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Trial Judge’s Participation in Readbacks Not Mode of Proceedings Error

In a full-fledged opinion by Judge Read, the Court of Appeals determined the trial judge’s participation in the readbacks of testimony requested by the jury did not amount to a mode of proceedings error.

…[T]he two jury notes — requests for readbacks of two witnesses’ testimony — were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks.  If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so… . * * *

…[W]e agree with the [2nd] Department that, as a general matter, a trial judge should shun engaging in readbacks of testimony.  In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors.

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety.  “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws,” such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge’s function to a law secretary… . People v Alcide, 143, CtApp 10-10-13

 

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Failure to Exercise Peremptory Challenge Not Ineffective Assistance

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the failure to exercise a peremptory challenge against a juror (Peters) who was a long-time friend of the prosecuting attorney did not amount to ineffective assistance of counsel:

…[D]efendant can prevail on his ineffective assistance claim only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right (see People v Turner, 5 NY3d 476, 478 [2005]).  We held in Turner that this had occurred where a lawyer overlooked “a defense as clear-cut and completely dispositive as a statute of limitations” (id. at 481).  The mistake that defendant accuses defense counsel of making here was not of that magnitude.

It could be argued that counsel’s decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution’s favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge.  We consider those arguments separately.

The first argument is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view.  * * *

The second argument — that counsel erred by failing to preserve the issue of the for-cause challenge for appeal — gives us somewhat more pause.  The trial court’s decision to deny the challenge for cause may have been error … .  Counsel’s choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause “does not constitute reversible error unless the defendant . . . peremptorily challenges such prospective juror.” Considering the poor odds of acquittal that defendant was facing, it is hard to see how keeping a particular juror — no matter how strong defense counsel’s hunch that he would be favorable -could justify the loss of a significant appellate argument.

We conclude, however, that counsel’s mistake, if it was one, was not the sort of “egregious and prejudicial” error that amounts to a deprivation of the constitutional right to counsel… . People v Thompson, 144, CtApp 10-10-13

 

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Employment Discrimination Claim Stated Under the NYC Human Rights Law But Not Under the State Human Rights Law

Over a partial dissent, the Court of Appeals determined that plaintiff’s employment discrimination claim under the state Human Rights Law (HRL) was properly dismissed but that the claim under the city HRL should not have been dismissed.  The city, unlike the state, places the burden on the employer to show that it could not provide reasonable accommodations to allow a disabled employee to work.  The employee essentially asked for an indefinite leave from work based upon severe depression:

In the context of employment discrimination, the term “disability” as defined in the State HRL is “limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292 [21]).  A “reasonable accommodation” means actions taken which permit an employee with a disability to perform in a reasonable manner activities involved in the job, and “do not impose an undue hardship on the business” (Executive Law § 292 [21-e]).  To state a claim under the State HRL, the complaint and supporting documentation must set forth factual allegations sufficient to show that, “upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job” … .  Indefinite leave is not considered a reasonable accommodation under the State HRL … .

Here, neither plaintiff’s communications with his employer just prior to his termination nor the complaint filed one year later offer any indication as to when plaintiff planned to return to work.  Instead, plaintiff informed his employer that he had not expressed any intention to “abandon” his job and that his return to work date was “indeterminate”; the complaint merely alleges that plaintiff sought “a continued leave of absence to allow him to recover and return to work.”  “Indeterminate” means “not definitely or precisely determined or fixed” … .  * * *

The City HRL, on the other hand, affords protections broader than the State HRL  * * *.

Unlike the State HRL, the City HRL’s definition of “disability” does not include “reasonable accommodation” or the ability to perform a job in a reasonable manner.  Rather, the City HRL defines “disability” solely in terms of impairments (Administrative Code of City of NY § 8–102 [16]).  The City HRL requires that an employer “make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job . . . provided that the disability is known or should have been known by the [employer]” (id. at § 8–107 [15] [a]).  Contrary to the State HRL, it is the employer’s burden to prove undue hardship … .  And, the City HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, “satisfy the essential requisites of the job” (Administrative Code 8-107 [15] [b]). Thus, the employer, not the employee, has the “pleading obligation” to prove that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job” … .  Romanello v Intesa Sanpaolo …, 152, CtApp 10-10-13

 

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Evidentiary Issues Not Preserved for Review

In a full-fledged opinion by Judge Rivera, the Court of Appeals affirmed the conviction of a psychiatric patient based on his assault of another patient.  The court determined the doctor, who was cross-examined about defendant’s capacity by defense counsel, could have been questioned by defense counsel about the hearsay basis for her opinion. The failure to do so could not be complained about on appeal. The court also determined an objection to a line of questioning did not preserve the issue of witness-bias for review because defense counsel’s proffer did not specifically mention the exploration of witness-bias as the purpose of the questioning.  People v Daryl H, 154, CtApp 10-10-13

 

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Appellate Division, Acting as Second Appellate Court, Used Wrong Standard of Review

The Court of Appeals reversed the appellate division in a holdover tenant proceeding because the appellate division, acting as the second appellate court, use the wrong standard of review:

We agree with the dissenting opinion that the Appellate Division applied the incorrect standard of review to the Appellate Term order.  In primary residence cases, where the Appellate Division acts as the second appellate court, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” … .The Appellate Division did not apply this standard of review to this case, instead substituting its own view of the trial evidence.  Accordingly, the case needs to be remitted to that court to apply the appropriate standard of review… . 409-411 Sixth Street, LLC v Mogi, 250, CtApp 10-10-13

