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Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

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Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the “most important” aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant’s trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, CtApp 10-15-13

 

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, CtApp 10-15-13

 

As Long As Work-Related Injury Was A Cause of Death, Death Benefit Must Be Paid—No Apportionment Between Non-Work-Related and Work-Related Causes of Death

In a full-fledged opinion by Judge Read, the Court of Appeals determined death benefits under the Workers’ Compensation Law (section 16) could not be apportioned between work-related and non-work-related causes of death.  As long as the work-related injury or illness is a cause of death, the benefit must be paid.  In a concurring opinion, Judge Pigott agreed that the benefit cannot be apportioned, but concluded the result in this case, where the claimant’s (Hroncich’s) death was primarily related to non-work-related thyroid cancer, should be that no death benefit was available.;

Importantly, there is no language in section 16 to suggest that the Board should apportion death benefits to workrelated and non-work-related causes when fashioning an award. Presumably, if the legislature had wanted this to be the case, it would have said so.  Instead, however, the legislature made employers joint-and-several insurers of their injured employees’ lives, subject to a prescribed schedule of payments.  The death benefit is not about replacing lost wages, but rather compensates for a life lost at least partly because of work-related injury or disease (see e.g. Bill Jacket, L 1990, ch 296 [authorizing $50,000 in death benefits to non-dependent survivors]).  Matter of Hroncich v Con Edison…, 145, CtApp 10-15-13

 

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Law Requiring Approval Before Health Care Facility Withdraws or Transfers Assets Held Valid

In a full-fledged opinion by Judge Lippman, the Court of Appeals reversed the lower courts and found that Public Health Law 2808(5)(c), which requires the Commissioner of Health’s approval before a residential health care facility withdraws or transfers more than three percent of its assets, did not violate substantive due process and did not delegate legislative authority to the Commissioner:

The lower courts, we believe, erred in concluding that the subject statute was offensive to substantive due process. Economic regulation will violate an individual’s substantive due process property interest only in those situations, vanishingly rare in modern jurisprudence, where there is absolutely no reasonable relationship to be perceived between the regulation and the achievement of a legitimate governmental purpose …; the regulation, to be actionable, must be arbitrary in the constitutional sense — which is to say “so outrageously arbitrary as to constitute a gross abuse of governmental authority”  … . * * *

Plaintiffs’ alternative theory for deeming § 2808 (5) (c) unconstitutional — that the provision’s catch-all phrase effects an improper delegation of legislative policy-making power — is not, in our view, more viable than their substantive due process claim.    * * * The enumerated criteria clearly tie the Commissioner’s disposition of an equity withdrawal application to the financial condition of the facility and its quality of care record.  These are highly pertinent and not excessively general criteria and it is reasonably clear, and in any case conceded by defendants, that the catch-all’s immediately subsequent reference to “such other factors” does not authorize application dispositions based on criteria that are generically different.  Brightonian Nursing Home… v Daines…, 161, CtApp 10-15-13

 

Part-time Resident of New York Can Apply for Pistol Permit

In a full-fledged opinion by Judge Pigott, the Court of Appeals answered a certified question from the Second Circuit and determined a person who has a part-time residence in New York State, but who is not domiciled in New York, can apply for a pistol permit in New York (based upon the language of the controlling statute):

Penal Law § 400 (3) (a) states that applications for a license to carry a pistol or revolver “shall be made and renewed . . . to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The applicant’s residence is referred to in the context of delineating the procedure whereby an individual files an application for a license.  The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.).  The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute. Osterweil v Bartlett, 167, CtApp 10-15-13

 

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Plaintiff’s Proof of Reason for Termination of Treatment Was Sufficient to Get By Defendant’s Summary Judgment Motion

Over two dissenters, the Court of Appeals reversed the grant of summary judgment to the defendant with respect to plaintiff’s proof of “serious injury” under the No-Fault Law.  Plaintiff testified that he stopped physical therapy because “they cut [him] off like five months.”  The appellate division held that bare assertion was insufficient to justify the termination of treatment and documentary evidence of the exhaustion of insurance benefits or at least an indication the claimant could not pay for the treatment was required. In reversing, the Court of Appeals wrote:

We stated in Pommells [4 NY3d 566] that a plaintiff claiming “serious injury” within the meaning of the No-Fault Law “must offer some reasonable explanation” for terminating treatment (4 NY3d at 574).  We did not require any particular proof regarding that explanation, although we recognized that there is “abuse of the No-Fault Law in failing to separate ‘serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not”… .

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident.  While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy.  Ramkumar v Grand Style Transportation Enterprises Inc…, 170, CtApp 10-15-13

 

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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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