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Writing Requirement of Statute of Frauds Met By a Number of Documents Associated With Absentee Bidding at a Public Auction

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the Appellate Division and determined the plaintiff had not failed to comply with the statutory (statute of frauds) requirement of a writing in support of its breach of contract claim.  The defendant, as an absentee bidder at a public auction held by the plaintiff, successfully bid over $400,000 on an item but subsequently refused to pay for it.  The Appellate Division determined that the name of the seller was not in any of the relevant documents and therefore there was no writing which could be enforced.  The Court of Appeals disagreed and held that, because it was clear the plaintiff was acting as the seller’s agent in the bidding process, the absence of the seller’s name from the documents was not fatal to the writing requirement:

…[T]he absentee bidder form, along with the clerking sheet, provide the necessary information to establish the name of Rabizadeh as the buyer.  …

In addition to the buyer’s name, the GOL requires disclosure of “the name of the person on whose account the sale was made”.    * * *

[T]he GOL does not reference the “seller”, making it clear that the seller’s name need not be provided in order to satisfy the requirement of “the name of the person on whose account the sale was made”.

* * * It is well settled that an auctioneer serves as a consignor’s agent … . … Here, the clerking sheet lists Jenack [plaintiff] as the auctioneer, and as such it served as the agent of the seller. The clerking sheet, therefore, provides “the name of the person on whose account the sale was made” and satisfies GOL § 5701(a)(6).    …

It bears repeating in such a case as this that:

‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made’ … .

Using the Statute of Frauds as a “means of evading” a “just obligation” is precisely what Rabizadeh attempts to do here, but the law and the facts foreclose him from doing so.  Rabizadeh took affirmative steps to participate in Jenack’s auction, including executing an absentee bidder form with the required personal information.  He then successfully won the bidding for item 193, closing out other interested bidders, with his $400,000 bid.  He cannot seek to avoid the consequences of his actions by ignoring the existence of a documentary trail leading to him.  Willam J Jenack Estate Appraisers and Auctioneers, Inc v Rabizadeh, 229, CtApp 12-17-13

 

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Language of Collective Bargaining Agreements Entitled Retirees to the Same Health Benefits As Were In Effect at the Time of Retirement

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the language used in successive collective bargaining agreements established a vested right to a continuation of the same health coverage in effect at the time of an employee’s retirement:

We hold that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees’ vested contractual rights.  However, because issues of fact remain as to the intended scope of plaintiffs’ right, remittal for further factual development is required to determine whether the challenged increases in co-pays for prescription drugs amount to a breach of contract. Kolbe… v Tibbetts…, 235, CtApp 12-12-13

 

 

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Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed

In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement.  Defendant had the victim in a headlock during a fight. The victim subsequently died.  A central issue at trial was how long defendant held the victim in a headlock.  One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds.  The People did not call her.  The defense called her and she testified the headlock could have lasted “a minute or so.”  Defense counsel then attempted to refresh her recollection with her prior statement.  The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”

When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony -testimony damaging to the defense, from a defense witness’s own lips — while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, CtApp 12-12-13

 

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Penal Law 70.85, Which Allows Resentencing without a Period of Post-Release Supervision to Remedy a Defective Sentence, Is Constitutional

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined Penal Law 70.85 is constitutional.  Section 70.85 allows the resentencing of a defendant who was not informed about post-release supervision to a sentence that does not include post-release supervision.  The statute was enacted to provide a remedy, other than vacation of the guilty plea, when a plea was entered in the absence of an explanation of the post-release supervision part of the sentence:

By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” … .  A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been “a voluntary and intelligent choice among the alternative courses of action”… . * * *

Mindful of the constitutional rights at issue…, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea.  Defendant’s plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to …challenge.  Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.  People v Pignataro, 213, CtApp 12-12-13

 

Resentencing to a Sentence Technically Different from the Sentence Agreed to in a Plea Bargain Okay—Resentence Comported With Defendant’s Reasonable Expectations

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the defendant was properly resentenced even though the sentence imposed was technically different from the sentence agreed to in the plea bargain.  The defendant had agreed to a sentence of 25 years and five years for the two crimes, with the sentencing court retaining the option to sentence consecutively, which it did.  It turned out that the five-year sentence was illegal (it had to be a minimum of ten). The defendant was resentenced to the two crimes, but this time concurrently.  Effectively, therefore, the defendant’s original sentence was 30 years, but he was resentenced to 25:

“[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .  “The choice rests in the discretion of the sentencing court” and “there is no indicated preference for one course over the other” … .

The sentencing court may have good reason to reject a defendant’s request to withdraw his plea.  Where, as here, years have gone by since the original plea, it may be difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the “then stale indictment[]” … .  Under these circumstances, allowing a defendant to withdraw his plea would give him “more than he was entitled” to under the bargain he struck … .  Thus, the People “can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced” … .

