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Foreign Money Judgment Properly Enforced—Criteria Explained

The Second Department determined Supreme Court properly enforced a Canadian money judgment.  The court explained the relevant analytical criteria:

“Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable when rendered'” … . “[A] foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money'” … . “However, a foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law’ or (2) the foreign court did not have personal jurisdiction over the defendant'” … . “A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist” … .

The Ontario Superior Court of Justice is part of a judicial system that provides impartial tribunals and procedures compatible with due process of law … and, here, that court had a valid basis for exercising jurisdiction over the defendant, as the defendant purposefully transacted business in Ontario (see CPLR 5305[b]; CPLR 302[a][1]…). Moreover, CPLR 5305(a)(2) provides, in relevant part, that a foreign country judgment “shall not be refused recognition” by New York “for lack of personal jurisdiction if . . . the defendant voluntarily appeared” in the foreign court proceedings for purposes other than “contesting the jurisdiction of the court” over him or her. Although the plaintiff failed to establish that the defendant was properly served with process in the Canadian action …, the plaintiff nonetheless demonstrated that the Ontario Superior Court of Justice had personal jurisdiction over the defendant, as the defendant “voluntarily appeared” in the Canadian action (CPLR 5305[a][2]…) and “did more than [it] had to do to preserve a jurisdictional objection” … .  Gemstar Can., Inc. v George A. Fuller Co., Inc., 2015 NY Slip Op 02726, 2nd Dept 4-1-15

 

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Tenant Has Duty to Keep Premises Reasonably Safe

The Second Department noted that a tenant (TJX) has an obligation to keep the premises safe even if the landlord agreed in the lease to keep the premises in good repair.  Here it was alleged that water dripping from a fire escape resulted in an icy area on the abutting sidewalk where plaintiff fell:

“A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair” … . Here, TJX failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition … . Sellitti v TJX Cos., Inc., 2015 NY Slip Op 02748, 2nd Dept 4-1-15

 

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Moratorium on Fracking Did Not Extend Oil and Gas Leases Beyond the Primary Five-Year Term

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a “force majeur” clause in oil and gas leases was not triggered by the moratorium on fracking in New York and, therefore, the five-year primary term of the leases was not extended by the moratorium:

Each of the leases contains an identical term clause, also known as a habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases. Specifically, the leases’ habendum clause provides:

“It is agreed that this lease shall remain in force for a primary term of FIVE (5) years from the date hereof and as long thereafter as the said land is operated by Lessee in the production of oil or gas.”

Under this provision, the interests conveyed by the leases exist for a five-year “primary term,” followed by an open secondary term so long as the land is operated by the lessee in the production of oil or gas.

Each lease also contains what the parties refer to as a “force majeure clause.” Generally, a force majeure event is an event beyond the control of the parties that prevents performance under a contract and may excuse nonperformance … . The force majeure clause here provides:

“If and when drilling or other operations hereunder are delayed or interrupted by lack of water, labor or material, or by fire, storm, flood, war, rebellion, riot, strike, differences with workmen, or failure of carriers to transport or furnish facilities for transportation, or as a result of some order, rule, regulation, requisition or necessity of the government, or as a result of any other cause whatsoever beyond the control of Lessee, the time of such delay or interruption shall not be counted against Lessee, anything in this lease to the contrary notwithstanding. All express or implied covenants of this lease shall be subject to all Federal and State laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor Lessee held liable in damages for failure to comply therewith, if compliance is prevented by, or if such failure is the result of any such Law, Order, Rule or Regulation.” * * *

…[W]e hold that the force majeure clause does not modify the primary term of the habendum clause and, therefore, does not extend the leases. The habendum clause in the leases does not incorporate the force majeure clause by reference or contain any language expressly subjecting it to other lease terms … . Moreover, the language in the force majeure clause stating that “the time of such delay or interruption shall not be counted against Lessee” does not refer to the habendum clause with specificity. Thus, the habendum clause is not expressly modified or enlarged by the force majeure clause. Beardslee v Inflection Energy, LLC, 2015 NY Slip Op 02677, CtApp 3-31-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

