The Court of Appeals determined the accusatory instrument charging attempted criminal possession of a controlled substance was sufficient. The police officer observed defendant drop a glass pipe which contained cocaine “residue.” The court noted that “possession of a controlled substance ‘may be proven circumstantially,’ and ‘possession suffices to permit the inference that possessors know what they possess.’ ” People v Jennings, 256, CtApp 12-10-13
The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action. Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003. The Workers’ Compensation Board found that plaintiff’s disability from the accident ceased as of January, 2006. In the related negligence action, the defendant sought to limit plaintiff’s proof of disability to the period prior to January, 2006. The court held “that there is no identity of issue and that collateral estoppel therefore should not be applied:”
…[D]efendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action. We have observed that the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” … . The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages … . We have observed that the term “disability,” as used in the Workers’ Compensation Law, “generally refers to inability to work” … . In addition, the Board uses the term “disability” in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury … . The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment.
By contrast, a negligence action is much broader in scope. It is intended to make an injured party whole for the enduring consequences of his or her injury — including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime. Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical. Auqui v Seven Thirty One Limited Partnership, 212, CtApp 12-10-13
In a full-fledged opinion by Judge Read, the Court of Appeals determined the Appellate Division correctly held the tenant was obligated to pay an annual rent in advance and the proof was insufficient to demonstrate any contrary oral modification of the lease. The Court explained the “rent paid in advance” concept and the criteria for oral modification in the face of a clause prohibiting it:
Under the common law, rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period (…1 Friedman & Randolph, Friedman on Leases § 5:1.1 [5th ed 2013]). This presumption may be altered, however, by the express terms of the parties’ lease such that rent is to be paid at the beginning of the rental period rather than the end (…1 Robert Dolan, Rasch’s Landlord and Tenant § 12:23 [4th ed 1998]; 1 Friedman & Randolph § 5:1.1). When a lease sets a due date for rent, that date is the date on which the tenant’s debt accrues (see 1 Friedman & Randolph § 5:1.1… ). Rent paid “in advance” (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise … * * *
When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is “determinative,” although the conduct of both parties may be relevant … . This is because the equity doctrine is designed to prevent a party from inducing full or partial performance from another and then claiming the sanctuary of the Statute of Frauds or section 15-301 when suit is brought … . Eujoy Realty Corp v Van Wagner Communications LLC, 179, CtApp 11-26-13
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court erred in refusing to grant the plaintiff’s request for a missing witness jury instruction. Plaintiff claimed to have been injured in a motor vehicle accident. Questions were raised about whether plaintiff’s injuries were caused by the accident. The defense failed to call any of the doctors hired by the defense to examine plaintiff. The plaintiff’s request for the missing witness charge was denied on the ground the defense-doctors’ testimony would be merely cumulative. The Court of Appeals ruled that testimony can be deemed cumulative only with respect to a party’s own witnesses, not with respect to witnesses under the opposing party’s control:
The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the [3rd] Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (id. at 92), noting that to hold “otherwise would lead to an anomalous result. Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge” (id.). Accordingly, our holding is that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.
In short, a witness’s testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’s testimony. Because the record indicates that the latter was Supreme Court’s rationale in this case, Supreme Court erred in denying plaintiff’s request for a missing witness charge. De Vito v Feliciano, 195, CtApp 11-26-13
The Court of Appeals, in a full-fledged opinion by Judge Rivera (over a dissent), determined that, pursuant to Article 10 of the Mental Hygiene Law, a sex offender could either be confined or placed under strict and intensive supervision (SIST), not both. Here the hearing court determined the People did not meet their burden demonstrating the offender (Nelson D) should be confined, but included confinement in a treatment facility (Valley Ridge) as part of strict and intensive supervision:
We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10. We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily proscribed procedures mandated for confinement under article 10. Matter the State of New York v Nelson D, 194, CtApp 11-26-13
In a full-fledged opinion by Judge Read (over a dissent), the Court of Appeals affirmed the first-degree robbery convictions of two co-defendants. The Court determined evidence of “something” stuck into the victim’s back was legally sufficient evidence of a displayed firearm, and a show-up identification procedure (two hours after and five miles away from the robbery) was correctly found to be reasonable by the lower courts (generally an unreviewable mixed question of law and fact for the Court of Appeals). People v Howard…, 189, 190, CtApp 11-26-13
In a full-fledged opinion by Judge Lippman (over a dissent), the Court of Appeals determined a factual inconsistency in a jury verdict acquitting a defendant of one count and convicting him of another did not render the record evidence insufficient to support the conviction. The defendant was charged with insurance fraud and arson. The prosecution’s theory was the defendant burned a building down to recover the insurance proceeds. The jury convicted the defendant of insurance fraud and acquitted him of arson. In explaining the difference between a factually inconsistent verdict and a verdict not supported by legally sufficient evidence, the Court of Appeals wrote:
A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count … . Factual inconsistency “which can be attributed to mistake, confusion, compromise or mercy – does not provide a reviewing court with the power to overturn a verdict” … . If a jury renders a factually inconsistent verdict, the trial court “can point out the apparent inconsistency to the jurors, issue further appropriate instructions and ask them to continue deliberations. But a failure to take such action would not be an abuse of discretion as a matter of law” … .
