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Failure to Read Jury Notes to Counsel Before Calling in the Jury Was Not a Mode of Proceedings Error—The Error, Therefore, Must Be Preserved by Objection

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Lippman in which Judge Rivera concurred, determined the trial judge’s failure to read jury notes to counsel and seek their input before calling in the jury was not a mode of proceedings error. Therefore, absent objection, the error was not preserved:

CPL 310.30 requires a trial court to provide “notice to both the people and counsel for the defendant” of a substantive jury inquiry. In O’Rama, we held that the statute requires the court’s notice to counsel to be “meaningful,” and we clarified that this “means notice of the actual specific content of the jurors’ request” (O’Rama, 78 NY2d at 277). This is because “counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” (id.). We further held that, “in most cases,” meaningful notice is best satisfied by adhering to the procedure outlined in United States v Ronder (639 F2d 931, 934 [2d Cir 1981]), which procedure is now commonly known as the O’Rama procedure:

“Under this procedure, jurors’ inquiries must generally be submitted in writing, since . . . written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder (supra, at 934), the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” (O’Rama, 78 NY2d at 277-278). * * *

Where, as here, counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury, the court’s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error. Counsel is required to object to the court’s procedure to preserve any such error for appellate review. …  “We have acknowledged that some departures from O’Rama procedures are subject to our rules of preservation, such as where the court reads the entire content of the note verbatim in open court prior to responding to the jury” (Walston, 23 NY3d at 989 [emphasis added] [internal quotation marks omitted]). People v Nealon, 2015 NY Slip Op 07781, CtApp 10-27-15

 

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Court’s Unjustifiably Narrow Interpretation of Jury’s Request for Evidence Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with a concurring memorandum by Judge Rivera, determined the trial judge’s narrow reading of a request for evidence of the benefits two prosecution witnesses received in return for their testimony required reversal. There was essentially no evidence other than the testimony of the two witnesses pointing to defendant as the shooter. A written cooperation agreement with one of the two witnesses outlined some of the benefits accorded him. However, there was also trial testimony in which both witnesses testified about other benefits received in exchange for testimony. The jury requested to “see” the evidence of the benefits. The court read the request narrowly to refer only to the written cooperation agreement and gave the jury the impression only the cooperation agreement was in evidence. The Court of Appeals held that the jury note should have been read as a request for all the evidence of benefits accorded the witnesses and the failure to provide all the requested evidence was reversible error:

CPL 310.30 provides that, “[u]pon such request” for evidence or legal instruction from a deliberating jury, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (CPL 310.30). Similarly, absent a withdrawal of the jury’s inquiry or similar circumstances, common-law principles of procedural fairness generally require the court to furnish the jury with information requested during its deliberations, and the court has significant discretion in determining the proper scope and nature of the response … . Thus, regardless of whether the issue is framed under CPL 310.30 or common-law rules governing jury deliberations, where, as here, the defendant has preserved for our review a specific objection to the contents of the trial court’s response to a jury note, we must determine whether the trial court acted within the bounds of its discretion in fashioning an answer to the jury’s inquiry … . In determining whether the trial court abused its discretion and committed reversible error, “[t]he factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant” … .

In this case, an evaluation of those factors demonstrates that the trial court abused its discretion by declining to provide the jurors with information that they plainly wanted and incorrectly characterizing the state of the evidence on the subject of their inquiry.  People v Taylor, 2015 NY Slip Op 07782, CtApp 10-27-15

 

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Proper “Initial Aggressor” Jury Instruction Where Defendant Intervenes In an On-Going Fight Explained

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined a flawed “initial aggressor” jury instruction (an exception to the justification defense) required reversal. The defendant alleged that he intervened in an on-going fight on behalf of his brother who was being beaten with a hammer by the victim. The court described how the “initial aggressor” exception to the justification defense should be explained to the jury where a defendant intervenes in an on-going fight. Essentially, if the intervenor knowingly intervenes on behalf of the initial aggressor, the defense is not available. However, if the intervenor had nothing to do with starting the fight and had no reason to know who started the fight, the justification defense is available:

… [T]he standard charge [initial aggressor jury instruction] is misleading unless a supplemental charge is given on the meaning of “initial aggressor” in the defense-of-another scenario … . Thus, the jury should have been charged that, in the context of this case, the initial aggressor rule means — in sum and substance — that if defendant, as “the intervenor[,] somehow initiated or participated in the initiation of the original struggle or reasonably should have known that [his brother, as] the person being defended[,] initiated the original conflict, then justification is not a defense . . . If [defendant] had nothing to do with [the] original conflict and had no reason to know who initiated the first conflict, then the defense is available” … People v Walker, 2015 NY Slip Op 07784, CtApp 10-27-15

 

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Misrepresentations, Distortions, Attacks on the Court, Etc., Included in Motion Papers Warranted Sanctions Against Attorney

The First Department, in a full-fledged opinion by Justice Andrias, with two concurring memoranda, over a full-fledged dissenting opinion by Justice Saxe, determined Supreme Court properly sanctioned one of the two attorneys who represented a 94-year-old woman in guardianship proceedings. Supreme Court’s sanctioning of a second attorney and denial of all attorney’s fees were reversed. The sanctions stemmed from motion papers which, Supreme Court found, included misrepresentations, omissions, distortions, and attacks on the court and others which were wholly without merit and made in bad faith. The court explained the applicable law:

Pursuant to 22 NYCRR 130-1.1(a) and (b), the court, “in its discretion,” may award costs, including attorney’s fees, as well as impose financial sanctions against an attorney or firm that engages in “frivolous conduct.” When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent (22 NYCRR 130—1.1[c]). Furthermore, “[t]rial judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and we will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion” … .

22 NYCRR 130-1.1(c) sets forth three categories of “frivolous conduct”: “(1) [conduct which] is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; “(2) [conduct which] is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or “(3) [conduct which] asserts material factual statements that are false.” “Conduct which violates any of the three subdivisions [of Section 130-1.1(c)] is grounds for the imposition of sanctions” … . Thus, sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record … .

Upon our review of the record, we hold that the court’s finding that the orders to show cause submitted in Motion Seq. Nos. 2 & 4 were based on material false statements, which constituted frivolous conduct within the meaning of 22 NYCRR § 130-1.1(c)(3) warranting the imposition of costs, including attorneys’ fees, and a monetary sanction, was not a clear abuse of discretion … . Matter of Kover, 2015 NY Slip Op 07802, 1st Dept 10-27-15

 

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The Court’s Failure to Respond to Jury Note Requesting Transcripts of Recorded Phone Calls, Portions of Which Were Translated from Spanish to English, Mandated Reversal

The Court of Appeals reversed the appellate division and held that the court’s failure to respond to the jury’s request for transcripts of recorded phone calls, portions of which were translated from Spanish to English, was reversible error. The request, under the facts, was substantive, not ministerial. Therefore, the court was required to inform counsel of the request and to respond to it:

For reasons stated in People v Silva (24 NY3d 294 [2014] …, the Appellate Division erred in holding that reversal was not required. Contrary to the Appellate Division’s determination, the jury’s request to see the transcripts did not merely require “the ministerial actions of informing the jury that none of the items they requested were in evidence” … . Inasmuch as a significant portion of defendant’s conversations were conducted in Spanish, the jury could not be expected to understand the recordings without the aid of the transcripts … . Moreover, the trial court expressly invited the jurors to ask for the transcripts during deliberations and told them the procedure by which they could see the transcripts, which involved reassembling the jury in the courtroom. Thus, the jury’s requests for the transcripts required a substantive response, and reversal is required because these “substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the court[]” (Silva, 24 NY3d at 300). People v Mendez, 2015 NY Slip Op 07786, CtApp 10-27-15

 

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Absent a Clear Due Process Violation, the Correct Remedy for Failure to Explain Why a Witness Requested by the Inmate Did Not Testify (a Rule Violation) Is a New Hearing, Not Expungement

