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Pre-Deliberations Note from Juror Did Not Raise Question Whether Juror Was “Grossly Unqualified;” No Hearing Necessary

The Court of Appeals, over a substantial dissent by Judge Lippman, determined that a note from a juror to the judge, prior to deliberations, did not raise the question whether the juror was “grossly unqualified” and therefore did not trigger the need for an in camera interview of the juror pursuant to People v Buford, 69 NY2d 290.  The note used the term “we” and raised the inference the jurors were engaging in premature deliberations about the need for additional evidence.  The Court of Appeals wrote:

Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “‘possess[] a state of mind which would prevent the rendering of an impartial verdict'” …. Such scenarios include, but are not limited to, a juror’s bias against a particular race …, a juror’s intimate relationship with a prosecution witness …, or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background ….

Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. …People v Mejias and Rodriguez, Nos 67, 68, CtApp 5-7-13

 

 

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Daily Incidents of Molestation, Spanning Years, Constituted “Separate Occurrences” Triggering a Deductible for Each Policy-Period

The main issue in this case was whether nearly daily incidents of sexual molestation of a minor by a priest in the Roman Catholic Diocese of Brooklyn, spanning six years, should be considered a single “occurrence” or separate “occurrences” within the meaning of the relevant insurance policies.  If considered separate occurrences, then the deductible for each policy-period in which each occurrence was deemed to have taken place would apply. If considered a single occurrence, then only one deductible would apply for all the policy-periods.  The Court of Appeals, in an opinion by Judge Rivera, determined the on-going sexual molestation should be considered separate occurrences for each policy-period, triggering multiple deductibles.  The Court of Appeals also found that the raising of the “separate occurrences” argument by the insurance company was not a disclaimer and therefore was not subject to the timeliness requirement for disclaimers in the Insurance Law. There was a concurring opinion by Judge Smith and a “concurring in part and dissenting in part” opinion by Judge Graffeo. Roman Catholic Diocese of Brooklyn v National Union Fire Insurance Company …, No 69, CtApp 5-7-13

 

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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13

 

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal 

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

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State Court Did Not Have Subject Matter Jurisdiction Over “Dangerous Sex Offender” Civil Management Proceeding Because Defendant Would Not Be Released Upon Finishing State Sentence—Defendant Had 19 Years to Go on Federal Sentence

As a sex offender (respondent) neared the end of his state sentence, the state (petitioner) sought a proceeding under article 10 of the Mental Hygiene Law alleging the respondent was a dangerous sex offender requiring civil management.  However, the respondent was also serving a federal sentence and would not be released for another 19 years.  For that reason, the Fourth Department determined the court did not have subject matter jurisdiction over the Mental Hygiene Law proceeding:

It is well settled that a court is without subject matter jurisdiction “when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, ‘[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it’ ”….Moreover, subject matter jurisdiction requires that the matter before the court is ripe …. In other words, courts “may not issue judicial decisions that can have no immediate effect and may never resolve anything,” and thus “an action may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” ….It is axiomatic that an article 10 determination issued in 2013 would have no immediate effect on a sex offender who is not to be released from federal prison until 19 to 22 years later, especially considering the well-accepted principle that a sex offender, who is at one point determined to be dangerous, may subsequently be found to no longer be dangerous—a principle recognized by article 10’s allowance for annual reviews …. Matter of State v Calhoun, CA 11-02578, 314, 4th Dept, 5-3-13

 

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No Notice of Claim Required for Discrimination Claims Against Town

The issue before the Fourth Department was whether an action against the North Bailey Volunteer Fire Co alleging discrimination and tort causes of action must be preceded by a notice of claim pursuant to Municipal Law 50-e.  The Court concluded that, because the volunteer fire company was a “fire protection district,” it was part of the town and, therefore, a notice of claim was required as a condition precedent to suits in tort.  [The court noted that a “fire district,” in contrast, is a distinct legal entity and, therefore, not part of a town for purposes of a notice of claim.]  The discrimination claims, brought under the Human Rights Law, were deemed exempt from the notice of claim requirement because they were not “founded in tort.”  The tort claims, on the other hand, were subject to the notice of claim requirement. Thygesen v North Bailey Volunteer Fire Co, Inc, et al, CA 12-00789, 290, 4th Dept, 5-3-13

 

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Broad Arbitration Clause Required Arbitration of Topic Not Directly Covered by Collective Bargaining Agreement

In upholding the lower court’s determination that a matter involving “shift swapping” in the sheriff’s department was subject to arbitration even though the topic was not directly covered by the collective bargaining agreement (CBA), the Fourth Department wrote:

In determining whether the parties agreed to arbitrate the dispute at issue, “[o]ur review . . . is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom” …. “Where, as here, there is a broad arbitration clause and a ‘reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court ‘should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … .  Matter of Ontario County…, CA 12-01766, 309, 4th Dept, 5-3-13

 

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Denial of Motion for Severance Upheld—Defendant Suing for Two Types of Injuries Allegedly Linked to Two Different Groups of Defendants​

In this case the plaintiff alleged his injuries were the result of exposure to coal tar pitch and asbestos “while employed as a laborer in the carbon electrode industry.”  The complaint separated the defendants into two groups, three companies were named with respect to the coal tar pitch (the appellants), and the other defendants were named with respect to the asbestos.  The appellants appealed the denial of their severance motion.  In affirming the denial of severance, the Fourth Department wrote:

“The determination of whether to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking the severance” The burden is on the party seeking the severance to show that “a joint trial would result in substantial prejudice” …Severance is appropriate where “individual issues predominate, concerning particular circumstances applicable to each [defendant] . . . [and there] is the possibility of confusion for the jury” …. Here, although appellants contended that a joint trial might result in juror confusion and would be inappropriate because plaintiff’s alleged injuries with respect to his exposure to coal tar pitch fumes and to asbestos were distinct, they did not satisfy their burden of establishing that a joint trial would result in substantial prejudice.  In re Eighth Judicial District Asbestos Litigation v Niagara Insulations, Inc, et al, CA 12-01809, 238, 4th Dept, 5-3-13

 

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Failure to Pay Pension Benefits to Wife Pursuant to Divorce Was an Action which Accrued Anew Each Time a Payment Was Missed for Statute of Limitations Purposes—Plaintiff Could Sue Only for Missed Payments Going Back Six Years from When Payments Began

Pursuant to a divorce, plaintiff was entitled to a share of her husband’s pension benefits starting in 1991.  Plaintiff did not start receiving the payments until 2005.  She did not bring an action on the unpaid benefits between 1991 and 2005 until 2010.  The Fourth Department determined that a cause of action for the unpaid benefits accrued anew when each payment was missed.  Because the statute of limitations is six years, the plaintiff could sue only for the unpaid benefits which accrued during the six years prior to when her action was started in 2010.  Bielecki v Bielecki, CA 12-01393, 264, 4th Dept, 5-3-13

 

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