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A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION IS NOW MANDATORY UPON REQUEST; AT THE TIME OF DEFENDANT’S TRIAL THE CHARGE WAS DISCRETIONARY; DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION DID NOT AMOUNT TO CONSTITUTIONAL INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming defendant’s conviction, over a concurring opinion and two dissenting opinions, determined defense counsel’s failure to request a cross-racial identification jury instruction, which is now mandatory upon request (but was not at the time of trial), did not amount to constitutional ineffective assistance of counsel:

Defendant Mark Watkins contends that his trial counsel was ineffective for failing to request a cross-racial identification instruction at the close of his July 2017 trial. Under our decision in People v Boone—decided after Watkins’ trial—such an instruction is now mandatory upon request “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races,” in light of the higher “likelihood of misidentification” and the “significant disparity between what the psychological research shows and what uninstructed jurors believe” regarding the impact of this cross-race effect (30 NY3d 521, 526, 528-529, 535-536 [2017]). At the time of Watkins’ pre-Boone trial, however, a defendant was not entitled to a cross-racial identification instruction upon request; rather, the charge was discretionary. Thus, counsel’s failure to request such a charge did not give rise to a single-error ineffective assistance of counsel claim. * * *

Today, as in Boone, we reiterate the importance of instructing jurors “to examine and evaluate the various factors upon which the accuracy of identification depends,” including the cross-racial nature, if applicable … . We continue to view the cross-racial identification charge as a powerful tool for assisting juries in determining whether there has been a mistaken identification, thereby reducing the risk of wrongful convictions caused by the cross-race effect. Still, Watkins has not shown that, as of July 2017, the failure to request a cross-racial instruction rendered his counsel’s performance constitutionally deficient … . People v Watkins, 2024 NY Slip Op 02842, CtApp 5-21-24

Practice Point: A cross-racial identification jury instruction is now mandatory upon request based upon the Court of Appeals’ 2017 ruling in People v Boone.

Practice Point: At the time of this 2017 trial, the cross-racial jury instruction was discretionary. Here defense counsel’s failure to request the charge did not rise to constitutional ineffective assistance.

Practice Point: It remains an open question whether the failure to request the charge in a post-Boone trial would amount to constitutional ineffective assistance.

 

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DISPUTES INVOLVING THE INTERNAL AFFAIRS OF FOREIGN CORPORATIONS ARE RESOLVED UNDER THE LAW OF THE PLACE OF INCORPORATION (SCOTS LAW HERE); COURTS CAN TAKE JUDICIAL NOTICE OF THE FOREIGN LAW; HERE PLAINTIFFS STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY UNDER SCOTS LAW (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, determined (1) in international business disputes involving the internal affairs of foreign corporations, the law of the place of incorporation (Scots law here) applies; (2) the court can take judicial of the foreign law; and (3) plaintiffs stated a cause of action for breach of fiduciary duty under Scots law:

Consistent with our precedent, we clarify that the substantive law of a company’s place of incorporation presumptively applies to causes of action arising from its internal affairs. Moreover, because of the important interests that the internal affairs doctrine represents, we decline to create any broad exceptions to that presumption. Rather, in order to overcome this presumption and establish the applicability of New York law, a party must demonstrate both that (1) the interest of the place of incorporation is minimal—i.e., that the company has virtually no contact with the place of incorporation other than the fact of its incorporation, and (2) New York has a dominant interest in applying its own substantive law … . * * *

CPLR 4511 gives courts “substantial flexibility in determining whether to take judicial notice of foreign law and ascertaining its content” … . As the statutory language notes, a court must take judicial notice of foreign law upon request and if the court is furnished with sufficient information to do so; otherwise, a court may take judicial notice of foreign law in its discretion … . * * *

Plaintiffs’ allegations—viewed in their most favorable light and according them every possible favorable inference—are sufficient to state a claim that the director defendants at least owed limited fiduciary duties to plaintiffs. Eccles v Shamrock Capital Advisors, LLC, 2024 NY Slip Op 02841, CtApp 5-23-24

Practice Point: Disputes involving the internal affairs of foreign corporation are resolved under the law of the place of incorporation (Scots law here).

Practice Point: Courts can take judicial notice of foreign law.

Practice Point: Here plaintiffs stated a cause of action for breach of fiduciary duty under Scots law.

