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SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a concurring opinion, determined skin color is a valid basis for a Batson challenge to a peremptory strike. Here defense counsel challenged the prosecutor’s striking of a dark-colored Indian-American woman. The prosecutor did not provide a non-discriminatory reason for striking her:

Our State Constitution and Civil Rights Law plainly acknowledge that color is a “status that implicates equal protection concerns” … , and therefore a Batson challenge may be based on color. Discrimination on the basis of one’s skin color — or colorism — has been well researched and analyzed, demonstrating that “not all colors (or tones) are equal” … . Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race. Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our State Constitution and Civil Rights Law. Making this distinction is necessary to serve the purpose of Batson, which recognized that discrimination in the selection of jurors violates “a defendant’s right to equal protection because it denies him [or her] the protection that a trial by jury is intended to secure” … . People v Bridgeforth, 2016 NY Slip Op 08586, CtApp 12-22-16

CRIMINAL LAW (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/JURORS (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/BATSON CHALLENGE (CRIMINAL LAW, SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)/SKIN COLOR (SKIN COLOR RECOGNIZED AS A VALID BASIS FOR A BATSON CHALLENGE TO THE PEREMPTORY STRIKE OF A JUROR)

DENIAL OF DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED.

The Court of Appeals, reversing the appellate division, determined the trial court did not abuse its discretion when it denied defense counsel's for cause challenge to a juror. The court's questioning of the juror, which referenced questions just asked of another juror, was sufficient to ensure the juror would render a verdict based on the evidence and the law:

Under the circumstances of this case — including the trial court's direct reference to the questions it had asked of juror No. 123, which called to juror No. 383's attention her previously stated bias — the trial court did not abuse its discretion by denying defendant's for-cause challenge to the prospective juror based on her subsequent unequivocal assurances of impartiality … . Viewing prospective juror No. 383's statements in totality and in context … , her assurances to the court adequately expressed her ability and willingness to adhere to her obligation to acquit defendant if the evidence required her to do so and established that she would render an impartial verdict untainted by any aforementioned bias or sympathy. “[T]he CPL . . . does not require any particular expurgatory oath or 'talismanic' words” to resolve doubt about a potential juror's ability to be fair… and, here, the trial court had the discretion to deny defendant's for-cause challenge to the prospective juror … . People v Warrington, 2016 NY Slip Op 08584, CtApp 12-22-16

CRIMINAL LAW (DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)/JURORS (CRIMINAL LAW, DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)/FOR CAUSE CHALLENGE (DENIAL OF DEFENSE COUNSEL'S FOR CAUSE CHALLENGE TO A JUROR WAS NOT AN ABUSE OF DISCRETION, APPELLATE DIVISION REVERSED)

UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS. 

The Court of Appeals, in a full-fledged opinion by Judge Piggot, over a dissenting opinion, determined the trial judge properly refused to instruct the jury on the lesser included offense of coercion in the second degree. Defendant was charged and convicted of coercion in the first degree. The applicable elements of both the first and second degree offenses were the same in this case. The second degree (misdemeanor) offense is reserved for rare cases where the nature of the coercion does not rise to the level of heinousness warranting a felony conviction (not easily described or discerned):

This Court long ago recognized that the crimes of coercion in the first and second degree “are identical when the coercion is committed by instilling a fear that a person will be physically injured or that property will be damaged” … . While the language of the statutes does not provide guidance on which crime is to be charged, … the legislative history reveals an intention that the felony of “coercion in the first degree be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property.” * * *

… [S]econd-degree coercion should be charged as a lesser included offense only in the “unusual factual situation” in which the coercion by threat of personal or property injury lacks “the heinousness ordinarily associated with this manner of commission of the crime” … . We … left open the possibility that, based on the evidence presented in a given case, a trial court could submit second-degree coercion as a lesser-included offense of coercion in the first degree if the “threatened physical injury is not truly fearsome” … .

This case does not present one of those “unusual factual situations” warranting the lesser included charge … . The People’s evidence showed that defendant coerced his former girlfriend by threatening to drive away her clients, make it impossible for her to conduct business, hurt her physically, and even kill her. Such methods of coercion have the heinous quality contemplated by the first-degree statute, and therefore the second-degree charge was not warranted. People v Finkelstein, 2016 NY Slip Op 08585, CtApp 12-22-16

 

CRIMINAL LAW (UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS)/COERCION (CRIMINAL LAW, UNDER THE FACTS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO CONSIDER COERCION IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE, DESPITE THE FACT THAT COERCION IN THE FIRST DEGREE AND COERCION IN THE SECOND DEGREE HAVE IDENTICAL ELEMENTS)

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NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS.

