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EVIDENCE THE DEFENDANT ACTED OUT OF ANGER WAS NOT INCOMPATIBLE WITH THE FINDNG THAT DEFENDANT “RELISHED” THE INFLICTION OF EXTREME PAIN WITHIN THE MEANING OF THE FIRST DEGREE MURDER STATUTE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming defendant’s first degree murder conviction, determined the evidence demonstrated defendant “relished” the infliction of extreme pain within the meaning of the first degree murder statute. The defendant argued the evidence demonstrated he acted out of anger, and did not demonstrate he relished or enjoyed inflicting pain. But the Court of Appeals found proof of both anger and enjoyment, noting that the two emotions are not mutually exclusive:

We reject defendant’s argument that he acted only out of anger or a desire to get information from the victim. … [W]here the requisite motivation is at least a “substantial factor” in the murder, the statute is satisfied, even if the defendant “may have had mixed motives” … . Certainly, the goal of extracting information is not incompatible with relishing the infliction of extreme pain, and proof that a defendant acted out of anger in harming the victim does not preclude the jury from finding that defendant took pleasure in doing so. Here, defendant is heard on the recording continuing to attack the victim even after stating that her response was “good enough.” On this record, there was sufficient evidence for the jury to find that while defendant may have also acted in anger or sought information from the victim, taking pleasure in inflicting extreme pain upon her was a substantial motivation. People v Bohn, 2024 NY Slip Op 01500, Ct App 3-19-24

Practice Point: Here the defendant argued his actions which resulted in the death of the victim were motivated solely by anger, and that there was no proof he “relished” the infliction of extreme pain as required by the first degree murder statute. The Court of Appeals held that the two emotional states, anger and relishing or enjoying the infliction of pain, are not mutually exclusive.

 

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THE APPELLATE DIVISION’S VACATION OF DEFENDANT’S FIRST DEGREE MURDER CONVICTION WAS AFFIRMED; THE PEOPLE DID NOT PROVE THE “RELISHING THE INFLICTION OF EXTREME PAIN” ELEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two concurring opinions, affirmed the appellate division’s vacation of the defendant’s first degree murder conviction. The appellate division concluded two elements of first degree murder had not been proven: (1) a “course of conduct” which inflicted extreme physical pain; and (2) defendant’s “relishing” the infliction of extreme physical pain upon the victim. The majority agreed with the People that the “course of conduct” element had been proven. But the majority agreed with the appellate division that the “relishing the infliction of extreme pain” element was not proven. The victim was attacked and stabbed multiple times by a group of gang members, including defendant. Defendant inflicted the fatal stab wound to the victim’s neck which caused him to bleed to death. The stab wounds inflicted by others in the gang were deemed “superficial:”

A rational jury could have concluded that [the victim’s] other wounds, inflicted pursuant to a course of conduct during which [the victim] was dragged from the store to the street, and then while on the ground subjected to several stab wounds of varying degrees from multiple assailants, caused him extreme physical pain before his death. * * *

The People’s evidence with respect to this mens rea element consisted of testimony that, shortly after attacking [the victim], defendant stated in a boastful tone that [the victim] was “not gonna eat for a good long time because [defendant] hit him in the neck.” The People also presented evidence that defendant sought out [gang]  leadership after the attack to claim responsibility for stabbing [the victim] in the neck.

This evidence demonstrates, at most, that defendant took pride in having killed [the victim], not that he took pleasure in causing [the victim] extreme physical pain before his death. The statute is clear that the defendant must relish or take pleasure in inflicting extreme physical pain, not simply in killing the victim … . People v Estrella, 2024 NY Slip Op 01499, CtApp 3-19-24

Practice Point: The “course of conduct” to inflict extreme pain and the “relishing” the infliction of extreme pain elements of first degree murder explained and debated. Here the “relishing” element was not proven.

 

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IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).

The First Department, remanding the matter for consideration of youthful offender status, determined it was not clear from the record whether the judge improperly denied youthful offender status because it has been waived by the plea or whether youthful offender status had been considered and rejected:

Although the court stated at sentencing that it would not grant defendant youthful offender status with regard to Indictment Nos. 3801/16 and 583/17, “there is nothing in the record to indicate that it actually independently considered youthful offender treatment,” as required by CPL 720.20(1) and People v Rudolph (21 NY3d 497 [2013]), “instead of denying such treatment because it was not part of the plea agreement” … . While a court need not set forth its reasons for denying youthful offender treatment … , it is still required to “clarify expressly whether it had ‘actually consider[ed] youthful offender treatment’ or whether it had improperly ‘ruled it out on the ground that it had been waived as part of defendant’s negotiated plea'” … . Because the court did not satisfy this obligation, we remand the matter for a determination of whether defendant should be afforded youthful offender treatment as to the promoting prison contraband and attempted criminal sale of a controlled substance convictions. People v J.G., 2024 NY Slip Op 01520, First Dept 3-19-24

Practice Point: In rejecting youthful offender status, the judge need not give the reasons but the record must reflect the judge considered the issue and did not improperly consider it waived by the plea.

