You are here: / Court of Appeals

Tag Archive for: Court of Appeals

,

STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the state was properly held 100% liable in this fatal motorcycle-truck collision case. The truck driver testified that he looked both ways and didn’t see the motorcycle before pulling out into the motorcycle’s lane of traffic. There had been 14 right-angle collisions at this intersection. The state started but never finished an investigation into whether safety measures should be implemented. The Court of Appeals held the plaintiff need not demonstrate the state could have timely made effective safety improvements, i.e., a four-way stop and/or a reduction of the speed limit. The fact that the truck driver violated the Vehicle and Traffic Law did not require the apportionment of some liability to the truck driver:

The State agrees it cannot invoke qualified immunity because it did not complete the safety study; therefore, ordinary rules of negligence apply … . The State has a nondelegable duty to keep its roads reasonably safe … , and the State breaches that duty “when [it] is made aware of a dangerous highway condition and does not take action to remedy it”… . A breach proximately causes harm if it is a substantial factor in the plaintiff’s injury … . * * *

We have never required accident victims to identify a specific remedy and prove it would have been timely implemented and prevented the accident. * * *

Here, there is record support for the finding that the State’s breach was a proximate cause of the accident. * * *

Once on notice of the dangerous condition, it was the State’s burden to take reasonable steps in a reasonable amount of time. Instead, it did nothing. That right-angle collisions would continue to occur absent the adoption of some safety measure is hardly surprising. “[T]he most significant inquiry in the proximate cause analysis is often that of foreseeability”… . Where, as here, the risk of harm created by the defendant corresponds to the harm that actually resulted, we cannot say that proximate cause is lacking as a matter of law. Brown v State of New York, 2018 NY Slip Op 04029, CtApp 6-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/COURT OF CLAIMS (INTERSECTION SAFETY, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/INTERSECTIONS  (TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/HIGHWAYS AND ROADS (INTERSECTIONS, TRAFFIC ACCIDENTS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/TRAFFIC ACCIDENTS (INTERSECTIONS, STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, INTERSECTIONS,  STATE’S FAILURE TO TAKE STEPS TO ADDRESS SAFETY PROBLEMS AT AN INTERSECTION WHICH WAS THE SITE OF FOURTEEN RIGHT-ANGLE COLLISIONS WAS THE PROXIMATE CAUSE OF THE FATAL COLLISION, STATE WAS 100% LIABLE DESPITE VEHICLE AND TRAFFIC LAW VIOLATION ON THE PART OF ONE OF THE DRIVERS (CT APP))

DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, EXTENSIVE DISSENTING OPINION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed defendant’s conviction for attempted possession of a weapon, i.e., a switchblade. The dissent argued that the proof at the non-jury trial and the allegations in the accusatory instrument did not demonstrate the knife met the statutory definition of a switchblade:

From the dissent:  … [T]he narrow issue presented on this appeal is whether the knife described in the accusatory instrument and at trial meets the statutory description for a per se weapon, one which is outlawed regardless of the defendant’s reasons for possession. The majority holds that the accusatory instrument is jurisdictionally sound because the knife as described meets the statutory definition of a switchblade… . I disagree. Moreover, even if the majority were correct, the evidence at trial established that the knife in question was not a switchblade within the meaning of the Penal Law. People v Berrezueta, 2018 NY Slip Op 04032, CtApp 6-7-18

CRIMINAL LAW (DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))/SWITCHBLADES (CRIMINAL LAW, DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))

, ,

AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a dissenting opinion, reversed the Appellate Division and sent the matter back to the Appellate Division for a factual determination whether the trial judge’s credibility assessment of a spectator who claimed to have overheard jurors speaking about the defendant in derogatory terms was supported by the weight of the evidence. After questioning the spectator the trial judge determined no further inquiry was required. The Appellate Division reversed defendant’s conviction over a dissent:

… [W]e are asked to determine whether the trial court abused its discretion when it chose not to conduct an inquiry of two sworn jurors pursuant to People v Buford (69 NY2d 290 [1987]). Alerted to a complaint by a courtroom spectator that during a break in the trial the spectator allegedly overheard the jurors refer to defendant by a derogatory term, the trial court immediately called the spectator to the stand and elicited sworn testimony regarding her allegation. At the conclusion of the examination, the judge determined that a Buford inquiry was not required based on the testimony provided. We conclude on this record that the trial court made an implied credibility finding that the spectator was not worthy of belief and therefore a Buford inquiry was not warranted. This determination by the trial court was not reviewed by the Appellate Division. It was error for the Appellate Division to opine as to what remedy was warranted in response to the content of the spectator’s allegation, without determining whether the allegation was credible in the first instance. Accordingly, we reverse the Appellate Division order and remit the case to that Court to exercise its own fact-finding power to consider and determine whether the trial court’s finding as to the spectator’s credibility was supported by the weight of the evidence. * * *

If, on remittal, the Appellate Division finds, upon its own factual review, that the record supports the trial court’s determination that the spectator lacked credibility, no further action was required. If the Appellate Division finds that the credibility determination was not supported, it must determine whether the trial court abused its discretion in not taking further action … . … [A] credible allegation that a juror is grossly unqualified to serve or engaged in substantial misconduct within the meaning of CPL 270.35 cannot be ignored by the trial court, and failure to appropriately remedy the matter is reversible error. People v Kuzdzal, 2018 NY Slip Op 03304, CtApp 5-8-18

​CRIMINAL LAW (JURORS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/JURORS (CRIMINAL LAW, BIAS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/APPEALS (CRIMINAL LAW, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))

,

EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing defendant’s conviction, determined that a statement heard in the background of a 911 call should not have been admitted as an excited utterance. The statement ostensibly identified the defendant as the man who had just shot three people. Other than the defendant’s fingerprint found on the van the shooter got into, there was no evidence identifying the defendant as the shooter. Two trial judges had ruled the 911 statement inadmissible before a third trial judge allowed it to come in. The Court of Appeals held that the law of the case doctrine did not prohibit the third judge from ruling on the admissibility of the statement, but the statement was inadmissible because there was no evidence the declarant observed the shooting:

The decision to admit hearsay as an excited utterance is an evidentiary decision, “left to the sound judgment of the trial court”… , and thus may be reconsidered on retrial … . There is no reason to apply a different rule to a successor judge within the same trial and we, therefore, have no basis to adopt a per se rule prohibiting a substitute judge from exercising independent discretion concerning an evidentiary trial ruling.  * **

A “spontaneous declaration or excited utterance — made contemporaneously or immediately after a startling event — which asserts the circumstances of that occasion as observed by the declarant” is an exception to the prohibition on hearsay … . “The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination”… . Although hearsay, excited utterances may be admissible because, “as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant’s belief as to the facts just observed by him, may be received as testimony of those facts”… . … “[I]t must be inferable that the declarant had an opportunity to observe personally the event described in the [spontaneous] declaration” … . Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and “assert[ing] the circumstances of” the event causing the excitement … . People v Cummings, 2018 NY Slip Op 03306, CtApp 5-8-18

​CRIMINAL LAW (EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EVIDENCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/HEARSAY (CRIMINAL LAW, EXCITED UTTERANCE, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EXCITED UTTERANCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/LAW OF THE CASE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))

PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurring opinion, determined that the “place of business” exception the the stature criminalizing possession of an unlicensed firearm as a felony did not apply to defendant, who was a swing manager at a McDonald’s restaurant. While working at the restaurant the defendant’s firearm discharged accidentally and wounded him:

The question presented on this appeal is whether the “place of business” exception to Penal Law § 265.03 (3) applies to an employee who possessed an unlicensed firearm at work. Defendant contends that “place of business” simply means one’s place of employment, and therefore the exception applies. We read the exception to narrowly encompass a person’s “place of business,” when such person is a merchant, storekeeper, or principal operator of a like establishment. People v Wallace, 2018 NY Slip Op 03305, CtApp 5-8-18

​CRIMINAL LAW (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/PLACE OF BUSINESS (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/WEAPON, POSSESSION OF (PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))

,

LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP).

The Court of Appeals denied the motion for leave to appeal in a case seeking habeas corpus relief for two chimpanzees alleged to be confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area … . Judge Fahey wrote a thoughtful concurring opinion questioning the rationale used by the Appellate Division to deny relief:

The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species … . …

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. …

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect … . Matter of Nonhuman Rights Project, Inc. v Lavery, 2018 NY Slip Op 03309, CtApp 5-8-18

​ANIMAL LAW (LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))/APPEALS (ANIMAL RIGHTS, LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))//HABEAS CORPUS (ANIMAL RIGHTS, LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))

, ,

BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’ RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, determined that substantial evidence supported the NYC Commission on Human Rights’ ruling that the conversion of a window to a handicapped-accessible entrance for a tenant in petitioners’ building would not cause petitioners undue hardship. The dissent argued petitioners had carried their burden of proof on that issue by presenting evidence the conversion presented many structural issues which might necessitate evacuation of the building. The majority simply decided there was sufficient evidence to support the Commission’s ruling and an appellate court’s review power stops there:

In light of the Commission’s ruling in favor of respondents and because petitioners have the burden of demonstrating undue hardship … , the issue is whether there is substantial evidence to support the Commission’s conclusion that petitioners failed to carry that burden.

“Quite often there is substantial evidence on both sides” of an issue disputed before an administrative agency … , and the substantial evidence test “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Applying this standard, “[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists” … . Instead, “when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof . . . convincing, but whether the [agency] could do so” … . Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 2018 NY Slip Op 03303, CtApp 5-8-18

​ADMINISTRATIVE LAW (EVIDENCE, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/APPEALS (ADMINISTRATIVE LAW, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))

,

BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurrence and a three-judge dissent, reversing the Appellate Division, determined the three-year statute of limitations applies to no-fault claims against a self-insurer. The court reasoned that the self-insurance option is a creature of statute, not a contract:

We conclude that the three-year statute of limitations as set forth in CPLR 214 (2), which governs disputes with respect to penalties created by statute, should control this case. There is no dispute “that it is the gravamen or essence of the cause of action that determines the applicable Statute of Limitations” … , or that a three-year limitations period applies to “an action to recover upon a liability. . . created or imposed by statute” … . Moreover, although the three-year period of limitation in “CPLR 214 (2) does not automatically apply to all causes of action in which a statutory remedy is sought” … , that condition does attach to instances in which “liability would not exist but for a statute” (id.).

The no-fault benefits in dispute are not provided by a contract with a private insurer. Instead defendant has met its statutory obligation by self-insuring. No-fault is a creature of statute … . Contact Chiropractic, P.C. v New York City Tr. Auth., 2018 NY Slip Op 03093, CtApp 5-1-18

​INSURANCE LAW (NO-FAULT, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/CIVIL PROCEDURE (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/CPLR 214 (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/NO-FAULT (BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/STATUTE OF LIMITATIONS  (INSURANCE LAW, NO-FAULT, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/SELF-INSURER  (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))

, ,

CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, affirming the Appellate Division, determined the evidence was sufficient to convict the defendant of violating Penal Law 165.07 (unlawful use of secret scientific material). Just before leaving the employ of Goldman Sachs to begin work at another company, the defendant had uploaded (copied) to a German server source code used by Goldman Sachs for high frequency trading. There was no evidence anyone other than the defendant had access to the uploaded source code. The major issues were whether the source code had a “physical form” or was “appropriated” within the mean of the statute:

… [W]e conclude that viewing the facts in the light most favorable to the People, a rational jury could have found that the “reproduction or representation” that defendant made of Goldman’s source code, when he uploaded it to the German server, was tangible in the sense of “material” or “having physical form.” The jury heard testimony that the representation of source code has physical form. … [T]he computer engineer … testified that while source code, as abstract intellectual property, does not have physical form, the “[r]epresentation of it” is material. He explained that when computer files are stored on a hard drive or CD, they are physically present on that hard drive or disc, and further stated that data is visible “in aggregate” when stored on such a medium. The jury also heard testimony that source code that is stored on a computer “takes up physical space in a computer hard drive.” Given that a reproduction of computer code takes up space on a drive, it is clear that it is physical in nature. In short, the changes that are made to the hard drive or disc, when code or other information is stored, are physical. * * *

We conclude that there is legally sufficient evidence that defendant created a tangible copy of the source code on the German server in violation of Penal Law § 165.07. * * *

… [W]e must decide is whether there is legally sufficient evidence that [defendant] had the necessary mens rea of “intent to appropriate . . . the use of secret scientific material” (Penal Law § 165.07).  * * *

Appropriation does not imply depriving another of property. In fact, larceny in general is defined as involving either intent to appropriate or intent to deprive, with the clear implication that the two terms refer to separate concepts. * * * … [D]efendant may have intended to “appropriate” the source code without intending to deprive Goldman of all possession or use. People v Aleynikov, 2018 NY Slip Op 03174, CtApp 5-3-18

​CRIMINAL LAW (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SECRET SCIENTIFIC MATERIAL (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/EVIDENCE (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SOURCE CODE (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/INTELLECTUAL PROPERTY (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))

,

BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence and a three-judge extensive dissent, determined that the warnings given defendant driver about the consequences of refusing to take the breathalyzer blood-alcohol test were inaccurate, rendering the defendant’s consent to the test involuntary and requiring the suppression of all evidence. The warnings, which were given more than two hours after defendant’s DWI arrest, inaccurately stated that evidence of defendant’s test refusal would be admissible at trial:

… [B]ecause the breathalyzer test was not performed within two hours of defendant’s arrest, and the requirements necessary to obtain a court order pursuant to Vehicle and Traffic Law § 1194 (3) were not met, the test results were not admissible under the statutory scheme (see Vehicle and Traffic Law § 1195 [1]; see also Smith, 18 NY3d at 550-551 [holding that, absent compliance with the statute, even evidence of a refusal must be suppressed]). Nevertheless, … the test results may still be admissible if defendant voluntarily consented to take the test because “the two-hour limitation . . . has no application” when the “defendant [has] expressly and voluntarily consented to administration of the [breath] test” … . The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact … . However, it is undisputed that defendant expressly consented only after the expiration of the two-hour period and after being warned about the consequences of failing to do so; the parties’ dispute here turns on whether the warnings were legally accurate and, consequently, whether his consent was voluntary … .We conclude that, because more than two hours had passed since defendant’s arrest, the warning that evidence of his refusal to take the breathalyzer test would be admissible at trial was inaccurate as a matter of law and, therefore, the record supports the conclusion of the courts below that his consent to the test was involuntary. People v Odum, 2018 NY Slip Op 03173, CtApp 5-3-18

​CRIMINAL LAW (DWI, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/EVIDENCE (CRIMINAL LAW, DWI, BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/BREATHALYZER (BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/DRIVING WHILE INTOXICATED (DWI) (BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy