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QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP EXISTED WHICH WOULD SUPPORT THE INSURANCE MALPRACTICE ACTION.

The Third Department, reversing Supreme Court, determined a question of fact had been raised whether a special relationship had developed between plaintiff (the insured) and plaintiff’s insurance agency (defendant Cardell), such that plaintiff could maintain an action for insurance malpractice. Plaintiff put on rodeos and procured insurance from defendant for each event. One policy mistakenly excluded coverage for injuries caused by animals. Another policy didn’t cover the trailers used to transport the rodeo animals. After the rodeo, a few animals escaped as they were about to be loaded onto trailers and injured several people. Both carriers disclaimed coverage. The court explained the law re: a special relationship between an insured and the insurance agency:

 

Although an insurance agent’s common-law duty to his or her clients does not include a continuing duty to advise the clients on appropriate coverage or to recommend additional coverage that the clients did not request …, an agent may be liable for failing to provide appropriate advice in circumstances where there is a special relationship. As pertinent here, such a relationship may arise when “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . The question whether a special relationship exists between an insurance agent and a client giving rise to a duty to guide and advise the client is a factual determination that “is governed by the particular relationship between the parties and is best determined on a case-by-case basis” … . Here, plaintiff testified that he had purchased his business and personal insurance from defendant for at least six years, that he knew little about insurance and that he relied upon defendant to obtain the appropriate coverage for his rodeo operations. He stated that he had never seen any of the rodeo insurance policies that defendant procured on his behalf, that insurance certificates were the only documents ever provided to him, and that “with [Cardell] being my agent for years, I took that as he was representing me and making sure that I was covered.” As for the failure to include the trailer in the schedule of covered vehicles in plaintiff’s automobile insurance policy — which defendant had also procured — plaintiff stated that he understood that his trailers were covered by his truck insurance and that he was never advised that his trailers should be separately listed as covered vehicles until after the … incident. Finch v Steve Cardell Agency, 2016 NY Slip Op 01231, 3rd Dept 2-18-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/MUNICIPAL LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/VEHCILE AND TRAIFFIC LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)

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PROCEDURES MANDATED BY THE CHILD SUPPORT STANDARD ACTS NOT FOLLOWED; SUPREME COURT’S ORDER MODIFIED.

The First Department, in a full-fledged opinion by Justice Gische, determined Supreme Court did not follow the statutory requirements of the Child Support Standards Act (CSSA) and modified Supreme Court’s order. Supreme Court directed plaintiff-father to pay 100% of private school tuition for the child, and further ordered that plaintiff-father pay 100% of the cost of extracurricular, weekend and summer activities for the child. The First Department determined, under the CSSA, the extracurricular, weekend and summer activities should have been factored into child support. The court further determined that, because father and mother never married and lived together for only four months, the discussions between mother and father about private school for the child were not a sufficient ground for ordering father to pay for private school. The private school and extracurricular weekend and summer activities portions of Supreme Court’s order were vacated. The court explained the procedural requirements of the CSSA as follows:

The CSSA first requires a calculation of child support amount (Domestic Relations Laws 240 [1-b] [b][3]). It then allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents’ relative incomes. The add on expenses permitted are expressly stated within the statute, with their own specific standards and considerations justifying the making of such an award. The add on expenses expressly addressed in the CSSA are: (1) child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment (Family Court Act § 413[1][c][4]; Domestic Relations Law § 240[1-b][c][4],[6]); (2) health insurance and unreimbursed medical expenses (Family Court Act § 413[1][c][5]; Domestic Relations Law § 240[1-b][c][5]; and (3) educational expenses (Family Court Act § 413[1][c][7]; Domestic Relations Law § 240[1-b][7]). Not expressly delineated as add on expenses in the statute are summer, extra curricular and/or weekend activities. Basic child support, when calculated properly, is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. That is not to say that a court cannot order a parent to pay for these expenses over and above basic child support. If a court does so, however, it is a deviation from the basic statutory formula and requires an analysis under the commonly referred to paragraph “f” factors. Pursuant to Domestic Relations Law § 240 [1-b][f] (Family Court Act § 413[1][f]) “[u]nless the court finds that the non-custodial parent[‘s] pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of [certain] factors” enumerated in the CSSA, the child support calculation under the statute is presumptively correct. There are 10 enumerated factors to consider before deviating. They include the financial resources of the parties and child, the health, needs and aptitude of the child; the standard of living the child would have enjoyed had the household not been dissolved; tax consequences; nonmonetary contributions that a parent makes; educational needs of either parent; disparity in income of the parents; other child support obligation of the non-custodial parent; extraordinary expenses incurred in visitation and any other factor that the court finds relevant (Family Court Act § [1][f]; Domestic Relations Law § 240[1-b][f]). Although all the factors do not have to present, the court needs to articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory paragraph f factors … . Michael J.D. v Carolina E.P., 2016 NY Slip Op 01252, 1st Dept 2-18-16

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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FAMILY COURT APPLIED THE WRONG LAW RE: EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO A NONPARENT; EXTRAORDINARY CIRCUMSTANCES FINDING IS APPEALABLE EVEN THOUGH CUSTODY WAS AWARDED TO MOTHER.