 

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FAILURE TO PROPERLY ASSESS A PATIENT’S RISK OF FALLING AND NEED FOR SUPERVISION SOUNDS IN MEDICAL MALPRACTICE, NOT NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action sounded in medical malpractice, not negligence. Plaintiff’s decedent, who was blind, fell from an examining table when the nurse stepped away to throw away gauze in a nearby trash can:

Allegations that a health care provider improperly assessed a patient’s risk of falling and need for supervision or restraint, in light of his or her medical condition, “implicate questions of medical competence or judgment linked to . . . treatment” (Weiner v Lenox Hill Hosp., 88 NY2d at 788) and, therefore, sound in medical malpractice … . Here, the essence of the allegations was that the defendants were negligent in their assessment of “the level of supervision, nursing care, and security required for [Davis],” in light of her physical condition and the administration of narcotic medications … . Such allegations sound in medical malpractice as opposed to ordinary negligence … .

Accordingly, the Supreme Court erred in denying the defendants’ cross-motion to compel the plaintiff to serve a certificate of merit and notice of medical malpractice and to transfer the action from the general negligence part to the medical malpractice part. Snow v Gotham Staffing, LLC, 2024 NY Slip Op 02833, Second Dept 5-22-24

Practice Point: Failure to properly assess a patient’s risk of falling and need for supervision sounds in medical malpractice, not ordinary negligence.

 

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THE CUSTODY/GUARDIANSHIP HEARING TOOK SEVEN YEARS AND THE CHILDREN RESIDED WITH GRANDMOTHER AND UNCLE DURING THAT TIME; THE EXTENDED DISRUPTION OF CUSTODY CAUSED BY THE PROTRACTED COURT PROCEEDINGS DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WARRANTING AN AWARD OF CUSTODY TO GRANDMOTHER AND UNCLE (SECOND DEPT). ​

The Second Department, reversing Family Court, noted that the six or seven years during which the children resided with grandmother and uncle did not constitute “extraordinary circumstances” warranting granting grandmother and uncle, as opposed to mother, custody. Mother was seeking custody the entire time. The hearing started in 2014 and didn’t conclude until 2021:

… [T]he record does not support the Family Court’s determination that extraordinary circumstances existed so as to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr. The evidence failed to establish that the mother voluntarily relinquished care and control of Blessin F. and Frank T., Jr., for an extended period of time … . Rather, the record evidences that the mother’s intention was for Blessin F. and Frank T., Jr., to reside with the maternal grandmother and the maternal uncle only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother’s care and custody as soon as she was released. The hearing testimony demonstrates that from the time the mother was released from her brief period of incarceration in November 2012, she has continued to attempt to regain custody of Blessin F. and Frank T., Jr., she immediately went to Brooklyn when she was released, she made a motion to vacate the temporary orders of guardianship and custody, and she filed a petition, inter alia, for custody of Blessin F. and Frank T., Jr. Moreover, during the proceedings, the mother continued to have supervised and unsupervised parental access with Blessin F. and Frank T., Jr., as permitted by the court, in Brooklyn, although she was still residing in Georgia with her other young children. Additionally, the prolonged separation between the mother and Blessin F. and Frank T., Jr., occurred during the mother’s attempts to regain custody during these protracted proceedings, and, thus, the extended disruption of custody does not amount to an extraordinary circumstance … . When the maternal grandmother and the maternal uncle first filed petitions for guardianship and custody between October 2012 and February 2013, Blessin F. and Frank T., Jr., had only been residing with them for, at most, a few months; however, the hearing, which commenced in May 2014, did not conclude until March 2021, almost seven years later. “‘Indeed, the courts may not deny the natural parent’s persistent demands for custody simply because it took so long'” … . Matter of Teofilo R.F. v Tanairi R.F., 2024 NY Slip Op 02814, Second Dept 5-22-24

Practice Point: Although a prolonged disruption of custody can constitute “extraordinary circumstances” warranting awarding custody to a non-parent, that is not the case where, as here, the disruption was the result of protracted court proceedings (seven years).

 

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS SURROGATE’S COURT GUARDIANSHIP PROCEEDING WHERE BOTH PARENTS SEEK TO BE APPOINTED GUARDIAN OF THEIR DEVELOPMENTALLY DISABLED SON AS HE TURNS 18; NEW EVIDENCE RENDERED THE RECORD INSUFFICIENT FOR A GUARDIANSHIP DETERMINATION; A NEW HEARING WAS ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, in this Surrogate’s Court guardianship proceeding, determined the principals underlying Matter of Michael B, 80 NY2d 299, a custody case, should apply to this action to determine which parent should be appointed guardian of their developmentally disabled son, Joseph J D II, as he turned 18. Because new evidence was brought to light after the hearing, the record is no longer sufficient and a new hearing was ordered:

These appeals present us with the narrow question of whether a rule set forth by the Court of Appeals in Matter of Michael B. (80 NY2d 299)—that an appellate court may remit a child custody matter for a new hearing if subsequent developments reflect that the record has become insufficient to determine the issues presented—may be extended to this appeal from a Surrogate’s Court decree determining a guardianship contest between the parents of an adult with a developmental disability within the meaning of article 17-A of the Surrogate’s Court Procedure Act. In light of certain commonalities between this dispute and a custody dispute, including a focus on the best interest of the individual who is the subject of the proceedings, we conclude that the rule and underlying rationale set forth in Matter of Michael B. is equally applicable here. Thus, in this proceeding pursuant to Surrogate’s Court Procedure Act article 17-A, we will consider new facts and allegations brought to our attention by the parties for the limited purpose of ascertaining whether the record before us is sufficient make a best interest determination, which is the same standard applied in appeals involving child custody. Upon doing so, we find that a new hearing is warranted because the record is no longer sufficient to determine what, at this juncture, is in the best interest of Joseph J. D. II. Matter of Joseph J.D. (Robert B.D.), 2024 NY Slip Op 02813, Second Det 5-22-24

Practice Point: The custody-related principals underlying Matter of Michael B, 80 NY2d 299, were applied to this Surrogate’s Court guardianship proceeding where both parents sought to be appointed guardian of their developmentally disabled son as he turned 18. Because new evidence came to light rendering the record inadequate, a new hearing was ordered.

 

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THE LAWSUIT SOUGHT RETURN OF A DOWN PAYMENT UNDER A REAL ESTATE CONTRACT; BECAUSE THE LAWSUIT DID NOT AFFECT TITLE, POSSESSION, USE OR ENJOYMENT OF THE PROPERTY A NOTICE OF PENDENCY IS NOT APPROPRIATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice of pendency should have been cancelled because the lawsuit, which sought the return of a down payment under a real estate contract, did not affect title, possession, use or enjoyment of the real property:

Pursuant to CPLR 6501, “[a] notice of pendency may be filed only when ‘the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property'” … . “When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; ‘the court’s analysis is to be limited to the pleading’s face'” … .

Here, the complaint, on its face, only asserts causes of action to recover monetary damages and does not seek relief that would affect the title to, or the possession, use, or enjoyment of, the property. Mallek v Felmine, 2024 NY Slip Op 02808, Second Dept 5-22-24

Practice Point: A notice of pendency is appropriate only when the underlying lawsuit involves title, possession, use or enjoyment of real property. A suit for the return of a down payment does not warrant a notice of pendency.

 

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THERE IS A QUESTION OF FACT WHETHER THE SCHOOL’S DUTY TO SUPERVISE STUDENTS EXTENDS TO AN AREA OUTSIDE THE SCHOOL WHERE PARENTS PICK UP AND DROP OFF THE STUDENTS; INFANT PLAINTIFF TRIPPED AND FELL ON A ROAD DEFECT NEAR THE CURB (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision cause of action against defendant school should not have been dismissed. Infant plaintiff tripped and fell on a road defect that abutted a curb where students were picked up and dropped off by parents:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . “[A] school’s duty to supervise is generally viewed as being coextensive with and concomitant to its physical custody of and control over the child,” and therefore, “[w]hen that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases” … . “[W]hile a school has no duty to prevent injury to schoolchildren released in a safe and anticipated manner, the school breaches a duty when it releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating”… .

Under the circumstances of this case, the defendants failed to eliminate all triable issues of fact as to whether the infant plaintiff was released from school without adequate supervision into a foreseeably hazardous setting they had a hand in creating … . Thus, the defendants failed to establish, prima facie, that their negligent supervision over the infant plaintiff was not a proximate cause of the injuries the infant plaintiff sustained … . Levy v City of New York, 2024 NY Slip Op 02807, Second Dept 5-22-24

Practice Point: A school’s duty to supervise students may extend to areas outside the school, i.e., the area where students are picked up and dropped off by parents.

 

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THE JUDGE’S PROVIDING A RACE-NEUTRAL REASON FOR THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR, WHILE THE PROSECUTOR REMAINED SILENT, WAS REVERSIBLE ERROR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the judge’s providing a race-neutral reason for the People’s peremptory challenge of a juror, while the prosecutor remained silent, was reversible error:

Here, it is undisputed that defendant established a prima facie case of discrimination with respect to the prosecution’s exercise of a peremptory challenge against K.S., an African-American female, and that the burden then shifted to the prosecution to provide a race-neutral basis for its peremptory strike. The People failed to do so entirely … . Rather, the court stepped in to provide an explanation, speculating that the prosecution had gotten a “bad vibe” from K.S. regarding whether her prior jury service resulted in an acquittal. The prosecution remained silent. The court nevertheless ruled that the prosecution had “given a legitimate race neutral reason” for the strike.

