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THE MAJORITY HELD DEFENDANT, BY APPROACHING A JUROR AT THE JUROR’S HOME DURING DELIBERATIONS, FORFEITED HIS RIGHT TO A TRIAL BY A JURY OF 12; OVER A DEFENSE MOTION FOR A MISTRIAL, DEFENDANT WAS CONVICTED BY A JURY OF 11 AND THE MAJORITY AFFIRMED; THERE WAS A STRONG DISSENT (SECOND DEPT).

The Second Department, in a comprehensive decision discussing a defendant’s constitutional right to a trial by a jury of 12, over a dissent, determined defendant had forfeited his right to a 12-member jury by approaching a juror at the juror’s home as deliberations were proceeding. Over a defense motion for a mistrial, the trial judge ordered the jury to continue deliberations with 11 jurors. Defendant was convicted:

From the dissent:

… I respectfully disagree with the conclusion of my colleagues in the majority that the defendant’s New York State constitutional rights were not violated upon permitting the jury to proceed with deliberation and conviction of the defendant by an 11-member jury.

… [T]he New York State Constitution specifically guarantees defendants a right to a jury of 12 (see NY Const, art I, § 2; art VI, § 18; …). New York Constitution, article I, § 2 describes the right to a trial by jury as “inviolate forever” and requires the waiver of a jury trial to be achieved by “written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” … [T]he Court of Appeals has determined that a defendant may, upon a written waiver executed in the manner specified by the State Constitution, consent to a jury of 11 if a deliberating juror becomes incapacitated and no alternate juror is available … * * *

Here, there is no dispute that the defendant’s conduct was egregious and unacceptable. He feigned an illness so that he could approach a juror, at the juror’s home, clearly in an attempt to influence his trial. While the defendant should not be permitted to “tak[e] advantage of his . . . own wrongdoing” … , I believe it was error for the Supreme Court to utilize the “extreme, last-resort analysis” of denying the defendant his inviolate right to a jury of 12 before considering alternate sanctions for this egregious behavior … . People v Sargeant, 2024 NY Slip Op 04580, Second Dept 9-25-24

Practice Point: Here the defendant was deemed to have forfeited his right to a trial by a jury of 12 by approaching a juror at the juror’s home during deliberations. Defendant’s conviction by a jury of 11 was affirmed over a strong dissent.

 

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THE ARBITRATION RULING THAT THE CONTRACT WAS TERMINATED UNDER A “FRUSTRATION OF PURPOSE” THEORY PRECLUDED, UNDER THE DOCTRINE OF RES JUDICATA, ANY CONSIDERATION OF THE BREACH OF CONTRACT CAUSES OF ACTION THAT AROSE FROM THE SAME FACTS (FIRST DEPT).

The First Department, in a detailed full-fledged opinion by Justice Oing, determined the arbitration-ruling that a multi-million dollar contract for construction and operation of a liquid-natural-gas-related facility was terminated under a “frustration of purpose” theory precluded consideration of the breach of contract causes of action (res judicata). New technology for the extraction of natural gas from shale had rendered the liquid natural gas facility obsolete. The opinion is much too detailed to fairly summarize here. In simple terms, the arbitration ruling precluded the breach of contract causes of action under the doctrine of res judicata because all arose from the same facts:

Under the transactional analysis, the test is to determine whether a claim should be precluded by viewing a claim or cause of action as conterminous with the transaction, regardless of the number of substantive theories or variant forms of relief available to a litigant … . The analysis embraces a broadened view of the scope of a claim in order to limit the number of possible actions arising out of a single controversy … . The application of this test means that a final judgment on the merits of a claim or claims will bar future claims or causes of action arising from “all or any part of the transaction, or series of connected transactions, out of which the [prior] action arose” … . The question for us to resolve is whether the [breach of contract causes of action] arise from “all or any part of the transaction, or series of connected transactions” out of which the prior arbitration arose. We hold they do. Gulf LNG Energy, LLC v Eni S.p.A., 2024 NY Slip Op 04517, First Dept 9-24-24

Practice Point: Here an arbitration ruling that the contract was terminated for “frustration of purpose” precluded, under the doctrine of res judicata, any consideration of the breach of contract causes of action that arose from the same facts.

 

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HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).

The Frist Department, reversing Supreme Court in this hit and run traffic accident case, noted that hearsay statements in the Prehospital Care Report, which was not certified or authenticated, did not create an issue of fact:

The court improperly denied petitioner’s motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it … . Therefore, the statements in the Prehospital Care Report cannot create an issue of fact. Even if it were appropriate to consider the report, it would “merely present[] an issue of fact to be resolved in the plenary action” since it is contradicted by the allegations in the petition, petitioner’s affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner’s deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle … . Matter of Luna v Motor Veh. Acc. Indem. Corp., 2024 NY Slip Op 04521, First Dept 9-24-24

Practice Point: Hearsay statements in an uncertified, unauthenticated report for which no foundation was provided did not create an issue of fact.

