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Prohibition Proceeding Was the Proper Vehicle to Contest the Appointment of a Special Prosecutor—the District Attorney Had Disqualified Himself from an Election-Related Investigation and Successfully Applied for the Appointment of a Special Prosecutor

The Court of Appeals determined an Article 78 proceeding sounding in “prohibition” was the appropriate vehicle to contest the appointment of  a special prosecutor. The district attorney sought to disqualify himself from an election-related investigation and successfully applied to the Deputy Chief Administrative Judge for the NYC Courts for an appointment of a special prosecutor.  The petitioner then brought the prohibition proceeding to contest the appointment.  The appellate division dismissed the petition finding the “prohibition” action inappropriate.   The Court of Appeals determined prohibition was the correct action and the special prosecutor was validly appointed:

The Appellate Division denied the petition and dismissed the proceeding. It held that relief by prohibition was unavailable because the conduct that petitioner was seeking to prevent was not “the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice” but rather a “purely investigative function” that was “executive in nature” (Working Families Party v Fisher, 109 AD3d 478, 480 [2d Dept 2013]). * * *

The Appellate Division erred in holding that an article 78 proceeding in the nature of prohibition is an inappropriate remedy in this case. We recently restated the rule that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court” … . While the power to grant prohibition should be exercised sparingly, its availability in cases like this serves an important purpose. When the validity of the appointment of a prosecutor is in question, the question should where possible be given a prompt and definitive answer. It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor. Matter of Working Families Party v Fisher, 2014 NY Slip Op 04116, CtApp 6-10-14

 

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Judge’s Speaking to a Juror During Deliberations, With Defense Counsel’s Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury … . This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30…). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, CtApp 6-10-14

 

In Cases Not Involving Death or Bodily Injury Arising from an Accident, Whether a Notice of Disclaimer is Timely Is Governed by Common Law Waiver and Estoppel Principles, Not by the Provisions of Insurance law 3420

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the requirement that a disclaimer of coverage be made “as soon as reasonably possible after first learning of the … grounds for disclaimer” did not apply in a case involving coverage for the clean up of environmental contamination.  The Court explained that the “as soon as reasonably possible” language comes from Insurance Law 3420 and applies only to coverage for death or bodily injury arising from accidents:

By its plain terms, section 3420 (d) (2) applies only in a particular context: insurance cases involving death and bodily injury claims arising out of a New York accident and brought under a New York liability policy … . “Where, as here, the underlying claim does not arise out of an accident involving bodily injury or death, the notice of disclaimer provisions set forth in Insurance Law § 3420 (d) are inapplicable” … . In such cases, the insurer will not be barred from disclaiming coverage “simply as a result of the passage of time,” and its delay in giving notice of disclaimer should be considered under common-law waiver and/or estoppel principles… . KeySpan Gas E Corp v Munich Reins Am Inc, 2014 NY Slip Op 04113, CtApp 6-10-14

 

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A SORA Assessment in a Child Pornography Case Can Take Into Account Whether the Depicted Children Were Strangers to the Defendant (Factor 3) and the Number of Children Depicted (Factor 7)—-The Standard of Proof for a Defendant’s Application for a Downward Departure from the SORA Guidelines is “A Preponderance of the Evidence”

In a full-fledged, detailed and extensive opinion by Judge Abdus-Salaam, over dissents, the Court of Appeals determined that factors 3 and 7 of an assessment under the Sex Offender Registration Act (SORA) applied to child pornography cases.  Factor 7 allows the assessment of points where the victim of a sex offense is a stranger to the defendant, and factor 3 allows the assessments of points based on the number of victims.  In the context of child pornography, therefore, the images of children the defendant does not know and the number of children depicted in the images, i.e., the number of victims, can be taken into account in determining a defendant's SORA score.  The Court of Appeals also settled a difference among the appellate divisions by setting “a preponderance of the evidence” as the standard for the defendant's evidence submitted in support of a downward departure from the guidelines:

Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce that material, it is difficult to credit defendants' claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should not be accounted for in the manner authorized by the plain language of factors 3 and 7. Although those aggravating factors may not represent the exact same risks in child pornography cases as in those involving physical contact, the presence of those factors in child pornography cases increases the offender's potential to psychologically harm a greater number of children to a greater degree. The guidelines may account for the variable risk that certain child pornography offenders who have an unusually strong compulsion to consume and distribute child pornography will provide exceptional support to an illicit trade that physically and psychologically harms children. People v Gillotti, 2014 NY Slip Op 04117, CtApp 6-10-14

 

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Records of Criminal Proceedings Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Accessed by the Commission on Judicial Misconduct Investigating the Alleged Misconduct of a Judge—The Law Surrounding the Sealing of Criminal Records Explained—Mootness Doctrine Explained

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the Commission on Judicial Conduct is authorized under the Judiciary Law to request records of a criminal matters sealed under Criminal Procedure law 160.50 for use in its investigations.  In the course of the opinion, the court explained why the case before it could not be considered moot (the Court of Appeals can hear only “live”cases). The appellant is an attorney who had been charged, along with a judge, with crimes related to the judge's election campaign.  The Commission sought the sealed records of those criminal proceedings, which had ended in dismissal and acquittal.  The appellant opposed release of the records:

…[A]bsent “extraordinary circumstances” …, a specific grant of power …, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records …, sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and “narrowly defined” in CPL 160.50 (1) (d) … .

Given the Commission's broad powers under the Judiciary Law, specifically its authority under Judiciary Law § 42 (3) to request and receive a wide range of records and data, and its constitutional duties and obligations to ensure the integrity of the judicial system by investigating and sanctioning judicial misconduct, we conclude that the Commission may obtain documents sealed pursuant to CPL 160.50. Continued public confidence in the judiciary is of [*9]singular importance, and can be furthered only by permitting the Commission access to information that allows it to quickly identify and respond to judicial misconduct, including criminal behavior, abuse of power, corruption, and other actions in violation of laws applicable to judges. Matter of New York State Commission on Jud Conduct v Rubenstein, 2014 NY Slip Op 04118, CtApp 6-10-14

 

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In the Absence of an Express Agreement that the Plaintiff Was Entitled to a Commission Upon the Sale of Assets by the Principal, the Agreement Created an Exclusive Agency, which Merely Precluded the Principal from Hiring Another Agent, but Did Not Create, in the Agent, an Exclusive Right to Sell

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, in another case arising from the “toxic debts” crisis, determined that the plaintiff was an exclusive agent for the sale of assets, and was not granted an exclusive right to sell the assets. If plaintiff had been granted an exclusive right to sell, it may have been entitled to a commission when the assets were sold by the principal.  But, since the contract was silent about the plaintiff's right to a commission when the principal sells the assets, plaintiff was granted only an exclusive agency for the sale of the assets and the principal could sell the assets without any obligation to pay a commission to the plaintiff.  The exclusive agency agreement only precluded the principal from hiring another agent:

The distinction between an exclusive agency and an exclusive right to sell is well established in a body of Appellate Division case law … . As stated nearly a century ago, “The general rule is that where an exclusive right of sale is given a broker, the principal cannot make a sale [herself] without becoming liable for the commissions. But where the contract is merely to make the broker the sole agent, the principal may make a sale [herself] without the broker's aid, if such sale is made in good faith and to some purchaser not procured by the broker”… .

Put differently, “[a] broker is entitled to a commission upon the sale of the property by the owner only where the broker has been given the exclusive right to sell; an exclusive agency merely precludes the owner from retaining another broker in the making of the sale” … . We have endorsed this dichotomy implicitly in the past …, and now do so explicitly.

Furthermore, we agree with the case law of the lower courts holding that a contract giving rise to an exclusive right of sale must “clearly and expressly provide[] that a commission is due upon sale by the owner or exclude[] the owner from independently negotiating a sale” … . Requiring an affirmative and unequivocal statement to establish a broker's exclusive right to sell is consistent with the general principle that an owner's freedom to dispose of her own property should not be infringed upon by mere implication. Morpheus Capital Advisors LLC v UBS AG, 2014 NY Slip Op 04112, CtApp 6-10-14

 

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City Employee Blocking Roadway to Facilitate Repairs Was Engaged in a Proprietary, Not a Governmental, Function–Ordinary Rules of Negligence Applied

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the trial court and the appellate division, finding that a city employee was acting in a proprietary, not a governmental, capacity when he told the plaintiff she could proceed on a roadway that he was closing for repairs but did not warn her of the depression in the roadway which caused her to fall.  The question came down to whether the employee was performing a road repair (proprietary) or a traffic control (governmental) function.  Because the employee was deemed to be performing a proprietary function, the ordinary rules of negligence applied to the city:

We recently explained the framework that must be used when a negligence claim is asserted against a municipality in Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). First, a court must decide “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (id. at 425). If the municipality's actions fall on the proprietary side, “it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties”… . A governmental entity undertakes a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” … . “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal question marks and citation omitted]). Generally, “the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector” … . In deciding whether a function is proprietary or governmental, a court examines “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” … .

Historically, the maintenance of roads and highways was performed by both private entities and local governments, with each subject to the ordinary rules of negligence… . Wittorf v City of New York, 2014 NY Slip Op 04037, CtApp 6-5-14

 

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Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration.  Defense counsel's statement “so waived” was deemed adequate to waive prosecution by information.  The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70…). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]…).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” … . We have called this “the prima facie case requirement” (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant … . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense … .

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act … . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]…). People v Dumay, 2014 NY Slip Op 04038, CtApp 6-5-14

 

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Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a “Dangerous Knife” within the Meaning of the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a “dangerous knife:”

The statute does not define the term “dangerous knife.” In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, “connotes a knife which may be characterized as a weapon” (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,”a bayonet, a stiletto, or a dagger” would come within the meaning of “dangerous knife” because those instruments are “primarily intended for use as a weapon” (id. at 592-93).

We also explained that other knives, which are designed and primarily intended for use as “utilitarian utensils,” may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, “the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil” (id. at 593).

A “machete” is generally defined as “a large, heavy knife that is used for cutting plants and as a weapon” (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the “machete”, with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states “circumstances of . . . possession” (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, CtApp 6-5-14

 

Error in Grand Jury Presentation Did Not Raise a Question of Prejudice Sufficient to Justify Dismissal of the Indictment

The Court of Appeals determined the grand jury proceedings were not rendered invalid by the presentation of the videotaped testimony of the child-victim who had not been administered an oath.  After realizing the oath had been omitted, the prosecutor presented the testimony to the grand jury again, this time preceded by the oath.  The Court of Appeals found the defendant had not established the possibility of prejudice:

The People do not dispute that an oath should have been administered to Jane during the first testimonial recording (see e.g. CPL 60.20 [2]; CPL 190.32 [5]…). On these facts, however, the error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings … . The lack of an oath was not the product of a nefarious design to deliberately cause unfairness to defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which Jane swore to be honest and verified the truth of her prior statements. The grand jury then watched the second video and was instructed that the recording was made because Jane had not taken an oath during her first examination. Based on these circumstances, defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment… .  People v Wisdom, 2014 NY Slip Op 04040, CtApp 6-5-14

 

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