 

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BECAUSE THE RESPONDENT CREATED AMBIGUITY ABOUT WHETHER IT WAS STILL CONSIDERING PETITIONER’S FOIL REQUEST AFTER EXPIRATION OF THE 10-DAY CONSTRUCTIVE-DENIAL PERIOD, THE FOUR-MONTH PERIOD FOR COMMENCING AN ARTICLE 78 PROCEEDING DID NOT START ON THE CONSTRUCTIVE-DENIAL DATE; THE ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent Office of Court Administration (OCA) gave petitioner the impression it was still considering petitioner’s FOIL request after the 10-day period for a response from the OCA expired on May 27, 2022. The OCA produced some documents on June 27, 2022. Therefore, the four-month period for commencing an Article 78 proceeding did not start on May 27, but rather on June 27, rendering the Article 78 commenced on November 8, 2022, timely:

… OCA’s ongoing consideration of the request created an ambiguity and the impression of nonfinality regarding its May 27 constructive denial … . Twice, on June 16 and August 5, 2022, OCA issued substantive rulings on the FOIL request, stating that petitioner had 30 days to take a written appeal of the determination. OCA’s treatment of its May 27 constructive denial as a final agency determination is inconsistent with its statements notifying petitioner that it had opportunities for further administrative appeals … . Thus, petitioner was justified in pursuing the administrative appeals that OCA appeared to offer rather than commencing what would have been a timely article 78 proceeding.

OCA created further doubt about the finality of its May 27 constructive denial when it wrote in its June 23, 2022 email that its substantive response to the FOIL request rendered the appeal of the constructive denial moot and issued a ruling on petitioner’s appeal. OCA’s contention that petitioner’s May 13, 2022 appeal was denied with finality on May 27 is incompatible with its later characterization of that appeal as moot. Similarly, the July 27, 2022 production letter from OCA stated that OCA was producing records in response to petitioner’s FOIL request, which, according to OCA, had been “remanded back . . . in response” to petitioner’s appeal. Petitioner was justified in its understanding that its request had not been denied with finality on May 27, as it could not have been both conclusively denied and simultaneously “remanded back . . . in response” to petitioner’s June 23, 2022 appeal.

Because OCA created an ambiguity, it is resolved against the agency, and the petition is deemed timely … . Matter of Portfolio Media, Inc. v New York State Off. of Ct. Admin., 2024 NY Slip Op 01523, First Dept 3-19-24

Practice Point: Here the respondent did not respond to petitioner’s FOIL request within 10 days. But because the respondent created ambiguity about whether it was still considering the request after the constructive-denial date, the constructive-denial date should not have been used to calculate the four-month period for commencing an Article 78 proceeding. Therefore the Article 78 was timely commenced.

 

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THE COMPLAINT STATED CAUSES OF ACTION AGAINST NYC ALLEGING CONSTITUTIONAL AND STATUTORY VIOLATIONS STEMMING FROM AN UNEQUAL AND DISCRIMINATORY PROPERTY TAX SCHEME (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge partial dissent and a one-judge partial dissent, reversing (modifying) the appellate division, determined the complaint stated causes action for constitutional and statutory violations of the Real Property Tax Law (RPTL) and the federal Fair Housing Act (FHA) relating to an unequal property-tax scheme:

Plaintiff Tax Equity Now NY, LLC (TENNY) challenges New York City’s property-tax system, alleging that the system imposes substantially unequal tax bills on similarly-valued properties that bear little relationship to the properties’ fair market value. According to the complaint, the result is staggering inequities and a regressive tax system that hurts those who can least afford to pay heavy taxes. The complaint further alleges that multi-million-dollar properties are taxed at similar or lower rates than less valuable properties and that real property in majority-people-of-color districts are overassessed and subjected to higher taxes compared to properties in majority-white districts. TENNY seeks declaratory and injunctive relief against City and State defendants for alleged constitutional and statutory violations caused by the City’s tax scheme. Despite the comprehensive, detailed allegations and legal precedent supporting the causes of action, the Appellate Division dismissed the complaint in its entirety at the pleading stage for failure to state any claim. That was error. * * *

… [T]he complaint’s allegations, supported with independent studies and the City’s own data of widening disparities resulting from its annually-repeated assessment methodology to Class One and Two properties, sufficiently plead violations of RPTL 305 (2) against the City. * * *

The FHA’s legislative goals are twofold: elimination of discrimination in housing and the promotion of residential integration  * * *

… [U]nder our State’s liberal pleading standards, TENNY’s allegation that the City’s tax system perpetuates segregation suffices … . Tax Equity Now NY LLC v City of New York, 2024 NY Slip Op 01498, CtApp 3-19-24

Practice Point: Under New York’s liberal pleading standards, the complaint stated causes of action against NYC for violations of the Real Property Tax Law and the federal Fair Housing Act stemming from an unequal and discriminatory property tax scheme.