The Third Department reversed Family Court’s finding that extraordinary circumstances justified the award of custody of the child to mother’s cousin. After finding extraordinary circumstances supporting the award of custody to a nonparent had been demonstrated, Family Court went on to find that the best interests of the child required an award of custody to mother. The Third Department noted that a finding of extraordinary circumstances justifying the award of custody to a nonparent is appealable by the mother, even though custody was ultimately awarded to her. In making the “extraordinary circumstances” finding, Family Court had erroneously relied on Domestic Relations Law 72, which applies only to custody awards to grandparents. The court explained the correct applicable law:

 

“[A] parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, disruption of custody over an extended period of time or other extraordinary circumstances” … . “[T]he nonparent bears the heavy burden of proving extraordinary circumstances and the existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances” … . “The extraordinary circumstances analysis must consider ‘the cumulative effect’ of all issues present in a given case” …, including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” … . Since a finding of extraordinary circumstances may have enduring consequences for the parent … , it can be challenged on appeal even if, as here, the parent ultimately obtained custody. Matter of Brown v Comer, 2016 NY Slip Op 01218, 3rd Dept 2-18-16

 

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES IS SUFFICIENT TO SUPPORT CIVIL COMMITMENT IN A SECURE FACILITY PURSUANT TO CPL 330.20.

In finding that respondent suffers from a dangerous mental disorder requiring civil commitment in a secure facility, the Third Department first determined a diagnosis of antisocial personality disorder (ASPD) with narcissistic and paranoid features was sufficient to justify civil commitment pursuant to Criminal Procedure Law 330.20:

… [R]espondent contends, among other things, that the fact that ASPD, alone, is a legally insufficient diagnosis for the purposes of civil confinement pursuant to Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174, 191 [2014]) merits the conclusion that a diagnosis of ASPD with narcissistic and paranoid features is a legally insufficient diagnosis for the purposes CPL 330.20. The Supreme Court of the United States has established that “[s]tates retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for [civil] commitment” … . The constitutional guarantee of due process limits that discretion, however, by ensuring that civil commitment is not used as a mechanism to identify and confine the dangerous but “typical [criminal] recidivist[s]” … . With this in mind, proof sufficient to satisfy due process requires proof of a mental condition that causes a person to have serious difficulty in controlling his or her dangerous behavior … .

* * * CPL 330.20 (1) (c) … does not limit the relevant form of dangerousness in the same manner; it only requires a relationship between respondent’s current mental condition and “a physical danger to himself [or herself] or others.”

Further, the diagnosis of ASPD with narcissistic and paranoid features is more specific than a generic ASPD diagnosis. Accordingly, this case does not force us to confront a generic ASPD diagnosis that, as elucidated by expert evidence, “means little more than a deep-seated tendency to commit crimes” … . Therefore, we turn to the expert evidence further clarifying respondent’s ASPD diagnosis and its attendant narcissistic and paranoid features.

Expert testimony established that ASPD causes individuals to have “distortions related to their thoughts [and] behaviors, and . . . a reckless disregard for societal norms.” Individuals are diagnosed with narcissistic features when they engage in “grandiose” thinking, have a “sense of self-importance” and feel “entitled” and possibly omnipotent. Finally, individuals with paranoid features often have feelings that “people are out to get them.” Considering this evidence, we conclude that a mental condition marked by a disregard for societal norms and specifically amplified by an unreasonably inflated sense of self worth and an irrational attribution of hostile intentions to other people sufficiently distinguishes a respondent from the typical recidivist and has a relationship to the requisite dangerousness pursuant to CPL 330.20. Accordingly, we conclude that the diagnosis of ASPD with narcissistic and paranoid features is not legally insufficient to support civil confinement pursuant to CPL 330.20. Matter of John Z. (Commissioner of Mental Health), 2016 NY Slip Op 01234, 3rd Dept 2-18-16

 

CRIMINAL LAW (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/CIVIL COMMITMENT (JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/DANGEROUS MENTAL DISORDER (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)

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PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL.

