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Failure to Comply with Statutory Procedure Re: Jury Note Was Not “Mode of Proceedings” Error​

The Court of Appeals determined the trial court’s failure to comply precisely with the requirements of CPL 310.30, and the trial court’s having a court officer tell the jury they could not have a written copy of the jury instructions, did not constitute mode of proceedings errors.  The Court wrote:

We are not persuaded by defendant’s argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama (78 NY2d 270 [1991]; CPL 310.30). Where, as here, defense counsel had notice of a jury note and “failed to object . . . when the error could have been cured,” lack of preservation bars the claim … .

Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial and defense counsel consented to the procedure … . People v Williams, No 112, CtApp, 5-30-13

 

No Error in Using Interpreter Who Was Acquainted With Complainants​

In a full-fledged opinion by Judge Pigott (with a dissent by Judge Rivera), the Court of Appeals determined the denial of defense counsel’s request to replace a state-employed court interpreter because he was acquainted with the complainants was not an abuse of discretion:

The interpreter complied with his ethical obligation by notifying the court that he was a friend of complainant husband. Upon receiving that information, the court questioned the interpreter as to whether he (1) knew the facts of the case, and (2) would be uncomfortable translating for complainant wife. Having received a negative answer to both questions, the trial court allowed defense counsel to question the interpreter. Satisfied that its questioning and that of defense counsel uncovered no bias on the part of the interpreter, the court properly exercised its discretion in not removing him.  People v Lee, No 111, CtApp, 5-30-13

 

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Absent Defendant Did Not Receive Effective Assistance of Counsel​

The Court of Appeals held that a defendant who was absent from his trial received ineffective assistance of counsel:

It is well established that a defendant may not, by his absence alone, “waive his right to effective assistance of counsel” …. Although a defendant’s willful absence from trial surely hampers an attorney’s ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant’s cooperation with his attorney in formulating a defense before absconding, there was a “reasonable basis for an active defense” ….  People v Diggins, No 96, CtApp, 5-30-13

 

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Defense Attorney’s Conflict of Interest Amounted to Ineffective Assistance

The Court of Appeals reversed the Appellate Division and granted defendant’s writ of coram nobis finding a conflict of interest on the part of defendant’s counsel, of which defendant was never made aware, amounted ineffective assistance.  Defendant’s appellate counsel had represented a co-defendant, Martin, who testified against the defendant at his trial.  During sentencing of Martin, counsel argued for leniency based upon his testifying against the defendant.  In appealing defendant’s conviction, counsel argued Martin was a liar and his testimony should be ignored.  The Court of Appeals wrote:

It is undisputed that appellate counsel represented defendant and his codefendant simultaneously, that appellate counsel argued at Martin’s sentencing hearing for leniency based on Martin’s trial testimony adverse to the defendant, and that defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin. Under these circumstances, an actual unwaived conflict existed.

An attorney may not simultaneously represent a criminal defendant and a codefendant or prosecution witness whose interests actually conflict unless the conflict is validly waived …. Simultaneous representation of two clients with conflicting interests means the lawyer “cannot give either client undivided loyalty” …. Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it ….  People v Prescott, No 80, CtApp, 5-7-13

 

Superior Court Information Not Jurisdictionally Defective Because Different Victims Named

In reversing the Appellate Division, the Court of Appeals determined a Superior Court Information (SCI) was not jurisdictionally defective because it named victims not identified in the felony complaint.  The defendant-respondent was charged with grand larceny based on his use of two persons’ identities to procure mortgages to purchase two properties.  Those “identity theft” victims were named in the felony complaint. The victims named in the SCI, however, were the two banks which issued the mortgages. The Appellate Division held the SCI was jurisdictionally defective because it didn’t name the same victims as the felony complaint. The Court of Appeals, in an opinion by Judge Lippman, held the defect was not jurisdictional because it was clear the felony complaint and SCI charged the same offenses:

Here, the offense to which defendant pleaded guilty is the same offense for which he was charged in the felony complaint, and adding the names of the victims in the SCI did not render the offense a different one. Though the felony complaint did not name the banks that provided the loans, the complaint identified the specific properties in Queens and Brooklyn on which defendant took out mortgages in Hector Sandoval’s name. … There was nothing inappropriate about adding the names of the victims as it did not change the offense alleged. … [T]here was no factual discrepancy between the felony complaint and the second SCI; the crimes were simply portrayed from a different perspective.  People v Milton, No 75, CtApp, 5-7-13

 

