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THE JUDGE’S PROVIDING A RACE-NEUTRAL REASON FOR THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR, WHILE THE PROSECUTOR REMAINED SILENT, WAS REVERSIBLE ERROR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the judge’s providing a race-neutral reason for the People’s peremptory challenge of a juror, while the prosecutor remained silent, was reversible error:

Here, it is undisputed that defendant established a prima facie case of discrimination with respect to the prosecution’s exercise of a peremptory challenge against K.S., an African-American female, and that the burden then shifted to the prosecution to provide a race-neutral basis for its peremptory strike. The People failed to do so entirely … . Rather, the court stepped in to provide an explanation, speculating that the prosecution had gotten a “bad vibe” from K.S. regarding whether her prior jury service resulted in an acquittal. The prosecution remained silent. The court nevertheless ruled that the prosecution had “given a legitimate race neutral reason” for the strike.

This serious departure from the Batson framework was an error of the highest order. When the court supplied a race-neutral reason for the peremptory strike, it failed to hold the prosecution to its burden and instead, effectively became an advocate for the prosecution, thus abandoning its Batson-specific duty to “consider the prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in light of the arguments of the parties” … . It is the nonmovant’s expressed explanation for its peremptory challenge—and whether such explanation is mere pretext for a race-based motive—not simply whether a race-neutral reason could theoretically exist—which is the focus of the Batson framework at steps two and three … . The court’s speculation as to the prosecution’s basis for the strike was irrelevant and deprived defendant of any meaningful way to demonstrate pretext in the face of the prosecution’s silence. People v Estwick, 2024 NY Slip Op 02768, CtApp 5-21-24

Practice Point: It is the prosecutor’s actual reason for a peremptory challenge which is required under Batson, not the theoretical existence of a race-neutral reason. Therefore the Batson procedure is violated where, as here, the judge steps in to provide a reason while the prosecutor remains silent.

 

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THE SEARCH OF A SMALL EARBUD CASE IN DEFENDANT-PAROLEE’S POCKET WAS NOT REASONABLY RELATED TO THE CLAIMED PURPOSE OF THE PAROLE OFFICERS’ PRESENCE IN DEFENDANT’S RESIDENCE, I.E., A SEARCH FOR A PAROLE ABSONDER; THE HEROIN FOUND IN THE EARBUD CASE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, determined the search of defendant-parolee’s person by a parole officer was not rationally and reasonably related to the parole officers’ duty. The parole officers claimed they entered defendant’s residence to look for a parole absconder. The search of a small earbud case found inside defendant’s pocket, which turned up heroin, was not reasonably related to the claimed purpose of the parole officers’ presence:

… [T]he People failed to meet their burden to establish that the search of defendant’s pocket was substantially related to the performance of the parole officers’ duties in the particular circumstances presented, i.e., the search of defendant’s residence for a parole absconder. Nor did the People present any evidence at the hearing that circumstances that developed after the parole officers arrived at defendant’s residence rendered the search of his pocket substantially related to the performance of their duties. On this record, the parole officer had no reason to continue the brief pat-down search of the exterior of defendant’s person by searching his pocket and investigating the contents of an earbud case. People v Lively, 2024 NY Slip Op 02767, CtApp 5-21-24

Practice Point: Here the parole officers claimed to be in defendant-parolee’s residence to search for a parole absconder. Therefore the search of a small earbud case found in defendant-parolee’s pocket was not reasonably related to the parole officers’ duties and the drugs found in the case should have been suppressed.

 

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THE SEARCH OF DEFENDANT-PAROLEE’S RESIDENCE WAS “RATIONALLY AND REASONABLY RELATED TO THE PERFORMANCE OF THE PAROLE OFFICER’S DUTY” AND THEREFORE DENIAL OF THE MOTION TO SUPPRESS THE WEAPON FOUND IN THE RESIDENCE WAS PROPER (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the search of defendant-parolee’s residence after a tip from defendant’s mother about defendant’s possession of a firearm was “rationally and reasonably related to the performance of the parole officer’s duty:”

As a condition of his parole, defendant agreed not to “own, possess, or purchase” any firearm without permission from his parole officer. Defendant was given “the most severe” mental health designation from the Department of Corrections and Community Supervision, OMH Level 1-S, indicating there were “serious” concerns regarding his mental health. Shortly after defendant’s release to parole, his parole officer received information from his supervisor that defendant’s mother contacted the parole office to inform them that she saw a photograph of defendant with a firearm, and gave the parole officers permission to search the residence that she shared with defendant … . Acting on this information, defendant’s parole officer, with the assistance of other officers, conducted a search of defendant’s home and recovered an AR-15 style rifle and two thirty-round extended magazines with extra gun parts from defendant’s bedroom.

Based on the foregoing, there is record support for the lower courts’ conclusion … that the search of defendant’s residence by defendant’s parole officer was “rationally and reasonably related to the performance of the parole officer’s duty” and so defendant’s motion to suppress this evidence was properly denied … . The Aguilar-Spinelli test … for evaluating whether a tip provides police with probable cause for a search or seizure does not apply in these circumstances … . People v Spirito, 2024 NY Slip Op 02766, Fourth Dept 5-21-24

Practice Point: The criteria for a search of a parolee’s residence by a parole officer is not subject to the same constitutional restraints as are searches by the police. Here a tip from defendant’s mother about her son’s possession of a weapon was sufficient to justify the parole-officer search.

 

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THE POLICE MAY STOP A VEHICLE IN THE EXERCISE OF THE “COMMUNITY CARETAKING” FUNCTION IF THERE IS CAUSE TO BELIEVE SOMEONE IN THE VEHICLE NEEDS ASSISTANCE; THE QUICK OPENING AND CLOSING OF A PASSENGER DOOR WAS NOT ENOUGH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurrence, recognized that a vehicle may be stopped by the police exercising the “community caretaking” function if the police have cause to believe someone in the vehicle needs assistance. Here defendant’s car was stopped after the passenger door opened and closed quickly. The defendant driver was arrested after admitting he possessed ecstasy. The Court of Appels, after describing the criteria for a “community caretaking” vehicle stop, found that the quick opening and closing of the passenger door was not enough to conclude an occupant needed help:

We conclude that the police may stop an automobile in an exercise of their community caretaking function if two criteria exist. First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution. People v Brown, 2024 NY Slip Op 02765, CtApp 5-21-24

Practice Point: The police may stop a vehicle if there is cause to believe someone in the vehicle needs assistance. Here the quick opening and closing of a passenger door was not enough to justify the stop.

 

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THE “RELIGIOUS EMPLOYER” EXEMPTION FROM MANDATED INSURANCE COVERAGE FOR MEDICALLY NECESSARY ABORTIONS DOES NOT VIOLATE THE FREE EXERCISE CLAUSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the US Supreme Court ruling in Fulton v Philadelphia, 593 US 522 (2021) did not render the “religious employer” exemption to the mandated insurance coverage for medically necessary abortions unconstitutional. The opinion is too detailed and comprehensive to fairly summarize here:

Plaintiffs, the Roman Catholic Diocese of Albany and a variety of entities ranging from churches to religiously affiliated organizations to a single individual, provide medical insurance plans to their employees. They have challenged a regulation promulgated by the Department of Financial Services as violative of the First Amendment of the United States Constitution. The challenged regulation requires New York employer health insurance policies that provide hospital, surgical, or medical expense coverage to include coverage for medically necessary abortion services (see 11 NYCRR 52.16 [o] [1]). Their challenge is to the regulation’s exemption for “religious employers,” which is defined by four factors (see 11 NYCRR 52.2 [y]). Plaintiffs’ claim, in essence, is that the exemption is too narrow, such that the First Amendment rights of certain types of religiously affiliated employers are violated because they do not meet the terms of the exemption. * * *

Under Fulton, both the regulation itself and the criteria delineating a “religious employer” for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for “individualized exemptions” that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct. Roman Catholic Diocese of Albany v Vullo, 2024 NY Slip Op 02764, CtApp 5-21-24

Practice Point: The 2021 US Supreme Court ruling in Fulton v Philadelphia did not render the “religious exemption” regulation promulgated by the NYS Department of Financial Services unconstitutional. The regulation exempts certain religious employers from mandated insurance coverage for medically necessary abortions.

 

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THE DETECTIVE’S TESTIMONY AT THE SUPPRESSION HEARING THAT THE VEHICLE WAS PULLED OVER BECAUSE OF “EXCESSIVELY TINTED WINDOWS” WAS NOT SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR THE STOP; SUPPRESSION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the police officer’s testimony at the suppression hearing the vehicle in which defendant was a passenger was stopped based on “excessively tinted window” was not sufficient to demonstrate probable cause for the vehicle stop. Therefore the drugs seized from the defendant should have been suppressed:

Vehicle and Traffic Law § 375 (12-a) (b) generally provides that “[n]o person shall operate any motor vehicle upon any public highway, road[,] or street” with windows which have a light transmittance of less than 70%. * * *

When a defendant challenges “the sufficiency of the factual predicate for the stop,” it is the People’s burden “to come forward with evidence sufficient to establish that the stop was lawful” … . “Summary statements that the police had arrived at a conclusion that sufficient cause existed will not do” … . * * *

… Detective Fortunato’s testimony that the tint was “excessive” is … a legal conclusion that the tint violated the Vehicle and Traffic Law. Yet, the People failed to elicit any factual basis for this conclusion. The detective did not testify, for example, that the windows were so dark that he could not see into the vehicle … or that he had training and experience in identifying illegally tinted windows or conducting this type of stop … . Nor did the detective testify that he measured the tint after stopping the vehicle and the results confirmed that the tint level violated the Vehicle and Traffic Law, which could have provided objective, corroborative evidence of the reasonableness of his conclusion … . People v Nektalov, 2024 NY Slip Op 02725, CtApp 5-16-24

Practice Point: To demonstrate probable cause for a vehicle stop based upon “excessively tinted windows” there must be some demonstration the tint violated the Vehicle and Traffic Law (less that 70% light transmittance). Simply testifying the windows were “excessively tinted” is not enough.

 

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AN UNAMBIGUOUS CONTRACT PROVISION CONSTITUTES “DOCUMENTARY EVIDENCE” WHICH WILL SUPPORT A MOTION TO DISMISS PURSUANT TO CPLR 3211 (CT APP).

The Court of Appeals determined the provision of the contract which prohibited plaintiffs from bringing a breach of contract suit was unambiguous. An unambiguous contract constitutes “documentary evidence” which supports a motion to dismiss:

On a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), dismissal is warranted only if the documentary evidence conclusively establishes a defense as a matter of law … . A motion to dismiss based on a written agreement that contains a material ambiguity must be denied because such an agreement does not conclusively establish the asserted defense as a matter of law … . Ambiguity exists if the agreement, “read as a whole, fails to disclose its purpose and the parties’ intent . . ., or when specific language is ‘susceptible of two reasonable interpretations’ ” … . On the other hand, the agreement is unambiguous and should be enforced on its plain terms “if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception . . ., and concerning which there is no reasonable basis for a difference of opinion’ ” … .

Contrary to plaintiffs’ contention, Section 8.05 unambiguously bars them from commencing an action on their own behalf to enforce their third-party beneficiary rights under the Agreement. Section 8.05 negates any right of the Holders except as “expressly set forth” therein, and it expressly sets forth the right of the Required Holders or the Holder Committee to commence certain types of actions or proceedings. Nothing in Section 8.05 expressly sets forth a right of the Holders to commence an action on their own behalf or otherwise. Mulacek v ExxonMobil Corp., 2024 NY Slip Op 02724, CtApp 5-16-24

Practice Point: Here the contract unambiguously limited the authority to bring a breach of contract action to a certain class of shareholders which did not include plaintiffs. The contract constituted “documentary evidence” which supported dismissal of the complaint pursuant to CPLR 3211(a)(1).

 

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UNDER THE WORKERS’ COMPENSATION LAW PRESUMPTION IN SECTION 21, AN ASSAULT AT WORK IS EMPLOYMENT-RELATED AND COMPENSABLE ABSENT SUBSTANTIAL EVIDENCE THE ASSAULT WAS MOTIVATED BY PERSONAL ANIMOSITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, determined the presumption that injury from an assault at work is employment-related and compensable applied in this hospital-shooting case. A former hospital employee entered the hospital wearing a white medical coat and shot six people in a non-public area, killing one. Petitioner, a first-year resident, was one of the wounded. Petitioner did not know and had never had any contact with the shooter. The Appellate Division held that there was no connection between petitioner’s employment and the shooting and, therefore, the presumption the assault was work-related did not apply:

The Appellate Division essentially inverted Seymour’s “nexus” standard by requiring the Board to come forward with evidence of a nexus to employment. Instead … Seymour stands for the principle that “an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity” (… see … Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity “in the absence of substantial evidence to support it”]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a “nexus” with employment when there is a workplace assault, such a showing is not required.

… [I]t is undisputed that the assault occurred in the course of Mr. Timperio’s [petitioner’s] employment, thereby triggering the WCL [Workers’ Compensation Law] § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello [the shooter] and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB’s [Workers’ Compensation Board’s] determination that the claim is compensable. Matter of Timperio v Bronx-Lebanon Hosp., 2024 NY Slip Op 02723, CtApp 5-16-24

Practice Point: Here petitioner was shot at work by a former employee he did not know. The presumption that the assault was employment-related (section 21 of the Workers’ Compensation Law) applied because there was no evidence the assault was motivated by personal animosity. The injury from the assault was therefore compensable under the Workers’ Compensation Law.

 

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HERE THE COURT OF APPEALS CLARIFIED ITS DEFINITION OF “TESTIMONIAL” EVIDENCE; A FORM DOCUMENT USED TO COLLECT PEDIGREE INFORMATION FROM EVERY NYC ARRESTEE IS NOT “AN OUT-OF-COURT SUBSTITUTE FOR TRIAL TESTIMONY,” I.E., THE FORM DOCUMENT IS NOT “TESTIMONIAL” AND CAN BE INTRODUCED AT TRIAL AS A BUSINESS RECORD WITHOUT THE TESTIMONY OF THE CREATOR OF THE DOCUMENT; HERE THE DOCUMENT INDICATED DEFENDANT LIVED IN THE BASEMENT AND WAS USED AT TRIAL TO PROVE HE CONSTRUCTIVELY POSSESSED A WEAPON FOUND IN THE BASEMENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissenting opinion, determined a document created by the Criminal Justice Agency (CJA), which provides pretrial services in NYC, was not “testimonial” in nature and therefore could be introduced in evidence as a business record without affording the defendant the opportunity to confront the creator of the document. The document was created during an interview of the defendant. The defendant was charged with possession of a weapon found in the basement. The CJA document indicated defendant lived in the basement and was introduced at trial to prove his constructive possession of the weapon:

… CJA interviews “nearly all individuals arrested” in New York City “to make a pretrial release recommendation to the court” … . In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee’s address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. The CJA employee records the answers to these questions on a standardized form titled “Interview Report.” The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. * * *

We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, “whether in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony’ ” … . When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. * * *

We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant and makes a recommendation to the court as to the defendant’s suitability for pretrial release … . People v Franklin, 2024 NY Slip Op 02227 CtApp 4-25-24

Practice Point: The Court of Appeals clarified and brought up-to-date its definition of “testimonial” evidence. A document is testimonial if its primary purpose is to create an out-of-court substitute for trial testimony. Here a form document filled out during an intake interview of every NYC arrestee which collects pedigree information was not testimonial, i.e., it was not created as a substitute for trial testimony.  Therefore the document could be admitted at trial as a business record without the need for testimony by the creator of the document.

 

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PLAINTIFF BROUGHT AN EMPLOYMENT DISCRIMINATION AND RETALIATION ACTION IN FEDERAL COURT; DEFENDANTS WERE AWARDED SUMMARY JUDGMENT IN THE FEDERAL ACTION; BECAUSE THE FEDERAL COURT DID NOT EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S NYS AND NYC HUMAN RIGHTS LAW CAUSES OF ACTION, PLAINTIFF PURSUED THEM IN STATE COURT; HOWEVER ALL THE STATE ISSUES HAD BEEN ADDRESSED IN THE FEDERAL ACTION; COLLATERAL ESTOPPEL PRECLUDED THE STATE ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive dissenting opinion, determined that the employment discrimination and retaliation claims brought by plaintiff adjunct professor against New York University under the NYS and NYC Human Rights Law were precluded by the doctrine of collateral estoppel. Plaintiff had brought a federal action based upon the same facts which was dismissed, but the District Court declined to exercise supplemental jurisdiction over the state and city Human Rights Law causes of action. Plaintiff therefore could pursue those causes of action in state court. But because all the issues had been sufficiently dealt with by the federal court, the collateral estoppel doctrine was triggered:

The courts below properly applied our established principles of collateral estoppel in the context of the unique requirements of the City Human Rights Law. Collateral estoppel “bars the relitigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment” and so “the determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim” … . If there is identity of issues between the prior determination and the instant litigation, and the precluded party had a full and fair opportunity to contest the prior determination, collateral estoppel applies and the prior determination is binding in the subsequent action … . Russell v New York Univ., 2024 NY Slip Op 02226, CtApp 4-25-24

Practice Point: In an employment discrimination and retaliation case brought in federal court, a plaintiff can ask the federal court to exercise supplemental jurisdiction over New York State and New York City Human Rights Law causes of action. Where, as here, the federal court declines to exercise supplemental jurisdiction, the plaintiff may pursue those actions in state court. Here, because plaintiff lost the federal case, and all the issues raised in the state case were addressed in the federal case, the doctrine of collateral estoppel precluded the state action.

 

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