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PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE.

The Court of Appeals, in a full-fledged opinion by Judge Stein, concerning a lawsuit alleging the Erie County Sheriff was negligent in failing to protect plaintiff from sexual assault while in jail, determined: (1) plaintiff did not need to file a notice of claim because the county can not, under the NYS Constitution, indemnify and defend the sheriff in connection with the action; (2) the complaint stated a cause of action in negligence (failure to keep an inmate safe); and (3) governmental immunity is an affirmative defense on which the sheriff bears the burden of proof which cannot be addressed at the pleading stage. The fact that the county provided law enforcement liability insurance for the sheriff did not trigger the notice of claim requirement under the Municipal Law:

… [T]hat the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized — as was commonly understood at the time — that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriff’s employees, under the New York State Constitution … . Absent the existence of any statutory obligation on the County to indemnify the Sheriff — as opposed to an agreement to act as his insurer — the Appellate Division correctly ruled that service of a notice of claim was not required under General Municipal Law § 50-e. …

While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances … , we explained in Sanchez [99 NY2d 247] that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” … . Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” … , the rule set forth in Sanchez applies equally here. Villar v Howard, 2016 NY Slip Op 06944, CtApp 10-25-16

 

MUNICIPAL LAW (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NEGLIGENCE (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NOTICE OF CLAIM (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/SHERIFF (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)

HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS’S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined: (1) an inmate's statement that he/she does not wish to be involved or does not want to testify is sufficient to protect the inmate's right to call the witness; and (2) the hearing officer's failure to inquire into an inmate witness's allegation of he was coerced into refusing to testify required reversal:

… [W]hen there is a “claim of coercion, . . . the Hearing Officer ha[s] a duty to inquire further into [the] refusal to testify” … . Whether such an inquiry will require an in-person or telephone interview of the refusing inmate by the hearing officer or may instead proceed through the intermediary of a suitably briefed correction officer will depend on the circumstances surrounding the allegation.

Here, the hearing officer failed to make a meaningful inquiry, either personally or through a correction officer, into the allegation of coercion by the refusing inmate witness. Matter of Cortorreal v Annucci, 2016 NY Slip Op 06943, CtApp 10-25-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS'S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY)

STATEMENTS ALLEGING MAFIA INVOLVEMENT IN A STRIP CLUB WERE NOT “OF AND CONCERNING” INDIVIDUAL PLAINTIFFS WHO PROVIDED FOOD, BEVERAGE AND TALENT SERVICES TO THE CLUB.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined a defamation suit was properly dismissed because the alleged defamatory remarks were not “of and concerning” the plaintiffs. Television news broadcasts claimed that the Cheetah Club, a strip club, was involved in human trafficking orchestrated by the mafia. The story claimed women from Russia and Eastern Europe were brought into this country, set up with sham marriages to American citizens, and then forced to dance at the club. The plaintiffs, Times Square Restaurant Group, Times Square Restaurant No. 1 and individual plaintiffs associated with the Times Square plaintiffs, O’Neill, Callahan and Stein, provided management and talent services to the Cheetah Club. Only the individual plaintiffs, O’Neill, Callahan and Stein, appealed the dismissal of the defamation complaint:

In order to establish a prima facie case of defamation, plaintiffs must show that the matter published is “of and concerning” them … . Although it is not necessary for the plaintiffs to be named in the publication, they must plead and prove that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such … . This burden is not a light one, and the question of whether an allegedly defamatory statement could reasonably be interpreted to be “of and concerning” a particular plaintiff is a question of law for the courts to decide … .

Accepting as true each and every allegation in the complaint, the challenged statements were not of and concerning plaintiffs O’Neill, Callahan and Stein. The news broadcast stated that Cheetah’s was purportedly used by the mafia to carry out a larger trafficking scheme. It did not mention any employees of the club or of the management and talent agencies that facilitate its daily operations, let alone the individual plaintiffs in these appeals, who were not identified or pictured in the report. In context, the statement that Cheetah’s was “run by the mafia” could not reasonably have been understood to mean that certain unnamed individuals who do not work for Cheetah’s but oversee its food, beverage and talent services are members of organized crime … . Nor did the challenged statements describe a particular, specifically-defined group of individuals who “run” the Cheetah Club, such that the small group libel doctrine would apply … . Contrary to the dissent’s assertion, defendants’ broadcast referred only to the club and failed to include sufficient particulars of identification in order to be actionable by an individual … . Three Amigos SJL Rest., Inc. v CBS News Inc., 2016 NY Slip Op 06941, CtApp 10-25-16

 

DEFAMATION (STATEMENTS ALLEGING MAFIA INVOLVEMENT IN A STRIP CLUB WERE NOT “OF AND CONCERNING” INDIVIDUAL PLAINTIFFS WHO PROVIDED FOOD, BEVERAGE AND TALENT SERVICES TO THE CLUB)

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PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reaffirmed its precedent allowing voluntary statements made after Miranda rights have been invoked to be used to impeach should the defendant take the stand:

This Court has long held that if a statement made by the defendant to the police is voluntary, it may be used for impeachment purposes; but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable … . * * *

Here, County Court determined that the statements were voluntary and the Appellate Division affirmed that determination. …  …[T]here is nothing in the record to support defendant’s contention that [the interrogating officer] consciously circumvented defendant’s invocation of his Fifth Amendment rights or otherwise rendered defendant’s statements involuntary as a matter of law. Thus, it cannot be said that County Court abused its discretion in denying defendant’s motion to preclude the People from utilizing the statements on cross-examination or rebuttal. People v Wilson, 2016 NY Slip Op 06942, CtApp 10-25-16

 

CRIMINAL LAW (PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/EVIDENCE PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/STATEMENTS (CRIMINAL LAW, PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED

RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY (ENTRY OF DWELLING) CONVICTION REVERSED.

The Court of Appeals, over an extensive dissent, determined defendant should not have been convicted of burglary (entry of a “dwelling”) because the residential area of the building could not be accessed from where he entered:

Under the narrow circumstances of this case, application of the general rule as to what constitutes a dwelling in a mixed residential and commercial building within the meaning of Penal Law § 140.00 (2) is not warranted. Defendant, from a public sidewalk, entered the open cellar doors into a basement that was both entirely disconnected from the building and completely inaccessible to the residences in that building. The basement was not contiguous to any residential units. * * * …[T]he deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk. The basement was remote given that it was not used by the residents for any purposes and that there was no proof of any relationship between that space and the residents. In sum, there was no “close contiguity” … between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” … . People v Joseph, 2016 NY Slip Op 06945, CtApp 10-25-16

CRIMINAL LAW (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/BURGLARY (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/DWELLING (BURGLARY, (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)

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PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirming the dismissal of the attempted first degree murder indictment on speedy trial grounds, determined the People did not act with due diligence in seeking DNA test results. DNA had been recovered from the gun involved. A DNA swab was not taken from the defendant until nine months after indictment:

The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion “is to be given reasonable effect and [] is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it” … . In addition, while we have recognized that “‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),'” we have stated “that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … .

Here, as a result of the People’s inaction in obtaining defendant’s DNA exemplar, the 161-day period of delay to test the DNA and to produce the DNA report was not excludable from speedy trial computation as an exceptional circumstance. People v Clarke, 2016 NY Slip Op 06939, CtApp 10-25-16

 

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/ SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/DNA TESTS (CRIMINAL LAW, PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)

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MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY.

NEGLIGENCE, MEDICAL MALPRACTICE, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined the trial court did not abuse its discretion when it denied plaintiff’s motion to strike defendant’s expert’s testimony. The “expert-evidence” notice indicated the expert would testify about the cause of plaintiff’s decedent’s death but did not indicate the substance of the testimony. At trial the expert did not agree with the cause described in the autopsy report (pneumonia) and testified death was attributable to cardiac arrhythmia. The motion to strike argued the “expert notice” was deficient because it did not provide any detail about the expert’s opinion. Because the lack of detail was obvious pre-trial, the mid-trial objection was properly overruled:

Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised — and potentially cured — before trial. Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854, CtApp 10-20-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/MEDICAL MALPRACTICE (MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)

JUDGE’S EGREGIOUS BEHAVIOR WARRANTED REMOVAL FROM OFFICE.

The Court of Appeals determined the petitioner, a Town and Village Justice, should be removed from office for what might be termed “bullying” while on and off the bench:

The misconduct giving rise to that concession “qualifies as ‘truly egregious'” … . The record reflects that, among other things, petitioner used a sanction — a tool meant to “shield” from frivolous conduct — as a “sword” to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament — perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner — in what allegedly was a grossly misguided attempt to motivate — repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. …

Significantly, too, petitioner’s hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. Matter of Simon, 2016 NY Slip Op 06855, CtApp 10-20-16

 

JUDGES (JUDGE’S EGREGIOUS BEHAVIOR WARRANTED REMOVAL FROM OFFICE)

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ADMISSIBILITY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539.

CRIMINAL LAW, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined evidence which was originally generated in electronic form was admissible under CPLR 4518 (a) and CPLR 4539 (b) applies only to documents originally in hard copy and subsequently scanned into digital form. The document in question was a record of testing of the simulator solution used during an alcohol breath test:

County Court correctly held that the applicable statute is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an “electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (CPLR 4518 [a]). The statute further provides that the court “may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record,” but “[a]ll other circumstances of the making of the memorandum or record. . . may be proved to affect its weight,” and “shall not affect its admissibility” (id. [emphasis added]).

The 2002 amendment to CPLR 4518 (a) was adopted by the legislature upon the recommendation of the Chief Administrative Judge’s Advisory Committee on Civil Practice specifically because the Committee and the legislature concluded that CPLR 4539 (b) had no application to documents originally created in electronic form. People v Kangas, 2016 NY Slip Op 06857, CtApp 10-20-16

 

CRIMINAL LAW (DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/EVIDENCE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)DWI (BREATH TEST,  ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/BREATH TEST (DWI, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/CIVIL PROCEDURE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)

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FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION.

The Court of Appeals, reversing the Appellate Division, determined the trial judge’s acceptance of a verdict before responding to the jury’s request for a readback was not a mode of proceedings error and therefore must be preserved by objection. Just prior to the verdict, the judge had read the jury’s request verbatim in the presence of counsel, defendant and the jury. The judge’s failure to respond to the request (unlike a failure to apprise the parties of the contents of the request) is not a mode of proceedings error:

… “[W]here counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review” … .

Here, the trial court complied with its responsibility to provide counsel with meaningful notice of the jury’s notes by reading the notes verbatim into the record in the presence of counsel, defendant, and the jury … . Inasmuch as counsel had meaningful notice of the jury notes, the trial court’s failure to provide a response to the jury’s outstanding request for a readback of testimony before accepting the verdict does not constitute a mode of proceedings error … . Counsel was required to object to preserve any claim of error for this Court’s review. “Although the court’s procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it” .. . . People v Wiggs, 2016 NY Slip Op 06860, CtApp 10-20-16

CRIMINAL LAW (FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/APPEALS (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)/MODE OF PROCEEDINGS ERROR (FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE IS A MODE OF PROCEEDINGS ERROR WHICH NEED NOT BE PRESERVED; FAILURE TO PROVIDE A MEANINGFUL RESPONSE TO A JURY NOTE, HOWEVER, IS NOT A MODE OF PROCEEDINGS ERROR AND MUST BE PRESERVED BY OBJECTION)

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