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Non-Resident Attorneys Must Maintain a Physical Office in New York State to Practice in New York

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the requirement that, in order to practice in New York, non-resident attorneys maintain a physical office in New York State is constitutional:

Here, the statute appears to presuppose a residency requirement for the practice of law in New York State. It then makes an exception, by allowing nonresident attorneys to practice law if they keep an “office for the transaction of law business” in this State. By its plain terms, then, the statute requires nonresident attorneys practicing in New York to maintain a physical law office here. Schoenefeld v State of New York, 2015 NY Slip Op 02674, CtApp 3-31-15

 

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Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant’s right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant’s testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:

…[T]he federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]…). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” … and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” … . Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial—-‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” … . “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” … .

But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” … . Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” … may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a ” proper limiting instruction[]’ “… . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15

 

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Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

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Even If Information About Prosecution Witness’ Recent Drug Sales Had Been Withheld in Violation of Brady/Giglio, the Withheld Information Was Not “Material” In That It Would Not Have Affected the Outcome

The First Department, in a full-fledged opinion by Justice Richter, determined that there was insufficient evidence that a Brady/Giglio violation had occurred and that, assuming there was a violation, it would not have affected the verdict.  The underlying question was whether the prosecution was aware a cooperating witnesses had lied on the stand when he testified he no longer sold drugs:

…[D]efendant’s principal claim is that the People violated their obligations under Brady v Maryland (373 US 83 [1963]) and its progeny. It is well established that a defendant has the right, under both the State and Federal Constitutions, to discover favorable evidence in the People’s possession that is material to guilt or punishment … . Furthermore, the People’s Brady obligations apply to both exculpatory and impeachment evidence (see Giglio v United States, 405 US 150, 154 [1972]). Such evidence, however, “is subject to Brady disclosure only if it is within the prosecution’s custody, possession, or control” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . * * *

It is axiomatic that there can be no Brady violation unless the suppressed information is “material” … . Where, as here, a defendant has made a specific request for the undisclosed information, “the materiality element is established provided there exists a reasonable possibility that it would have changed the result of the proceedings” … . Under this standard, even if the information about [the witness’] recent drug sales had been disclosed before the end of trial, there is no reasonable possibility that the verdict would have been different. People v Stilley, 2015 NY Slip Op 02715, First Dept 3-31-15

 

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Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification

The Fourth Department, over a two-justice dissent, determined defendant should have been allowed to present expert evidence about the reliability of eyewitness identifications.  The court explained the analytical criteria:

“Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, courts are encouraged . . . in appropriate cases’ to grant defendants’ motions to admit expert testimony on this subject” … , the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony on eyewitness identification … . “The first stage is deciding whether the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime’ … . If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror’ … . If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary” … .

Here, the People concede that this case hinges upon the accuracy of the eyewitness’s identification of defendant, and we agree with defendant that there was little or no corroborating evidence connecting him to the crime … . People v McCullough, 2015 NY Slip Op 02589, 4th Dept 3-27-15

 

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Duration of Supervised Visits Cannot Be Left Up to Supervising Agency

The Fourth Department noted that Family Court failed to set up a proper visitation schedule because the court left the duration of the visits up to the supervising agency:

Although the court’s determination that visitation must be supervised is supported by the record …, we note that the court set no minimum time period for the monthly visitation and left the duration of visitation, “up to a maximum of eight hours,” to be determined solely based on the availability of “any authorized agency that supervises visitation.” Consequently, we agree with the mother that the court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” the duration of each visit … . We therefore modify the order accordingly, and we remit the matter to Family Court to determine the duration of visitation… . Matter of Ordona v Cothern, 2015 NY Slip Op 02652, 4th Dept 3-27-15

 

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