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SORA Court Must Designate a “Sexually Violent Offender” a Level One Sex Offender

The First Department, in a full-fledged opinion by Justice Andrias, over a dissent, determined that the SORA court does not have the discretion to designate a “sexually violent offender” as anything other than a Level One sex offender.  Here the defendant was convicted of sexual battery in North Carolina.  The North Carolina offense was found to be the equivalent of New York’s Sexual Abuse in the First Degree, a “sexually violent offense” under Correction Law 168-a (3) (a):

“While [the] Court is directed to apply SORA’s Risk Assessment Guidelines . . ., the statutory definition of sexually violent offender, namely, a sex offender convicted of one of several enumerated sexually violent offenses, does not allow for a discretionary determination” … . Thus, although the “level suggested by the RAI [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” …, the Court of Appeals has observed that “since 2002, SORA has compelled a defendant convicted of a sexually violent offense’ to register at least annually for life (Correction Law § 168-h [2]; see Correction Law § 168-a [3][a][7]; [b]; L 2002, ch 11, § 13). People v Bullock, 2014 NY Slip Op 08265, 1st Dept 11-25-14

 

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Release Did Not Exclude Liability for Personal Trainer’s Negligence

The First Department determined that the wording of a release for a personal training program did not express an unequivocal intent to limit liability for negligence.  The plaintiff alleged that the trainer negligently instructed him to lift an excessive amount of weight:

Prior to beginning training at defendant’s facility, plaintiff executed a release wherein he acknowledged that there were “inherent risks in participating in a program of strenuous exercise” and released defendant from “all claims . . . which

I . . . . may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program.” It is undisputed that General Obligations Law § 5-326 does not bar enforcement of this release as defendant’s facility is an instructional, and not a recreational, one. However, the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence … . While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not “express[] any intention to exempt . . . defendant from liability for injury . . . which may result from [its] failure to use due care . . . in [its] training methods” … . …[T]he release does not purport to release defendant from all personal injury claims, “whether or not based on the acts or omissions of [defendant],” or contain other language conveying a similar import … .  Kim v Harry Hanson Inc, 2014 NY Slip Op 08229, 1st Dept 11-25-14

 

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Anonymous Tip Alone, In the Absence of “Predictive Information,” Sufficient to Provide “Reasonable Suspicion” Justifying a Vehicle Stop

The Court of Appeals, in a short memorandum decision followed by lengthy concurring/dissenting opinions, determined that anonymous tips were sufficient to justify a vehicle stop in two cases (tips alleged possession of a weapon), but insufficient in a third case (tip alleged driver was sick or intoxicated). The concurring/dissenting opinions dealt with whether the “Aguilar-Spinelli” test or the “totality of the circumstances” test should be applied where reasonable suspicion (not probable cause) was required to justify a vehicle stop, and whether an anonymous tip alone, in the absence of so-called “predictive information,” could be sufficient to justify a vehicle stop.  The significance of the decision is that an anonymous tip alone was found sufficient, under both the “Aguilar-Spinelli” and “totality of the circumstances” tests, in two of the three cases:

Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), there is record support for the lower courts’ findings that the stops were lawful in People v Argyris and People v DiSalvo. The police had reasonable suspicion to stop defendants’ vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Specifically, because sufficient information in the record supports the lower courts’ determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants’ unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants’ vehicle is beyond further review. Furthermore, under these circumstances, the absence of predictive information in the tip was not fatal to its reliability … .

In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v DeBour …) . Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction (see CPL 140.10 [2] [a]), and defendant’s actions in committing the violation did not elevate the deputy’s suspicion sufficiently to justify the stop of defendant’s car. People v Argyris, 2014 NY Slip Op 08220, CtApp 11-25-14

 

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Defendant’s Inability to Articulate a Reason for the Withdrawal of His Plea Was a Proper Basis for Refusal of His Request for An Adjournment of Sentencing to Consider Withdrawal of the Plea

The Court of Appeals, over a dissent, determined defendant’s request for an adjournment of sentencing to consider whether he should withdraw his plea was properly denied (despite the absence of prejudice to the People) because defendant was unable to articulate a reason for withdrawing the plea:

Whether to grant an adjournment is within Supreme Court’s discretion … . Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel’s inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning. People v Spears, 2014 NY Slip Op 08221, CtApp 11-25-14

 

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Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that class action suits brought by tenants pursuant to CPLR 901 (b) were properly allowed to go forward.  The suits alleged the tenants, who were in rent-stabilized apartments, were overcharged when the landlords decontrolled the apartments despite their receipt of tax benefits under the J-51 program.  The Court of Appeals, in 2009, determined that the receipt of J-51 tax benefits precluded the landlords from decontrolling the apartments.  The central issue was the availability of the class action mechanism, which is generally not available where the suit seeks the imposition of a penalty.  Here the treble damages (penalty) provision of the Rent Stabilization Law (RSL 26-516) was waived by the plaintiffs. The waiver was deemed valid, clearing the way for the class actions:

CPLR 901 (b) prohibits any claim for penalties to be brought as a class action. It states, “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action” (CPLR 901 [b]). The language of CPLR 901 (b) itself says it is not dispositive that a statute imposes a penalty so long as the action brought pursuant to that statute does not seek to recover the penalty. * * *

From a policy standpoint, permitting plaintiffs to bring these claims as a class accomplishes the purpose of CPLR 901 (b). Preemptively responding to the argument raised by defendants here, the State Consumer Protection Board emphasized the importance of class actions: “The class action device responds to the problem of inadequate information as well as to the need for economies of scale” for “. . . a person contemplating illegal action will not be able to rely on the fact that most people will be unaware of their rights — if even one typical person files a class action, the suit will go forward and the other members of the class will be notified of the action either during the proceedings or after a judgment is rendered in their favor” (Mem of State Consumer Protection Bd, Bill Jacket, L 1975, ch 207).

Where a statute imposes a non-mandatory penalty, plaintiffs may waive the penalty in order to bring the claim as a class action … . Borden 400 E 55th St Assoc LP, 2014 NY Slip Op 08211, CtApp 11-24-14

 

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The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

Although not every violation of CPL 310.30 is immune from normal preservation principles …, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error … . The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

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Disclaimer Notice Sent to Insureds’ Insurer, But Not to Insureds, Invalid

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the failure to notify the insureds of a disclaimer of liability invalidated the disclaimer.  The property owner and managing agent were insured under two different policies.  They were named insureds under their own policy (with GNY) and additional insureds under a contractor’s insurer (Scottsdale). An employee of the contractor was injured. The contractor’s insurer sent the notice of disclaimer to the insureds’ own carrier (GNY), but not to the insureds themselves.  The notice did not meet the requirements of Insurance law 3420(d)(2):

Insurance Law § 3420 (d) (2) says:

“If under a liability policy issued or delivered in this state, an insurer shall disclaim liability or deny coverage . . . it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant” … .

It is undisputed that Scottsdale did not give notice of its disclaimer directly to its additional insureds or to the lawyer who had been retained to represent them. Scottsdale argues that the disclaimer notice it sent to GNY was sufficient to satisfy the statute. We disagree.

GNY was not an insured under Scottsdale’s policy; it was another insurer. While GNY had acted on the insureds’ behalf in sending notice of the claim to Scottsdale, that did not make GNY the insureds’ agent for all purposes, or for the specific purpose that is relevant here: receipt of a notice of disclaimer. GNY’s interests were not necessarily the same as its insureds’ in this litigation. There might have been a coverage dispute between GNY and the insureds, or plaintiff’s claim might have exceeded GNY’s policy limits. Because the insureds had their own interests at stake, separate from that of GNY, they were entitled to notice delivered to them, or at least to an agent — perhaps their attorney — who owed a duty of loyalty in this matter to them only. … [T]he obligation imposed by the Insurance Law is “to give timely notice of disclaimer to the mutual insureds . . . not to . . . another insurer.” Sierra v 4401 Sunset Park LLC, 2014 NY Slip Op 08216, CtApp 11-24-14

 

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Defendant’s Conviction Properly Reversed Because the Verdict Was Inconsistent/Repugnant—Charge Which Was the Subject of Conviction in the Inconsistent/Repugnant Verdict Can Be Presented to a New Grand Jury

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that defendant’s conviction was properly reversed because the verdict was inconsistent/repugnant, but that the People should be allowed to resubmit that charge to a new grand jury. Defendant was convicted of manslaughter in the first degree as a hate crime, but the jury acquitted defendant of manslaughter in the first degree.  Because, to aquit, the jury must have found that at least one of the elements of manslaughter in the first degree was not proven, the manslaughter in the first degree as a hate crime necessarily suffered from the same failure of proof.  The People argued that the jury instructions gave the jurors the impression they could acquit on the non-hate-crime manslaughter and still find the defendant guilty of the hate-crime manslaughter:

The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime … . Given that premise, “a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other,” and, “[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” … .

Accordingly, repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and “[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict” … . In making these determinations, it is inappropriate for the reviewing court to “attempt to divine the jury’s collective mental process” … . “Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts” … . * * *

There is no constitutional or statutory provision that mandates dismissal for a repugnancy error. Given that New York’s repugnancy jurisprudence already affords defendants greater protection than required under the Federal Constitution, permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance. This is particularly so given that a reviewing court can never know the reason for the repugnancy. Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury … . People v DeLee, 2014 NY Slip Op 08212, CtApp 11-24-14

 

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Notifying One’s Broker of an Accident Does Not Constitute Notification of the Insurer

The Court of Appeals, over a partial dissent, determined that the plaintiff’s providing notice of an accident to plaintiff’s broker did not constitute notice to the insurer.  The decision focuses on distinguishing Mighty Midgets v Centennial Ins. Co. (47 NY2d 12 [1979]) where the roles of the broker the insurer were “uncommonly intertwined:”

We have long held that a policyholder’s timely notice to a broker does not “constitute the notice contemplated by the [insurance] policy since a broker is normally the agent of the insured and notice to the ordinary insurance broker is not notice to the liability carrier” Our decision in Mighty Midgets does not alter this fundamental principle. Strauss Painting Inc v Mt. Hawley Ins Co, 2014 NY Slip Op 08214, CtApp 11-24-14

 

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Question of Fact Whether City Had a Special Relationship with Plaintiff Such that the City Owed a Duty to the Plaintiff Over and Above the Duty Owed to the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that there was a question of fact whether the city had a special relationship with the plaintiff, such that the city had a duty to protect the plaintiff from her abusive husband. After police officers assured plaintiff her husband (Coleson), who had been arrested, was going to jail, she was attacked and stabbed by him.  Plaintiff’s seven-year-old son was with her when she was attacked but did not witness the stabbing because he had been placed in a closet for protection by a bystander.  Because plaintiff’s son did not see the stabbing, the court concluded he was not in the “zone of danger” when his mother was stabbed:

Liability for a claim that a municipality negligently exercised a governmental function “turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public” … . “[A] duty to exercise reasonable care toward [a] plaintiff” is “born of a special relationship between the plaintiff and the governmental entity” … . This Court has determined that a special relationship can be formed in three ways:

“(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction in the face of a known blatant and dangerous safety violation”… .

In Cuffy v City of New York (69 NY2d 255), we listed the requisite elements for a duty voluntarily assumed:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (id. at 260). We noted that “the injured party’s reliance is . . . critical” (id. at 261).

Applying the Cuffy factors here, we conclude that plaintiffs raised a triable issue of fact as to whether a special relationship existed. With regard to the first factor, a jury could conclude that the police officers made promises to protect plaintiff. Plaintiff was notified by the police that Coleson was arrested, that he was in front of a judge to be sentenced, would be in jail for a while, and that the police would be in contact with her. As to the second factor, the police officers conceivably knew that Coleson would harm plaintiff if he was not apprehended, as evidenced by his arrest and the issuance of an order of protection to plaintiff. Given that plaintiff was told by Officer Reyes that everything was in process and she would keep in contact, there is an issue of fact as to whether the police knew that their inaction could lead to harm. The third factor is easily met, as plaintiff had direct contact with the police, by the police responding to her call about Coleson’s threats, making an arrest, escorting her to the police precinct, and plaintiff’s phone call with Officer Reyes. Finally, regarding a party’s justifiable reliance on the municipality’s affirmative undertaking, given the assurances that plaintiff received from Officer Reyes that Coleson was in jail and that he would be there for a while, a jury could find that it was reasonable for plaintiff to believe that Coleson would be jailed for the foreseeable future, and that the police would contact her if that turned out not to be the case. Coleson v City of New York, 2014 NY Slip Op 08213, CtApp 11-24-14

 

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