In contrast, a conviction not supported by legally sufficient evidence should be overturned. A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … .
Factual inconsistency and legal insufficiency are analytically distinct. One may inform the other – i.e., in some instances, a reviewing court may consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence … . But it does not follow that such factual inconsistency in the verdict renders the record evidence legally insufficient to support the conviction. Put another way, an acquittal is not a preclusive finding of any fact, in the same trial, that could have underlain the jury’s determination.
Therefore, even assuming, as submitted by the defendant, that the jury’s verdict in this case presented a factual inconsistency, it does not affect the propriety of his conviction. People v Abraham, 192, CtApp 11-26-13
The Court of Appeals reversed defendant’s conviction determining the trial court erred when it refused to charge the jury on circumstantial evidence. The case was based upon the constructive possession of a brick of cocaine found in a hidden compartment in a vehicle. Defendant was not the owner of the vehicle, was not driving the vehicle, and was not the target of police surveillance:
It is well established that a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence” … . Constructive possession can be proven directly or circumstantially, and the necessity of a circumstantial evidence charge should be resolved on a case-by-case basis. In this case, the proof connecting defendant to the drugs was wholly circumstantial. Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine… . People v Santiago, 204, CtApp 11-26-13
The Court of Appeals, in a full-fledged opinion by Judge Pigott (with a dissent), determined that Supreme Court had the discretion to vacate a final $4.4 million judgment against Port Authority based upon the subsequent Court of Appeals reversal of a companion case (Ruiz) holding Port Authority immune from lawsuits stemming from the 1993 bombing of the World Trade Center. Supreme Court had vacated the judgment, but appeared to do so under the assumption the vacation was mandated by statute (CPLR 5015). The Court of Appeals sent the matter back to Supreme Court, explaining that the court had the power to exercise its discretion:
Although a court determination from which an appeal has not been taken should “remain inviolate,” that rule applies “[a]bsent the sort of circumstances mentioned in CPLR 5015” …. Moreover, as Professor Siegel has observed, “[i]f a judgment for which preclusive effect is sought is itself based on an earlier judgment . . ., and the earlier one has been vacated or reversed or otherwise undone, it is of course divested of its finality and the remedy to cancel the second judgment is a motion to vacate it on the ground of the undoing of the first” (Siegel, NY Prac § 444 at 776 [5th ed 2011] [emphasis supplied], citing CPLR 5015 [a] [5]). Subdivision 5 of section 5015 (a) is applicable where the reversed, modified or vacated judgment or order is the basis for a later judgment – not where it merely compelled the result as a matter of collateral estoppel or stare decisis, but where it was actually entered in the same lawsuit as, and led directly to, the later judgment. Thus, section 5015 (a) (5) applies in a case like this one where a joint trial on liability results in a single order entered in two cases, and where, after a separate trial on damages in one of the cases, that order is reversed on appeal. * * *
Here, Supreme Court’s only finding was that this Court’s decision in Ruiz “eviscerate[d] any judgment, holding or finding of tortious liability on behalf of the Port Authority,” and therefore “require[d]” Supreme Court to find the Port Authority insulated from tortious liability pursuant to CPLR 5015 (a) (5). It also appeared to believe that once the Port Authority had demonstrated that the Ruiz holding reversed the earlier liability determination to which Nash was a party, Supreme Court had no choice but to grant the Port Authority’s vacatur motion. That was error. Nash v Port Authority, 238, CtApp 11-26-13
The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that the NYC Department of Homeless Services’ (DHS’s) adoption of a new Eligibility Procedure for temporary housing assistance triggered the notice and hearing requirements of the City Administrative Procedure Act (CAPA). The failure to comply with the act prohibited implementation of the new rules. In explaining that the Eligibility Procedure met the definition of a rule or regulation, the Court wrote:
DHS argues that the Eligibility Procedure is not a rule because DHS workers exercise some measure of discretion in resolving certain issues relevant to eligibility, such as whether an applicant has provided adequate cooperation during the need assessment process. But the procedure itself is mandatory — all intake workers must follow it, regardless of the circumstances presented by an individual applicant — and many of the standards articulated in it are mandatory in the sense that their application will dictate whether an individual will or will not receive benefits. For example, applicants are required to produce documentation pertaining to prior housing, financial resources and mental or physical impairment (which may necessitate the signing of a medical release) and if they fail to do so without a valid reason (mental or physical impairment), this “constitutes a failure to cooperate” mandating denial of benefits. Similarly, the procedure specifies that a single adult who has $2,000 of on-hand assets “must utilize his/her resources to reduce or eliminate his/her need for emergency shelter” prior to being eligible for benefits. Another section directs that “if an applicant has tenancy rights at any housing option, that residence will be deemed the viable housing option and the applicant will be found ineligible, provided there is no imminent threat to health or safety.” These concrete provisions substantially curtail, if not eliminate, an intake worker’s discretion to grant THA (temporary housing assistance) benefits. In fact, there are several specific directives in the Eligibility Procedure that appear to compel intake workers to deny benefits based on the presence or absence of a single factor, regardless of other circumstances that might support a determination of eligibility. The procedure, which is itself mandatory, requires the application of standards that are dispositive of the outcome. Matter of the Council of the City of New York v The Department of Homeless Services of the City of New York, 193, CtApp 11-26-13
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