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APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP).

The Court of Appeals reversed the Appellate Term, noting that the appeal from a local court was not properly taken. The proceedings were not transcribed by a court stenographer and no affidavit of errors had been filed or served:

On review of submissions pursuant to section 500.11 of the Rules, order reversed, and case remitted to the Appellate Term, 2nd Department, Ninth and Tenth Judicial Districts, for further proceedings. Because the case originated in a local criminal court and the proceedings were not transcribed by a court stenographer, the appeal was not properly taken due to the failure to serve or file an affidavit of errors (see CPL 460.10[3]). People v Epakchi, 2018 NY Slip Op 03095, CtApp 5-1-18

CRIMINAL LAW (APPEALS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))/APPEALS (CRIMINAL LAW, AFFIDAVIT OF ERRORS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))/AFFIDAVIT OF ERRORS (CRIMINAL LAW, APPEALS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))

THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, determined “the 20% vacancy increase should be included when calculating the legal regulated rent for purposes of determining whether the subject apartment has reached the $2,000 deregulation threshold in the Rent Stabilization Law:”

In November 2003, plaintiff Richard Altman entered into a sublease with Keno Rider, who had been the tenant of the subject apartment since 1993. Rider had a rent-stabilized lease with the prior landlord at a legal regulated rent of $1,829.49 per month. In December 2004, the prior landlord commenced a nonpayment proceeding against Altman and Rider. In March 2005, Altman and the prior landlord entered into a stipulation of settlement, under which the parties agreed that Rider would surrender all rights to the apartment and the landlord would deliver a new lease to Altman. Along with the new lease, Altman executed a ‘Deregulation Rider for First Unregulated Tenant.’ The Deregulation Rider stated that the apartment was not rent-stabilized ‘because the legal rent was or became $2000 or more on vacancy” after the statutory vacancy increase was added to the last regulated rent. In August 2005, the landlord removed the apartment from registration with the Division of Housing and Community Renewal (DHCR), based on “high rent vacancy.’ * * *

… [T]he 20% increase should have been considered in determining the legal regulated rent at the time of the vacancy and, as a result, the subject apartment was properly deregulated in 2005. Altman’s remaining arguments relating to this issue are without merit. Altman v 285 W. Fourth LLC, 2018 NY Slip Op 02829. CtApp 4-26-18

​LANDLORD-TENANT (THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))/RENT STABILIZATION LAW (THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))/VACANCY INCREASE (LANDLORD-TENANT, RENT STABILIZATION LAW, THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP))

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ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed the SORA court’s use of allegations of sex offenses of which defendant was acquitted at trial in its risk assessment calculation:

The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition of 25 points under risk factor 2 in determining defendant’s risk level under the Sex Offender Registration Act. Contrary to defendant’s argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts … .

From the dissent:

As this Court has recognized, the clear and convincing evidence standard is an exacting one … . “[T]he registration duties that SORA imposes are a nontrivial restriction on the individual’s liberty, and there is a material difference between having to register for ten years and having to register for life”… . In a case such as this, where the jury clearly had grave doubts about [the complainant’s] narrative, the courts below erred in concluding that her testimony was clear and convincing evidence of defendant having committed the sexual conduct necessary for an assessment of 25 points under risk factor two. People v Britton, 2018 NY Slip Op 02830, Ct App, 4-26-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/SEX OFFENDER REGISTRATION ACT (SORA) (ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/ACQUITTAL (SEX OFFENSES, SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))

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A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP).

The Court of Appeals, affirming the Appellate Division, determined that the clause of a contract indicating construction of the contract was governed by New York law did not incorporate a specific statutory requirement, here a requirement of the Lien Law:

Plaintiff’s complaint does not identify which, if any, provision or provisions of the [CM agreement] were purportedly breached. Unlike the Development and Lease Agreements — to which plaintiff is not a party — the CM Agreement contains no express provision requiring compliance with the Lien Law. Plaintiff nevertheless maintains that section 5 of the Lien Law should be “read into” the CM Agreement because the contract is governed by New York law. Specifically, plaintiff points to section 17.3 of the CM Agreement, which provides that “[t]he construction, validity and performance of [the CM Agreement] shall be exclusively governed by the laws of the State of New York, excluding any provisions or principles thereof which would require the application of the laws of a different jurisdiction.” However, this is a typical choice-of-law provision that we do not read as imposing a contractual obligation here. The mere fact that an agreement, and disputes arising thereunder, are governed by the law of a particular jurisdiction does not transform all statutory requirements that may otherwise be imposed under that body of law into contractual obligations, and we decline to interpret the CM Agreement as “impliedly stating something which [the parties] have neglected to specifically include” … . Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 2018 NY Slip Op 02828, CtApp 4-26-18

​CONTRACT LAW (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CIVIL PROCEDURE (CONTRACT LAW, CHOICE OF LAW, A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CONSTRUCTION CONTRACTS (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/LIEN LAW (CONSTRUCTION CONTRACTS, ERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))

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IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, reversing the appellate division (and potentially affecting hundreds of recent rulings on summary judgment motions in negligence cases), determined that a plaintiff need not demonstrate the absence of comparative fault to be entitled to partial summary judgment on liability. Whether the plaintiff was comparatively negligent is, under the controlling statutes, is a damages issue:

CPLR 3212, which governs summary judgment motions, provides that “[t]he motion shall be granted if . . . the cause of action . . . [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” … . The motion for summary judgment must also “show that there is no defense to the cause of action” … . Further, subsection [c] of the same section sets forth the procedure for obtaining partial summary judgment and states that “[i]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion” … .

Article 14-A of the CPLR contains our State’s codified comparative negligence principles. CPLR 1411 provides that:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.” … .

CPLR 1412 further states that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.” Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR 1412. Rodriguez v City of New York, 2018 NY Slip Op 02287, CtApp 4-3-18

​NEGLIGENCE (COMPARATIVE NEGLIGENCE, SUMMARY JUDGMENT, IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP))/CIVIL PROCEDURE (NEGLIGENCE, SUMMARY JUDGMENT, IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP))/SUMMARY JUDGMENT (NEGLIGENCE, COMPARATIVE NEGLIGENCE, IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP))/COMPARATIVE NEGLIGENCE (SUMMARY JUDGMENT, IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP))/DAMAGES (NEGLIGENCE, COMPARATIVE NEGLIGENCE, SUMMARY JUDGMENT, IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP))

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INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP).

The Court of Appeals, in a memorandum which did not describe the facts, reversing the appellate division, determined the award of summary judgment to the plaintiff in this Labor Law 240 (1) action was premature. There was insufficient evidence of how the accident occurred and discovery might aid in that regard:

Here, where there is insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months, summary judgment was prematurely granted … . Somereve v Plaza Constr. Corp., 2018 NY Slip Op 02288, CtApp 4-3-18

​LABOR LAW-CONSTRUCTION LAW (INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/CIVIL PROCEDURE (SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/EVIDENCE (SUMMARY JUDGMENT, LABOR LAW-CONSTRUCTION LAW, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/CIVIL PROCEDURE (SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, EVIDENCE, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/DISCOVERY (LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))

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DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined (1) defendant, who wanted to question witnesses with the aid of standby counsel, did not make an unequivocal request to represent himself requiring a searching inquiry by the court, and (2) the defendant, who did not notify the People of his wish to present psychiatric testimony (required by CPL 250.10), was properly precluded from presenting psychiatric testimony for the purpose of calling into question the voluntariness of his confession:

Defendant urges that a court presented with a request to proceed pro se with “standby counsel” should make an in-depth inquiry whether defendant still desires to represent himself, once defendant is informed that dual representation will not be provided. We hold that further colloquy by the trial court is not constitutionally required when a defendant remains equivocal, despite having been informed by the court on more than one occasion that his right to self-representation includes a waiver of the right to an attorney, as here. When a defendant asks to proceed “pro se with standby counsel” and the trial court explains the scope of the right to proceed pro se, and specifically denies the defendant’s request for hybrid representation, the better practice would be to again ask the defendant if he or she still wants to proceed without counsel. Nevertheless, “[w]hile such inquiries may be the better practice, we will not compel courts to engage in any particular catechism” before denying an equivocal request to proceed pro se because “[n]either our Constitution nor our precedent requires it” … . * * *

Defendant narrowly construes the phrase “any other defense” in CPL 250.10 (1) (c) to be limited to psychiatric evidence offered in support of a complete defense to an element of the crime, such as mens rea; he does not interpret the statute to include a defense strategy to offer evidence that allows the jury to negate the prosecution’s evidence of guilt. As explained below, this argument ignores the legislative intent, our precedent espousing the very purpose of notice, and the fact that, if a defendant’s confession was the primary evidence of guilt and the defendant raises the issue of voluntariness at trial, then voluntariness could be a complete defense to the crime … . Notably, our Court has previously labeled a defendant’s challenge to the voluntariness of his statement pursuant to CPL 710.70 a “defense” … . People v Silburn, 2018 NY Slip Op 02286, CtApp 4-3-18

​CRIMINAL LAW (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/ATTORNEYS (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/EVIDENCE (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PSYCHIATRIC OPINION (CRIMINAL LAW,  DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/EXPERT OPINION (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/NOTICE (CRIMINAL LAW, CPL 250.10, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/CONFESSIONS (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/CPL 250.10  (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))

NEW YORK CITY POLICE DEPARTMENT, IN RESPONSE TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST, PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissenting opinion and a two-judge dissenting opinion, determined that the New York City Police Department, pursuant to a request for records of surveillance of Talib Abdur-Rashid, Samir Hahsmi, a mosque and a university student association, properly refused to confirm or deny such records existed:

The agency denied the requests, stating in each case that the information, “if possessed by the NYPD”, would be protected from disclosure under various statutory exemptions, including the law enforcement, public safety and personal privacy provisions. After the NYPD adhered to those decisions on administrative appeal, petitioners commenced separate CPLR article 78 proceedings challenging the determinations. Petitioners asserted that the NYPD was engaged in an ongoing domestic surveillance program in which, as alleged in press articles, it had targeted Muslim individuals, places of worship, businesses, schools, student groups and the like. It was in this context that petitioners attempted to ascertain whether they were subjects of surveillance or investigation, noting that they had supplied certifications of identity waiving their personal privacy interests and authorizing the NYPD to release responsive records to their attorneys. …

The NYPD’s response, although styled as a motion to dismiss the petition in each case, did not assert a procedural objection but defended the FOIL responses on the merits. The agency explained the basis for its denial of the FOIL requests and its refusal to disclose whether it possessed responsive documents in a 22-page affidavit of its Chief of Intelligence, Thomas Galati. Without offering any specific information relating to petitioners, Chief Galati described the NYPD’s ongoing and wide-ranging counterterrorism efforts, acknowledging that the agency was actively engaged in covert surveillance and other intelligence gathering in its effort to preempt acts of terrorism in New York City, which remains a prime target in the wake of the World Trade Center attacks. The Galati affidavit averred that disclosure of whether the NYPD possesses records responsive to the FOIL requests would necessarily reveal whether petitioners had been the subjects of its investigation, information which — particularly if aggregated — would provide unprecedented and invaluable information concerning NYPD counterterrorism strategies, operations, tactics and techniques to those planning future terrorist attacks. The Galati affidavit also averred that the NYPD intelligence strategies are monitored by individuals and organizations with the goal of developing counterintelligence measures, and the greatest vulnerability to the NYPD Intelligence Bureau is the release of even “seemingly innocuous information” which would inexorably reveal sources from which information is gathered by the NYPD. Matter of Abdur-Rashid v New York City Police Dept., 2018 NY Slip Op 02206, CtApp 3-29-18

FREEDOM OF INFORMATION LAW (FOIL) (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/POLICE (FOIL, SURVEILLANCE, COUNTERTERRORISM,  (NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/SURVEILLANCE (POLICE, COUNTERTERRORISM, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))/COUNTERTERRORISM (SURVEILLANCE, POLICE, FOIL, NEW YORK CITY POLICE DEPARTMENT PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF SURVEILLANCE RECORDS ON COUNTERTERRORISM GROUNDS (CT APP))

TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that the statutory language supported a ten-year, as opposed to a five-year, probation sentence for a youthful offender’s (Teri W’s) sexual abuse adjudication:

The version of [the] statute in effect when Teri W. committed her offense provided that “For a felony, other than a class A-II felony defined in article two hundred twenty of this chapter or the class B felony defined in section 220.48 of this chapter, or any other class B felony defined in article two hundred twenty of this chapter committed by a second felony drug offender, or a sexual assault, the period of probation shall be five years” … . Pursuant to the exception above, “[f]or a felony sexual assault, the period of probation shall be ten years” … . * * *

Because [the relevant] definition includes sex offenses that are class E felonies, a probation period of 10 years for a felony sexual assault is a sentence “authorized to be imposed upon a person convicted of a class E felony” … . Concordantly, Penal Law § 65.00 (3) (a) (i) exempts “sexual assaults” from the shorter probationary period applicable to non-sexual assault class E felonies. People v Teri W., 2018 NY Slip Op 02210, CtApp 3-29-18

CRIMINAL LAW (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/SENTENCING (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/YOUTHFUL OFFENDER (TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))/SEXUAL OFFENSES (YOUTHFUL OFFENDER, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))PROBATION (YOUTHFUL OFFENDER, SEXUAL OFFENSE, TEN-YEAR, AS OPPOSED TO A FIVE-YEAR, PROBATION SENTENCE FOR A YOUTHFUL OFFENDER SEXUAL ABUSE ADJUDICATION IS SUPPORTED BY THE STATUTORY LANGUAGE (CT APP))

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DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that an exchange of correspondence supported plaintiff’s allegation of the existence of an employment contract and a breach of that contract. The documentary evidence submitted by the defendant did not utterly refute the allegations in the complaint. Therefore the defendant’s motion to dismiss was properly denied:

… [W]e conclude that, based on all the documentary evidence proffered by defendant, a reasonable fact-finder could determine that a binding contract was formed. Ertel’s [the CEO’S] initial email to plaintiff stated that “[t]he terms of our offer are the same [as the] terms of your existing contract” — apart from “a clarification” concerning an issue that plaintiff characterizes as minor — and outlined the core terms that were included in the 2009 Agreement. He added that, if plaintiff had “[a]ny further questions” he should consult his “existing contract.” Inasmuch as this email explained that “the terms of the offer” were to be nearly identical to the terms of plaintiff’s existing contract, a reasonable fact-finder could interpret it as evincing an objective manifestation of defendant’s intent to enter into a bargain, such that plaintiff was justified “in understanding that his assent to that bargain [was] invited and [would] conclude it”… . Put differently, it could reasonably be inferred that Ertel’s email constituted a valid offer by defendant. In response to that email, plaintiff wrote “I accept. pls [sic] send contract,” to which Ertel replied, “Mazel. Looking forward to another great run.”… Affording plaintiff the benefit of every favorable inference, this exchange — in essence, we “offer” and “I accept,” followed by an arguably congratulatory exclamation, coupled with a forward-looking statement about the next stage of the parties’ continuing relationship — sufficiently evinces an objective manifestation of an intent to be bound for purposes of surviving a motion to dismiss … . Although Ertel’s email referenced one outstanding “clarification,” the parties’ further communications indicate that such clarification was incorporated into the first draft of the new agreement sent by Zeliger [general counsel] to plaintiff, and no evidence was offered to suggest that plaintiff resisted that change to the terms of the 2009 Agreement. We reject defendant’s argument that plaintiff’s contract claim should have been dismissed because the additional correspondence defendant proffered in support of its motion to dismiss reflects a lack of mutual assent to material terms — such as plaintiff’s minimum guaranteed compensation and the length of the non-compete term — and that this indefiniteness renders the purported contract invalid as a matter of law. As the Appellate Division concluded, that correspondence does not conclusively refute contract formation … . Kolchins v Evolution Mkts., Inc., 2018 NY Slip Op 02209, CtApp 3-29-18

CONTRACT LAW (CORRESPONDENCE, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMPLOYMENT LAW (CONTRACT LAW, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CIVIL PROCEDURE (MOTION TO DISMISS, DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CPLR 3211 (DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/CORRESPONDENCE (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/EMAILS (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))/LETTERS (CONTRACT LAW,  DOCUMENTARY EVIDENCE DID NOT UTTERLY REFUTE PLAINTIFF’S CORRESPONDENCE-EVIDENCE THAT AN EMPLOYMENT CONTRACT HAD BEEN ENTERED AND BREACHED BY THE DEFENDANT, DEFENDANT’S MOTION TO DISMISS PROPERLY DENIED (CT APP))

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