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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

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Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .

In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … .  People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13

 

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Failure to Inform Defendant of People’s Appeal of Trial Court’s Dismissal of His Indictment Required Grant of a Writ of Coram Nobis

On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted.  The Fourth Department wrote:

“It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” … . In addition, “defendants have important interests at stake on a People’s appeal” … . “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing” (id. at 684-685). “Moreover, . . . other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” … . However, due process does not require that a defendant be personally served with the People’s appellate briefs ….  There is no showing on this record that the court upon dismissing the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that the People had the right to take an appeal; that defendant had the right to counsel on the appeal or to appear pro se; and that defendant had the right to assigned counsel on the appeal if he was financially unable to retain counsel … . Nor is there any showing that the People or defense counsel advised defendant of those rights.  People v Forsythe, KA 10-01359, 368, 4th Dept, 4-26-13

 

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Error Relating to Assessment of 10% Surcharge Must Be Preserved by Objection

Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal.  The Fourth Department wrote:

We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court has in the past relied on the illegal sentence exception to the preservation requirement of CPL 470.05 (2) when reviewing that issue …, more recent decisions from the Court of Appeals have established that issues regarding restitution require preservation …. In addition, the Court of Appeals has held that the mandatory surcharge set forth in Penal Law § 60.35
(1) is not part of a sentence ….Those cases compel us to conclude that an issue regarding a surcharge imposed on restitution pursuant to Penal Law § 60.27 (8) must be preserved for our review and that we cannot rely on the illegal sentence exception to the preservation requirement.   People v Kirkland, KA 11-01835, 147, 4th Dept, 4-26-13

 

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Role of Appellate Court in Reviewing an Arbitral Award Which Has Been Confirmed in a Judgment Explained

In a full-fledged opinion by Justice Acosta (with a dissent), the First Department held that payment, by the respondent investment fund, of an arbitral award in stocks as opposed to cash required a hearing to determine the value of the stocks.  The First Department outlined its role where the satisfaction of an arbitral award which has been confirmed in a judgment is before them:

As a threshold matter, we begin by observing that a party may oppose an arbitral award either by motion pursuant to CPLR 7511(a) to vacate or modify the award within 90 days after delivery of the award or by objecting to the award in opposition to an application to confirm the award notwithstanding the expiration of the 90-day period … . Here, respondent did neither. Indeed, it was petitioner who appealed the lower court’s refusal to enforce the judgment. Under such circumstances, contrary to our dissenting colleague, we do not have the authority to grant a non-appealing party relief that it did not seek by vacating a judgment entered against it …. Moreover, we are not empowered to remit the matter to the arbitrator for clarification ….

Where a dispute exists as to the meaning of an arbitration award that has been confirmed in a judgment, it becomes “the Court’s function to determine and declare the meaning and intent of the arbitrator []” …. To that end, a court may review the text of the arbitrator’s award in conjunction with whatever findings, if any, the arbitrator has made …. In so doing, a court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result .. . Furthermore, the award must be interpreted in the light most favorable to the prevailing party … .  Matter of Pine St Assoc, LP v Southridge Partners, LP, 2013 NY Slip Op 02854, 1st Dept, 4-25-13

 

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Restitution Can Not Be Ordered When Not Addressed in Plea Agreement

The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement.  The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 2nd Dept, 4-24-13

 

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Failure to Follow Statutory Procedure Re: Notes Sent Out By Jury Is a “Mode of Proceedings” Error Requiring Reversal

In reversing a conviction because the trial court committed a “mode of proceedings” error (not requiring preservation) by not following the procedure mandated in Criminal Procedure Law 310.30 (re: notes sent out by the jury during deliberations), the Second Department explained:

“Specifically, the Court of Appeals has held that whenever a substantive written jury communication is received by the Judge,’ it should be read into the record in the presence of counsel,’ and that, [a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses'” … . These requirements were not satisfied here.People v Fenton, 2013 NY Slip Op 02761, 2nd Dept, 4-24-13

 

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A Party Can Not Appeal from a Portion of an Order Where the Party Is Not Aggrieved by the Order

The Second Department noted that a party can not appeal from a portion of an order which does not grant relief the party did not request, even where the order includes reasoning with which the party does not agree:

“A party is not aggrieved by an order which does not grant relief [he or she] did not request” … . “Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal'” … . Here, the plaintiffs are not aggrieved by so much of the order as, in denying the … defendants’ motion for summary judgment and reaching a result which was not adverse to the plaintiffs, determined that a prior judgment did not have res judicata or collateral estoppel effect on the motion before it … . Since the plaintiffs are not aggrieved by the portion of the order from which they appeal, their appeal must be dismissed. Spielman v Mehraban, 2013 NY Slip Op 02565, 2011-10855, Index No 19056/10, 2nd Dept, 4-17-13

 

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“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:

The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

 

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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

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