The Court of Appeals, in a fill-fledged opinion by Judge Abdus-Salaam, determined all of the line-up identifications of the defendant should have been suppressed. The suppression court found that defendant’s dreadlocks constituted a “distinctive feature.” Defendant was the only person in the line-up identifications with dreadlocks. Two of the victims mentioned dreadlocks in their statements to the police, and two did not. The suppression court suppressed only the two line-up identifications made by the victims who mentioned dreadlocks:

We by no means propose that a lineup is unduly suggestive, as a matter of law, merely because a defendant has a different hairstyle than some or all of the fillers. We further decline to categorically state what features may be considered so “distinct” as to render a lineup unduly suggestive. But here, the courts below concluded that defendant’s dreadlocks were distinctive — so much so that they rendered the lineup unduly suggestive as to the two victims … who had mentioned the perpetrator’s hairstyle in their initial description to the police. This conclusion is supported by the lineup photographs introduced into evidence at the hearing, which clearly depict defendant as the only person with long, visible dreadlocks. … The lower courts’ conclusion that this same distinctive feature was not unduly suggestive for [the other two victims] was premised solely on their having not included dreadlocks as part of their descriptions. No other findings of fact were made that would distinguish the outcomes from one another. Since our holding here clarifies that a witness’s failure to mention a distinctive feature in his or her initial description is not necessarily the determinative factor in assessing a lineup’s suggestivity, here, we must conclude that there was no record support for the lower courts’ denial of suppression for [two of the four] lineups … . People v Perkins, 2016 NY Slip Op 08483, CtApp 12-20-16

CRIMINAL LAW (NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/EVIDENCE (CRIMINAL LAW, LINE-UPS, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/SUPPRESSION (LINE-UPS, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/LINE-UPS (NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)/IDENTIFICATION (CRIMINAL LAW, NO RECORD SUPPORT FOR LOWER COURT’S DENIAL OF SUPPRESSION OF LINE-UPS WHERE DEFENDANT WAS THE ONLY PERSON WITH DREADLOCKS)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE, DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defense counsel was not ineffective. Counsel, following defendant’s wishes. pursued a misidentification defense and did not pursue a justification defense. A video depicted actions which raised the possibility the shooting was justified as self-defense. However, defendant maintained he was not the shooter depicted in the video:

Here, we cannot say that defendant received less than meaningful representation … . Defendant concedes that he instructed counsel to pursue a misidentification defense, and he does not claim that counsel’s professional efforts in that regard were constitutionally deficient. Rather, defendant claims he was deprived of effective assistance when counsel failed to present a defense of justification. We disagree.

Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not “determinative of the verdict” … . We are not presented with a case in which defendant’s chosen defense theory was self destructive and ensured conviction. Nor did the path taken by counsel undermine his ability to deploy professional skill and expertise in presenting the chosen defense. For the same reasons, counsel was not ineffective for objecting to any charge that would have presented justification to the jury as a response to the jury’s request for further instructions. Thus, we cannot say that counsel’s representation was constitutionally deficient at the time because he vigorously pursued the defense defendant approved rather than the one defendant rejected outright. People v Clark, 2016 NY Slip Op 08485, CtApp 12-20-16

 

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)

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WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED.

The Court of Appeals, reversing the appellate division, determined defendant’s waiver of appeal was valid. The lower court judge first went through the rights waived by a guilty plea. Only then did the judge turn to the waiver of appeal:

Here, the court separately explained to defendant the panoply of rights normally [*3]forfeited upon a guilty plea. After ensuring that defendant understood those rights, the judge next had defendant allocute to the facts of the crimes. Only after the allocution did the court turn to the waiver of appeal. During the oral colloquy defendant stated he understood that he was “waiving [his] right to appeal” and “that this conviction, or these convictions will be final, that a court will not review what we have done here.” This verbal waiver was accompanied by a detailed written waiver which stated, among other things, that “the right to appeal is separate and distinct from the other rights automatically forfeited upon a plea of guilty.” Thus, the record sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. People v Bryant, 2016 NY Slip Op 08488, CtApp 12-20-16

RIMINAL LAW (WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/APPEALS (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/WAIVER OF APPEAL (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)

JURY INSTRUCTION TO CONTINUE DELIBERATIONS AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined a jury instruction given after a jury verdict was found not to be unanimous was not coercive:

The supplemental instruction in this case, taken in context, was not coercive. In response to the jury’s representation that it had reached a “verdict” — when, in fact, the jury was not unanimous — the trial judge provided clarification that, in order to constitute a verdict, all jurors had to agree. Moreover, … the trial judge here stressed that the jurors should “attempt” to reach a verdict … , thereby leaving “open the possibility that the jurors would have principled disagreements that would prevent them from reaching a unanimous verdict” … . The court did not “overemphasize” the need to return a verdict or “suggest[] that the jurors were failing in their duty” by not doing so … . Nor did the court indicate that the jurors would be subject to “prolonged deliberations”… .

Contrary to defendant’s claim, the absence of “cautionary language” is not fatal to the supplemental charge. Just two hours before its supplemental instruction, the trial court provided an instruction containing ample cautionary language reminding the jury “not [to] surrender an honest view of the evidence.”  People v Morgan, 2016 NY Slip Op 08484, CtApp 12-20-16

 

CRIMINAL LAW (JURY INSTRUCTION TO CONTINUE DELIBERATION AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE)/JURY INSTRUCTIONS (CRIMINAL LAW, JURY INSTRUCTION TO CONTINUE DELIBERATION AFTER A NON-UNANIMOUS VERDICT WAS NOT COERCIVE)

PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a concurrence in two of the three cases and a dissent in the third, articulated the procedure for determining whether a prosecutor’s off-calendar statement of readiness for trial was illusory. An illusory statement of readiness would not stop the speedy trial clock. The issue arises when an initial statement of readiness is followed by an indication the People are not ready for trial:

In each of these appeals, defendants moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30 (1) arguing that the People’s off-calendar statements of readiness were illusory because the People were not ready for trial at the next court appearance. The common issue left open in People v Sibblies (22 NY3d 1174 [2014]) — is whether, in the event of a change in the People’s readiness status, the People or the defendant have the burden of showing that a previously filed off-calendar statement of readiness is illusory. We hold that such a statement is presumed truthful and accurate; a presumption that can be rebutted by a defendant’s demonstration that the People were not, in fact, ready at the time the statement was filed. If the People announce that they are not ready after having filed an off-calendar statement of readiness, and the defendant challenges such statement — at a calendar call, in a CPL 30.30 motion, or both — the People must establish a valid reason for their change in readiness status to ensure that a sufficient record is made for the court to determine whether the delay is excludable. The defendant then bears the ultimate burden of demonstrating, based on the People’s proffered reasons and other relevant circumstances, that the prior statement of readiness was illusory. People v Brown, 2016 NY Slip Op 08482, CtApp 12-20-16

CRIMINAL LAW (PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)/SPEEDY TRIAL (PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)/STATEMENT OF READINESS (CRIMINAL LAW, SPEEDY TRIAL, PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED)

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NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS.

In an extensive opinion by Judge Stein, with a concurrence and a two-judge dissent, the Court of Appeals determined the owner of master recordings of songs by the band “The Turtles” did not have a state common-law copyright interest in the public performance of pre-1972 recordings (i.e., recordings broadcast by radio stations). A federal law controls post-1972 recordings:

… [C]ommon sense supports the explanation … that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales … . … [T]he Federal Copyright Office explicitly recognized the technological advances affecting the interests of the various participants in the music industry as early as 1991 … . Nevertheless, those participants have co-existed for many years and, until now, were apparently “happy together.” While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed.

Simply stated, New York’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. … Under these circumstances, the recognition of such a right should be left to the legislature. Flo & Eddie, Inc. v Sirius XM Radio, Inc., 2016 NY Slip Op 08480, CtApp 12-20-16

 

COPYRIGHT (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/SOUND RECORDINGS (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/RADIO STATIONS COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)/PUBLIC PERFORMANCE, RIGHT OF (NO STATE COMMON LAW COPYRIGHT PROTECTION FOR PRE-1972 RECORDINGS PLAYED BY RADIO STATIONS)

FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined plaintiff (Stonehill) was entitled to summary judgment against defendant Bank of the West (BOTW) in this breach of contract action.  BOTW offered for sale a syndicated loan at auction. Plaintiff bid on the loan and BOTW accepted the bid. The acceptance e-mail indicated it was “subject to” an executed agreement and a 10% deposit. BOTW argued that the “subject to” conditions were not met and a contract was never formed. The Court of Appeals disagreed noting a difference between conditions precedent to performance and conditions prefatory to the formation of a binding agreement:

In determining whether the parties intended to enter a contract, and the nature of the contract’s material terms, we look to the “objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . “[D]isproportionate emphasis is not to be put on any single act, phrase or other expression, but, instead on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain” … . With respect to auctions, the general rule is that a seller’s acceptance of an auction bid forms a binding contract, unless the bid is contingent on future conduct … . While an auction can be conditional, meaning property can be withdrawn after the close of bidding, it will not be deemed conditional absent explicit terms … . * * *

… [The acceptance] email stated that closure of the transaction required execution of a signed document and Stonehill’s tender of the 10% deposit. That, however, is not the same as a clear expression that the parties were not bound to consummate the sale and that BOTW could withdraw at any time, for any reason. Nor did BOTW make known its desire for an unrestricted exit from the deal before accepting Stonehill’s bid or anytime before it withdrew from the transaction. … There is a difference between conditions precedent to performance and those prefatory to the formation of a binding agreement. Stonehill Capital Mgt., LLC v Bank of the W., 2016 NY Slip Op 08481, CtApp 12-20-16

 

CONTRACT LAW (FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)/AUCTIONS (CONTRACT LAW, FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)/BID AND ACCEPTANCE (AUCTIONS, CONTRACT LAW, FORMULAIC LANGUAGE INDICATING THE ACCEPTANCE OF A BID WAS SUBJECT TO A WRITTEN AGREEMENT AND DEPOSIT DID NOT NEGATE THE FORMATION OF A BINDING CONTRACT UPON ACCEPTANCE)

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