The Third Department reversed defendant’s conviction because the prosecutor refused to give a race-neutral reason for striking a nonwhite juror. The prosecutor argued that no reason need be provided for juror no. 2 because juror no. 2 was the first nonwhite juror to be struck. The Third Department noted that the judge asked for race-neutral reasons after defense counsel objected to a pattern of striking four nonwhite jurors. Therefore, the judge had implicitly concluded defense counsel had made a prima facie showing of discrimination. At that point the prosecutor was obligated to provide race-neutral reasons for striking all four nonwhite jurors, including juror no. 2:

 

“The purpose of the Batson rule is to eliminate discrimination, not minimize it” … . Accordingly, because “[t]he exclusion of any [nonwhite prospective jurors] solely because of their race is constitutionally forbidden” … , a defendant asserting a Batson challenge need not show a pattern of discrimination. “Although as part of their prima facie case parties often rely on numbers to show a pattern of strikes against a particular group of jurors, a prima facie case may be made based on the peremptory challenge of a single juror that gives rise to an inference of discrimination” … .

Here, County Court implicitly concluded that defendant had made a prima facie showing of discrimination as to all four of the jurors in question, and the burden then shifted to the People to provide race-neutral explanations for all four — not just three — of the nonwhite prospective jurors against whom the People asserted peremptory challenges. Given the People’s failure to provide — and County Court’s failure to require — such an explanation as to all four prospective jurors, defendant is entitled to a new trial. People v Jones, 2016 NY Slip Op 01212, 3rd Dept 2-18-16

 

CRIMINAL LAW (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL)/JURORS (BATSON CHALLENGE, PROSECUTOR’S FAILURE TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)/BATSON CHALLENGE (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)

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COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS.

The First Department determined Supreme Court should have conducted an in camera review of documents sought from Morgan Stanley by the petitioner to see whether the documents are privileged under a “common interest privilege.”  Even though a third party, NaturEner, was privy to the documents, and despite a debtor-creditor relationship between Morgan Stanley and NaturEner, because Morgan Stanley and NaturEner shared a common interest in the underlying contract dispute, the common interest privilege may apply:

The common interest privilege is an exception to the rule that the presence of a third party will waive a claim that a communication is confidential. It requires that the communication otherwise qualify for protection under the attorney-client privilege and that it be made for the purpose of furthering a legal interest or strategy common to the parties asserting it … .

We find that Morgan Stanley and NaturEner shared a common interest in their desire to have plaintiff comply with its contractual obligations under the Rim Rock agreements. The fact that respondent and defendant were in a debtor-creditor relationship did not make their interests adverse in all matters and at all times … . Under the circumstances, the court should have ordered an in camera inspection, the limited relief requested in the petition … . Matter of San Diego Gas & Elec. Co. v Morgan Stanley Senior Funding, Inc., 2016 NY Slip Op 01238, 1st Dept 2-18-16

CIVIL PROCEDURE (COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS, PARTIES COOPERATING IN LAWSUIT)/COMMON INTEREST PRIVILEGE (PARTIES COOPERATING IN LAWSUIT)/PRIVILEGE (COMMON INTEREST PRIVILEGE, PARTIES COOPEERATING IN LAWSUIT)

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THERE WAS AN INEXCUSABLE 28-HOUR DELAY BETWEEN DEFENDANT’S ARREST AND ARRAIGNMENT, BUT THE DELAY DID NOT RENDER THE CONFESSION INVOLUNTARILY GIVEN.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in a double-murder case, determined defendant’s motion to suppress his confession was properly denied.  The central issue was whether the delay between defendant’s arrest and his arraignment (28 hours) rendered the confession involuntary. The Court of Appeals determined there was inexcusable delay, but that the delay was only one factor in an analysis of whether the confession was voluntarily given:

 

Given the inordinate length of time between defendant’s arrest and arraignment and the unsupported claims of an investigatory need to continue the questioning following his arrest, we have no difficulty concluding that the record lacks support for a finding that the delay was necessary. Here, defendant was arrested at 9:00 p.m. on May 14th, after 10 hours of intermittent questioning at the precinct. Over 12 hours later, he made an oral confession, at approximately 9:30 p.m. on May 15th, and completed a signed written confession 4 1/2 hours later, at 2:00 a.m. He was then arraigned more than 28 hours after his arrest, in excess of the 24-hour delay this Court determined to be presumptively unnecessary in People ex rel. Maxian [77 NY2d 422}]. * * *

