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SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT.

The Court of Appeals, over an extensive two-judge dissent, determined, under the Executive Law, a special prosecutor has the authority to bring a criminal case in local court concerning the abuse of vulnerable persons pursuant to the “Protection of People with Special Needs Act.” Defendant unsuccessfully argued the Executive Law limited the power of the special prosecutor to criminal prosecutions in County and Supreme Court:

There is no indication from the statute that the special prosecutor’s powers are limited by section 552 (2) (c). That section merely sets forth the requirement that the special prosecutor consult with the district attorney of the pertinent county should the special prosecutor wish to appear in County Court or Supreme Court, or before the grand jury, for the purposes of managing or conducting before such court or grand jury a criminal action or proceeding involving the abuse or neglect of a vulnerable person. There is no indication that the statute governs proceedings in local courts at all. People v Davidson, 2016 NY Slip Op 04326, CtApp 6-7-16

 

CRIMINAL LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/EXECUTIVE LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/SOCIAL SERVICES LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/VULNERABLE PERSONS (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/PROTECTION OF PERSONS WITH SPECIAL NEEDS ACT (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)

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FAILURE TO MOVE TO SUPPRESS EVIDENCE AND FAILURE TO CHALLENGE A FRISK DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined defense counsel's failure to make a motion to suppress, failure to contest a frisk of defendant's person, and brief statement at sentencing did not constitute ineffective assistance of counsel. The suppression motion would have had little chance of success, the failure to object to the frisk may have been part of a defense strategy and the non-frisk-related evidence was substantial, and the sentencing court was aware of the defendant's position through the pre-sentence report and defendant's statement at sentencing. With respect to the “defense strategy” and “no challenge to the frisk” issues, the court wrote:

Assuming a colorable challenge to the legality of the frisk incident to defendant's detention could be grounded in this record, as the Appellate Division noted, counsel may have made a legitimate strategic decision not to move to suppress … . On this record alone, we have no reason to discount the possible strategic explanations for counsel's decision. Because defendant “made no showing that counsel's failure to seek a suppression hearing was not premised on strategy,” his claim must be rejected … . In addition, because the remaining evidence demonstrated that defendant was in a vehicle containing a number of recently-stolen items, a challenge to the frisk would have had little to no effect on the outcome. People v Carver, 2016 NY Slip Op 04322, CtApp 6-7-16

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO MOVE TO SUPPRESS EVIDENCE AND FAILURE TO CHALLENGE A FRISK DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS EVIDENCE AND FAILURE TO CHALLENGE A FRISK DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS EVIDENCE AND FAILURE TO CHALLENGE A FRISK DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL)

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COURT’S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, determined (1) the trial court properly notified all parties of the contents of a jury note, and (2), the response to the jury note, in which only the direct testimony of a witness was read back, was not a mode of proceedings error. Therefore the failure to read the cross-examination was an error which must be preserved for appellate review (no preservation here):

Counsel had meaningful notice of the precise content of the jury's note and was in the courtroom as the readback was conducted. Counsel was therefore aware that the court had failed to read the witness's cross-examination testimony. Counsel's knowledge of the precise content of the note and of the court's actual response, or lack thereof, removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required … . “[C]ounsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here” … . People v Morris, 2016 NY Slip Op 04327, CtApp 6-7-16

CRIMINAL LAW (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR  (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

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PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED.

