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Judicial Notice and Collateral Estoppel Re: Philippine Law and a Philippine Court Order Improperly Applied—Related Conspiracy Conviction Vacated/Emails and Newspaper Articles, Although Hearsay, Properly Admitted

The First Department, in a prosecution stemming from the failure to pay tax on the sale of a painting, determined Supreme Court improperly took judicial notice of the law of the Philippines and improperly applied the doctrine of collateral estoppel (based upon a Philippine court order). The painting once belonged to Imelda Marcos when she was the First Lady of the Philippines. Under Philippine law, the painting allegedly should have been forfeited to the people of the Philippines. Defendant (with others) completed the sale of the painting for $32 million. The First Department vacated the conspiracy conviction because of the misapplication of Philippine law, but affirmed the crIminal tax fraud and “filing a false instrument” convictions. In addition to discussing the misapplication of Philippine law and the doctrine of collateral estoppel, the First Department held that emails, although hearsay, were properly admitted to show conduct (not for the truth of the content) and newspaper articles, although hearsay, were properly admitted to show defendant knew the Philippine government was trying to recover the painting (state-of-mind exception):

The trial court erred in reading or paraphrasing approximately eight sentences from an order of the Supreme Court of the Republic of the Philippines in a proceeding commenced by the Republic against Imelda Marcos and others, where the Philippine court granted summary judgment in favor of the petition, and ordered that more than $658 million held mostly in Swiss bank accounts be forfeited to the Republic. Only one sentence read by the court to the jury purported to state the law of the Philippines, namely Philippine Republic Act No. 1379, which provides that any property acquired by a public official during his or her term of public service that is “manifestly out of proportion” to the official’s public salary and any other lawful income “shall be presumed prima facie to have been unlawfully acquired.” The remaining portions of the opinion read to the jury consisted of fact findings, and thus were not proper subjects of judicial notice pursuant to CPLR 4511(b) … .

The court implicitly applied collateral estoppel, which was inapplicable even under the standards governing civil cases, since defendant was not a party to the Philippine case and had no opportunity to litigate the issues therein; moreover, collateral estoppel should be applied with more caution in criminal cases than in civil … . The court further erred in paraphrasing the opinion without clarifying the rebuttable nature of the presumption under the Philippines law, and that error was compounded by the court’s ruling precluding defense counsel from addressing that point in summation. …

The court properly admitted emails exchanged between two of defendant’s alleged coconspirators, her nephews, under the coconspirator exception to the hearsay rule. Contrary to defendant’s argument, the People made a prima facie showing of conspiracy “without recourse to the declarations sought to be introduced” … . There was testimony indicating that one of defendant’s nephews extensively participated in the painting sale at issue, and defendant sent $100,000 of the proceeds to him. Defendant also sent $5 million of the proceeds to the other nephew. Although defendant notes that the court relied in part on the emails at issue, the messages were properly considered to demonstrate the nephews’ conduct, such as offering or arranging to offer certain prices and forwarding photographs of paintings to potential buyers, rather than for the truth of the messages … .

Under the state-of-mind exception to the hearsay rule …, the court properly admitted news articles and other documents, recovered in a search of defendant’s home, concerning the Philippine government’s efforts to recover artworks allegedly misappropriated by the Marcos administration. The circumstances warranted a reasonable inference that defendant was aware of these documents and their contents … , establishing her motive to conceal the sale of a painting allegedly given to her by the former First Lady. Thus, the evidence tended to rebut the defense argument that defendant’s failure to report her income from the sale on her tax returns was not necessarily intentional. People v Bautista, 2015 NY Slip Op 07589, 1st Dept 10-20-15

 

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Proof of Janitorial Schedule Insufficient to Demonstrate Lack of Notice of Dangerous Condition

The First Department, over an extensive dissent, determined proof of a janitorial cleaning schedule was not sufficient to demonstrate defendant’s lack of notice of a dangerous condition. Defendant’s motion for summary judgment should not have been granted:

Defendant building owner moved for summary judgment solely on the basis that it had neither actual nor constructive notice of the alleged dangerous condition, a missing drain cover in the building’s laundry room. Defendant failed to meet its initial burden of demonstrating that it did not have constructive notice … . Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case … . The superintendent could not recall whether he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he inspected the laundry room prior to the accident … . He explicitly stated that he did know whether the allegedly defective condition existed on that date. Dylan P. v Webster Place Assoc., L.P., 2015 NY Slip Op 07600, 1st Dept 10-20-15