 

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THE FLOOR OF THE ELEVATOR WHERE PLAINTIFF’S ACCIDENT OCCURRED IS NOT A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the floor of an elevator is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action based upon an Industrial Code provision requiring that “passageways” be kept free from dirt, debris and other obstructions was inapplicable, However, the code provision requiring “floors” and “platforms” be kept free from scattered tools, etc., did apply to elevators:

Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241 (6) claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (1). That regulation provides, as relevant here, “All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” A passageway for purposes of this regulation “mean[s] a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . The elevator in which plaintiff’s accident occurred cannot be considered a walkway or pathway, and therefore cannot constitute a passageway within the meaning of the regulation … . Smith v Extell W. 45th LLC, 2024 NY Slip Op 04533, First Dept 9-24-24

Practice Point: The floor of the elevator where plaintiff’s accident occurred is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action alleging a violation of the “passageway” code provision should have been dismissed.

 

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THE GRAND JURY EVIDENCE SUPPORTED THE INDICTMENT COUNTS CHARGING DEFENDANT STATE TROOPER WITH “DEPRAVED INDIFFERENCE” CRIMES STEMMING FROM HIGH-SPEED CHASES OF PURPORTED SPEEDERS WHICH RESULTED IN CRASHES AND THE DEATH OF A CHILD; THERE WAS A COMPREHENSIVE DISSENT WHICH ARGUED THE CRITERIA FOR “DEPRAVED INDIFFERENCE” WERE NOT MET (THIRD DEPT).

The Third Department, over a dissent, reversed County Court and reinstated the depraved indifference murder and first-degree reckless endangerment (which also requires “depraved indifference”) counts. County Court, after reviewing the grand jury evidence, had dismissed the depraved indifference murder count and reduced the first-degree reckless endangerment counts to second degree reckless endangerment. The charges against defendant, a State trooper, stemmed from two separate high-speed chases, about a year apart, which resulted in crashes and the death of an 11-year-old passenger. The chases began because the drivers were allegedly speeding on a highway. In one instance the driver stopped, but fled when defendant allegedly pepper-sprayed everyone in the car, including the 11-year-old. Both the majority and the dissent focused on detailed versions of the events which cannot be fairly summarized here. As an example:

The grand jury heard from witnesses that, around 11:40 p.m., defendant was “see[ing] if he could get one last ticket” before meeting his partner when he stopped an SUV for speeding. The SUV pulled over, and, as told by Tristin Goods, who was driving the SUV, along with Goods’ wife, who was seated in the front passenger seat, defendant began the traffic stop by angrily and profanely accusing Goods of traveling over 100 miles per hour. An argument between defendant and Goods ensued in front of Goods’ wife and two children, who tried to calm him. Witnesses testified that, after defendant stepped away upon Goods’ request to summon a supervisor, defendant returned and, without warning or provocation, pepper-sprayed the passenger cabin of the SUV, and Goods’ wife and two children began screaming in pain. Goods, who had shielded his eyes from the spray, fled the traffic stop; in the commotion, defendant’s pepper spray canister ended up inside the passenger cabin of the SUV.

Defendant radioed that the SUV was “taking off” with his pepper spray. According to the grand jury record, defendant pursued and caught up to the SUV and, without activating his siren, intentionally rammed the back of the SUV at 130 miles per hour. Defendant radioed dispatch, however, that the SUV had “just f***ing rammed me.” The collision caused the SUV to fishtail, and pieces of it fell onto the road. The SUV continued on, so defendant intentionally rammed the back of the SUV again, this time at 100 miles per hour. Defendant radioed dispatch that the SUV “rammed me again.”

The second collision caused Goods to lose control of the SUV, and the SUV flipped over, coming to a stop upside down in the grass next to the Thruway with Goods, his wife and two children inside. Defendant, seeing this, radioed that a car was overturned.[FN1] Testimony established that defendant drew his gun, instructed the occupants of the SUV to put their hands out of the windows and asked repeatedly whether they possessed weapons or drugs. Defendant did not inquire if anyone inside was injured in the crash and, when Goods’ 11-year-old child could not be located, defendant did not assist him in looking for her. According to Goods, who had sustained arm, hand and head injuries, defendant “did not care.” The child was later found pinned inside the wreck of the SUV, having already died from severe injuries sustained in the accident. People v Baldner, 2024 NY Slip Op 04495, Third Dept 9-19-24

Practice Point: This is a detailed, fact-specific decision, with an extensive fact-specific dissent, which should be consulted re: the legal sufficiency of evidence of a “depraved indifference” state of mind (at the grand jury stage).

 

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THE FOIL REQUEST FOR THE EMAIL ADDRESSES OF ALL NEW YORK CITY EMPLOYEES PROPERLY DENIED UNDER THE CYBERSECURITY EXEMPTION (FIRST DEPT).

The First Department, affirming Supreme Court’s denial of petitioner’s FOIL request for the email addresses of all New York City employees, determined the information was covered by the cybersecurity exemption from disclosure under FOIL. The petitioner is a foundation which seeks to inform those city employees who are public-employee-union members of their right to opt out of union membership:

… DCAS’s [NYC Department of Citywide Administrative Services’] General Counsel “articulat[ed] a particularized and specific justification for denying access” … under the cybersecurity exemption by explaining that “disclosure would create a substantial risk to the information technology infrastructure of the City of New York, including computer hardware, software, and data.”

The City Cyber Command’s Deputy Chief Information Security Officer further explained that disclosing “all New York City employees’ email addresses would relinquish control of the City’s information technology assets and jeopardize the security of those assets and of City infrastructure” by “mak[ing] it substantially easier for threat actors to successfully attack City . . . employees” in “[p]hishing and other email-based attacks.” Phishing and other confidence-based attempts at fraud prey on a target’s trust. The other information sought herein concerning employee’s names, titles, and other employment-related information could be used in conjunction with an email address to dupe unsuspecting targets. Of course, we do not find that the Foundation has any intention of phishing or committing any other type of fraud; it seeks to advance its mission. We note these facts only to point out the risks that can ensue from mass release of public employee contact information should the information fall into the wrong hands.

For these reasons, DCAS “articulate[d] a legitimate concern covered by the exemption”— that disclosure of email addresses could “breach or compromise [the agency’s] information technology infrastructure” or enable attackers to “gain access to or manipulate information maintained by” DCAS … . Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 2024 NY Slip Op 04483, First Dept 9-19-24

Practice Point: Here the FOIL request for the email addresses of all NYC employees was properly denied under the cybersecurity exemption because of the possibility of “phishing and other email-based attacks.”​

 

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EVEN WHERE, AS HERE, THE REVIEWING COURT WOULD HAVE DECIDED THE MATTER DIFFERENTLY, THE COURT MUST AFFIRM AN ADMINISTRATIVE AGENCY’S RULING WHICH HAS A RATIONAL BASIS; THE TWO-JUSTICE DISSENT ARGUED THE PROOF PETITIONER RESIDED WITH HIS BROTHER IN THE MITCHELL-LAMA APARTMENT WAS SUFFICIENT AND PETITIONER WAS ENTITLED TO SUCCESSION RIGHTS (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined Supreme Court should not have annulled the NYC Department of Housing Preservation and Development’s (HPD) denial of petitioner’s application seeking succession rights to his brother’s Mitchell-Lama apartment. Even where, as here, the court reviewing an administrative agency’s ruling would have decided the matter differently, the ruling must be upheld if there is a rational basis for it:

A careful review of the record shows that HPD had a rational basis to affirm the denial of petitioner’s succession rights. Petitioner failed to meet his burden to produce documents that would establish his primary residence was the New York apartment. He never provided any tax returns or proof that he was not required to file, which is a necessary component of any succession rights application … . Instead, he argued for the first time in his petition that he was not required to file tax returns due to his low income. Petitioner cannot fault HPD for failing to consider an argument that was not raised before it. Matter of Mantilla v New York City Dept. of Hous. Preserv. & Dev., 2024 NY Slip Op 04484, First Dept 9-19-24

Practice Point: An administrative agency’s ruling must be affirmed by the reviewing court if there is a rational basis for it, even when the reviewing court would have decided the matter differently. Here the dissent agreed with Supreme Court and argued petitioner presented sufficient proof that he resided with his brother in a Mitchell-Lama apartment and was therefore entitled to succession rights. The majority, however, upheld the city housing agency’s denial of the petition.

