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OHIO FIREARMS DEALER DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK SUFFICIENT FOR THE EXERCISE OF LONG-ARM JURISDICTION OVER HIM, A GUN PURCHASED IN OHIO BY AN OHIO RESIDENT WAS SOLD ON THE BLACK MARKET IN NEW YORK AND WAS USED IN NEW YORK TO SHOOT PLAINTIFF (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a three-judge dissenting opinion, determined that an Ohio firearms dealer (Brown) did not have “minimum contacts” with New York sufficient for the exercise of long-arm jurisdiction (CPLR 302) over him. A gun sold by Brown to Bostic, an Ohio resident, in Ohio, was sold on the black market to a member of a gang in Buffalo, New York, who shot plaintiff:

Defendant Charles Brown, a federal firearm licensee, was authorized to sell handguns only in Ohio and only to Ohio residents, which he primarily accomplished through retail sales at gun shows held in various locations in Ohio. Brown did not maintain a website, had no retail store or business telephone listing, and did no advertising of any kind, except by posting a sign at his booth when participating in a gun show. In a series of transactions in 2000, Brown sold handguns to James Nigel Bostic and his associates. Prior to the transaction involving the gun at issue here, Brown consulted with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to ensure its legality. For each transaction, the necessary forms required by the ATF were properly completed and submitted, the purchaser passed the required Federal Bureau of Investigation (FBI) background check before the firearms were transferred, Brown verified that the purchaser had government-issued identification demonstrating Ohio residency, and notification of the purchases was timely sent to local law enforcement and the ATF as required by the federal Gun Control Act (see 18 USC § 922). During the transactions, Bostic indicated he was in the process of becoming a federal firearms licensee and was acquiring inventory for the eventual opening of a gun shop. * * *

… “[A] non-domiciliary tortfeasor has minimum contacts with the forum State . . . if it purposefully avails itself of the privilege of conducting activities within the forum State” …,”thus invoking the benefits and protections of [the forum state’s] laws”… . This test envisions something more than the “fortuitous circumstance” that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of defendant … . Put another way, “the mere likelihood that a product will find its way into the forum” cannot establish the requisite connection between defendant and the forum “such that [defendant] should reasonably anticipate being haled into court there” … .

The constitutional inquiry “focuses on the relationship among the defendant, the forum, and the litigation'” … . Significantly, “it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction” … . Williams v Beemiller, Inc., 2019 NY Slip Op 03656, CtApp 5-9-19

 

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THE PUBLIC SERVICES COMMISSION HAS THE AUTHORITY TO IMPOSE RATE CAPS AND OTHER RESTRICTIONS ON ENERGY SERVICE COMPANIES WHICH USE THE PUBLIC UTILITY INFRASTRUCTURE TO DELIVER ELECTRICITY TO CONSUMERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Public Service Commission (PSC) has the authority to impose rate caps on energy service companies (ESCOs) who use the public utility infrastructure:

… [W]e are asked to determine whether the Public Service Law authorizes the Public Service Commission (PSC) to issue an order that conditions access to public utility infrastructure by energy service companies (ESCOs) upon ESCOs capping their prices such that, on an annual basis, they charge no more for electricity than is charged by public utilities unless 30% of the energy is derived from renewable sources. We conclude that the Public Service Law, in authorizing the PSC to set the conditions under which public utilities will transport consumer-owned electricity and gas, has such authority. * * *

Because the PSC is empowered to regulate utilities’ transportation of gas and electricity and created the ESCO markets for the benefit of consumers, and because the legislature has delegated to the PSC the authority to condition ESCOs’ eligibility to access utility lines on such terms and conditions that the PSC determines to be just and reasonable, it follows that the PSC has authority to prohibit utilities from distributing overpriced products by conditioning ESCOs’ access on a price cap. That is, the statutory framework permits the PSC, pursuant to its authority to regulate the energy market, to impose a price cap on ESCOs as a condition of eligibility. Therefore, although the PSC has no direct rate-making authority over ESCOs, it did not exceed its statutory authority in determining that public utility transportation of energy sold by ESCOs is not “just and reasonable” if ESCOs are charging consumers more than that charged by public utilities. Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2019 NY Slip Op 03655, CtApp 5-9-19

 

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THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE JURY INSTRUCTION COULD BE APPROPRIATE IN A SECOND DEGREE ASSAULT CASE, BUT HELD THAT GIVING THE DEADLY-FORCE JUSTIFICATION-DEFENSE INSTRUCTION WAS NOT ERROR HERE (CT APP).

The Court of Appeals, over a concurrence, determined the jury was properly instructed on the “deadly force” justification defense on the assault second count. Defendant was convicted of beating the victim with a belt with a metal buckle, which was deemed a “dangerous instrument.” The defendant argued he was entitled to the “non-deadly” or “ordinary” physical force justification-defense jury instruction:

The Penal Law defines “[d]eadly physical force” as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [11]). A “[d]angerous instrument” is defined as “any instrument, article, or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (id. § 10.00 [13]). Defendant argues that the statutory definitions, while similar, are not identical and that a jury may convict a defendant of a crime containing a dangerous instrument element without necessarily concluding that the defendant used deadly physical force. …

There is no per se rule regarding which justification instructions are appropriate based solely on the fact that the defendant has been charged with second-degree assault with a dangerous instrument. Instead, as in every case where the defendant requests a justification charge, trial courts must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified, and, if so, which instructions are applicable … .

Under the particular circumstances of this case, the jury instruction does not require reversal … . Viewing the record in the light most favorable to defendant, there is no reasonable view of the evidence that defendant merely “attempted” or “threatened” to use the belt in a manner readily capable of causing death or serious physical injury … but that he did not “use” it in that manner … . People v Vega, 2019 NY Slip Op 03530, CtApp 5-7-19

 

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BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant (Mr. Brown) was not entitled to the jury instruction on the justification defense. The Court of Appeals found that the defendant was the initial “deadly force” aggressor because he was wielding the gun before the unarmed victim (Mr. Cabbagestalk) “swiped” at the gun:

Mr. Wolf [an eyewitness who testified at trial] said he heard the older man [defendant] say, “Stay away from my daughter, don’t come around here.” Mr. Cabbagestalk responded, “you can’t tell me where to be.” According to Mr. Wolf, Mr. Cabbagestalk was “getting in the older guy’s face a little bit,” “trying to back him down,” and Mr. Marshall [who was with Mr. Cabbagestalk] was trying to calm Mr. Cabbagestalk down.

Mr. Wolf testified … he observed Mr. Cabbagestalk throwing a few punches at Mr. Brown but that he believed those punches did not reach Mr. Brown. Mr. Wolf also testified that Mr. Brown was holding a gun slightly “above waist high” and “pointed away from him.” Mr. Cabbagestalk then “swiped” at Mr. Brown’s gun …  … [A]t some point before Mr. Cabbagestalk’s last swing or swipe, Mr. Cabbagestalk said, “if you going to pull a gun out, you got to use it.” Mr. Brown did just that, shooting Mr. Cabbagestalk in the chest.  * * *

Because Mr. Brown’s drawing of his gun under these circumstances constituted the imminent threat of deadly physical force, the “initial aggressor” rule bars Mr. Brown from claiming justification unless a reasonable jury could conclude either: (1) that Mr. Brown withdrew from the encounter after drawing his gun, communicated that withdrawal to Mr. Cabbagestalk, and Mr. Cabbagestalk thereafter used or threatened imminent use of deadly physical force (Penal Law § 35.15[1][b]), or (2) that Mr. Cabbagestalk himself was the initial “deadly force” aggressor. No reasonable jury could reach either conclusion based on the evidence in this case, even viewing the evidence in the light most favorable to Mr. Brown (as we must). People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19

 

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THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT, IN RETURN FOR THE CO-DEFENDANT’S ESSENTIAL TESTIMONY IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS DEPICTED IN A VIDEO, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence, reversing the Appellate Division, determined  the trial judge had deprived defendant of a fair trial by negotiating a plea agreement directly with the co-defendant in return for the co-defendant’s testimony against the defendant. Although the defendant and co-defendant in this robbery case were captured on video, their faces were covered. At trial the co-defendant identified the defendant as the person depicted in the video:

It is undisputed that, as the Appellate Division concluded, the trial court “personally negotiate[ed] and enter[ed] into a quid pro quo cooperation agreement with the codefendant whereby the court promised to sentence the codefendant within a specific range in exchange for his testimony against defendant” (151 AD3d at 1639). In so doing, the trial court improperly “assume[d] the advocacy role traditionally reserved for counsel” … and ventured from its own role as a neutral arbiter “[s]tationed above the clamor of counsel or the partisan pursuit of procedural or substantive advantage” … . Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain … . Under these circumstances, the trial court’s conduct “conflicted impermissibly with the notion of fundamental fairness” … . That is, by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to “[a] fair trial in a fair tribunal” (In re Murchison, 349 US at 136). This error is not subject to harmless error review and requires reversal … . People v Towns, 2019 NY Slip Op 03527, CtApp 5-7-19

 

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WAIVER OF DECLARATORY JUDGMENT ACTIONS TO RESOLVE DISPUTES ARISING FROM A LEASE WAS NOT AGAINST PUBLIC POLICY AND WAS ENFORCEABLE, THE COMMERCIAL LEASE WAS NEGOTIATED BY SOPHISTICATED, COUNSELED PARTIES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissenting opinion, determined that the clause in a commercial lease which waived any action for a declaratory judgment concerning lease provisions, and required all disputes to be adjudicated in summary proceedings, was not against public policy and was therefore enforceable:

… [T]he declaratory judgment waiver is clear and unambiguous, was adopted by sophisticated parties negotiating at arm’s length, and does not violate the type of public policy interest that would outweigh the strong public policy in favor of freedom of contract. … [t]here is simply nothing in our contemporary statutory, constitutional, or decisional law indicating that the interest in access to declaratory judgment actions or, more generally, to a full suite of litigation options without limitation, is so weighty and fundamental that it cannot be waived by sophisticated, counseled parties in a commercial lease. CPLR 3001 enables Supreme Court to grant declaratory judgments in the context of justiciable controversies but in no way indicates that sophisticated parties may not voluntarily waive the right to seek such relief. A declaratory judgment is a useful tool for providing clarity as to parties’ obligations and may, in some circumstances, enable parties to perform under a contract they might otherwise have breached. Access to declaratory relief benefits the parties as well as society in quieting disputes. However, a declaratory judgment is merely one form of relief available to litigants in enforcing a contract. In codifying the right to seek declaratory relief, the Legislature neither expressly nor impliedly made access to such a claim nonwaivable with respect to any party, much less sophisticated commercial tenants.  159 MP Corp. v Redbridge Bedford, LLC2019 NY Slip Op 03526, CtApp 5-7-19

 

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HAVING DEFENDANT WAIT WITH TWO POLICE OFFICERS WHILE A THIRD TOOK HIS ID TO AN APARTMENT TO VERIFY DEFENDANT’S CLAIM HE WAS VISITING A FRIEND IN THE APARTMENT WAS NOT JUSTIFIED UNDER DE BOUR, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division in this street stop case, determined having defendant “stand right there” with two police officers, while a third took defendant’s ID to an apartment to verify defendant’s claim he was visiting a friend there, was not justified under De Bour:

Defendant … was approached by New York Police Department officers after they observed him exiting and reentering a building in a New York City Housing Authority development several times. Upon the officers’ request, defendant explained that he was visiting a friend who lived in the building. The officers asked defendant for his identification, which he provided. An officer then took defendant’s identification to the eleventh floor of the building to verify whether the occupant of the apartment defendant identified knew him … . Another officer instructed defendant to “stand right there” under the watch of two officers. When the first officer returned, having determined that the occupant of the apartment did not know defendant, defendant was arrested for trespassing. At the precinct, officers conducted a search of defendant’s person incident to his arrest and recovered 42 bags of crack cocaine from his groin area. * * *

At its inception, this was “a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area” … . That request implicated only level one of De Bour … and required only an objective credible reason to make basic inquiries of defendant … . On this record, the initial inquiry was justified.

However, the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of De Bour. People v Hill, 2019 NY Slip Op 03405, CtApp 5-2-19

 

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DEFENDANT’S PAPERS SUFFICIENTLY RAISED A QUESTION WHETHER HE WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE OF COUNSEL’S CONFLICT OF INTEREST, DENIAL OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION WITHOUT A HEARING WAS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, over a dissenting opinion by Judge Stein, determined that defendant was entitled to a hearing on his motion to vacate his conviction on the ground his attorney (Chabrowe) was ineffective because of a conflict of interest. Defendant alleged a party (Salaam) who was present at the scene of the depraved indifference murder committed by defendant was represented by Chabrowe and had paid Chabrowe’s fees on defendant’s behalf:

Although defendant had informed the trial court during the Gomberg inquiry that he or his family had hired Chabrowe, he alleged that Salaam paid Chabrowe to represent defendant, resulting in an undisclosed and “unwaivable” conflict, and that Chabrowe failed to explain any possible conflict of interest related to Salaam’s payment of defendant’s legal fees. In addition to his own affidavit, defendant submitted an affirmation from his current appellate counsel, who relayed details of a conversation he affirmed he had with Chabrowe about the payment of defendant’s legal fees. Defendant also relied on recorded prison phone calls, which purportedly corroborate defendant’s allegation that Salaam hired and paid for his attorney. * * *

We review the summary denial of a CPL 440.10 motion under an abuse of discretion standard. On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. People v Brown, 2019 NY Slip Op 03404, CtApp 5-2-19

 

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DEFENDANT’S REFUSING TO TESTIFY WAS DEEMED A VIOLATION OF THE WRITTEN COOPERATION AGREEMENT, HIS MOTION TO WITHDRAW HIS GUILTY PLEA WAS PROPERLY DENIED (CT APP).

The Court of Appeals, affirming the denial of defendant’s motion to withdraw his guilty plea, over an extensive two-judge dissent, determined that defendant’s refusal to testify against a person who had participated in a home invasion violated the written cooperation agreement:

As part of a plea agreement and in exchange for a favorable sentence, defendant entered into a written cooperation agreement whereby he promised to “cooperate completely and truthfully with law enforcement authorities, including the police and the District Attorney’s Office, on all matters in which his cooperation is requested, including but not limited to the prosecution of [defendant’s accomplices] on charges related to the murder of Jose Sanchez and the assault of [Sanchez’s brother].” Prior to entering into the cooperation agreement, defendant had confessed to his involvement in the Sanchez murder and assault, explaining that the crimes were retaliation for a prior invasion of defendant’s home by Sanchez and his associates, including Jose Marin. When defendant signed the agreement, he already had testified to Marin’s involvement in the home invasion before the grand jury in the Sanchez matter, and he also had assisted the police with their investigation of the home invasion by identifying Marin in a photo array. …

… [D]efendant’s refusal to testify against Marin violated the express terms of his cooperation agreement. The plain language of the agreement was objectively susceptible to but one interpretation … . County Court, therefore, did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement or by concluding, to the contrary, that defendant reasonably understood that his cooperation in the Marin prosecution was required … . People v Rodriguez, 2019 NY Slip Op 02444, CtApp 4-2-19

 

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THE POLICE-OFFICER WITNESS, WHO DID TESTIFY AT TRIAL, DID NOT REMEMBER THE INCIDENT WHICH WAS THE BASIS FOR THE CHARGES AGAINST DEFENDANT, HIS GRAND JURY TESTIMONY WAS PROPERLY ADMITTED AS PAST RECOLLECTION RECORDED, DEFENDANT’S RIGHT OF CONFRONTATION WAS NOT VIOLATED BECAUSE THE WITNESS TESTIFIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive three-judge dissent, determined that the police-officer witness’s grand jury testimony was properly admitted under the “past recollection recorded” exception to the hearsay rule. The grand jury testimony did not violate the Confrontation Clause because the officer, who could not remember the incident he described to the grand jury, did, in fact, testify at trial:

The foundational requirements for the admissibility of a past recollection recorded are: 1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded … . “When such a memorandum is admitted, it is not independent evidence of the facts contained therein, but is supplementary to the testimony of the witness. * * *

… [T]he right to confrontation guarantees not only the right to cross-examine all witnesses, but also the ability to literally confront the witness who is providing testimony against the accused in a face-to-face encounter before the trier of fact … . The Confrontation Clause is satisfied when these requirements are fulfilled — even if the witness’s memory is faulty. The United States Supreme Court has directly addressed the situation where a witness was unable to explain the basis for a prior out-of-court identification due to memory loss … . In Owens, the Court held that “[t]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish” … . To that end, “[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination), . . . the very fact that he has a bad memory” … . People v Tapia, 2019 NY Slip Op 02442, CtApp 4-2-19

 

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