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PHYSICAL INJURY IS NOT AN ELEMENT OF ATTEMPTED MURDER; REQUEST FOR MISSING WITNESS JURY INSTRUCTION BASED UPON THE COMPLAINANT’S FAILURE TO TESTIFY PROPERLY DENIED; PERSISTENT FELONY SENTENCING PROCEDURE WAS NOT FOLLOWED (SECOND DEPT).

The Second Department affirmed defendant’s attempted murder conviction, noting that proof of attempted murder does not require proof of serious injury, or any injury at all. The court further noted that the complainant was not under the People’s control and therefore the request for the missing witness jury instruction was properly denied. Defendant, however, was not properly sentenced:

… [W]e note that while none of the complainant’s injuries in this case were life-threatening, “the crime of attempted murder does not require actual physical injury to a victim at all” … . Here, the forensic evidence showing that two separate knives were used in the attack, coupled with the fact that the defendant, still holding a knife, chased the complainant outside the apartment complex and broke off his attack only after a bystander intervened, provides factually sufficient evidence of the defendant’s intent to kill.

Contrary to the defendant’s contentions, the County Court properly declined to give a missing witness charge with regard to the complainant, as the record reflects that the complainant was not under the People’s control … . …

The sentencing minutes do not establish that the County Court asked the defendant whether he wished to controvert any allegations made in the statement filed pursuant to CPL 400.16(2) … . Accordingly, we vacate the sentences and remit the matter to the County Court, Suffolk County, for resentencing in accordance with CPL 400.16 … . People v Gunn, 2019 NY Slip Op 07279, Second Dept 10-9-19

 

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE PEOPLE DID NOT DISPROVE DEFENDANT’S AGENCY DEFENSE; THE VERDICT WAS REPUGNANT IN THAT GUILTY AND NOT GUILTY FINDINGS CAN NOT BE RECONCILED (SECOND DEPT).

The Second Department vacated defendant’s convictions in this drug/possession/sale case, finding the People did not disprove the agency defense with respect to one of the two transactions, and the verdict was repugnant in the sense guilty and not guilty findings could not be reconciled.  With respect to the agency defense, the Second Department applied a “weight of the evidence” analysis. The facts are too complex to fairly summarize here:

The following factors are considered in evaluating the strength of an agency defense: “(1) did the defendant act as a mere extension of the buyer throughout the relationship, with no independent desire to promote the transaction; (2) was the purchase suggested by the buyer; (3) did the defendant have any previous acquaintance with the seller; (4) did the defendant exhibit any salesman like behavior; (5) did the defendant use his [or her] own funds; (6) did the defendant procure from many sources for a single buyer; (7) did the buyer pay the seller directly; (8) did the defendant stand to profit; and (9) was any reward promised in advance” … . …

A verdict is repugnant only if, when viewed in light of the elements of each crime as charged to the jury, “it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” … . The purpose of the rule is to ensure that an individual is not convicted of a crime of which a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt … . People v Cruz, 2019 NY Slip Op 07273, Second Dept 10-9-19

 

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THE STANDARD OF PROOF REQUIRED IN AN ENTIRELY CIRCUMSTANTIAL-EVIDENCE CASE WAS NOT MET IN THIS MURDER PROSECUTION; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the conviction was against the weight of the evidence. There was no forensic evidence linking defendant to the murder, which occurred 11 years before the trial, and the circumstantial evidence merely raised the possibility defendant committed the murder. The decision recounts the evidence in a level of detail which cannot be fairly summarized here:

Where the prosecution relies entirely on circumstantial evidence, before the fact-finder can draw an inference of guilt, that inference must be the only one that can fairly and reasonably be drawn from the proven facts, and the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The inferences to be drawn from the People’s evidence in this case as to coincidence of time, place, and behavior are sufficient only to create suspicion. The evidence presented at trial is not inconsistent with the defendant’s innocence, and any determination of guilt requires too much speculation to fill the gaps in the People’s evidence to constitute proof beyond a reasonable doubt. * * *

[T]he evidence presented at trial supports the possibility that the defendant was the person who killed Perez. “[H]owever, speculation and conjecture are no substitute for proof beyond a reasonable doubt” … . It is not enough for the jury to determine “that the defendant is probably guilty” … . The People must prove beyond a reasonable doubt that the defendant is the person who committed the crime. On this record, we find that the jury was not justified in finding the defendant guilty beyond a reasonable doubt. People v Clavell, 2019 NY Slip Op 07271, Second Dept 10-10-19

 

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REVIEW POWERS OF A MASTER ARBITRATOR EXPLAINED; HERE THE MASTER ARBITRATOR’S AWARD WAS PROPERLY VACATED AND THE ORIGINAL ARBITRATOR’S AWARD WAS PROPERLY REINSTATED (SECOND DEPT).

The Second Department determined Supreme Court had properly vacated the master arbitrator’s award and reinstated the original arbitrator’s award in this no-fault benefit case. The court explained the authority of a master arbitrator:

A master arbitrator may not review the facts by weighing the evidence, assessing the credibility of witnesses, or making independent findings of fact … . A master arbitrator’s review powers, however, do include reviewing the facts to determine “whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator” … . Here, there is no rational basis for the determination of the master arbitrator that the original arbitrator committed an error of law … . Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 2019 NY Slip Op 07265, Second Dept 10-9-19

 

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REFERENCES TO JUDGMENTS IN A LICENSE APPLICATION SHOULD NOT HAVE BEEN REDACTED IN THE DOCUMENTS PROVIDED BY THE COUNTY CONSUMER AFFAIRS OFFICE IN RESPONSE TO A FOIL REQUEST (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the response of the Nassau County Office for Consumer Affairs to a request for documents relating to licenses held by Home Beyond Center, LLC should not have had the references to judgments redacted:

FOIL requires government agencies to “make available for public inspection and copying all records,” subject to a number of exemptions (Public Officers Law § 87[2]). One such exemption permits an agency to deny access to records that “if disclosed would constitute an unwarranted invasion of personal privacy” … . Public Officers Law § 89(2)(b) provides that “[a]n unwarranted invasion of personal privacy includes, but shall not be limited to” seven specified kinds of disclosure … . Where none of the seven specifications is applicable, a court “must decide whether any invasion of privacy . . . is unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information” … .

Here, the respondent failed to demonstrate that the redactions of information contained in the license application file of Home Beyond Center, LLC, relating to “judgments” should be exempt from disclosure as an “unwarranted invasion of personal privacy” … . Matter of Liang v Nassau County Off. of Consumer Affairs, 2019 NY Slip Op 07251, Second Dept 10-9-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED IN THIS CRANE-ACCIDENT CASE; THE ESPINAL ‘LAUNCHED AN INSTRUMENT OF HARM’ CAUSE OF ACTION AGAINST THE COMPANY WHICH REFURBISHED AND MAINTAINED THE CRANE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted in this crane-accident case. The First Department also held that the negligence action against the company (Hoffman) which refurbished and maintained the crane, based upon the Espinal “launched an instrument of harm” theory, should not have been dismissed:

The collapse of a crane constitutes a prima facie violation of Labor Law § 240(1) … . A plaintiff need not be directly injured by a portion of the crane for the Labor Law to apply — injuries that occur while trying to avoid being struck during a hoisting accident may qualify … . While plaintiff’s testimony at his deposition varied somewhat from his 50-h testimony, he repeatedly cautioned that the accident happened so fast it was difficult for him to describe exactly how it occurred. In any event, no matter which version is accepted, Labor Law § 240(1) applies to the … defendant … .

Hoffman refurbished the subject crane one year before the accident and performed maintenance on it several times thereafter. Although a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third person … , an exception exists where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition so as to have “launched a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002] …). Hoffman failed to adequately address the findings of the independent crane company that conducted the post-accident investigation, which concluded that several maintenance and repair issues contributed to over wear on the crane’s wire ropes … . DeGidio v City of New York, 2019 NY Slip Op 07218, First Dept 10-8-1

 

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PLAINTIFF WAIVED ITS RIGHT TO A JURY TRIAL BY INCLUDING A REQUEST FOR EQUITABLE RELIEF; ONCE WAIVED THE RIGHT CANNOT BE REVIVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had waived its right to a jury trial by including a request for equitable relief and, once waived, the right cannot be revived:

Plaintiff has waived its right to a jury trial. When, as here, the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff’s right to a jury trial … . Plaintiff’s sixth cause of action for a permanent injunction sounds in equity, is not incidental to the remaining claims and as a result of its inclusion, it can no longer be said that money damages would afford a complete remedy … . Furthermore, “[o]nce the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to trial by jury” … . Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07226, First Dept 10-8-19

 

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PLAINTIFFS FELL FROM A LIFT TRUCK WHICH WAS STRUCK BY A BUS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; HEARSAY ALONE WILL NOT DEFEAT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted, noting that hearsay alone will not defeat a summary judgment motion:

Plaintiffs … established prima facie that defendants are liable for their injuries under Labor Law § 240(1) by submitting evidence that they fell to the ground and were injured when the lift truck upon which they were working moved when it was struck by a passing bus … . Moreover, the lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent … . In opposition, defendants failed to raise an issue of fact. They rely instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment … . South v Metropolitan Transp. Auth., 2019 NY Slip Op 07213, First Dept 10-8-19

 

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THE PROHIBITION OF DOUBLE JEOPARDY DID NOT PRECLUDE THE PROSECUTION BASED UPON THE THEFT OF GOLDMAN SACHS SOURCE CODE UNDER A STATE STATUTE AFTER DEFENDANT’S CONVICTION UNDER A FEDERAL STATUTE WAS REVERSED; THE STATE STATUTE INCLUDED AN ELEMENT NOT INCLUDED IN THE FEDERAL STATUTE (FIRST DEPT).

The First Department determined defendant’s prosecution for unlawful use of secret scientific material did not violate the prohibition against double jeopardy. Defendant, while working for Goldman Sachs, had uploaded source code to a server in Germany. He was first charged under a federal statute, the National Stolen Property Act (NSPA). The Second Circuit reversed the NSPA conviction because the source code was deemed “intangible” at the time of the theft (when it was transmitted) and therefore did not meet the definition of “goods” in the federal statute. However, the state statute under which defendant was subsequently prosecuted, unlawful use of secret scientific material, included tangible electronically reproduced material, and the source code reproduced on the German server met that criteria:

Defendant’s argument rests on the claim that the “goods” element of the NSPA, which undisputedly requires that the property transported be “tangible,” is equivalent to the “tangible reproduction” element of New York’s unlawful use statute. That statute provides that “[a] person is guilty of unlawful use of secret scientific material when, with intent to appropriate . . . the use of secret scientific material, and having no right to do so and no reasonable ground to believe that he [or she] has such right, [the person] makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material” (Penal Law § 165.07). * * *

… [T]he Second Circuit did not hold that the source codes were intangible as they existed on the German server. Rather, it held that “at the time of the theft” … — which was the same as the time that the codes were transmitted — the codes were purely intangible. Because the elements are not equivalent, there is no inconsistency between the Second Circuit’s determination that the codes were intangible when transported and this Court’s determination that defendant made a tangible reproduction when he uploaded them to the German server, where they resided within a physical medium. People v Aleynikov, 2019 NY Slip Op 07211, First Dept 10-18-19

 

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THERE WAS NO CONFLICT BETWEEN NEW YORK AND PENNSYLVANIA LAW IN THIS PERSONAL INJURY CASE, THEREFORE NEW YORK LAW APPLIES AND THERE IS NO NEED FOR A CHOICE OF LAW ANALYSIS (FOURTH DEPT).

The Fourth Department determined New York applies in this action stemming from an accident in Pennsylvania:

New York law controls the resolution of its motion and this appeal. “[B]ecause New York is the forum state, i.e., the action was commenced here, New York’s choice-of-law principles govern the outcome of this matter’ ”  … . “The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” … . Here, defendant failed to establish the existence of any conflict between New York and Pennsylvania law with respect to the issues raised in the motion, and therefore we need not engage in any choice of law analysis … . Farnham v MIC Wholesale Ltd, 2019 NY Slip Op 07178, Fourth Dept 10-4-19

 

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