This serious departure from the Batson framework was an error of the highest order. When the court supplied a race-neutral reason for the peremptory strike, it failed to hold the prosecution to its burden and instead, effectively became an advocate for the prosecution, thus abandoning its Batson-specific duty to “consider the prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in light of the arguments of the parties” … . It is the nonmovant’s expressed explanation for its peremptory challenge—and whether such explanation is mere pretext for a race-based motive—not simply whether a race-neutral reason could theoretically exist—which is the focus of the Batson framework at steps two and three … . The court’s speculation as to the prosecution’s basis for the strike was irrelevant and deprived defendant of any meaningful way to demonstrate pretext in the face of the prosecution’s silence. People v Estwick, 2024 NY Slip Op 02768, CtApp 5-21-24

Practice Point: It is the prosecutor’s actual reason for a peremptory challenge which is required under Batson, not the theoretical existence of a race-neutral reason. Therefore the Batson procedure is violated where, as here, the judge steps in to provide a reason while the prosecutor remains silent.

 

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THE SEARCH OF A SMALL EARBUD CASE IN DEFENDANT-PAROLEE’S POCKET WAS NOT REASONABLY RELATED TO THE CLAIMED PURPOSE OF THE PAROLE OFFICERS’ PRESENCE IN DEFENDANT’S RESIDENCE, I.E., A SEARCH FOR A PAROLE ABSONDER; THE HEROIN FOUND IN THE EARBUD CASE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, determined the search of defendant-parolee’s person by a parole officer was not rationally and reasonably related to the parole officers’ duty. The parole officers claimed they entered defendant’s residence to look for a parole absconder. The search of a small earbud case found inside defendant’s pocket, which turned up heroin, was not reasonably related to the claimed purpose of the parole officers’ presence:

… [T]he People failed to meet their burden to establish that the search of defendant’s pocket was substantially related to the performance of the parole officers’ duties in the particular circumstances presented, i.e., the search of defendant’s residence for a parole absconder. Nor did the People present any evidence at the hearing that circumstances that developed after the parole officers arrived at defendant’s residence rendered the search of his pocket substantially related to the performance of their duties. On this record, the parole officer had no reason to continue the brief pat-down search of the exterior of defendant’s person by searching his pocket and investigating the contents of an earbud case. People v Lively, 2024 NY Slip Op 02767, CtApp 5-21-24

Practice Point: Here the parole officers claimed to be in defendant-parolee’s residence to search for a parole absconder. Therefore the search of a small earbud case found in defendant-parolee’s pocket was not reasonably related to the parole officers’ duties and the drugs found in the case should have been suppressed.

 

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THE SEARCH OF DEFENDANT-PAROLEE’S RESIDENCE WAS “RATIONALLY AND REASONABLY RELATED TO THE PERFORMANCE OF THE PAROLE OFFICER’S DUTY” AND THEREFORE DENIAL OF THE MOTION TO SUPPRESS THE WEAPON FOUND IN THE RESIDENCE WAS PROPER (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the search of defendant-parolee’s residence after a tip from defendant’s mother about defendant’s possession of a firearm was “rationally and reasonably related to the performance of the parole officer’s duty:”

As a condition of his parole, defendant agreed not to “own, possess, or purchase” any firearm without permission from his parole officer. Defendant was given “the most severe” mental health designation from the Department of Corrections and Community Supervision, OMH Level 1-S, indicating there were “serious” concerns regarding his mental health. Shortly after defendant’s release to parole, his parole officer received information from his supervisor that defendant’s mother contacted the parole office to inform them that she saw a photograph of defendant with a firearm, and gave the parole officers permission to search the residence that she shared with defendant … . Acting on this information, defendant’s parole officer, with the assistance of other officers, conducted a search of defendant’s home and recovered an AR-15 style rifle and two thirty-round extended magazines with extra gun parts from defendant’s bedroom.

Based on the foregoing, there is record support for the lower courts’ conclusion … that the search of defendant’s residence by defendant’s parole officer was “rationally and reasonably related to the performance of the parole officer’s duty” and so defendant’s motion to suppress this evidence was properly denied … . The Aguilar-Spinelli test … for evaluating whether a tip provides police with probable cause for a search or seizure does not apply in these circumstances … . People v Spirito, 2024 NY Slip Op 02766, Fourth Dept 5-21-24

Practice Point: The criteria for a search of a parolee’s residence by a parole officer is not subject to the same constitutional restraints as are searches by the police. Here a tip from defendant’s mother about her son’s possession of a weapon was sufficient to justify the parole-officer search.

 

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