Although defendant was detained for over 24 hours, and spent most of the time in a windowless room, his basic human needs were provided for because he was able to eat, drink, and take bathroom breaks. He was even allowed to smoke cigarettes. … [T]he interrogations were not done in continuous rotations, but rather were intermittent, and provided breaks during which defendant was able to rest and sleep, as well as remain silent and consider his situation. Defendant was not placed in the untenable position of bargaining his rights … , as he was neither induced to confess in order to speak with a lawyer, nor dissuaded from exercising his rights to counsel or to remain silent. Instead, as the detectives testified and the Miranda form indicates, defendant was informed of his rights early during the interrogation process. The record establishes defendant confessed only once he was faced with evidence of his guilt, not because he was exhausted and desperate to escape his interrogators. Thus, the totality of the circumstances here do not “bespeak such a serious disregard of defendant’s rights, and were so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant’s will was not overborne” … . People v Jin Cheng Lin, 2016 NY Slip Op 01205, CtApp 2-18-16

CRIMINAL LAW (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/CONFESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/SUPPRESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/EVIDENCE (CONFESSION, UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)

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EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION OF DRUG POSSESSION; WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion by Judge Rivera, determined the evidence supported the jury’s consideration of the “drug factory presumption” re: possession of drugs.  In addition, the Court of Appeals held the decision whether to testify before a grand jury is a strategic decision to be made by the attorney, not the defendant, and, in order to demonstrate ineffective assistance in this context, a defendant must show prejudice. The presence of some loose cocaine on the floor, some baggies and a razor blade was sufficient to trigger the “drug factory presumption”, i.e., a presumption of possession by everyone in close proximity to the cocaine. Without the presumption, there would not have been enough evidence defendant possessed the drugs:

 

While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package[d] or otherwise prepare[d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them … . * * *

While the right to testify before a grand jury is significant and “must be scrupulously protected” …, “a prospective defendant has no constitutional right to testify before the [g]rand [j]ury” … . In contrast to the “constitutional nature of the right to testify at trial” … , the right to testify before the grand jury is a limited statutory right … . Whether to exercise that right is a decision that requires “the expert judgment of counsel” … because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses” — quintessential matters of strategy … . The various risks and benefits that must be considered render the decision of whether to exercise this statutory right “an appropriate one for the lawyer, not the client” … .

In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a “defense counsel’s failure to timely facilitate defendant’s intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel” … . That is, even where no strategy is involved, a defendant must show prejudice … . People v Hogan, 2016 NY Slip Op 01207, CtApp 2-18-16

 

CRIMINAL LAW (EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/EVIDENCE (CRIMINAL, SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/ATTORNEYS (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT)/INEFFECTIVE ASSISTANCE (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE)/GRAND JURY (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE TO SUPPORT INEFFECTIVE ASSISTANCE CLAIM)

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DEFENSE COUNSEL NOT INEFFECTIVE; EVIDENCE OF CHILD’S MULTIPLE DISCLOSURES OF SEX ABUSE WAS NOT BOLSTERING; DEFENSE COUNSEL ARTICULATED LEGITIMATE REASONS FOR NOT CALLING A MEDICAL EXPERT.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel was not ineffective in a child sex abuse case.  The central issues concerned the evidence of the child’s disclosures of the alleged abuse to several people (including the People’s expert), the prosecutor’s emphasis on the multiple disclosures without objection, and defense counsel’s failure to call a medical expert. The Court of Appeals held defense counsel articulated arguably legitimate reasons for not calling an expert, and the evidence of multiple disclosures did not constitute bolstering, but rather was properly admitted as background information, fleshing out the investigation, and the People’s expert’s diagnosis:

In Ludwig [24 NY3d 221], we acknowledged that “New York courts have routinely recognized that ‘nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'” and assisting in the completion of the narrative of events which led to the defendant’s arrest … . Here, the testimony of the child’s mother, sister, principal and the two officers fulfilled these legitimate nonhearsay purposes, and defense counsel’s objections to the testimony of the witnesses ensured that the witnesses did not specifically repeat what the child told them.

The majority of [the People’s medical expert’s] testimony as to the child’s specific allegations of sexual abuse was admissible under People v Spicola (16 NY3d 441 [2011]). In Spicola, we held that testimony of a nurse-practitioner concerning the child’s history of sexual abuse was permissible testimony because the child’s statements to the nurse-practitioner “were germane to diagnosis and treatment” and therefore “were properly admitted as an exception to the hearsay rule” (16 NY3d at 451). Applying Spicola here, the trial court properly admitted [the expert’s] testimony. The testimony explained why the child was being examined by [the expert] and why the normal results of the physical examination did not indicate that the child had not been subjected to sexual abuse. This background information completed the narrative and was properly permitted under the exception to the hearsay rule. Moreover, defense counsel lodged an objection to [the expert’s] testimony concerning the child’s history; however, that objection was overruled. Defense counsel can hardly be deemed ineffective on this score.

