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Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal

In reversing defendant’s assault conviction, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined a defendant with a conviction pending appeal may not be cross-examined about the underlying facts of that conviction until direct appeal has been exhausted.  Judge Lippman wrote:

At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts, and the sentence he received. After the People rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant’s constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records…. Defendant was retried and acquitted.  * * *

…[I]n ruling that the prosecution could cross-examine defendant about the underlying facts of his rape conviction, presumably the court was not implying that defendant could not assert his Fifth Amendment privilege in response to those questions. However, “taking the Fifth,” is highly prejudicial as to both the instant case and the conviction pending appeal. To a jury, it appears as though defendant is admitting the truth of the leading questions posed by the prosecutor; “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf” …. More problematic, defendant must invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself; otherwise he might waive the privilege… .  People v Cantave, No 129, CtApp 6-25-13

 

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Illegal Arrest Did Not Taint Identification Procedure – Attentuation Doctrine Applied

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the defendant’s identification in a line-up, after an admittedly illegal arrest, was not tainted by the arrest under the doctrine of “attenuation.”  The operative legal principles were described as follows:

The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule…. Instead, the People “must have ‘somehow exploited or benefitted from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police”….

Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order to counter that challenge, the People were required to demonstrate that the identification was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” …, i.e., that the taint of the illegal arrest was “attenuated” …. In order to determine whether attenuation exists, the court must “consider the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct”…. *  *  *

By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest. People v Jones, No 125, CtApp 6-25-13

 

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Supreme Court’s Denial of Application for Stationary Engineer License Based on Applicant’s Criminal Record Reversed

The First Department, in this and several other similar rulings, reversed Supreme Court’s denial of petitioner’s application for a stationary engineer license determining that petitioner’s criminal record bore no relationship to the duties of a stationary engineer:

The determination to deny petitioner’s renewal application for a stationary engineer license was in violation of lawful procedure and lacked a rational basis. Respondents arbitrarily concluded that petitioner’s prior federal conviction for conspiracy bore a direct relationship to the duties and responsibilities attendant to a stationary engineer, the license for which he sought renewal after having his license renewed several times (see Correction Law § 750[3]; 752[2];…. Petitioner’s prior conviction resulted from the misuse of his administrative powers in his former position, which granted him control over hiring, payroll, and selection of vendors. Such actions bear no direct relationship to the equipment maintenance duties and responsibilities inherent in the stationary engineer license, and thus do not satisfy the first exception to the general prohibition of discrimination against persons previously convicted of criminal offenses (see Correction Law § 752[1]).  Matter of Donovan v LiMandri, 2013 NY Slip Op 04737, 1st Dept 6-25-13

 

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Neglect Proceeding “Adjourned in Contemplation of Dismissal” Properly Considered and Findings of Forensic Psychologist Properly Ignored in Modification of Custody Proceeding

In affirming Family Court’s modification of custody, the Second Department noted that Family Court properly considered a neglect proceeding that was adjourned in contemplation of dismissal (not a determination on the merits) and Family Court was not required to accept the recommendations of the court-appointed forensic psychologist.  Matter of Selliah v Penamente, 2013 NY Slip Op 04815, 2nd Dept 6-26-13

 

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Company Hired on On-Call Basis for Elevator Repair Not Liable for Allegedly Faulty Elevator Door Interlock Where Last Repair Made 13 Months Before Accident

Plaintiff’s decedent fell down an elevator shaft, allegedly due to the condition of a door interlock.  The First Department determined the wrongful death complaint against New York Elevator and Electrical Corporation (NYE) should have been dismissed because the company was retained only on an on-call basis for repairs and there was no evidence NYE was negligent when it inspected the elevator 13 months before the accident:

The amended complaint should have been dismissed as against defendant/third-party plaintiff NYE in its entirety. NYE did not have an exclusive agreement with Broadway to maintain or service the freight elevator…. It was merely retained on an on-call basis to make specific repairs and inspections and, therefore, did not have a duty to inspect or repair unrelated defects…. Indeed, NYE may only be held liable if it failed to exercise reasonable care in making any requested repairs or inspections….  Casey v New York El & Elec Corp, 2013 NY Slip Op 04745, 1st Dept 6-25-13

 

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Attorney General’s Civil Suit Against Former Officers of AIG Survived Summary Judgment

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the Attorney General’s civil suit, seeking equitable relief (based upon allegations of fraud) against two former officers of AIG, survived summary judgment.  The Court explained the nature of the suit as follows:

The Attorney General began this civil suit against AIG, Maurice Greenberg and Howard Smith in 2005. Until shortly before the suit was brought, Greenberg was the Chief Executive Officer, and Smith the Chief Financial Officer, of AIG. AIG has settled the case; Greenberg and Smith remain as defendants.

