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PLAINTIFF DID NOT HAVE STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION PURSUANT TO SEQRA RE THE PROPOSED SEWER DISTRICT; PLAINTIFF’S ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 AND WAS THEREFORE TIME-BARRED; PLAINTIFF DID NOT HAVE A FIRST AMENDMENT RIGHT TO A RESPONSE TO HIS COMPLAINT TO THE TOWN RE THE SEWER DISTRICT (THIRD DEPT).

The Third Department determined plaintiff did not have standing to contest the negative declaration issued by the town under the State Environmental Quality Review Act (SEQRA) because the sewer construction approved by the town was 15 miles from plaintiff’s property. The Third Department further found that plaintiff’s actions should have been brought as an Article 78 and therefore was time-barred, and his First Amendment arguments, alleging the town should have responded to his “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” were meritless:

Plaintiff does not have standing to raise the SEQRA claims. “In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and] [t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds” … .Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of — and approximately 15 miles away from — the sewer district. Moreover, plaintiff’s status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district … . …

Plaintiff’s SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply … . * * *

… [T]he First Amendment does not “guarantee[] a citizen’s right to receive a government response to or official consideration of a petition for redress of grievances” … . Schulz v Town Bd. of the Town of Queensbury, 2019 NY Slip Op 07667, Third Dept 10-24-19

 

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THE SECOND TRIAL VIOLATED THE DOUBLE JEOPARDY PROHIBITION; THE FIRST TRIAL COULD HAVE CONTINUED WITH ELEVEN JURORS AFTER A JUROR WAS DISQUALIFIED DURING DELIBERATIONS (SECOND DEPT).

The Second Department, after the second trial was finished, determined that the second trial violated the double jeopardy prohibition. In the first trial, a juror talked to an attorney about the evidence and, during deliberations, told the other jurors what the attorney said. That juror was disqualified. The People moved for a mistrial. The defendant opposed and was willing to proceed with eleven jurors. The judge declared a mistrial:

When a mistrial is declared without the consent of or over the objection of a defendant, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . …

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the Supreme Court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated 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 … . 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, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety … . Accordingly, there was an insufficient basis in the record for the declaration of a mistrial, and thus, a retrial was precluded. People v Smith, 2019 NY Slip Op 07622, Second Dept 10-23-19

 

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CONDITION OF PAROLE THAT PETITIONER NEVER ENTER QUEENS COUNTY WITH NO PROVISION FOR OBTAINING PERMISSION TO TRAVEL THERE VIOLATED PETITIONER’S RIGHT TO TRAVEL AND RIGHT TO ASSOCIATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the condition of petitioner’s post release supervision prohibiting him from entering Queens County (where the assault victim resides), without any option to travel there with permission, violated petitioner’s right to travel and right to associate and was arbitrary and capricious:

Release conditions that implicate certain fundamental rights, such as the right to travel and the right to associate, have been held permissible as long as “reasonably related” to a petitioner’s criminal history and future chances of recidivism … .

The special condition, as noted, provides, “I will not leave New York City . . . [including Queens] without written permission from my parole officer (including work purposes). I understand that I am not to travel under any circumstances to the borough of Queens.” Barring petitioner from the entire county of Queens under all circumstances, without any clear right to seek, or ability to obtain, a waiver from respondents, is a categorical ban impinging upon his rights to travel and association, and, for this reason alone, the travel restriction must be vacated as arbitrary and capricious, as it is not “reasonably related” to petitioner’s criminal history and future chances of recidivism … .

Accordingly, we remand this matter for respondents to issue a new travel restriction. The restriction must be clear and “reasonably related” to petitioner’s criminal history and future chance of recidivism … . Unlike the vacated restriction, the new restriction should specify that any travel restrictions are subject to case-by-case exceptions for legitimate reasons, which petitioner may request from his parole officer. Matter of Cobb v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 07480, First Dept 10-17-19

 

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A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT).

The Third Department, resolving a question of first impression, determined that a Superior Court Information (SCI) is jurisdictionally defective if it charges a joinable offense which is greater in degree than the offense for which the defendant was held for the action of the grand jury. The jurisdictional question survives the guilty plea, the failure to preserve and the waiver of appeal:

… [T]he constitutional waiver provision makes no reference to joinable offenses, providing only that prosecution by an SCI is limited to an offense or offenses for which a person is ‘held for the action of a grand jury upon a charge for such an offense’ (NY Const, art I, § 6 … ). A literal interpretation of the phrase ‘any offense or offenses properly joinable therewith’ in CPL 195.20 would permit the circumvention of this constitutional imperative by the simple expedient of permitting the inclusion of joinable offenses in a higher degree or grade that were never charged in a felony complaint. Such a statutory interpretation is inconsistent with and undermines the protections provided in NY Constitution, article I, § 6. It is well settled ‘that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution’ … , and that “courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” … .

Applying these principles, we conclude that a joinable offense may not be included in a waiver of indictment and SCI unless that offense, or a lesser included offense, was charged in a felony complaint and the defendant was therefore held for the action of a grand jury upon that charge … . People v Coss, 2019 NY Slip Op 07445, Third Dept 10-17-19

 

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STAY IMPOSED BY A SOUTH CAROLINA COURT AS PART OF THE LIQUIDATION OF A SOUTH CAROLINA MEDICAL MALPRACTICE INSURANCE CARRIER WAS NOT ENTITLED TO FULL FAITH AND CREDIT IN A NEW YORK ACTION AGAINST DEFENDANTS INSURED BY THE INSOLVENT CARRIER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, determined that the stay imposed by a South Carolina court after the medical malpractice carrier, Oceanus, was declared insolvent and dissolved was not entitled to full faith and credit in the New York actions against parties insured by Oceanus. Oceanus was not a party to the New York actions, and due process trumped the Uniform Insurers Liquidation Act (UILA). The opinion is comprehensive and the reasoning cannot be fairly summarized here:

Notwithstanding the goals of the UILA, for the reasons set forth herein, the principles of due process and the right of the plaintiffs to seek redress in the courts in New York for wrongs they allege occurred in New York mandate that the South Carolina order is not entitled to full faith and credit or comity by the courts in New York in this and the related actions. Hala v Orange Regional Med. Ctr., 2019 NY Slip Op 07387, Second Dept 10-16-19

 

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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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ALLOWING AN UNSWORN WITNESS TO TESTIFY WAS ERROR; ALLOWING QUESTIONING ABOUT A WITNESS’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE DEPRIVED DEFENDANT OF A FAIR TRIAL; FIFTH AMENDMENT ISSUES CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; 710.30 NOTICE NOT REQUIRED FOR A STATEMENT NOT SUBJECT TO SUPPRESSION; NEW TRIAL ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the interest of justice. The court noted Criminal Procedure Law 710.30 does not apply to statements made voluntarily in a noncoercive, noncustodial setting. Therefore the failure to timely notify the defense of the defendant’s admission to the murder made to a confidential informant was not an error. Based upon the trial judge’s characterization of the defendant at sentencing, the new trial will be before a different judge:

Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness …, which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath. …

… .[T]he prejudice to the defendant arose from (1) the prosecutor’s posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell’s refusal to testify, and (3) the court’s jury instructions that the jury may draw an inference of the defendant’s guilt from Mitchell’s refusal to testify. …

“Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” … . “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . People v Ward, 2019 NY Slip Op 06419, Second Dept 8-28-19

 

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EMERGENCY PHYSICIAN ERRONEOUSLY PRONOUNCED PLAINTIFF’S DECEDENT DEAD AND ALLEGEDLY REFUSED TO REEXAMINE HIM FOR NEARLY THREE HOURS, DESPITE THE PLEAS OF HIS FAMILY MEMBERS WHO ALLEGEDLY SAW HIM BREATHING, MAKING EYE CONTACT AND MOVING; SUPREME COURT SHOULD NOT HAVE PROHIBITED THE PARTIES FROM MAKING STATEMENTS ABOUT THE FACTS OF THE CASE; THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court should not have prohibited the parties and their attorneys from making statements about the underlying facts in this medical malpractice action, and the negligent infliction of emotional distress (NIED) cause of action should have been dismissed. Plaintiff’s decedent suffered cardiac arrest and was pronounced dead by an emergency physician (Perry). However plaintiff’s decedent was not in fact dead and the emergency physician allegedly refused to examine plaintiff’s decedent for nearly three hours. Plaintiff’s decedent subsequently died after surgery at another hospital:

Perry notified plaintiff that decedent had died, and plaintiff, along with decedent’s son and several other family members, was brought into the code room. Plaintiff alleges that, for the next two hours and 40 minutes, decedent was breathing, making eye contact, and moving around, which prompted her and the coroner to urge Perry and the nursing staff to examine decedent, but they refused to do so. When Perry examined decedent at 11:10 p.m. at plaintiff’s insistence, he observed that decedent was, in fact, alive. Decedent was transferred to another hospital, where he underwent heart surgery and subsequently died. * * *

Supreme Court erred in granting defendants’ motions for an order enjoining and prohibiting the parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. Although defendants met their burden of “demonstrat[ing] that such statements present a reasonable likelihood’ of a serious threat to [defendants’] right to a fair trial” … , there is no evidence in the record “that less restrictive alternatives would not be just as effective in assuring the defendant[s] a fair trial” … . Absent “the requisite showing of a necessity for such restraints,” a court may not impose prior restraints on First Amendment rights … . * * *

We agree with defendants … that the court erred in denying their motions insofar as they sought summary judgment dismissing the … causes of action … for NIED … . . “A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred’ … when the mental injury is a direct, rather than a consequential, result of the breach’ … and when the claim possesses some guarantee of genuineness’ … .  Here, defendants met their respective burdens of establishing as a matter of law that plaintiff and decedent’s son did not suffer mental and emotional injuries causally related to Perry’s erroneous pronouncement of decedent’s death, and plaintiff failed to raise a triable issue of fact by demonstrating the requisite ” guarantee of genuineness’ ” with respect to her claims of mental or emotional injuries … . Cleveland v Gregory C. Perry, M.D., FDR Med. Servs., P.C., 2019 NY Slip Op 06306, Fourth Dept 8-22-19

 

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THE NYC ADMINISTRATIVE RULES PLACING CERTAIN RESTRICTIONS ON EXPRESSIVE MATTER VENDORS IN CITY PARKS ARE VALID AND ENFORCEABLE (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Kapnick, determined that the restrictions placed on expressive matter vendors’ (EMV’s) use of public parks were valid and enforceable. “Expressive matter is defined as ‘materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment’ …”.

… DPR [NYC Department of Parks and Recreation] published proposed revisions to the rules applicable to EMVs. It held a public hearing, and based on comments at the hearing as well as written comments, revised the proposed rules. … Under the revised EMV Rules, while EMVs may sell in almost all City parks if they comply with certain requirements, they are restricted in Union Square Park, Battery Park, High Line Park, and portions of Central Park below 86th Street, where they may only sell their items, on a first-come, first-serve basis, in certain designated areas, and only one vendor is allowed to sell at each spot. The EMVs may always sell in the nonenumerated areas, including other City parks and sidewalks.  * * *

I. The EMV Rules do not conflict with the City Council’s legislative intent, as expressed in Local Law No. 33 of 1982. * * *

II. The EMV Rules do not violate vendors’ rights under the New York Constitution. * * *

III. Defendants are entitled to summary judgment dismissing the discrimination claims under the State and City Human Rights Law. * * *

IV. Supreme Court erred in granting plaintiffs leave to amend to add a separation of powers claim. * * * Dua v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 06154, First Dept 8-20-19

 

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BRIEF PARTICIPATION IN JURY DELIBERATIONS BY AN ALTERNATE WHILE A SWORN JUROR WAS ABSENT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A JURY OF 12, DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for a mistrial should have been granted after the judge learned that an alternate juror had participated in the jury deliberations while a sworn juror was absent. The trial judge denied the mistrial motion after receiving assurances from all the sworn jurors that they could start the deliberations over:

After an undefined period of time, it became apparent to the Supreme Court that an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the 12th sworn juror was absent from the jury room. The court then replaced the alternate juror with the 12th sworn juror and sent the jury back to deliberate before breaking for the day. * * *

“The New York Constitution guarantees every criminal defendant a trial by jury,” which includes the right to a jury of 12 … . “A defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice” … . “At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . The violation of a defendant’s right to a jury trial of 12 is a “fundamental defect[ ] in judicial proceedings” … .

CPL 310.10(1) provides, inter alia, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict.” Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either (1) with the consent of the defendant and the People, discharge the alternate jurors, or (2) direct the alternate jurors not to discuss the case and further direct that they be kept separate and apart from the regular jurors. Once deliberations begin, a regular juror may be replaced by an alternate juror only with the defendant’s written consent (see CPL 270.35). “[F]ailure to comply with the statutory requirement of written, signed consent results in substitution of an alternate juror during deliberations without an effective, constitutional waiver. Such substitution directly contravenes [People v] Ryan and infringes the defendant’s fundamental, constitutional right to trial by a jury of 12” … . People v Larman, 2019 NY Slip Op 06097, Second Dept 8-7-19

 

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