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, under the facts, the correct remedy for the failure to call a witness requested by the inmate at a disciplinary hearing was a new hearing, not expungement. The court explained the due process requirements in this context, and the requirements of the Department of Correctional and Community Services’ (DOCCS’) rules, which go beyond the due process requirements. Under the rules, if a requested witness in not called, the inmate must be given a written explanation for the witness’ absence. Due process does not require the prison officials to explain why a witness did not appear. Here, because, under the facts, there was a clear rule violation, but no clear due process violation, a new hearing, not expungement, was appropriate:

Petitioner was charged in a misbehavior report for violating prison disciplinary rules while an inmate at Attica Correctional Facility. At the Tier III disciplinary hearing, petitioner pleaded not guilty to all charges and requested several witnesses be called, including another inmate, T. However, T refused to testify, stating on his inmate witness refusal form that “I was never at Upstate ever. I came here from Attica!” Petitioner asked the hearing officer to re-contact T because his response indicated that he was confused about the location of the incident, which had occurred at Attica. The hearing officer agreed to have T re-interviewed. However, when the hearing reconvened T did not testify and the hearing officer did not state whether T had been re-contacted, and, if so, what he had said regarding the request to testify. The hearing officer, thereafter, found petitioner guilty of all charges, and respondent, the then Commissioner of the Department of Corrections and Community Supervision (DOCCS), administratively affirmed this disposition … . * * *

The United States Supreme Court in Wolff v McDonell , 418 US 539 (1974) held that inmates retain rights under the Federal Due Process Clause and are entitled to the minimum requirements for procedural due process, although those rights are subject to restrictions due to the nature of incarceration (id. at 556-58). Those minimal due process requirements include an inmate’s right in a disciplinary proceeding to call witnesses in the inmate’s defense, so long as “permitting [the inmate] to do so will not be unduly hazardous to institutional safety or correctional goals” (id. at 566). While noting its usefulness, the Supreme Court did not require that prison officials “state [their] reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases” (id. ).

The right to call witnesses is codified in DOCCS regulations, which also provide additional protections above and beyond those minimum requirements for procedural due process recognized by the United States Supreme Court (see 7 NYCRR 254.5). For example, and as relevant to this appeal, section 254.5(a) states that an inmate may call a witness if the testimony is “material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.” Matter of Texeira v Fischer, 2015 NY Slip Op 07783, CtApp 10-27-15

 

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“Bad Faith Claims Handling” Cause of Action Properly Dismissed As Duplicative of Breach of Contract Cause of Action/Sanctions Appropriate for Inclusion of Dismissed Cause of Action in Amended Complaint

The First Department determined a purported cause of action for “bad faith claims handling” in an insurance-coverage dispute was duplicative of the breach of contract cause of action (and was therefore properly dismissed). The court further determined that attorney sanctions were appropriate for including a dismissed cause of action in an amended complaint. The First Department explained the (rare) circumstance when breach of contract will give rise to a distinct tort cause of action (not the case here):

In some circumstances “[t]he very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim” …, in which the Court held that “a fire alarm company owed its customer a duty of reasonable care independent of its contractual obligations, and that notwithstanding a contractual provision exculpating the alarm company from damages flowing from its negligence, it could be held liable in tort for its gross failure to properly perform its contractual services” … . Further, “[w]here a party has fraudulently induced the plaintiff to enter into a contract, it may be liable in tort” … . However, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” … . Orient Overseas Assoc. v XL Ins. Am., Inc., 2015 NY Slip Op 07788, 1st Dept 10-27-15

 

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Under the Circumstances Plaintiff Could Not Strictly Comply with the Whistleblower Statute by Complaining to the Very People Involved in the Wrongful Conduct—Plaintiff Entitled to Back Pay and Prejudgment Interest for Retaliatory Demotion

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that plaintiff had complied with the whistleblower statute and was entitled to prejudgment interest on his award for retaliatory demotion. The statute, Civil Service Law  75-b, requires that any allegedly wrongful act first be reported to the “appointing authority.” However, in this case, the “appointing authority” were the very people plaintiff alleged committed the wrongful act. In this circumstance plaintiff’s complaints to his immediate superiors and then to the inspector general were deemed to comply with the statute. The Court of Appeals also reasoned that, because the purpose of the whistleblower statute is to make whistleblowers whole, the award of prejudgment interest under the statute is proper:

Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee’s good faith effort to report the misconduct should be evaluated with attention to the employee’s practical inability to report to the appointing authority. The “good faith” provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here. * * *

Here, an overall view of the comprehensive package of remedies listed in Labor Law § 740 (5), including undefined “compensation” and “remuneration,” demonstrates that the Legislature sought to make a whistleblowing plaintiff whole, which would include an award of prejudgment interest.  … [B]ecause the remedies listed in the statute appear to seek to make a whistleblowing plaintiff whole, awarding prejudgment interest would serve that purpose. By demoting plaintiff rather than awarding him a planned promotion and significant raise, defendants deprived plaintiff of access to what would have been a higher salary for a period of over 10 years. Awarding back pay with interest would serve to make plaintiff whole; thus, he is entitled to such a recovery. Tipaldo v Lynn, 2015 NY Slip Op 07698, CtApp 10-22-15

 

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SAFE Act Restrictions on Ownership of Assault Rifles and Ammunition Feeding Devices Constitutional

The Third Department, in a full-fledged opinion by Justice Devine, determined that the restrictions on ownership of assault rifles and ammunition feeding devices in the “SAFE Act” furthered the substantial, compelling, governmental interests in public safety and crime prevention and, therefore, are constitutional:

We will accept, for purposes of discussion, that the SAFE Act substantially burdens the right to keep and bear arms so as to subject it to Second Amendment scrutiny … . We will also assume, although it is debatable, that the weapons and feeding devices addressed by the SAFE Act are not the type of dangerous and exotic weaponry that merit no Second Amendment protection … . The question accordingly becomes whether the challenged provisions survive intermediate scrutiny, namely, whether they “bear[] a substantial relationship to the achievement of an important governmental objective” … .

With regard to the objective pursued, “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” … . [Plaintiffs] provided no proof to call the well-established premise behind the challenged provisions into question, namely, that the governmental interest in public safety is substantially furthered by reducing access to weapons designed to quickly fire significant amounts of ammunition and the ammunition feeding devices required to hold that ammunition … . Thus, we agree with Supreme Court that “[t]he core prohibitions . . . of assault weapons and large-capacity magazines [contained in the SAFE Act] do not violate the Second Amendment”… . Schulz v State of New York Exec., Andrew Cuomo, Governor, 2015 NY Slip Op 07728, 3rd Dept 10-22-15

 

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The Precise Terms of the Stipulation Were Not Demonstrated to Have Been Violated—Contempt Finding Improper

The Third Department determined the wife was improperly held in contempt re: a stipulation about refinancing the marital residence. The stipulation required that the wife make a good faith effort to refinance, but did not address the consequences of a failed attempt. By finding the wife in contempt for failing to refinance, the court improperly re-wrote the stipulation:

“To sustain a civil contempt finding based upon the violation of a court order, it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party” … . Such violation, in turn, “must be established by clear and convincing evidence” … . “The decision of whether to hold in contempt a party who fails to comply with a court order rests within the court’s sound discretion” … .

Here, a review of the underlying order makes clear that Supreme Court found the wife to be in contempt of the parties’ April 2012 stipulation based upon her failure to refinance the marital residence “as agreed or otherwise take action to remove [the husband’s] name from the existing mortgage.” The parties’ stipulation, however, did not require the wife to successfully refinance the marital residence and remove the husband’s name from the existing mortgage; rather, the stipulation only imposed upon her the obligation to “make a good faith effort to obtain [such] financing . . . and remove [the husband’s] name from the mortgage within 45 days after receiving the [quitclaim deed].” Notably, the stipulation was silent as to the parties’ respective rights and obligations in the event that the wife attempted — but did not actually succeed — in obtaining such financing … and, by directing the sale of the marital residence in the event that the wife did not obtain refinancing within a specified time period, Supreme Court essentially revised the parties’ agreement to supply a solution to a problem that, on the face of the agreement, the parties themselves apparently did not contemplate. Howe v Howe, 2015 NY Slip Op 07709, 3rd Dept 10-22-15

 

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