Pre-Deliberations Note from Juror Did Not Raise Question Whether Juror Was “Grossly Unqualified;” No Hearing Necessary

The Court of Appeals, over a substantial dissent by Judge Lippman, determined that a note from a juror to the judge, prior to deliberations, did not raise the question whether the juror was “grossly unqualified” and therefore did not trigger the need for an in camera interview of the juror pursuant to People v Buford, 69 NY2d 290.  The note used the term “we” and raised the inference the jurors were engaging in premature deliberations about the need for additional evidence.  The Court of Appeals wrote:

Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “‘possess[] a state of mind which would prevent the rendering of an impartial verdict'” …. Such scenarios include, but are not limited to, a juror’s bias against a particular race …, a juror’s intimate relationship with a prosecution witness …, or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background ….

Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. …People v Mejias and Rodriguez, Nos 67, 68, CtApp 5-7-13

 

 

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Daily Incidents of Molestation, Spanning Years, Constituted “Separate Occurrences” Triggering a Deductible for Each Policy-Period

The main issue in this case was whether nearly daily incidents of sexual molestation of a minor by a priest in the Roman Catholic Diocese of Brooklyn, spanning six years, should be considered a single “occurrence” or separate “occurrences” within the meaning of the relevant insurance policies.  If considered separate occurrences, then the deductible for each policy-period in which each occurrence was deemed to have taken place would apply. If considered a single occurrence, then only one deductible would apply for all the policy-periods.  The Court of Appeals, in an opinion by Judge Rivera, determined the on-going sexual molestation should be considered separate occurrences for each policy-period, triggering multiple deductibles.  The Court of Appeals also found that the raising of the “separate occurrences” argument by the insurance company was not a disclaimer and therefore was not subject to the timeliness requirement for disclaimers in the Insurance Law. There was a concurring opinion by Judge Smith and a “concurring in part and dissenting in part” opinion by Judge Graffeo. Roman Catholic Diocese of Brooklyn v National Union Fire Insurance Company …, No 69, CtApp 5-7-13

 

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Normal Negligence Theories Apply to Injury Resulting from Animal Wandering Off (Cow Struck By Car)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that the line of strict liability “knowledge-of-an-animal’s-vicious-propensities” cases did not apply to this case, where a cow was negligently allowed to wander off, causing injury to the plaintiff who struck the cow with her car.  In a case like this, normal negligence theories apply:

[Here the claim] … is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard — that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 NY3d at 599) — in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.  We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal — i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7) — is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.  Hastings v Sauve, et al, No 78, CtApp, 5-2-13

 

Normal Behavior of Horse (Jerking Head Back) Not Actionable​

The Court of Appeals affirmed the appellate division’s ruling that the plaintiff could not recover for injury to her hand resulting from a horse’s jerking its head back when plaintiff was holding the halter.  The Court of Appeals wrote:

Under the rule of Bard v Jahnke, (6 NY3d 592, 596-597 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s “vicious propensity” or “propensity to do any act that might endanger the safety of the persons and property of others” …. No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of “behavior that is normal or typical for the particular type of animal in question” … .  Bloomer v Shauger, No 79, CtApp, 5-2-13

 

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Prepayment Service Agreement Does Not Constitute a Debt that is Subject to a Restraining Notice Pursuant to CPLR 5222 (b)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that “an at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, [does not] constitute[] a property interest or debt subject to a CPLR 5222 (b) restraining notice:”

The Appellate Division here affirmed the Supreme Court’s findings of fact, which are supported by the record (see Karger, Powers of the New York Court of Appeals § 13:10, at 489 [3d ed. rev.][facts affirmed by the Appellate Division with evidentiary support are “conclusive and binding on the Court”]). The affirmed findings established that [defendant] prepaid for its service, and as such, there was no debt past due or yet to become due under the definition of CPLR 5201 (a). The only remaining issue is whether [defendant’s] oral agreement with GNAPs [a telephone switch service agreement which defendant decided weekly whether to continue] is an attachable property interest subject to restraint.  …[B]ecause [defendant] prepaid for services to be provided by GNAPs on a week-to-week basis, without any commitment or promise for additional services, or any assurance of a continued purchase of services, [defendant] neither owed any debt to, nor possessed any property of, GNAPs that could be subject to a restraint notice. Similarly, because [defendant’s] payments to GNAPs constitute neither a debt nor a present or future property interest, CPLR 5201 (a) and (b) are not applicable.  Verizon…v Transcom…, No 70, CtApp, 5-2-13

 

 

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