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Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

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Evidence which Should Have Been Presented In the People’s Direct Case Should Not Have Been Allowed in Rebuttal

The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People’s evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party’s original case (see CPL 260.30[7]…). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is “simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” … .

Here, the missing element of the People’s case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense … . Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties’ expert witnesses ” hotly contested'” … whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious.

Because this case does not fit within “the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” …, the Supreme Court improvidently exercised its discretion in granting the People’s application to present the nurse’s testimony in rebuttal. Without this testimony, the People’s evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt … . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014

 

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Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status

The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:

Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras … . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)… . However, contrary to the court’s determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner’s contention that, because his father neglected and abandoned him, reunification with his father is not a viable option … . The fact that the child’s mother did not also neglect and abandon him does not preclude the issuance of the order requested … . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14

Same result in Matter of Gabriela Y U M…, 2014 NY Slip Op 04937, 2nd Dept 7-2-14

 

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Admissible Hearsay Concerning the Child’s Injuries and Evidence Relevant to the Child’s Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding

The Second Department determined Family Court erred in excluding evidence from a neglect proceeding.  The excluded evidence included hearsay statements by a police officer included in the Investigative Progress notes indicating the child’s (Jonell H’s) bruises were not severe, and evidence relevant to the child’s motivation to lie:

At the fact-finding hearing, the Family Court erred in excluding from evidence Investigation Progress notes dated April 18, 2010, indicating that a police officer had informed a caseworker that the officer had visited Jonell H. shortly after the alleged neglect took place and observed that the bruises on her right arm were “not serious” and that “[t]here [are] not other visible bruises/marks observed” on her. These notes were admissible under the business records exception to the hearsay rule since the caseworker was under a duty to maintain a comprehensive case record for Jonell H., and the officer had a duty to report his or her observations of her condition … .

The Family Court also erred in precluding the mother from calling four particular witnesses to testify. Those witnesses would have given testimony pertaining to Jonell H.’s motivation to lie. Extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground … . Similarly, the court should not have excluded from evidence Family Service Progress notes containing statements by Jonell H.’s foster parents relevant to her motivation to lie. Foster parents are “employees who [are] under a business duty to timely record and report all matters concerning the physical, mental, and emotional conditions of the children in their care to the foster care agency” … .  Matter of Grayson J, 2014 NY Slip Op 04934, 2nd Dept 7-2-14

 

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Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner’s Vicarious Liability

The Second Department determined defendant’s evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner’s vicarious liability:

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law …, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner’s express or implied consent … . This statute creates a presumption that the driver was using the vehicle with the owner’s express or implied permission …, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent … . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use … . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14

 

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Lack of Notice of Alleged Dangerous Condition Established by Custodian’s Testimony

The Second Department determined that the testimony of the school custodian that he had inspected the floor shortly before plaintiff allegedly slipped and fell on accumulated water entitled the defendant school to summary judgment:

” To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time'” … . ” A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff’s mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors … . Farren v Board of Educ of City of NY, 2014 NY Slip Op 04896, 2nd Dept 7-2-14

 

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Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate

The Second Department reversed Supreme Court finding that plaintiff’s motion to amend the notice of claim should have been denied and the complaint dismissed:

Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial “technical mistakes, defects, or omissions, not substantive changes in the theory of liability” … . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Moreover, the Supreme Court should have granted the Housing Authority’s motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint … . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue … . The plaintiff’s original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff’s claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department … . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14

 

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Grossly Negligent and Reckless Driving Did Not Support Conviction for Depraved Indifference Murder

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that the actions of the defendant, who killed a pedestrian during a police chase, did not meet the criteria for depraved indifference murder.  Although the defendant drove in a grossly negligent and reckless manner, there was evidence he took measures to avoid injuries to others and therefore was not indifferent to the effects of his actions:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Depraved indifference is a culpable mental state which “is best understood as an utter disregard for the value of human life” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” (id. [internal quotation marks and citation omitted]). Due to the wanton nature of this mens rea, “depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder” … .

A defendant who knowingly pursues risky behavior that endangers others does not necessarily evince depraved indifference by engaging in that conduct. As we have explained, “[a] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out” … . “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created” … . In short, the mens rea of depraved indifference will rarely be established by risky behavior alone. People v Maldonado, 2014 NY Slip Op 04878, CtApp 7-1-14

 

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Reversible Error to Give a Modified Malpractice Jury Instruction in a Negligent/Defective Design Case

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, reversed a $10 million judgment against Volvo, finding that one of the jury instructions, which was a modified version of the jury instruction for a malpractice case, should not have been given.  The plaintiff lost a leg when the ignition of the manual transmission car was switched on and the car lurched forward, pinning the plaintiff.  A central issue in the trial was whether the car should have been equipped with a device which would have prevented the car from starting when it was in gear.  In addition to the jury instruction issue, the court discussed the redundancy of instructions for negligent design and defective design, the appeal as of right and by permission pursuant to CPLR 5601 and 5602, and the inconsistency of the verdict.  With respect to the malpractice jury instruction, the court wrote:

[PJI 2:15] should not have been given in this case. It was designed for malpractice cases. As the Committee on Pattern Jury Instructions says: “The principle stated in the pattern charge is the underlying basis of malpractice actions” (1A NY PJI3d 2:15 at 259 [2014]). The Committee goes on to say that “[t]he principle extends to skilled trades and to professions not generally thought of in connection with malpractice” (id.), but we know of no basis for including automobile manufacturers in that category. This is not a malpractice case, but a negligent design or (what amounts to the same thing) a design defect case.

PJI 2:15 is reserved for malpractice cases because the standards of care applicable to malpractice cases and to other negligence cases are different. In a malpractice case against, for example, a doctor or a lawyer, the defendant is generally held to the level of skill and care used by others in the community who practice the same profession … . In negligence cases generally, by contrast, the jury must compare the defendant's conduct to that of a reasonable person under like circumstances (Restatement [Second] of Torts § 283…). In negligent design/design defect cases, the reasonable-person standard has been given more specific form: the question is whether the product is one as to which “if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” … .  Reis v Volvo Cars of N Am, 2014 NY Slip Op 04880, CtApp 7-1-14

 

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Albany County Cyberbullying Criminal Statute Overly Broad

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined that a statute passed by the Albany County Legislature, aimed at criminalizing cyberbullying, was too vague and broad to survive strict scrutiny under the First Amendment:

Based on the text of the statute at issue, it is evident that Albany County “create[d] a criminal prohibition of alarming breadth”… . The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children … . As written, the Albany County law in its broadest sense criminalizes “any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person.” On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as “posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail.” But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to “harass, annoy . . . taunt . . . [or] humiliate” any person or entity, not just those that are intended to “threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on” a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.  People v Marquan M, 2014 NY Slip Op 04881, CtApp 7-1-14

 

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