Moreover, specific performance of a plea bargain does not foreclose “technical divergence from the precise terms of the plea agreement” so long as the defendant’s reasonable expectations are met … .  * * *

Thus, if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations.  Again, “the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement”… .  People v Collier, 228, CtApp 12-12-13

 

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

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Hearing Required to Determine If Criminal Investigation of Defense Counsel Affected the Conduct of the Defense (Re: CPL 440.10 Motion to Vacate the Conviction)

The Court of Appeals determined defendant was entitled to a hearing on his motion to vacate his conviction.  Defendant’s attorney was the subject of a criminal investigation by the district attorney’s office during defendant’s trial.  The investigation of the attorney was not related to the charges against the defendant.  Therefore an automatic reversal was not required.  A hearing was necessary to determine if the conduct of the defense was affected by a conflict of interest (the district attorney’s investigation of defendant’s lawyer):

We reject defendant’s request to require automatic reversal anytime the defense attorney is under investigation or being prosecuted by the same district attorney’s office that is trying his client.  Indeed, in People v Konstantinides (14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client’s case.  An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here.  Accordingly, to obtain relief, defendant must demonstrate at a hearing on his 440.10 application that “the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” … .  People v Payton, 232, CtApp 12-12-13

 

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Subpoena Which Could Result In Compelling a New York Reporter to Reveal Her Sources in an Out-of-State Proceeding Should Not Have Been Issued by a New York Court

In a full-fledged opinion by Judge Graffeo, with three dissenting judges, the Court of Appeals reversed the Appellate Division and held that a New York reporter (Winter) could not be subpoenaed to testify in Colorado.  Under Colorado law, it was likely the reporter would have been compelled to reveal her sources for a story about a notebook provided by James Holmes to his psychiatrist.  Holmes was the shooter in a mass shooting in a movie theater in Aurora, Colorado, during a midnight showing of a “Batman” movie.  The court determined that the public policy underlying New York’s Shield Law would be violated if the subpoena were issued and, therefore, issuance of the subpoena was prohibited:

…New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news — and their confidential sources — that has been recognized as the strongest in the nation.  And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.  * * *

It is therefore evident based on the New York Constitution, the Shield Law and our precedent that a New York court could not compel Winter to reveal the identity of the sources that supplied information to her in relation to her online news article about Holmes’ notebook.  Holmes does not argue otherwise but relies on our decision in Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (supra, 82 NY2d 521) for the proposition that, when New York functions as the “sending state” in relation to a CPL 640.10(2) application, issues concerning testimonial privilege — including the applicability of the absolute privilege afforded by the Shield Law — simply cannot be considered by a New York court.  …

CPL 640.10(2) is New York’s codification of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, which has been adopted by all 50 states. * * *

We … conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy — a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world.  Matter of Holmes v Winter, 245, CtApp 12-10-13

 

Determination Town Justice Should Be Removed from Office Sustained

The Court of Appeals, over a dissent, sustained the State Commission on Judicial Conduct’s finding of misconduct and the determination the non-lawyer town court justice should be removed from office. The essence of the alleged misconduct was that the judge presided over matters involving his friends and relatives without disclosing the relationships. With respect to the judge’s presiding over a traffic-ticket proceeding (seatbelt violation) against a long-time friend and business associate (Johnson), the court wrote:

Although the charge against Johnson was relatively minor, petitioner’s decision to hear a case involving a friend and former employer without even disclosing the existence of the personal relationship to the District Attorney was, under the circumstances presented here, no small matter.  The Rules Governing Judicial Conduct direct that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR § 100.3[E][1]).  A judge’s perception of the nature or seriousness of the subject matter of the litigation has no bearing on the duty to recuse or disclose a relationship with a litigant or attorney when necessary to avoid the appearance of bias or favoritism.  Indeed, although petitioner denies giving Johnson preferential treatment, he does not defend his decision to sit on the case and acknowledges in his brief that he made the “wrong choice.”  Matter of George, 249, CtApp 12-10-13

 

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“Evidentiary Fact” Resolved In Favor of Defendant by a Jury In the First Trial May Not Be Contradicted by Evidence Presented in the Second Trial

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined the doctrine of collateral estoppel prohibited the introduction of evidence a firearm was displayed in the course of a robbery.  In the first trial, the defendant was acquitted of First Degree Robbery (which requires display of a firearm) and convicted of Second Degree Robbery (display of a weapon is not an element of Second Degree Robbery). The conviction was reversed on appeal.  In the second trial (for Second Degree Robbery only), the People presented evidence a weapon was displayed.  The court found the People were collaterally estopped from presenting evidence of the display of a weapon in the second trial:

This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that “the doctrine of collateral estoppel can be applied to issues of ‘evidentiary’ fact.”  As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered “ultimate” facts; other facts are only “evidentiary” (id. at 480 n 1).  Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant’s favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury’s finding.  People v O’Toole, 233, CtApp 12-10-13

 

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