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Misrepresentations About Expunged Drug-Related Offenses on Student’s Law School Admission Application Supported the Rescinding of the Student’s Admission After Completion of Three Semesters

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined a law school did not act arbitrarily and capriciously when it determined a student had made misrepresentations about (expunged) criminal offenses in his admission-application and rescinded his admission after three semesters of study:

Courts have a “restricted role” in reviewing determinations of colleges and universities … . A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules … or imposes a penalty so excessive that it shocks one’s sense of fairness … . None of those factors is present here.

The law school’s treatment of [the student] was rational insofar as it was not wholly inconsistent with the school’s approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed – -the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students’ admission was rescinded.

The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if [the student] had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing – – the former can be accepted under certain circumstances, but the latter are not. Matter of Powers v St. John’s Univ. Sch. of Law, 2015 NY Slip Op 02799, CtApp 4-2-15

 

 

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Ex Parte Interview of Important Prosecution Witness Re: the Witness’ Health, Addictions and Ability to Testify Violated Defendants’ Right to Confrontation and Right to Counsel

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court’s conducting an ex parte interview of a main prosecution witness concerning the witness’ health, addictions and his related ability to testify violated the defendants’ right to confrontation and right to counsel:

Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see … People v Goggins, 34 NY2d 163, 173 [1974]). “[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel” (Goggins, 34 NY2d at 169). A “defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the ‘neutral’ Judge to assess whether the disclosure is relevant or material” (id.). Goggins concerned a defendant’s right to disclosure of an informant’s identity, and this Court held that where the information “relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera” (id. at 173). * * *

The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis … . Courts should not delve into questions of prejudice when assistance of counsel is involved … . As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” … . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive …, as harmless error does not apply in right-to-counsel cases … .

Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a “substantial right” of a party, defense counsels’ presence was required… . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15

 

Slip and Fall On Ice While Wearing Stilts Not an Elevation-Related Event within Meaning of Labor Law 240 (1)

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined that a slip and fall caused by ice on the floor was not an elevation-related event within the meaning of Labor 240(1), despite the fact the worker was using stilts when he slipped and fell:

… [T]he protections of Labor Law § 240 (1) “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity” … . “Rather, liability [remains] contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . Moreover, section 240 (1) is not applicable unless the plaintiff’s injuries result from the elevation-related risk and the inadequacy of the safety device … . * * *

Here, plaintiff’s accident was plainly caused by a separate hazard — ice — unrelated to any elevation risk. Plaintiff testified that stilts were the appropriate device for the type of work that he was undertaking, given the height of this particular ceiling. Plaintiff’s testimony further established that it was the ice — not a deficiency or inadequacy of the stilts — that caused his fall. Nicometi v Vineyards of Fredonia, LLC, 2015 NY Slip Op 02801 CtApp 4-2-15

 

Work on Billboard Was “Alteration” within Meaning of Labor Law 240 (1) and “Construction” within Meaning of Labor Law 241 (6)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that plaintiff, who fell putting up advertisement on a billboard, was engaged in covered activities pursuant to Labor Law 240 (1) (alteration), 240 (2) (no guardrail) and 241 (6) (construction):

[W]e conclude that plaintiff was engaged in work that constitutes an alteration within the meaning of the statute. In reaching this determination we apply the definition the Court adopted in Joblon, that the term “altering” in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure” (Joblon, 91 NY2d at 465). This definition excludes “routine maintenance” and “decorative modifications” (id.). Whether a physical change is significant depends on its effect on the physical structure. Thus, the Court held that the plaintiff in Joblon who was injured when he fell off a ladder while in the process of chiseling a hole through a concrete block wall so that he could run electrical wires from one room to another to install a wall clock was engaged in “altering” under section 240 (1). As the Court held, extending the wiring and chiseling a hole through the concrete constituted a significant change and entailed “more than a simple, routine activity” (id. at 465-66).

Here, plaintiff’s job was to install a new advertisement. In order to do so he and the other members of the construction crew had to attach extensions that changed the dimensions of the billboard’s frame and transformed the shape of the billboard to accommodate the advertisement’s artwork. Plaintiff was injured when in furtherance of this task he fell while assisting the other crew members with the removal of the old vinyl advertisement from the billboard’s side panels. The vinyl removal was a prerequisite to the attachment of the extensions and therefore an integral part of the installation of the extensions. We have little difficulty concluding that the plaintiff’s work entails a significant change to the billboard structure because once the vinyl is removed, the billboard is enlarged by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails.  Saint v Syracuse Supply Co., 2015 NY Slip Op 02802, CtApp 4-2-15

 

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Appellate Division Should Have Allowed Respondent to Answer Petition After Dismissal of the Petition Was Reversed by the Appellate Division

The Court of Appeals determined the Appellate Division erred when it did not remand an Article 78 proceeding to Supreme Court to allow the respondent university (NYU) to submit an answer to the petition.  The petition was brought by a dental student seeking redress after she was expelled.  Supreme Court dismissed the petition.  The Appellate Division reversed:

The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804 (f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, “the court shall permit the respondent to answer, upon such terms as may be just” … . We have indicated, however, that a court need not do so if the “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … . Since “the motion papers” in BOCES “clearly did not establish that there were no triable issues of fact,” we held that “the procedure dictated by CPLR 7804 (subd [f]) should have been followed” … . For the same reason, NYU should be permitted to answer in this case.

A student subject to disciplinary action at a private educational institution is not entitled to the “full panoply of due process rights” … . Such an institution need only ensure that its published rules are “substantially observed” … . And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Matter of Kickertz v New York Univ., 2015 NY Slip Op 02800, CtApp 4-2-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

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Moratorium on Fracking Did Not Extend Oil and Gas Leases Beyond the Primary Five-Year Term

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a “force majeur” clause in oil and gas leases was not triggered by the moratorium on fracking in New York and, therefore, the five-year primary term of the leases was not extended by the moratorium:

Each of the leases contains an identical term clause, also known as a habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases. Specifically, the leases’ habendum clause provides:

“It is agreed that this lease shall remain in force for a primary term of FIVE (5) years from the date hereof and as long thereafter as the said land is operated by Lessee in the production of oil or gas.”

Under this provision, the interests conveyed by the leases exist for a five-year “primary term,” followed by an open secondary term so long as the land is operated by the lessee in the production of oil or gas.

Each lease also contains what the parties refer to as a “force majeure clause.” Generally, a force majeure event is an event beyond the control of the parties that prevents performance under a contract and may excuse nonperformance … . The force majeure clause here provides:

“If and when drilling or other operations hereunder are delayed or interrupted by lack of water, labor or material, or by fire, storm, flood, war, rebellion, riot, strike, differences with workmen, or failure of carriers to transport or furnish facilities for transportation, or as a result of some order, rule, regulation, requisition or necessity of the government, or as a result of any other cause whatsoever beyond the control of Lessee, the time of such delay or interruption shall not be counted against Lessee, anything in this lease to the contrary notwithstanding. All express or implied covenants of this lease shall be subject to all Federal and State laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor Lessee held liable in damages for failure to comply therewith, if compliance is prevented by, or if such failure is the result of any such Law, Order, Rule or Regulation.” * * *

…[W]e hold that the force majeure clause does not modify the primary term of the habendum clause and, therefore, does not extend the leases. The habendum clause in the leases does not incorporate the force majeure clause by reference or contain any language expressly subjecting it to other lease terms … . Moreover, the language in the force majeure clause stating that “the time of such delay or interruption shall not be counted against Lessee” does not refer to the habendum clause with specificity. Thus, the habendum clause is not expressly modified or enlarged by the force majeure clause. Beardslee v Inflection Energy, LLC, 2015 NY Slip Op 02677, CtApp 3-31-15

 

Non-Resident Attorneys Must Maintain a Physical Office in New York State to Practice in New York

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the requirement that, in order to practice in New York, non-resident attorneys maintain a physical office in New York State is constitutional:

Here, the statute appears to presuppose a residency requirement for the practice of law in New York State. It then makes an exception, by allowing nonresident attorneys to practice law if they keep an “office for the transaction of law business” in this State. By its plain terms, then, the statute requires nonresident attorneys practicing in New York to maintain a physical law office here. Schoenefeld v State of New York, 2015 NY Slip Op 02674, CtApp 3-31-15

 

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Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant’s right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant’s testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:

…[T]he federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]…). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” … and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” … . Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial—-‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” … . “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” … .

But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” … . Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” … may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a ” proper limiting instruction[]’ “… . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15

 

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Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

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