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NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

…[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13

 

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Expired Fire Fighters’ Collective Bargaining Agreement Was Not “In Effect” Pursuant to Statute With Respect to Fire Fighters’ Mandated Contributions to Pension Plan

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a collective bargaining agreement entered into by the City of Yonkers Fire Fighters was not “in effect” within the meaning of Article 22 of the Retirement and Social Security Law.  For some purposes, the Retirement and Social Security Law deems a collective bargaining agreement to remain “in effect” after it has expired, until another agreement is reached.  If the collective bargaining agreement had been deemed to be “in effect” in this case, the firefighters would not have been required to contribute to their pensions, a requirement that was imposed only after the collective bargaining agreement expired.  Matter of City of Yonkers v Yonkers Fire Fighters …, 48, CtApp, 4-2-13

 

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Discharge of Defense Attorney Was Abuse of Discretion; Issue Survives Guilty Plea 

The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea.  In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:

Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny.  People v Griffin, 46. CtApp, 4-2-13

 

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Defendant’s Understanding Guilty Plea Would Result In Only a Year and a Half More in Prison Required Vacation of Plea

At the time defendant pled guilty to conspiracy, his 6-12 year sentence was to run concurrently with previously imposed 41/2 to 9 sentences (for class B felonies) and his understanding was that his minimum time in prison would be extended by only a year and a half.  Subsequently the B-felony convictions were reduced to three years under the Drug Law Reform Act.  The defendant then moved to vacate the conspiracy sentence and conviction but the motion was denied.  The Court of Appeals reversed and wrote:

Defendant’s plea to the conspiracy count was induced by the judge’s specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only. It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance. Generally, “when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court” … .  People v Monroe, 41, CtApp 4-2-13

 

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Signing Checks Pursuant to a Power of Attorney Cannot Amount to Forgery 

The Court of Appeals, in a full-fledged opinion by Judge Read, affirmed the appellate division’s reversal of 40 “criminal possession of a forged instrument” convictions that were based upon the defendant’s [Ippolito’s]  signing checks using only the principal’s name without indicating he was signing pursuant to a power of attorney [POA]:

Here, the POA (until revoked) vested Ippolito with unlimited power to sign Katherine M. L.’s name on written instruments. As a result, the checks cannot have been forgeries … .[“[A] person does not ‘falsely make’ an instrument when he is authorized to execute it”]). Put another way, where the ostensible maker or drawer of a written instrument is a real person, a signature is not forged unless unauthorized (see Penal Law § 170.00 [4]). Since Ippolito was empowered to sign Katherine M. L.’s name at the times when he drew or endorsed the 40 checks at issue on this appeal, the People’s proof was legally insufficient to convict him of [criminal possession of a forged instrument]. People v Ippolito, 32, CtApp, 4-2-13

 

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Opposition to Additur or Remittitur After First Trial Can Not Be Appealed After Second Trial

In a full-fledged opinion by Judge Smith, the Court of Appeals dealt with several issues in a multi-million dollar medical malpractice suit that had already gone through two trials.  One of the issues was whether opposition to additur or remittitur with respect to the verdict in an intitial trial must be raised on appeal before retrying the case.  In holding that the issue is not appealable after a second trial, the Court of Appeals wrote:

The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate … . In no such case, as far as we are aware, has the appellant’s claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.  *  *  *

We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party’s remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.  Oakes … v Patel, 51, CtApp, 4-2-13

 

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Internet Tax Held Constitutional

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the Internet Tax (Tax Law 1101(b)(8)(vi) was constitutional on its face and did not violate either the Commerce Clause or the Due Process Clause.  The plaintiffs in the action, Overstock.com and Amazon.com, sued the New York State Department of Taxation and Finance.  The activities found to be legitimately taxable in New York were described by the Court as follows:

Amazon offers an “Associates Program” through which third parties agree to place links on their own websites that, when clicked, direct users to Amazon’s website. The Associates are compensated on a commission basis. They receive a percentage of the revenue from sales generated when a customer clicks on the Associate’s link and completes a purchase from the Amazon site. The operating agreement governing this arrangement states that the Associates are independent contractors and that there is no employment relationship between the parties. Thousands of entities enrolled in the Associates Program have provided a New York address in connection with their applications.

Plaintiff Overstock.com is a Delaware corporation with its principal place of business in Utah. Overstock likewise sells its merchandise solely through the Internet and does not maintain any office, employees or property in New York. Similar to Amazon, Overstock had an “Affiliates” program through which third parties would place links for Overstock.com on their own websites. When a customer clicked on the link, he or she was immediately directed to Overstock.com, and if the customer completed a purchase, the Affiliate received a commission. According to the parties’ Master Agreement, the Affliates were independent contractors without the authority to obligate or bind Overstock.

Judge Smith dissented and would have found the statute unconstitutional under the Commerce Clause.  Overstock.com, et al, v NYS Department of Taxation and Finance, et al, 33, CtApp 3-28-13

 

 

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District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety—A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request was denied and the denial was affirmed on appeal to County Court.  The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed, finding the District Attorney’s Office’s involvement in the case created the appearance of impropriety:

Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety – the appearance that the District Attorney’s Office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney’s office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship – a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney’s office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney’s office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney’s office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.  People v Adams, 47, CtApp 3-28-13

 

 

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Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error—Failure to Object at Trial Precludes Review

n a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine was created to remedy overcharging by the prosecution where kidnapping was really part of another, less serious, offense.  Here the defendant argued the kidnapping charge, which was based on his briefly restraining a woman while threatening to shoot her, merged with the related reckless endangerment charge.  Because the alleged error was not preserved in the trial court by an objection, the issue before the Court of Appeal was whether the error should be deemed a “mode of proceedings” error which would allow the Court to hear the appeal, despite the lack of preservation.  The Court wrote:

In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court … …. Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant’s failure to assert the claim in Supreme Court precludes review by our Court … . People v Hanley, 45, CtApp 3-28-13

 

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Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

 

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