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DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the defendant did not demonstrate the misdemeanors with which he was charged triggered a right to a jury trial because conviction would result in deportation:

Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in the third degree after police officers observed him masturbating on a subway platform and pressing himself against two women on a subway car. The People thereafter filed a prosecutor’s information reducing the two class A misdemeanor charges of forcible touching to attempted forcible touching, so that the top charges against defendant were Class B misdemeanors obviating his right to a jury trial under state statute … . After a bench trial, defendant was convicted of public lewdness and acquitted of all other charges. …

While the Appellate Term first improperly conducted the deportability analysis based only on the crime of conviction, that court went on to correctly analyze defendant’s deportability based on all the charges he faced (see Suazo, 32 NY3d at 508). It remained, however, “the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial” (id. at 507). … [D]efendant’s conclusory allegation that he was deportable if convicted “on any of the charged B misdemeanors,” supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” was insufficient to establish his right to a jury trial. People v Garcia, 2022 NY Slip Op 03359, CtApp 5-24-22

Practice Point: Generally B misdemeanors do not warrant a jury, as opposed to a bench, trial. However, if conviction will result in deportation, the defendant has a right to a jury trial. Here the Court of Appeals held the defendant did not demonstrate conviction of the B misdemeanors with which he was charged triggered deportation.

 

THE COURT OF APPEALS, WITHOUT EXPLANATION, REVERSED THE FOURTH DEPARTMENT WHICH HAD REVERSED DEFENDANT’S CONVICTION ON THE GROUND THE DEFENDANT WAS NOT PRESENT DURING A SIDEBAR CONFERENCE CONCERNING THE BIAS OF A PROSPECTIVE JUROR; THE MATTER WAS SENT BACK TO THE FOURTH DEPARTMENT FOR CONSIDERATION OF OTHER ISSUES AND FACTS RAISED IN THE APPEAL BUT NOT CONSIDERED BY THE FOURTH DEPARTMENT (CT APP).

The Court of Appeals, without explanation, reversed the Fourth Department which had reversed defendant’s conviction on the ground defendant was not present during a side bar conference concerning the bias of a prospective juror: People v McKenzie-Smith, 2022 NY Slip Op 03308, CtApp 5-19-22

From the Fourth Department Decision (Reversed Without Explanation by the Court of Appeals):

A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses” (Antommarchi, 80 NY2d at 250). Consequently, we conclude that, “absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand” … . The only evidence in the record concerning a waiver consists of a conversation between the court, defendant’s counsel and codefendant’s counsel that occurred after the prospective juror was excused, in which codefendant’s counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant’s counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant’s counsel were waiving defendant’s Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial. People v Mckenzie-Smith, 2020 NY Slip Op 05653, Fourth Dept 10-9-20

Practice Point: The Fourth Department had reversed defendant’s conviction on the ground the defendant was not present at a sidebar conference when the bias of a prospective juror was discussed. Here the Court of Appeals reversed without explanation and sent the case back to the Fourth Department for consideration of other issues raised in the appeal.

 

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HERE SCREENSHOTS OF TEXT MESSAGES WHICH HAD BEEN DELETED FROM THE VICTIM’S PHONE WERE SUFFICIENTLY AUTHENTICATED TO BE ADMISSIBLE, EVEN IF THE BEST EVIDENCE RULE APPLIED; THE MESSAGES OF A SEXUAL NATURE ALLEGEDLY WERE SENT BY THE DEFENDANT, A VOLLEY BALL COACH, TO THE VICTIM, A 15-YEAR-OLD PLAYER ON THE TEAM (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined the trial court did not abuse its discretion by admitting in evidence screen shots of text messages of a sexual nature allegedly sent by the defendant, a high-school volley ball coach, to the 15-year-old victim, a player on the team. The victim had deleted the messages, but her boyfriend had taken screenshots of some of the messages and those screenshots were allowed in evidence. On appeal the Second Department reversed the conviction on the ground that the screenshots had not been properly authenticated:

“[T]echnologically generated documentation [is] ordinarily admissible under standard evidentiary rubrics” and “this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated” … . This Court recently held that for digital photographs, like traditional photographs, “the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted” … . We reiterated that “[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer” … . which would be the boyfriend here. Rather, “any person having the requisite knowledge of the facts may verify” the photograph “or an expert may testify that the photograph has not been altered” … .

Here, the testimony of the victim—a participant in and witness to the conversations with defendant—sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant’s phone. The boyfriend also identified the screenshots as the same ones he took from the victim’s phone on November 7. Telephone records of the call detail information for defendant’s subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Moreover, even if we were to credit defendant’s argument that the best evidence rule applies in this context, the court did not abuse its discretion in admitting the screenshots. People v Rodriguez, 2022 NY Slip Op 03307, CtApp 5-19-22

Practice Point: Text messages of a sexual nature were allegedly sent by the defendant, a volley ball coach, to a 15-year-old player on the team. The original messages were deleted, but the victim’s boyfriend had taken screenshots of some of the messages. The screenshots were deemed authenticated and admitted by the trial court. The Second Department reversed, applying the best evidence rule. The Court of Appeals reversed the Second Department, finding that, even if the best evidence rule applied, the trial court did not abuse its discretion by finding the screenshots had been sufficiently authenticated.

 

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WHEN A MUTUAL INSURANCE COMPANY WHICH ISSUES PROFESSIONAL LIABILITY POLICES TO MEDICAL PROFESSIONALS DEMUTUALIZES, THE CASH-CONSIDERATION PROCEEDS, ABSENT AGREEMENTS TO THE CONTRARY, ARE DISTRIBUTED TO THE EMPLOYEE, NOT THE EMPLOYER WHICH PAID THE PREMIUMS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that when a mutual insurance company which issued professional liability policies to medical professionals demutualizes, where the employer paid the premiums, the distribution of cash consideration goes to the employee, not the employer:

Medical Liability Mutual Insurance Company (MLMIC), formerly a mutual insurance company, issued professional liability insurance policies to the eight medical professionals who are litigants in the eight cases before us on these appeals. The premiums for those policies were paid by their employers. In October 2018, MLMIC demutualized and was acquired by National Indemnity Company. Pursuant to its “Plan of Conversion”—approved by the New York State Department of Financial Services—MLMIC sought to distribute $2.502 billion in cash consideration to “Eligible Policyholders.”

The question presented is as follows: when an employer pays premiums to a mutual insurance company to obtain a policy for its employee, and the insurance company demutualizes, who is entitled to the proceeds from demutualization: the employer or the employee? We answer that, absent contrary terms in the contract of employment, insurance policy, or separate agreement, the employee, who is the policyholder, is entitled to the proceeds. Columbia Mem. Hosp. v Hinds, 2022 NY Slip Op 03306, CtApp 5-19-22

Practice Point: Here the employer paid the premiums to a mutual insurance company for medical malpractice insurance for its employees (doctors). When the company demutualizes, absent some contractual provision to the contrary, the cash consideration, here $2.5 billion, is distributed to the employees (doctors), not the employer.

 

WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determine plaintiff should not have been awarded summary judgment on the Labor Law 240(1) cause of action and defendant’s summary judgment motion should have been granted. The issue was whether plaintiff was injured doing “cleaning” work covered by the Labor Law. The Court of Appeals held plaintiff was doing “routine” work, which therefore did not qualify as “cleaning” under Labor Law 240(1). The facts were not explained:

Labor Law § 240 (1) requires certain contractors and property owners to provide adequate safety devices when workers engage in particular tasks involving elevation-related risks. To recover under section 240 (1) for an injury caused by a failure to provide such safety devices, plaintiffs must first show that they were engaged in one of that section’s enumerated activities including, among others, “cleaning.” To determine whether an activity is “cleaning” within the meaning of the statute, courts apply a four-factor analysis (see Soto v J. Crew Inc., 21 NY3d 562, 568 [2013]). The first factor considers whether the work is “routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises” (id. [emphasis added]). This factor does not involve a fact-specific assessment of a plaintiff’s regular tasks—it instead asks whether the type of work would be expected to recur with relative frequency as part of the ordinary maintenance and care of a commercial property (see id. at 569).

Here, plaintiff’s work was “routine” within the meaning of the first factor, which therefore weighs against concluding that he was “cleaning.” “[V]iewed in totality,” the Soto factors do not “militate in favor of placing the task” in the category of “cleaning” (id. at 568-569). Healy v EST Downtown, LLC, 2022 NY Slip Op 02836, CtApp 4-28-22

​Practice Point: Injury while “cleaning” is not covered under Labor Law 240(1) if it is “routine.”

 

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THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

 

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; APPELLATE DIVISION REVERSED; EXTENSIVE THREE-JUDGE DISSENTING OPINION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a three-judge dissenting opinion, determined plaintiff in this Labor Law 240(1) ladder-fall case should not have been awarded summary judgment. Plaintiff used an A-frame ladder in a closed position because of limited space. While rerouting pipes in the ceiling, plaintiff received an electric shock and fell to the floor. The majority found questions of fact were raised about whether the ladder failed to protect plaintiff and whether other safety devices should have been provided:

An “accident alone” is insufficient to establish a violation of Labor Law § 240 (1) or causation … . Moreover, Labor Law § 240 (1) is designed to protect against “harm directly flowing from the application of the force of gravity to an object or person” … . We agree with the dissent below that plaintiff was not entitled to partial summary judgment on his Labor Law § 240 (1) claim … . Indeed, questions of fact exist as to whether “the ladder failed to provide proper protection,” whether “plaintiff should have been provided with additional safety devices,” and whether the ladder’s purported inadequacy or the absence of additional safety devices was a proximate cause of plaintiff’s accident … . Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium, 2022 NY Slip Op 02834, CtApp 4-28-22

Practice Point: Here plaintiff was apparently electrocuted while standing on a closed A-frame ladder and fell to the floor. The happening of the accident alone did not establish that the ladder failed to protect plaintiff or that other safety equipment should have been provided to plaintiff. Therefore plaintiff was not entitled to summary judgment on his Labor Law 240(1) cause of action. There was a three-judge dissenting opinion.

 

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THE 2022 CONGRESSIONAL AND STATE SENATE REDISTRICTING MAPS DECLARED VOID BECAUSE THEY WERE DRAWN WITH AN UNCONSTITUTIONAL PARTISAN INTENT (CT APP). ​

The Court of Appeals declared the 2022 congressional and state senate redistricting maps void, finding they were drawn with “an unconstitutional partisan intent.” “Opinion by Chief Judge DiFiore. Judges Garcia, Singas and Cannataro concur. Judge Troutman dissents in part in an opinion, in which Judge Wilson concurs in part in a dissenting opinion, in which Judge Rivera concurs in part. Judge Rivera dissents in a separate dissenting opinion, in which Judge Wilson concurs:”

In 2014, the People of the State of New York amended the State Constitution to adopt historic reforms of the redistricting process by requiring, in a carefully structured process, the creation of electoral maps by an Independent Redistricting Commission (IRC) and by declaring unconstitutional certain undemocratic practices such as partisan and racial gerrymandering. No one disputes that this year, during the first redistricting cycle to follow adoption of the 2014 amendments, the IRC and the legislature failed to follow the procedure commanded by the State Constitution. A stalemate within the IRC resulted in a breakdown in the mandatory process for submission of electoral maps to the legislature. The legislature responded by creating and enacting maps in a nontransparent manner controlled exclusively by the dominant political party — doing exactly what they would have done had the 2014 constitutional reforms never been passed. On these appeals, the primary questions before us are whether this failure to follow the prescribed constitutional procedure warrants invalidation of the legislature’s congressional and state senate maps and whether there is record support for the determination of both courts below that the district lines for congressional [*2]races were drawn with an unconstitutional partisan intent. We answer both questions in the affirmative and therefore declare the congressional and senate maps void. As a result, judicial oversight is required to facilitate the expeditious creation of constitutionally conforming maps for use in the 2022 election and to safeguard the constitutionally protected right of New Yorkers to a fair election. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02833, CtApp 4-27-22

Practice Point: The Fourth Department’s determination the 2022 redistricting maps unconstitutionally favored democrats was here upheld by a divided Court of Appeals.

 

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THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

 

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THE DNA EVIDENCE GENERATED BY THE TRUEALLELE CASEWORK SYSTEM WAS PROPERLY ADMITTED IN EVIDENCE; THE DEFENSE WAS NOT ENTITLED TO THE TRUEALLELE SOFTWARE CODE EITHER IN CONNECTION WITH THE FRYE HEARING OR TO CONFRONT THE WITNESSES AGAINST DEFENDANT; THE CONCURRENCE STATED WHETHER THE CODE WOULD BE AVAILABLE TO THE DEFENSE UNDER A PROTECTIVE ORDER REMAINED AN OPEN QUESTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge concurring opinion, determined that the trial judge, after a Frye hearing, properly admitted DNA evidence generated by the TrueAllele Casework System. The arguments that the defense was entitled to the TrueAllele software source code in connection with the Frye hearing and in order to confront the witnesses against the defendant were rejected. The concurrence stated that  it remains an open question whether a protective order could be used to supply the defense with the source code:

This appeal primarily concerns the admissibility of DNA mixture interpretation evidence generated by the TrueAllele Casework System. We conclude that Supreme Court did not abuse its discretion in finding, following a Frye hearing, that TrueAllele’s use of the continuous probabilistic genotyping approach to generate a statistical likelihood ratio—including the use of peak data below the stochastic threshold—of a DNA genotype is generally accepted in the relevant scientific community. We also hold that there was no error in the court’s denial of defendant’s request for discovery of the TrueAllele software source code in connection with the Frye hearing or for the purpose of his Sixth Amendment right to confront the witness against him at trial.

From the concurring opinion:

Although the prosecutor failed to establish that, at the time of the Frye hearing, TrueAllele’s methodology was properly validated by disinterested parties with access to the source code, and defendant was denied an opportunity to review the source code because of the developer’s proprietary claims, the error, considered alone or with the other alleged constitutional error, was harmless on the facts of this case.

Even though the majority rejects defendant’s claim to the source code on the facts of this case, it remains an open question in this Court whether a defendant should be granted access to a proprietary source code under a protective order. This familiar method of ensuring a defendant’s right to present a defense would safeguard commercial interests. It provides no help to this defendant, but it is squarely within a court’s authority to grant such an order in an appropriate future case. People v Wakefield, 2022 NY Slip Op 02771, CtApp 4-26-22

​Practice Point: The Court of Appeal holds that DNA evidence generated by the TrueAllele Casework System is admissible. The defense was not entitled to the TrueAllele software code either for the Frye hearing or in order the confront the witnesses against the defendant. It is an open question whether the defense could gain access to the software code by way of a protective order (suggested by the concurring opinion).

 

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