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Error to Deny Missing Witness Jury Instruction on Ground Such Testimony Would Be Cumulative—Only Testimony of a Party’s Own Witnesses Can Be Deemed Cumulative, Not, as Here, the Testimony of the Opposing Party’s Witnesses

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

 

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A Sex Offender Cannot Be Confined to a Treatment Facility as Part of “Strict and Intensive Supervision” under Article 10

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

 

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“Something” Stuck in Victim’s Back Is Legally Sufficient Evidence of Displayed Firearm

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

 

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A Factually Inconsistent Verdict Did Not Render the Evidence Insufficient to Support the Conviction

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

 

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Court’s Refusal to Give the Circumstantial Evidence Jury Instruction Required Reversal—No Direct Evidence Defendant Was Aware of Cocaine Hidden in Vehicle

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

 

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CPLR 5015 Power to Vacate a Final Judgment after Reversal of a Companion Case Is Discretionary

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

 

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Department of Homeless Services’ New Eligibility Procedure Triggered the Notice and Hearing Requirements of the City Administrative Procedure Act

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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Hotel Room Occupancy Tax On Online Hotel Reservations Okay

The Court of Appeals, in a full-fledged opinion by Judge Rivera, held that a New York City hotel room occupancy tax (Local Law 43), applicable to online travel companies through which customers make hotel reservations, was constitutional (reversing the Appellate Division):

Online travel companies like the plaintiffs have successfully reshaped the way people book travel.  Now, a customer can conveniently and efficiently search the plaintiffs’ websites for a hotel room and reserve it with the click of a button.  While it may no longer seem novel to reserve a hotel room online, this innovation revamped the industry, and the industry players have reaped considerable profits.  However, this innovation has not changed the main purpose of a hotel reservation process: selecting and paying for a room for future occupancy.  Local Law 43 adheres to its enabling purpose, the taxation of hotel occupancy rent and charges, by taxing everything a hotel occupant actually pays for occupancy when booking online. * * *

Local Law 43 is not unconstitutional because the State Legislature granted the City broad authority to impose a tax on hotel occupants, and Local Law 43 taxes only payments for the occupancy of a hotel room.  Expedia Inc … v City of New York Department of Finance…, 180, CtApp 11-21-13

 

Depraved Indifference Murder Convictions Stemming from Outrageously Reckless Driving While Intoxicated Upheld

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the unusually egregious circumstances of the three cases before them, all resulting in convictions for depraved indifference murder stemming from outrageously reckless driving while intoxicated, supported the depraved-indifference-murder verdicts.  Because of the fact-specific nature of the analysis, the relevant facts of one of the three cases are provided here:

When viewed in the light most favorable to the People, there was legally sufficient evidence to support Heidgen’s convictions for depraved indifference murder.  The jury could have determined that defendant was unhappy and self-destructive. Defendant’s friends who observed him at the party thought that he was intoxicated but not so intoxicated that he was incoherent, unsteady on his feet or slurring his speech.  Heidgen drove the wrong way on the highway for over two miles without reacting to other drivers coming at him, car horns, or wrong way signage. Perhaps most significantly, more than one witness testified that defendant appeared to follow, or track, the headlights of oncoming vehicles.  In addition, the toxicologist testified that defendant’s blood alcohol level would have caused delayed reaction time, but that it would not have rendered him incapable of reacting at all.  Based on this evidence, the jury could have found that, despite defendant’s intoxication, he perceived his surroundings.  The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior.   One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer.  People v Heidgen…, 174, 175, 176, CtApp 11-21-13

 

Good Time Credit Should Be Deducted From the Two-Year Sentence Cap Imposed Under Penal Law 70.30 (2) (b), Not from the Longer Aggregate Term to Which the Two-Year Statutory Cap Was Applied

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that where aggregate one-year consecutive sentences are capped at 2 years pursuant to Penal Law section 70.30 (2) (b), jail time and good time credits should be applied to the two-year period, not the longer aggregate term on which the two-year cap was imposed:

Having determined that Penal Law § 70.30 (2) (b) imposes a two-year aggregate term of imprisonment, we turn to whether this two-year aggregate term may be reduced by jail time and good time credit a prisoner has earned while incarcerated.  Penal Law § 70.30 (3) (b) and (4) (b) provide that, where a prisoner is serving consecutive definite sentences, jail time and good time credit must be applied against the prisoner’s aggregate term of imprisonment (see Penal Law § 70.30 [3] [b]; [4] [b] [emphasis added]), although good time credit may not exceed one third of that aggregate term (see id. at [4] [b]; Correction Law § 804 [1]).

Considering these directives together with section 70.30 (2) (b), it follows that, in cases where the two-year limit on consecutive definite sentences applies, jail time and good time credit must be applied against the two-year aggregate term rather than the aggregate term imposed by the sentencing court. Under such circumstances, correctional authorities should calculate the time to be served under the sentences by reducing the two-year aggregate term by the available jail time credit and any good time credit that does not exceed 243 days (or one-third of the two-year aggregate term) (see Penal Law § 70.30 [3] [b]; [4] [b]).  People ex rel Ryan… v Cheverko…, 183, CtApp 11-21-13

 

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