 

Lab Conducting Blood Tests for Drugs Owed Duty of Care to Plaintiff Whose Blood Was Tested

In a full-fledged opinion by Judge Lippman, over two dissenting opinions, the Court of Appeals held that plaintiff had stated a negligence cause of action against a laboratory (Kroll) which issued a test-result positive for the presence of drugs and initiated a violation of probation proceeding against the plaintiff.  In concluding the laboratory owed a duty of care to the plaintiff, Judge Lippman wrote:

Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, we have recognized that there are certain circumstances where a duty of care is assumed to certain individuals outside the contract … .  As relevant here, such a duty may arise “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm” … .  This principle recognizes that the duty to avoid harm to others is distinct from the contractual duty of performance.  Accepting the allegations of the complaint as true, Kroll did not exercise reasonable care in the testing of plaintiff’s biological sample when it failed to adhere to professionally accepted testing standards and, consequently, released a report finding that plaintiff had tested positive for THC.  The alleged harm to plaintiff was not remote or attenuated. Indeed, it was his own biological specimen that was the sole subject of this testing and he was directly harmed by the positive test result causing the extension of his probation and the necessity of having to defend himself in the attendant court proceedings.

Additionally, there are strong policy-based considerations that counsel in favor of finding that Kroll owed a duty to plaintiff under these circumstances.  Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject.  In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation.  The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that Kroll had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the County does not immunize defendant laboratory.  Landon v Kroll Laboratory Specialists Inc, 142, CtApp 10-10-13

 

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County Law Setting Term Limits for District Attorney Preempted by State Law

The Court of Appeals affirmed the Appellate Division’s ruling that the county law limiting the terms of the district attorney is preempted by state law:

The office of district attorney is plainly subject to comprehensive regulation by state law, leaving the counties without authority to legislate in that respect. In this light, we view the limitation on the length of time a district attorney can hold office to be an improper imposition of an additional qualification for the position … .

Permitting county legislators to impose term limits on the office of district attorney would have the potential to impair the independence of that office because it would empower a local legislative body to effectively end the tenure of an incumbent district attorney whose investigatory or prosecutorial actions were unpopular or contrary to the interests of county legislators. The state has a fundamental and overriding interest in ensuring the integrity and independence of the office of district attorney. Matter of Hoerger v Spota, 237, CtApp 8-22-13

 

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NEWSPAPER ARTICLES ABOUT JUDICIAL PROCEEDINGS ENTITLED TO ABSOLUTE PRIVILEGE (CT APP)

The Court of Appeals determined the newspaper articles about plaintiff and plaintiff’s corporation were entitled to absolute privilege in this defamation action:

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The Appellate Division affirmed … .We now affirm as well.

… [T]he publication must be considered in its entirety when evaluating the defamatory effect of the words”… . … [V]iewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” … . Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74. Alf v Buffalo News, Inc., 2013 NY Slip Op 04843 [21 NY3d 988], CtApp 6-27-13

 

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THOSE WHO WORK ON MUNICIPAL VESSELS ARE ENTITLED TO THE PREVAILING WAGE PURSUANT TO LABOR LAW 220 (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a municipal vessel is public work entitling those who work on a municipal vessel to the prevailing wage pursuant to Labor Law 220:

We hold that a municipal vessel is a public work within the meaning of Labor Law § 220 and article I, § 17 of the State Constitution—so that workers involved in its construction, maintenance or repair must be paid prevailing wages—if the vessel’s primary objective is to benefit the general public. * * *

We …. conclude that a three-prong test should be applied to determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution. First, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public. …

… Plaintiffs worked on such vessels as the Staten Island Ferry boats, city fireboats, and municipal garbage barges. A ferry boat is, of course, made for the use of the general public, as is a bus or train. While we recognize that a fireboat, tug or barge is not made to be used by the public, there is no doubt that its function is to serve the general public. For example, a New York City fireboat is used by firefighters for the … benefit of the entire City’s public. There is no justification for making fine distinctions between vessels according to whether or not members of the public have access to them. We have not differentiated buildings used by public employees according to whether there is public access … . The dispositive question is whether their primary function is to serve the general public. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 2013 NY Slip Op 04842 [21 NY3d 530], CtApp 6-27-13

 

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THE SEARCH WARRANT APPLICATION AND SUPPORTING AFFIDAVIT DID NOT DEMONSTRATE THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, MATTER SENT BACK FOR REVIEW OF THE TRANSCRIPT OF THE CONFIDENTIAL INFORMANT’S STATEMENT MADE BEFORE THE ISSUING MAGISTRATE (CT APP)

The Court of Appeals, over a dissent, determined the motion court should have looked at the transcript of the confidential informant’s statements before the magistrate before ruling on whether the search warrant was supported by probable cause. The application and affidavit did not demonstrate the reliability of the informant:

… Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with … . …

The search warrant and supporting affidavit do not by themselves establish probable cause in this case … . A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” … . There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant … . The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past … , and it is not evident that the informant was under oath when information was given to the officer … .

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause … , “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” … . People v Chisholm, 2013 NY Slip Op 04841 [21 NY3d 990], CtApp 6-27-13

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