 

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JUDICIARY LAW 487 CREATES A PRIVATE RIGHT OF ACTION AGAINST AN ATTORNEY FOR DECEIT OR FRAUD ON THE COURT OR ANY PARTY TO A LAWSUIT; HERE THE PROOF OF DECEIT OR FRAUD WAS LACKING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined Judiciary Law section 487 creates a private right of action seeking damages for deceit by an attorney, Here plaintiff alleged her attorney in a medical malpractice action defrauded the court in the calculation of attorney’s fees. The Court of Appeals sided with plaintiff in finding a private right of action under Judiciary Law 487, but found plaintiff’s evidence of deceit or fraud on the defendant-attorney’s part was lacking:

We conclude … that section 487 authorizes a plenary action for attorney deceit under these circumstances. The text of the statute allows recovery of treble damages “in a civil action” where “[a]n attorney . . . [i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party.” The phrase “in a civil action” is most naturally read to include a plenary action. Notably, the provision does not differentiate between an action that might undermine or undo a final judgment and one that does not, or between allegations of fraud that are intrinsic to the underlying action, as opposed to extrinsic. Interpreting the statute to permit a plenary action where the remedy would not entail undermining a final judgment (for example, when the deceit harms a prevailing party), but deny one where a final judgment could be impaired, would require us to rewrite the statute. That we cannot do. * * *

Plaintiff has not identified a material issue of fact as to whether [defendant-attorney’s] representations that the fee calculations comport with the statutory schedule amounted to false statements. Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2024 NY Slip Op 01497, CtApp 3-19-24

Practice Point: Judiciary Law 487 creates a private right of action against an attorney for fraud upon the court or any party to a lawsuit.

 

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THE MAJORITY HELD SUPREME COURT PROPERLY ALLOWED PLAINTIFFS TO FILE AN AMENDED COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED WITHOUT PREJUDICE BY THE APPELLATE DIVISION BECAUSE COUNTERCLAIMS WERE STILL BEFORE THE COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined that plaintiffs were properly allowed to amend their complaint, which had been dismissed without prejudice, because counterclaims were still before the court:

… [T]he Appellate Division dismissal of the second amended complaint due to lack of standing or capacity was without prejudice …. . The order contemplated that the company could “in theory, be revived,” but simply stated that [plaintiff] had done so improperly. Therefore, there is nothing in the Appellate Division’s order or opinion that would prevent plaintiffs from pursuing their claims after curing the standing or capacity issue. …

The question on appeal, then, is whether the Appellate Division’s decision required the plaintiffs to commence a separate action instead of seeking leave to file an amended complaint. Whatever the answer to that question might be in a case in which no action remained between the parties in Supreme Court, … here the action remained pending in Supreme Court because of the [defendants’] counterclaims. Therefore, Supreme Court retained control over the parties and continued to adjudicate claims related to the same transactions that formed the subject-matter of the complaint. For that reason, the Appellate Division order also did not render the case final for purposes of appealability, as no appeal to the Court of Appeals may be taken from an order which leaves claims pending in the action between the same parties … .

Because the original action remained pending in Supreme Court even after the complaint was dismissed, Supreme Court retained the power to grant leave to plaintiffs to file another amended complaint. Favourite Ltd. v Cico, 2024 NY Slip Op 01496, CtApp 3-19-24

Practice Point: Here the appellate court had dismissed the complaint without prejudice and the issue was whether plaintiffs could file an amended complaint, or whether plaintiffs had to start a new lawsuit. The Court of Appeals held Supreme Court retained the power to allow an amended complaint because counterclaims were still before the court.

 

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner:

… [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because some of the records were sealed after NYPD’s final administrative determination, was abandoned in the prior appeal … , and this Court has “no discretionary authority” to reach this unpreserved issue in the interest of justice in this article 78 proceeding challenging an administrative determination … . The court providently exercised its discretion in holding NYPD in civil contempt, given that NYPD waited several months before disclosing a video and 407 heavily redacted pages of responsive records, after which petitioner was forced to continue litigating its entitlement to complete disclosure of unredacted copies of the records. After this Court’s January 2021 order, NYPD should have disclosed all records responsive to petitioner’s FOIL request, without the need for any further proceedings. “Once the court has issued a valid order, it is not for the recipient of that order to fashion its own remedy” … . The “lengthy delay” caused by NYPD “was unreasonable under the particular circumstances of this case,” warranting an award of attorney’s fees and costs pursuant to FOIL … . Matter of Jewish Press, Inc. v New York City Police Dept., 2024 NY Slip Op 01511, First Dept 3-19-24

Practice Point: Failure to timely respond to a court order requiring the release of documents pursuant to a FOIL request, necessitating further litigation by the petitioner, warrants the award of attorney’s fees to petitioner.

 

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NEW FACTS RENDERED THE RECORD INSUFFICIENT FOR APPELLATE REVIEW IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; MATTER REMITTED FOR A “BEST INTERESTS OF THE CHILDREN” HEARING (FOURTH DEPT).

The Fourth Department, sending the matter back for a “best interests of the children” hearing in this termination-of-parental rights proceeding, determined new facts prohibited an adequate review:

… [T]he three oldest children, along with the father, assert that new facts and allegations warrant remittal for a new dispositional hearing to determine the best interests of those children. We may “consider . . . new facts and allegations ‘to the extent [that] they indicate that the record before us is no longer sufficient’ to determine whether termination of . . . parental rights is in [a child’s] best interests” … . * * * … [W]e conclude that the record before us is no longer sufficient to determine whether termination of respondents’ parental rights is in the best interests of those children … . Matter of Noah C. (Greg C.), 2024 NY Slip Op 01430, Fourth Dept 3-15-24

Practice Point: In a Family Court case, new facts which render the record inadequate for appellate review require remittal for a hearing.

 

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UNDER THE CIRCUMSTANCES, THE PETITIONER’S REQUEST TO CONTINUE THE TRIAL WITH ELEVEN JURORS SHOULD HAVE BEEN GRANTED; IN ADDITION IT WAS AN ABUSE OF DISCRETION TO DECLARE A MISTRIAL ON ALL COUNTS WITHOUT INQUIRING WHETHER A VERDICT HAD BEEN REACHED ON ANY OF THE COUNTS; RETRIAL OF THIS MURDER CASE PROHIBITED ON DOUBLE JEOPARDY GROUNDS; WRIT OF PROHIBITION GRANTED (FOURTH DEPT).

The Fourth Department, granting petitioner’s request for a writ of prohibition, determined retrial of this murder case was prohibited on double jeopardy grounds. Apparently one juror (juror number five) had done independent research on the charge of murder in the second degree and jurors had complained about racial tension in the jury room, implicating the same juror. There was an indication that jurors had agreed on verdicts for five of six charges. Petitioner asked to continue the trial with 11 jurors, which requires the judge’s consent. The judge denied the request. Defense counsel asked that the jury be polled on the counts for which verdicts had apparently been reached. The judge refused the request and declared a mistrial:

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. Assuming, arguendo, that juror number five was grossly unqualified to continue serving, we conclude that the court abused its discretion in declaring a mistrial without considering other alternatives. Petitioner expressed his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals “if circumstances arise that warrant such a request” … . Although the court has discretion to deny a request to proceed with 11 jurors—as the court did here—that discretion is limited … . The record here is devoid of evidence that petitioner’s request was not tendered in good faith, that the request was ” ‘a stratagem to procure an otherwise impermissible procedural advantage’ ” … , or that deliberation with 11 jurors could not “produce a fair verdict” … . Under the circumstances presented, as urged by defense counsel, “it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict” … .

Moreover, “it was an abuse of discretion to have declared a mistrial on all of the counts in the indictment without inquiring whether a decision had been reached on any of the charges” … . Although there was not “overwhelming evidence” that a partial verdict had been reached … , the jury’s note asking for guidance on next steps “[i]f we have a decision on five counts but not on one of them” presented more than a mere inference that the jury may have reached a partial verdict, and the subsequent communications with the jury did not indicate otherwise … . Under these circumstances, the court was required to make an inquiry “as to whether a verdict had been reached on any of the counts . . . before declaring a mistrial over the petitioner’s objection” … .

On this record, “[n]either physical impossibility to proceed nor manifest necessity to declare a mistrial as to the entire indictment has been demonstrated” … because the court failed “to obtain enough information” whether a mistrial was actually necessary as to all counts … . Matter of Shipmon v Moran, 2024 NY Slip Op 01424, Fourth Dept 3-15-24

Practice Point: Under these facts, it was an abuse of discretion to deny petitioner’s request to continue the trial with 11 jurors. Retrial prohibited on double jeopardy grounds.

Practice Point: Under these facts, it was an abuse of discretion to fail to inquire whether the jury had reached a verdict on any counts. Retrial prohibited on double jeopardy grounds.

 

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