Trial counsel’s failure to request that a limiting instruction be given to the jury that the child’s testimony concerning the disclosures she made to other individuals should not be accepted for the truth of her allegations, does not render her ineffective in light of the totality of her representation of defendant … . Moreover, defense counsel was not ineffective for failing to object to the prosecutor’s summation comments referencing the testimony of the witnesses to whom the victim had disclosed. Despite the dissent’s argument to the contrary, the failure to object to the prosecutor’s statement on summation does not negate the overall meaningful representation provided to defendant by his counsel. Defense counsel zealously advocated for defendant, making multiple successful objections which limited the testimony of several prosecution witnesses. Additionally, defense counsel may have made a strategic choice not to object during summation given that the witnesses were not able to testify to the specifics of the child’s allegations … . She may have felt that such an objection would not be worthwhile given the limited testimony elicited from the witnesses. Such a strategic decision does not support a finding of ineffectiveness … . People v Gross, 2016 NY Slip Op 01204, CtApp 2-18-16

CRIMINAL LAW (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/ATTORNEYS (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/EVIDENCE (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)/EXPERT EVIDENCE (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/BOLSTERING (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND)/BACKGROUND INFORMATION (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)

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APPELLATE DIVISION PROPERLY DECIDED APPEAL ON GROUNDS WHICH WERE NOT EXPLICITLY STATED BY THE TRIAL COURT BUT WHICH WERE IMPLICIT IN THE TRIAL COURT’S RULING.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the Appellate Division did not exceed its statutory powers when it decided an evidentiary issue on grounds which were implicit in the trial court’s ruling, but not explicitly stated by the trial court. The trial judge had ruled rebuttal testimony was admissible to show defendant’s witness had lied when she testified she was currently “just friends” with the defendant. The Appellate Division found the testimony was admissible to show the defendant’s witness’s bias or motive to fabricate. The Court of Appeals held that the “bias or motive to fabricate” reasoning simply recognized the underlying premise of the trial court’s ruling, and did not violate the rule that the Appellate Division cannot decide an appeal on a ground not ruled upon by the lower court. The Court of Appeals also ruled that evidence of uncharged acts of violence against or witnessed by the child sex-abuse victim were admissible to explain the victim’s delay in reporting the abuse, and the expert evidence of Child Sexual Abuse Accommodation Syndrome was properly presented despite jurors stating in voir dire that a child’s delay in reporting would be understandable. With respect to the Appellate Division’s review powers, the Court of Appeals wrote:

Where a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge’s stated reasoning. Moreover, nothing in the language of CPL 470.15 (1) … prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination, as it did in defendant’s case. Unlike the case where the Appellate Division renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant’s favor—the type of appellate overreaching prohibited by CPL 470.15 (1) … , the Appellate Division here affirmed the evidentiary ruling on the ground relied on by the trial court, namely to establish the defense witness lied that she and defendant were merely friends, as well as the unspoken, record-supported inferences that can be drawn from that testimony. We therefore conclude that the Appellate Division acted within its statutory appellate review power.

Any other interpretation of CPL 470.15 (1) would require a trial judge to state every analytic step underlying a determination to admit or deny evidence, no matter how obvious the reasoning from the record. This approach demands a heretofore unexpected level of descriptive technical exactitude. It would require the judiciary to participate in a laborious exercise, without obvious commensurate benefit to the parties or our system of justice. We do not mean that a trial court’s evidentiary rulings may go unexplained, that the Appellate Division may hypothesize the basis for a judge’s determination where a record is wholly devoid of reason, or that an appellate court may comb through the entirety of a record solely to cobble together some theory for the trial court’s conclusion. There must be sufficient articulation of a “reviewable predicate” … . Thus, where the trial court’s decision is fully articulated the Appellate Division’s review is limited to those grounds, but where the trial court gives a reason and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15 (1) when it considers those inferences. People v Nicholson, 2016 NY Slip Op 01206, CtApp 2-18-16

CRIMINAL LAW (APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT’S RULING)/APPEALS (CRIMINAL APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT’S RULING)/CRIMINAL LAW (EVIDENCE OF UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM’S DELAY IN REPORTING)/EVIDENCE (UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM’S DELAY IN REPORTING)/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (EXPERT EVIDENCE ADMISSIBLE EVEN THOUGH JURORS STATED IN VOIR DIRE THEY UNDERSTOOD WHY A CHILD WOULD DELAY IN REPORTING ABUSE)

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