company which provides health screenings and flu immunizations at clients’ workplaces:

The record reflects that Summit posted job openings for biometric screeners on its website, interviewed applicants and screened their experience and license credentials. Summit scheduled the clinics with its clients and the clients determined what services were needed. Summit then posted the clinic dates, and screeners could sign up to work at the clinics based upon their availability. If the screeners could not report to work after signing up for a clinic, they notified Summit, which would then find a replacement. Screeners were paid an hourly rate by Summit and were reimbursed for certain travel and other expenses. Summit provided equipment and supplies for the clinics and claimant was required to abide by a dress code and wear a Summit identification badge. In sum, we conclude that the facts in this case are materially indistinguishable from two prior cases in which we concluded that Summit was the employer of its certified medical assistants … . Matter of Williams (Summit Health, Inc.–Commissioner of Labor), 2017 NY Slip Op 00363, 3rd Dept 1-19-17

UNEMPLOYMENT INSURANCE (BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY)/BIOMETRIC SCREENER (UNEMPLOYMENT INSURANCE, BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy