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Questioning of Witnesses by Trial Judge Did Not Deprive Defendant of a Fair Trial

The First Department, in a full-fledged opinion by Justice Andrias, determined that the participation of the judge in the questioning of witnesses did not rise to the level of depriving the defendant of a fair trial:

The guarantee of a fair trial does not “inhibit a Trial Judge from assuming an active role in the resolution of the truth” … . Thus, a trial judge is permitted “to question witnesses to clarify testimony and to facilitate the progress of the trial,” and, if necessary, to develop factual information … . However, a judge may not “take [] on either the function or appearance of an advocate at trial” … .

The “substance and not the number of questions asked is the important consideration” … . Even if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is “not prevented from arriving at an impartial judgment on the merits” … . Notably, although the exercise of a trial court’s power to question witnesses should be exercised “sparingly” …, “in the case of expert testimony, the court’s intervention is often necessary to assist the jurors in comprehending matters of specialized knowledge” … , and the trial judge is afforded greater leeway.

The record before us establishes that the trial court did not take on the function and appearance of an advocate. * * *

Furthermore, although it is true that a “claim that the intrusion of the Trial Judge deprived [the defendant] of his constitutional right to a fair trial is not subject to harmless error analysis” …, the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial … .  People v Adams, 2014 NY Slip Op 02349, 1st Dept 4-3-14

 

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Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

The Third Department determined the trial court’s failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (…compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'”… . Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” … .

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes …, here Lewandowski was an accomplice as a matter of law with respect to defendant’s weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22 [2] [b]…). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski’s testimony absent corroborative evidence… . People v Medeiros, 105941, 3rd Dept 4-3-13

 

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Breach of Fiduciary Duty Cause of Action Stated Against Actuary

After sorting out professional malpractice claims (negligence—three-year S/L) from breach of contract claims (intentional—six year S/L), the Third Department explained the elements of a “breach of fiduciary duty” cause of action in the context of actuarial services (provided by SGRisk):

Actuaries are not considered professionals for the purpose of the shortened statute of limitations applicable to malpractice claims … . Despite not being deemed professionals in that context, actuaries can still develop relationships of trust and confidence sufficient to give rise to a fiduciary duty. Courts must conduct a fact specific inquiry to determine whether a fiduciary relationship exists based on confidence on one side and “resulting superiority and influence on the other” … . Plaintiff alleged that SGRisk “held itself out as being a skilled and competent actuarial” firm that “adhered to accepted professional standards,” that it rendered services for the trusts’ benefit, provided advice and created “a relationship of trust and confidence between” itself and the trusts. Plaintiff also alleged that SGRisk agreed to exercise “good faith and undivided loyalty” when determining appropriate valuation of the trusts’ future claims liability and the trusts reasonably relied on this, placing confidence in SGRisk that it would accurately produce truthful annual actuarial reports with correct estimates of future claims reserves. Additionally, plaintiff alleged that SGRisk breached the duty by knowingly and consistently underestimating the claims liabilities and necessary reserves and failing to identify dangerous underfunding … .  New York State Workers’ Compensation Board… v SGRisk LLC, 517387, 3rd Dept 4-3-14

 

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Respondents Must Demonstrate Why Request Not Specific Enough For Extraction from Electronic Documents/Claim that Documents Are Exempt from Disclosure Is Not Enough to Defeat the Request—Remedy Is In Camera Review

The Third Department determined the respondents should demonstrate why the descriptions of the documents sought by a FOIL request were insufficient for extraction from electronic documents.  With respect to respondents claim the information was exempt from disclosure, that assertion is not enough to defeat a FOIL request and the appropriate relief is an in camera review of the material alleged to be exempt:

We agree with respondents that a valid basis for denying the FOIL request has been established – at least with respect to the actual files – when they are not “indexed in a manner that would enable the identification and location of documents” … . Respondents have also indicated, however, that at least some of the files are maintained electronically. Despite this, they have offered no evidence to establish that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document from the virtual files through an electronic word search of the former Assistant County Attorney’s name or other reasonable technological effort (see Public Officers § 89 [3] [a]…).  We also note that “the broad allegation here that the files contain exempt material is insufficient to overcome the presumption that the records are open for inspection” … . In the event that the requested record can be located electronically and respondents are able to establish that the document contains exempt material, the appropriate remedy is an in camera review and “disclosure of all nonexempt, appropriately redacted material”… . Matter of Pflaum v Grattan, 516119, 3rd Dept 4-3-14

 

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Agent for Insurance Company Properly Found to Be an “Employee” Entitled to Unemployment Insurance

The Third Department determined claimant, who sold insurance as an agent for Coface North America Insurance Company, was an “employee” entitled to unemployment insurance:

Whether an employment relationship exists within the meaning of the unemployment insurance law is a factual question for the Board to resolve, and its determination in this regard – if supported by substantial evidence in the record as a whole – will not be disturbed … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

Here, there is ample evidence to support the Board’s finding that Coface exercised control over numerous aspects of claimant’s work. Coface, among other things, assigned claimant a sales territory …, provided her with sales leads that she was required to pursue…, precluded claimant from representing other insurers without Coface’s prior written consent …, directed that claimant devote all of her efforts to generating business for Coface, reserved the right to accept or reject insurance proposals submitted by claimant …, required claimant to work under the direction and supervision of its regional agent, set claimant’s commission rate, paid claimant a bimonthly draw against her commissions that she was not required to refund … and contributed to her health insurance premiums … . Additionally, claimant testified that Coface scheduled her workday, required her to work out of its regional office during her first year of employment, insisted that she keep her supervisor apprised of her whereabouts at all times and required her to attend quarterly sales meetings … . Such proof, in our view, is more than sufficient to support the Board’s finding of an employment relationship between Coface and claimant (and those similarly situated) – notwithstanding the existence of other proof in the record that could support a contrary conclusion …, including a provision in the parties’ agreements identifying claimant as an independent contractor… . Matter of Joyce …, 517162, 3rd Dept 4-3-14

 

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Brutality of Offense Warranted an Upward Departure in SORA Proceeding

The Second Department determined the brutality involved in the offense warranted an upward departure:

…[I]n light of the extreme brutality and violence of the defendant’s conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary … . Upon making such a determination, the County Court providently exercised its discretion in granting the People’s application for an upward departure from a level two to a level three sex offender … . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

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Driver of Middle Car in Chain Collision May Not Be Negligent

The Second Department explained the status of the “middle car” in a “chain” rear-end collision. The driver of a vehicle which is struck from behind and pushed into the rear of plaintiff’s vehicle may not be negligent:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle … .Here, in support of her motion, the plaintiff submitted evidence including the deposition testimony of the defendant driver, who testified that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff’s vehicle. This testimony revealed the existence of a triable issue of fact as to whether the defendant driver was at fault in the happening of the accident … . Kuris v El Sol Contr & Contr Corp, 2014 NY Slip Op 02268, 2nd Dept 4-2-14

 

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A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer

The Second Department explained the effect of a forged deed on all subsequent transactions in which the forged deed is involved:

“A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid” … . “If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing” … . Jiles v Archer, 2014 NY Slip Op 02262, 2nd Dept 4-2-14

 

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Pre-Deposition Motion for Summary Judgment Should Not Have Been Granted

The Second Department determined a pre-deposition motion for summary judgment was premature and should not have been granted:

“A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated” … . This is especially so where the motion for summary judgment was made prior to the parties conducting depositions … .Here, an award of summary judgment would be premature at this stage of the action. The plaintiff’s motion for summary judgment was made prior to the deposition of the plaintiff. In light of the fact that the plaintiff was the sole witness to the accident, and that his account of the accident has been placed in issue, the defendant should have been afforded the opportunity to conduct his deposition … . Schlichting v Elliquence Realty LLC, 2014 NY Slip Op 02281, 2nd Dept 4-2-14

 

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Motion for Voluntary Discontinuance Should Not Have Been Granted “With Prejudice”

The Second Department determined a motion for the voluntary discontinuance of an action should not have been granted “with prejudice:”

In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see CPLR 3217[c]…).  Here, there was no showing of any such special circumstances. Contrary to the respondents’ contention, there is no evidence in the record that the action was settled, discontinued, or dismissed on the merits … . Rather, it is undisputed that the settlement reached by the parties was a forbearance agreement. Accordingly, the action should have been discontinued without prejudice. New York Mtge Trust Inc v Dasdemir, 2014 NY Slip Op, 2nd Dept 4-2-14

 

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