The Attorney General alleges that Greenberg and Smith violated section 63(12) of the Executive Law and Article 23-A of the General Business Law (the Martin Act), and committed common law fraud. The statutes on which the Attorney General relies are broadly worded anti-fraud provisions, prohibiting among other things “repeated fraudulent or illegal acts” (Executive Law § 63[12]), “persistent fraud or illegality” (id.), and “fraud, deception, concealment, suppression [or] false pretense” (General Business Law § 352-c [1] [a]). It is not disputed that the Attorney General is empowered to sue for violation of these statutes.

The gist of the Attorney General’s claim, to the extent that it is now before us, is that Greenberg and Smith participated in causing AIG to enter into a sham transaction with General Reinsurance Corporation (GenRe) in which AIG purported to reinsure GenRe on certain insurance contracts. The Attorney General asserts that the transaction transferred no real risk from GenRe to AIG, and therefore should not have been treated as an insurance transaction on AIG’s books; and that the transaction’s sole purpose was to increase the insurance reserves shown on AIG’s financial statements, thereby creating the impression of a healthy insurance business and bolstering AIG’s stock price.  People v Greenberg, et al, No 63, CtApp, 6-25-13

 

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Procedure for Applying to be a “Defender” in America’s Cup Regatta, as Alleged in Complaint, Constitutes an “Offer” and “Acceptance”

The First Department, in a full-fledged opinion by Justice Acosta, in the context of whether the complaint stated a cause of action sufficient to withstand a motion to dismiss, determined that the procedures in a Deed of Gift and Protocol for the America’s Cup sailing regatta constituted and “offer” and “acceptance” resulting in an enforceable contract with the plaintiff which had applied to be a “Defender Candidate” in the regatta.  A lengthy and well-reasoned dissent by Justice Tom argued that the procedures did not amount to an offer because the defendant was free to accept or reject any applicant in the exercise of judgment.  The opinion and dissent discuss the most basic “offer” and “acceptance” criteria for an enforceable contract.  African Diaspora Mar Corp v Golden Gate Yacht Club, 2013 NY Slip Op 04752, 1st Dept 6-25-13

 

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Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function

In a full-fledged opinion by Judge Graffeo, with two concurrences, the majority determined ambulance assistance rendered by first responders is a governmental, not proprietary, function.  The majority also concluded a question of fact had been raised about whether the city owed a “special duty” to the plaintiff, who suffered serious brain damage after going into anaphylactic shock.  Judges Smith and Abdus-Salaam disagreed with the majority and would have found that the ambulance service was a proprietary function.  The Court explained:

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties…. A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises”…. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” …. * * *

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “‘sustain liability against a municipality, the duty breached must be more than that owed the public generally'”… .  Applewhite, et al, v Accuhealth, Inc, et al, No 86, CtApp 6-25-13

 

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Motion to Withdraw Plea Should Have Been Granted

In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:

Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant’s sentencing. The court should have granted defendant’s plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant’s plea was induced in large part by the court’s specific representation that defendant was resolving two pending prosecutions. “It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance” …. As the dismissal of the other indictment amounted to a fundamental change in a “condition that induced [defendant’s] admission of guilt” …, he was entitled to withdraw his plea ….  People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13

 

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County Court Had Jurisdiction to Correct 1999 Sentence Which Did Not Include Period of Post-Release Supervision

The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision:

Defendant’s contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit.    A delay in resentencing pursuant to Correction Law § 601-d is “not jurisdictional in nature and do[es] not deprive the court of the authority to correct an illegal sentence and resentence a defendant to a term of incarceration that includes a period of postrelease supervision”… . Furthermore, because defendant had not completed serving his initial sentence, the sentence was still subject to correction without invoking the protection against double jeopardy… .  People v Siler, 105042, 3rd Dept, 6-20-13

 

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