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INTERPRETERS ARE EMPLOYEES.

The Third Department determined interpreters were employees of CP Language Institute, Inc (CPLI):

The record establishes that CPLI advertises for language service interpreters, like claimant, to provide translation services for its clients. An interpreter is required to submit a resume and, after being interviewed by CPLI and receiving a sufficient score on a written language proficiency test, CPLI adds the interpreter to its roster. CPLI maintains a file of each interpreter’s qualifications that includes a resume, reference letters, proficiency exam and availability. CPLI notifies an interpreter of assignments, which can be accepted or declined by the interpreter. Once an assignment is accepted, however, the interpreter is required to notify CPLI if he or she becomes unavailable and CPLI, not the interpreter, provides a substitute if needed.

Furthermore, claimant signed an agreement with CPLI that included guidelines regarding punctuality, attire, performance and conduct when providing services to CPLI clients. Although claimant could work for other agencies that provided translation services, she was subject to a 12-month noncompete clause following termination of her relationship with CPLI. In addition, claimant was provided with a picture identification badge with CPLI’s name. Claimant was paid by CPLI following the submission of time sheets, regardless of whether CPLI was paid by the client. Any complaints from a client were handled by CPLI. Matter of Karapetyan (Commissioner of Labor), 2015 NY Slip Op 09324, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

UNEMPLOYMENT INSURANCE (INTERPRETERS ARE EMPLLOYEES)/INTERPRETERS (UNEMPLOYMENT INSURANCE, EMPLOYEES NOT INDEPENDENT CONTRACTORS)

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MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST FOR THE CHARGE WAS TIMELY; ADVERSE INFERENCE CHARGE RE: EXPERT WHO DID NOT BRING SUBPOENAED NOTES SHOULD HAVE BEEN GIVEN.

The First Department, in ordering a new trial, determined the trial judge should not have given a missing witness charge with respect to one of plaintiff’s doctors and should have given an adverse inference charge based upon a defense expert’s failure to bring her notes, which were subpoenaed:

The party seeking a missing witness charge has the burden of promptly notifying the court when the need for such a charge arises … . The purpose of imposing such a burden is, in part, to permit the parties “to tailor their trial strategy to avoid substantial possibilities of surprise” … . Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that, among other things, the witness was not available, was outside of its control, or the issue about which the witness would have been called to testify is immaterial … .

Here, the record does not reflect when defendants asked for a missing witness charge for Dr. Rose. This presents the possibility that they did not do so until after plaintiff presented her case. Had that been so, plaintiff would have lost any opportunity to account for Dr. Rose’s absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. Accordingly, since there is no indication that defendants met their burden, we find that the missing witness charge was improperly given. * * *

…[W]hile Dr. Elkin [a defense expert] did not, as plaintiff suggests, testify that she “destroyed” her notes, she did concede that she did not comply with the subpoena, which required her to bring with her to court the notes that she used in generating her report on behalf of defendants. The failure to produce those notes affected plaintiff’s ability to cross-examine defendants’ expert and was fundamentally unfair to plaintiff. At the least, it would have been appropriate for the court to issue an adverse inference charge … . That Dr. Elkin testified that the notes were subsumed in the report is of no moment. Plaintiff was entitled to independently investigate that claim without having to rely on Dr. Elkin’s own assurances that the notes were themselves of no probative value. Herman v Moore, 2015 NY Slip Op 09352, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

EVIDENCE (MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST WAS TIMELY)/MISSING WITNESS CHARGE (SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST WAS TIMELY)/EVIDENCE (ADVERSE INFERENCE CHARGE SHOULD HABE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)/ADVERSE INFERENCE CHARGE (SHOULD HAVE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)/JURY INSTRUCTIONS (MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING OF TIMELY REQUEST)/JURY INSTRUCTIONS (ADVERSE INFERENCE CHARGE SHOULD HAVE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)

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“TRIAL PREPARATION” EXCEPTION TO A DETERMINATION WHETHER A PHOTOGRAPHIC DISPLAY IS UNDULY SUGGESTIVE, IN THE FORM OF A HERNER HEARING, SHOULD NO LONGER BE EMPLOYED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Lippman, held that the “trial preparation” exception to a determination whether a photographic display is unduly suggestive, in the form of a Herner hearing, should no longer be employed. The complainant was shown a photograph of the defendant shortly before trial, ostensibly as part of “trial preparation.” Defense counsel asked for a full-fledged Wade hearing to determine whether the single-photograph-showing was unduly suggestive.  Instead only a Herner hearing was held to determine if a judicial determination of suggestiveness was needed. The trial court determined no judicial determination of suggestiveness was necessary. Although the Court of Appeals found the trial court erred in not conducting a full Wade hearing, it further found the complainant’s identification of defendant was otherwise validated by an “independent source.” The dissent disagreed and argued the conviction should be reversed:

Defendant claims that the trial preparation exception recognized in Herner is inconsistent with New York’s approach to suggestive pre-trial identifications. We agree. By employing this truncated hearing protocol, the court failed to reach the essential question whether the photograph display was unduly suggestive, and, if so, whether it tainted complainant’s identification of defendant. When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pre-trial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process. People v Marshall, 2015 NY Slip Op 09313, CtApp 12-17-15

CRIMINAL LAW (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/IDENTIFICATION (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/HERNER HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/WADE HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)

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WHERE NO NOTICE OF APPEAL IS FILED, A CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Rivera, determined a judgment of conviction and sentence becomes final when the 30-day period for filing a notice of appeal expires (where no notice is filed). Here the issue was whether the defendant could move to vacate his conviction by guilty plea because he was not informed of the deportation consequences of the plea. Because the motion to vacate would not be available if defendant’s conviction and sentence became final before Padilla v Kentucky (559 US 356) was decided (requiring that a defendant be informed of deportation consequence of a plea), the date of finality was determinative. If the finality date is 30 days after conviction and sentence, defendant’s conviction and sentence would have been final before Padilla was decided. If, as defendant argued, the conviction and sentence became final one year and 30 days after the conviction and sentence, when the time for moving to file a late notice of appeal expired, defendant’s conviction and sentence would not have been final before Padilla was decided. Because the Court of Appeals decided the conviction and sentence became final when no notice of appeal was filed within 30 days, defendant could not move to vacate his conviction:

Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek leave to appeal to this Court in a timely fashion could argue that the judgment was not final until one year and 30 days after the Appellate Division affirmance, inasmuch as the defendant could have sought leave from this Court to file a belated application for discretionary review pursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with the Appellate Division but has had the appeal dismissed due to failure to perfect could argue that the judgment is not yet final, inasmuch as the defendant could ask the Appellate Division to vacate the dismissal of the appeal.

Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis … . People v Varenga, 2015 NY Slip Op 09312, CtApp 12-17-15

CRIMINAL LAW (WHERE NO NOTICE OF APPEAL IS FILED, A JUDGMENT OF CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES)/JUDGMENT OF CONVICTION AND SENTENCE (BECOMES FINAL UPON EXPIRATION OF 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL)

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FAILURE TO PRESERVE PHOTO ARRAY GIVES RISE TO A REBUTTABLE PRESUMPTION THE PHOTO ARRAY WAS SUGGESTIVE; THE PRESUMPTION CAN BE REBUTTED BY DETAILING THE PROCEDURES USED TO SAFEGUARD AGAINST SUGGESTIVENESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion by Judge Abdus-Salaam, adopted an analytical framework for determining whether a photo array which has not been preserved is unduly suggestive. When a  photo array is not preserved, a presumption arises that the array was suggestive. That presumption can be rebutted. If the presumption is rebutted, the burden of demonstrating undue suggestiveness passes to the defendant. Here, the victim was shown over 100 computer generated images after the police entered criteria based upon eyewitness-descriptions of the perpetrator. Because those images were not preserved, a presumption of suggestiveness arose. Evidence that the victim picked out the defendant, and only the defendant, from the 100 images rebutted that presumption. Defendant thereafter did not meet his burden of showing undue suggestiveness:

Under Appellate Division case law, “the failure of the police to preserve a photographic array [shown to an identifying witness] gives rise to a rebuttable presumption that the array was suggestive” … . The rebuttable presumption fits within the burden-shifting mechanism in the following manner. Failure to preserve a photo array creates a rebuttable presumption that the People have failed “to meet their burden of going forward to establish the lack of suggestiveness” … . To the extent the People are silent about the nature of the photo array, they have not met their burden of production. On the other hand, the People may rebut the presumption by means of testimony “detailing the procedures used to safeguard against suggestiveness” …, in which case they have met their burden, and the burden shifts to the defendant. Although we have not expressly adopted this presumption of suggestiveness before, we endorse it now. People v Holley, 2015 NY Slip Op 09314, CtApp 12-17-15

CRIMINAL LAW (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/IDENTIFICATION (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/PHOTO ARRAY (PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)

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THE COURT OF APPEALS CAN HEAR THE APPEAL OF AN UNPRESERVED SENTENCING ISSUE RAISED FOR THE FIRST TIME IN A MOTION TO VACATE THE SENTENCE; A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT SERVE AS A PREDICATE FELONY, IRRESPECTIVE OF THE ACTUAL FACTS UNDERLYING THE FOREIGN CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a full-fledged dissenting opinion by Judge Pigott, determined the Court of Appeals could hear the appeal of an unpreserved sentencing issue first raised in a motion to vacate the sentence (Criminal Procedure Law 440.20) and further determined that a Washington DC robbery conviction should not have been deemed a predicate felony. Because the DC statute could be violated by “snatching” property from someone, an act which would not be felony robbery in New York, the Court of Appeals held it could not be the basis for defendant’s conviction as a second felony offender, irrespective of whether the actual facts underlying the DC conviction would constitute a felony in New York:

A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence (see CPL 70.06 [included in CPL article 70, addressing sentences of imprisonment]). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error [FN3]. Thus, we may address defendant’s current challenge — that the sentence was illegal because the D.C. conviction did not render him a second felony offender — on the appeal of the denial of his CPL 440.20 motion to set aside the sentence. * * *

… [U]nder the D.C. statute the taking can occur (1) by force or violence, or (2) by putting in fear. The force or violence element can be accomplished (1) against resistance, or (2) by sudden or stealthy seizure, or (3) by snatching … . Stated another way, “the statute must be interpreted to include ‘stealthy seizure’ as a form of ‘force or violence'” … . The statutory language means that the crime can be committed in different ways, and the phrase “sudden or stealthy seizure or snatching” does not describe separate criminal acts required by the statute in addition to the use of “force or violence” … . Consequently, we do not look at the underlying accusatory instrument to determine if the crime is equivalent to a New York felony … . Because the statute, itself, indicates that a person can be convicted of the D.C. crime without committing an act that would qualify as a felony in New York (i.e., by pickpocketing), defendant’s D.C. conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication … . People v Jurgins, 2015 NY Slip Op 09311, CtApp 12-17-15

CRIMINAL LAW (APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/CRIMINAL LAW (FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS OF A PREDICATE FELONY)/APPEALS (CRIMINAL LAW, APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/PREDICATE FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)/FOREIGN FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN DOG-BITE CASE.

The Second Department determined defendants motion for summary judgment in a dog bite case was properly granted. The court explained the relevant law:

Aside from a limited exception for straying farm animals …, which has no application here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . …

To recover in strict liability for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities … . “Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing that they were not aware, and should not have been aware, of any vicious propensity … . The defendants' submissions * * * established that, prior to the encounter with the plaintiff and her dog, there had never been any reported incident of aggression or viciousness … . Cosgrove v Trump Natl. Golf Club, 2015 NY Slip Op 09246, 2nd Dept 12-16-15

ANIMAL LAW (DOG BITE PROOF REQUIREMENTS EXPLAINED)/DOG BITE (PROOF REQUIREMENTS)

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NO EQUITABLE DISTRIBUTION FUND TO WHICH ATTORNEY’S CHARGING LIEN COULD ATTACH.

The Second Department explained when an attorney’s charging lien can be imposed in divorce proceedings:

“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” (… see Judiciary Law § 475). In a matrimonial action, a charging lien will be available “to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” … . However, “[w]here the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest” … .

In this case, the plaintiff and the defendant already owned the marital residence jointly as tenants by the entirety. Thus, the parties’ settlement agreement merely permitted the plaintiff to retain her existing interest in the marital residence. “Although the nature of the property was converted from realty into dollars, her interest remained the same. Thus, no equitable distribution fund to which a charging lien can attach was created by the efforts of the [plaintiff’s] attorney” … . Charnow v Charnow, 2015 NY Slip Op 09241, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (CHARGING LIEN IN MATRIMONIAL ACTIONS)/FAMILY LAW (ATTORNEY’S CHARGING LIEN IN MATRIMONIAL ACTIONS)/CHARGING LIEN (MATRIMONIAL ACTIONS)

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DEFENDANTS’ MOTION TO DISQUALIFY PLAINTFF’S ATTORNEY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants’ motion to disqualify plaintiff’s attorney on conflict of interest grounds should have been granted. Plaintiff’s attorney had previously represented the defendant involving issues substantially related to those in the current action:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'” … . ” A party’s entitlement to be represented in ongoing litigation by counsel of [his or her] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'” … . However, the right to be represented by counsel of one’s own choosing “will not supercede a clear showing that disqualification is warranted” … . Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety … . “Due to the significant competing interests in attorney disqualification cases,’ however, the Court of Appeals has advised against mechanical application of blanket rules,’ in favor of a careful appraisal of the interests involved'” … . Gjoni v Swan Club, Inc., 2015 NY Slip Op 09252, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/DISQUALIFICATION OF ATTORNEY (MOTION TO DISQUALIFY ON CONFLICT OF INTEREST GROUNDS SHOULD HAVE BEEN GRANTED)/CONFLICT OF INTEREST (MOTION TO DISQUALIFY ATTORNEY SHOULD HAVE BEEN GRANTED)

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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

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