 

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THE OBSERVATIONS BY THE POLICE OF THE INTERACTIONS BETWEEN DEFENDANT AND A WOMAN WHO WAS A “KNOWN DRUG USER” PROVIDED PROBABLE CAUSE TO ARREST FOR A DRUG SALE; STRONG, EXTENSIVE DISSENT (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s suppression motion, over an extensive dissent, determined the police had probable cause to arrest defendant for a drug sale based upon their observations of the interaction between defendant and a woman, “a known drug user,” outside a motel:

In determining whether probable cause exists in a drug sale case, courts must consider factors such as: “telltale signs” of a drug transaction (for example, an exchange of a glassine envelope for money); whether the area has a high incidence of drug trafficking; the police officer’s “experience and training” in drug sale investigations; and “additional evidence of furtive or evasive behavior on the part of the participants” … . Another factor to consider is an officer’s knowledge of a participant’s past involvement in drug crimes … . Here, in a locale known for drug sales, an experienced officer witnessed a woman who was a known drug user give defendant something, saw defendant put his hands into his pants, and saw defendant touch hands with the woman. Based upon this testimony, the hearing court properly found that the officers had probable cause to arrest defendant. This peculiar interaction between defendant and the woman, under the circumstances, is not susceptible to innocent interpretation. People v Tapia, 2024 NY Slip Op 04487, First Dept 9-19-24

Practice Point: Here the police observed only body movements and did not see any identifiable objects exchanged between defendant and a woman who was “a known drug user.” The police saw the defendant and the woman “touch hands” and defendant had reached inside his pants before “touching hands” with the woman. The majority concluded the police had probable cause to arrest for a drug sale. There was a strong, extensive dissent.

 

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DEFENDANT’S MENTAL ILLNESS WARRANTED REDUCING DEFENDANT’S SENTENCE FOR ROBBERY TO THE MINIMUM, STRONG DISSENT (FIRST DEPT).

The First Department, reducing defendant’s sentence to the minimum for robbery, in a full-fledged opinion by Justice Gesmer, over a strong dissent, determined defendant’s (Mr. Sparks’) mental illness warranted a sentence reduction:

… [C]ontinued incarceration of Mr. Sparks serves none of the objectives of criminal punishment. In order to best protect the public, Mr. Sparks must get appropriate mental health treatment to rehabilitate him to a healthier mental state. His 12 years of imprisonment has only served to exacerbate his mental difficulties. There is no reason to believe that further incarceration will rehabilitate him, and the record clearly demonstrates that Mr. Sparks needs rehabilitation, not punitive incarceration.

Treating incarceration as the default response for individuals like Mr. Sparks has outsized deleterious consequences that, ultimately, make our communities less safe. As Chief Justice Wilson noted in his concurring opinion in People v Greene, “the cycle of incarceration further destabilizes these individuals; mental health treatment in prison is costlier than community-based treatment; individuals with mental illness are at greater risk of detention in prison and extended incarceration; prison mental health resources are often inadequate; and individuals living with mental illness face greater risk of harm and abuse while behind bars” (41 NY3d 950, 954 [2024] [Wilson, J. concurring]). While Greene involved a nonserious crime, the principle remains: default incarceration for crimes caused by mental illness is antithetical to the interests of our penal system. Deterrence cannot be accomplished for a person who was delusional at the time of a crime; and punishment for a person operating under delusions is not just. People v Sparks, 2024 NY Slip Op 04488, First Dept 9-19-24

Practice Point: The court here made the point that incarceration may not be the appropriate response for the mentally ill. The court noted that it has the power to reduce a defendant’s sentence for a violent crime, even when the defendant pleads guilty, based upon the defendant’s mental health.

 

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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028:

Family Court Act § 1028 “provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding” … . Upon an application of a parent whose child has been temporarily removed, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

… [A]lthough the 1028 hearing commenced within three court days of the mother’s application, it did not proceed expeditiously. It is currently calendared with continued hearing dates through late October 2024, at which time the infant subject children will have spent more than half their lives in foster care. … The plain language of the statute requires expediency. Family Court Act § 1028 is distinguishable from other sections of article 10 wherein those sections call for hearings to be conducted within the Family Court’s discretion … . No such discretion is provided by the plain language of Family Court Act § 1028.

Under the specific time constraints detailed by the plain language of Family Court Act § 1028 and given the potential and persistent harms of family separation, the mother is entitled to prompt judicial review of the children’s removal “measured in hours and days, not weeks and months” … . Conducting this 1028 hearing over a period of 30 minutes of hearing time scheduled in March, four hours scheduled in April, three hours in May, and four hours in June cannot be deemed prompt or expeditious judicial review. Matter of Emmanuel C.F. (Patrice M. D. F.), 2024 NY Slip Op 04482, First Dept 9-19-24

Practice Point: Family Court does not have the discretion to keep adjourning a Family Court Act 1028 hearing on mother’s petition to have her children returned to her. Mother is entitled, by the terms of the statute, to an expedited hearing.

 

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