 

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Wilfulness Is Not an Element of Civil Contempt/Supreme Court Properly Drew a Negative Inference from Defendant’s Invocation of His Fifth Amendment Right Against Self-Incrimination

In an extensive opinion by Judge Rivera, the Court of Appeals affirmed the finding of civil contempt re: an order in a matrimonial matter. The Court of Appeals determined Supreme Court properly drew a negative inference from defendant’s invocation of his Fifth Amendment right against self-incrimination. The Court of Appeals rejected defendant’s argument that “wilfulness” is an element of civil contempt:

… [N]owhere in Judiciary Law § 753 [A] [3] is wilfulness explicitly set forth as an element of civil contempt (Judiciary Law § 753 [A] [3]…). Indeed the only mention of wilfulness for civil contempt is in § 753 [A] [1], which is not at issue in this case as it applies only to “[a]n attorney, counsellor, clerk, sheriff, coroner,” or someone otherwise selected or appointed for judicial or ministerial service. In contrast, Judiciary Law § 750, the criminal contempt provision, permits a court to impose punishment for criminal contempt only for “wilful disobedience to its lawful mandate” (Judiciary Law § 750 [A] [3]…). This statutory language makes clear that where the legislature intended to require wilfulness, it knew how to do so, and any omission of such element is intentional … . …

Apart from the statute, this Court has not imposed a wilfulness requirement for civil contempt… . El-Dehdan v El-Dehdan, 2015 NY Slip Op 07579, CtApp 10-20-15

 

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Sexual Conduct That Does Not Rise to the Level of a SORA Sex Offense May Be Considered Under the “Number of Victims” Risk Factor

The Court of Appeals determined that the “number of victims” risk factor (risk factor 3) under the Sex Offender Registration Act (SORA) properly included “sexual conduct” that did not amount to SORA level sex offenses and which involved “webcam chats:”

Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam … . People v Izzo, 2015 NY Slip Op 07576, CtApp 10-20-15

 

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Lobby of Public Housing Unit Is Not “Open to the Public” Within the Meaning of the Law of Trespass

The Court of Appeals determined the misdemeanor information charging defendant with criminal trespass second degree was sufficient. The defendant was in the lobby of a public housing unit where a “no trespassing” sign was posted. When asked, the defendant said he did not reside in the building and could not identify any resident who had invited him. The court explained the elements of all three degrees of trespass and found that the lobby of a public housing unit is not “open to the public” within the meaning of the law of trespass:

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings … . The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so. People v Barnes, 2015 NY Slip Op 07577, CtApp 10-20-15

 

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Analytical Criteria for Determining Whether a Defect Is Trivial Explained

The Court of Appeals, in a full-fledged opinion by Judge Fahey, tackled the topic of “trivial defects” in slip and fall cases.  The court looked at three actions where the defect was deemed trivial, and reversed two of them. The court explained the analytical principles:

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” … . The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge …; a rough, irregular surface …; the presence of other defects in the vicinity …; poor lighting …; or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet … .

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with [our precedent]. Hutchinson v Sheridan Hill House Corp., 2015 NY Slip Op 07578, CtApp 10-20-15

 

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Environmental Clean-Up Indemnification Agreement Between Seller and Buyer of Property Triggered by Department of Environmental Conservation’s (DEC’s) “Potentially Responsible Party (PRP)” Letter to Buyer

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the environmental clean-up indemnification agreement between the seller (Pyne) and buyer (Remet) of property was triggered by the Department of Environmental Conservation’s (DEC’s) letter to Remet. Although the letter referred to Remet as a “potentially” responsible party (PRP), the letter required that Remet enter into a consent agreement (re: the clean-up) with the DEC or, if no consent agreement is executed within 30 days, pay for the clean-up done by the DEC:

The plain language of the governing contractual indemnity provision, together with the language of the PRP letter and the surrounding facts and circumstances, demonstrate that Remet was entitled to indemnification because it was “required,” within the meaning of the sales agreement, to act in response to the PRP letter. The PRP letter stated that it pertained to an “Urgent Legal Matter,” indicated that a prompt reply was “necessary,” and set forth the consequences that would flow from Remet’s refusal to act. Regardless of whether Remet was designated a potentially responsible party or a responsible party, the letter demanded either a consent order or payment, and any language indicating that Remet’s response was voluntary must be read in terms of those demands. In other words, the PRP letter — by its terms — effectively marked the beginning of a “legal” process against Remet pursuant to the ECL, in which DEC expressly sought recovery from Remet for any amounts expended in remediating the [the site].

Additionally, the circumstances surrounding the execution of the indemnification clause include the parties’ awareness that, because the [site] was listed as an inactive hazardous waste site, the purchaser of the property at issue here risked incurring substantial expenses, and that Pyne accordingly deposited a large sum in escrow to cover at least a portion of those potential expenses. Remet Corp. v Estate of Pyne, 2015 NY Slip Op 07575, CtApp 10-20-15

 

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Attorney General’s Complaint Against Sprint Stated a Cause of Action Under the False Claims Act Re: Sales Tax On Wireless Phone Calls

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a partial dissent, determined the attorney general’s (AG’s) complaint sufficiently stated a cause of action against Sprint, based upon the False Claims Act (FCA), alleging the knowing submission of false sales tax statements re: interstate and international wireless phone calls. The court succinctly stated its holding as follows:

… (1) the New York Tax Law imposes sales tax on interstate voice service sold by a mobile provider along with other services for a fixed monthly charge; (2) the statute is unambiguous; (3) the statute is not preempted by federal law; (4) the Attorney General’s (AG) complaint sufficiently pleads a cause of action under the New York False Claims Act (FCA)(State Finance Law § 187 et seq.); and (5) the damages recoverable under the FCA are not barred by the Ex Post Facto Clause of the United States Constitution. People v Sprint Nextel Corp., 2015 NY Slip Op 07574, CtApp 10-20-15

 

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Allegations Describing a “Gravity Knife” in Misdemeanor Complaint Were Sufficient

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the misdemeanor complaint sufficiently alleged the defendant possessed a “gravity knife:”

Defendant argues that an accusatory instrument alleging possession of a gravity knife must expressly state that the knife locks by means of a device. We disagree. By stating that a knife, once opened, “locks automatically in place,” an accusatory instrument conveys to a defendant that his knife was observed (1) to lock in an open position, rather than merely having a bias towards remaining open, and (2) to lock by means of a built-in device, rather than manually. A mechanism that locks itself by means of such a device is naturally described as locking “automatically.” Indeed, many New York cases have treated locking “by means of a . . . device” (Penal Law § 265.00 as synonymous with “automatically” locking for these purposes … . Moreover, because of the use of the generic term “device” in the statute, there can be no requirement that an arresting officer specify any particular kind of mechanism on the knife that causes it to lock in place. People v Sans, 2015 NY Slip Op 07529, CtApp 10-15-15

 

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Failure to Turn Over to the Defendant Grand Jury Minutes Use by the Judge in SORA Risk Calculation Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the failure to turn over to the defendant grand jury minutes used by judge in the Sex Offender Registration Act (SORA) proceedings was a violation of due process. However, in light of the other evidence, the error was harmless. The Court of Appeals explained the application of due process protections to SORA proceedings:

It is well established that sex offenders are entitled to certain due process protections at their risk level classification proceedings (see … Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Doe, for example, recognized that, although “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial . . . the consequences of registration and notification under the Act are sufficiently serious to warrant more than mere summary process” (Doe, 3 F Supp 2d at 470 [internal quotation marks and citation omitted]). Accordingly, that court held that in order to satisfy due process concerns, the offender must be afforded prehearing discovery of the documentary evidence relating to his or her proposed risk level adjudication (see Doe, 3 F Supp 2d at 472).

Likewise, we have observed that “[t]he bedrock of due process is notice and opportunity to be heard” … . * * *

In keeping with our precedent, the Correction Law requires that defendant is entitled to prehearing access to the documents relied upon by the Board in reaching a risk level recommendation (see Correction Law § 168-n [3]…). Although the statute may not expressly state that defendant is likewise entitled to any materials submitted by the District Attorney in meeting its burden of establishing the facts supporting a risk level determination by clear and convincing evidence, the same due process concerns are presented in that context. Moreover, broad disclosure is consistent with Doe’s recognition that an offender should be accorded discovery “of all papers, documents and other material relating to his proposed level and manner of notification” (3 F Supp 2d at 472). People v Baxin, 2015 NY Slip Op 07530, CtApp 10-15-14

 

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