The Court of Appeals, over an extensive dissenting opinion, determined defendant failed to preserve an objection to his sentence because he did not move to withdraw his plea or otherwise object prior to the imposition of sentence. As part of a plea deal, defendant was required to complete six months in jail, followed by a period of time during which he was not arrested. Defendant completed the jail time but was subsequently arrested. Because of the arrest, the plea deal was not available and defendant was sentenced accordingly. The Court of Appeals held that the narrow exception to the preservation requirement for an illegal sentence did not apply to these facts. The jail-time was deemed to be a “pre-sentence” condition and could not, therefore, be deemed an illegal sentence. The court further explained the criterial for an Outley hearing to determine the validity of an arrest which violates a condition for a plea deal:

Here, defendant's sentence was premised on a violation of an admittedly lawful presentence condition – he could not be arrested – and the issue of the propriety of the plea could certainly have been raised prior to sentencing. Thus, defendant's challenge to the presentencing incarceration, which was not part of the sentence, is subject to the preservation rule … . * * *

[At the Outley hearing] the judge heard testimony from the complainant and the arresting officer. Defendant also testified that the complainant had been the aggressor and had attacked him. The judge found that there was a legitimate basis for defendant's arrest, implicitly rejecting defendant's version of events, and that finding was adopted by the sentencing court. Thus, because defendant was given an opportunity to testify to his exculpatory explanation, and his testimony was evidently discredited by the court, the nature of the inquiry was sufficient under our Outley standard. People v Reynolds, 2016 NY Slip Op 04323, CtApp 6-7-16

CRIMINAL LAW (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED)/APPEALS (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT)/SENTENCING (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED)/OUTLEY HEARING (CRITERIA FOR OUTLEY HEARING EXPLAINED)

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FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE’S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined the trial judge's acceptance of the verdict without answering three jury notes was not a mode of proceedings error. Because there was no objection to the failure to answer the jury notes, the error was not preserved. The notes had been marked as court exhibits, had been read verbatim to counsel and counsel were aware of the court's proposed responses. The note indicating a verdict had been reached was sent out before the court was able to answer:

Criminal Procedure Law § 310.30 imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury … . A trial court's failure to fulfill its first responsibility — meaningful notice to counsel — falls within the narrow class of mode of proceedings errors for which preservation is not required … . On this appeal, we consider whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury's substantive inquiries, but the trial court did not respond to those inquiries before accepting the verdict. We hold that where 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. People v Mack, 2016 NY Slip Op 04321, CtApp 6-7-16

CRIMINAL LAW (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/JURY NOTES (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

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LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Martin Act (General Business Law article 23-A) allowed a permanent injunction imposing a lifetime ban on defendants' participation in the securities industry and service as an officer or director of a public company. The court further found that both the Martin Act and the Executive Law allowed the remedy of disgorgement of wrongfully obtained profits. [This is the second time this securities-fraud case reached the Court of Appeals. The underlying facts were laid out in the prior decision (21 NY3d 439).]:

… [T]he Attorney General may obtain permanent injunctive relief under the Martin Act and Executive Law § 63 (12) upon a showing of a reasonable likelihood of a continuing violation based upon the totality of the circumstances … . “This is not a 'run of the mill' action for an injunction, but rather one authorized by remedial legislation, brought by the Attorney General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation” … . “'[T]he standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief'”. Therefore, we reject defendants' argument that the Attorney General must show irreparable harm in order to obtain a permanent injunction. * * *

We further conclude that disgorgement is an available remedy under the Martin Act and the Executive Law. The Martin Act contains a broad, residual relief clause, providing courts with the authority, in any action brought under the Act, to “grant such other and further relief as may be proper” (General Business Law § 353-a). Indeed, this Court has previously recognized that the courts are not limited to the remedies specified under either of these statutes … . In our view, disgorgement “merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty” … . As we have previously stated, in an appropriate case, disgorgement may be an available “equitable remedy distinct from restitution” under this State's anti-fraud legislation … . People v Greenberg, 2016 NY Slip Op 04253, CtApp 6-2-16

SECURITIES (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/MARTIN ACT (LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/EXECUTIVE LAW (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)/FRAUD (SECURITIES, LIFETIME BAN ON PARTICIPATION IN THE SECURITIES INDUSTRY AND DISGORGEMENT OF WRONGFULLY OBTAINED PROFITS ARE AVAILABLE REMEDIES UNDER ANTI-FRAUD STATUTES)

DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a defendant may waive his right to be present for sentencing on a felony:

Defendant contends that County Court violated CPL 380.40 (1) by permitting him to waive his presence for sentencing and in pronouncing judgment in his absence. We disagree. CPL 380.40 provides, with limited exceptions, that the “defendant must be personally present at the time sentence is pronounced” (CPL 380.40 [1]). In situations where the sentence is to be pronounced for a misdemeanor or petty offense, a defendant may move to dispense with the personal presence requirement, and, with the court's permission, may be sentenced in absentia so long as the defendant executes a waiver “reciting the maximum sentence that may be imposed for the offense and stating that the defendant waives the right to be personally present at the time sentence is pronounced” (CPL 380.40 [2]). On its face, the statute provides for no similar exception for felony defendants. * * *

We conclude … that a defendant may expressly waive his right to be present. “[W]aiver results from a knowing, voluntary and intelligent decision” … . Although CPL 380.40 protects a defendant's fundamental right to be present at sentencing … , that fundamental right may be waived just as many other fundamental rights may be similarly waived … . People v Rossborough, 2016 NY Slip Op 04250, CtApp 6-2-16

CRIMINAL LAW (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)/SENTENCING (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)/WAIVER (CRIMINAL LAW, (DEFENDANT MAY WAIVE RIGHT TO BE PRESENT FOR SENTENCING ON A FELONY)

ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST.

The Court of Appeals determined Supreme Court did not have jurisdiction to entertain a motion for statutory interest after judgment was entered. The post-judgment award of statutory interest ($4.9 million) was properly vacated by the appellate division:

While [petitioner] was appealing Supreme Court's judgment dismissing its action, some of the [respondents] filed a motion seeking an award of statutory interest under Civil Practice Law and Rules § 5001. Supreme Court granted the motion, and in August 2013, directed entry of a judgment of approximately $4.9 million, representing interest at the statutory rate. Upon appeal, the Appellate Division reversed; the court denied the [respondents'] motion and vacated the statutory interest judgment … .

We agree with the Appellate Division that Supreme Court lacked jurisdiction to award statutory interest on the January 2012 judgment that dismissed the petition. … [T]he January 2012 paper, denominated an “order,” was a final judgment dismissing the proceeding … .

Once Supreme Court dismissed [the] petition and judgment was entered, the court was without jurisdiction to entertain the [respondents'] post-judgment motion for statutory interest … . CRP/Extell Parcel I, L.P. v Cuomo, 2016 NY Slip Op 04251, CtApp 6-2-16

CIVIL PROCEDURE (ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST)/JURISDICTION, SUBJECT MATTER(ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST)

NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, over a dissenting opinion, determined the New York State Racing and Wagering Board had the discretion to reduce the per diem wages of seasonal employees by 25%. The majority held that a Side Letter Agreement, which incorporated 50 articles of the collective bargaining agreement, set limits on the discretionary authority of the racing board, but did not prohibit the discretionary wage reduction at issue here. The dissent argued the 50 incorporated articles did not address the wage reduction and therefore should not be deemed to have given the racing board the discretion to unilaterally reduce the wages of seasonal employees:

The Side Letter Agreement was comprehensive in addressing all conditions of employment for seasonal employees for 1996 to 1999. It included specific pay increases for specific years, but not for the fiscal year in which the 25% reduction took effect. The Side Letter Agreement did not rule out pay reductions and did not impose any conditions precedent to pay reductions … . Thus, PERB's [Public Employment Relations Board's] conclusion that it was “reasonably clear” that both sides intended the Side Letter Agreement “to act as a negotiated limitation upon the State Budget Director's discretion” as to compensation for seasonal employees was not arbitrary and capricious. Contrary to the dissent's characterization, the decision is supported not just by the quantity of items contained in the Side Letter Agreement, but by specific items expressly limiting the discretion otherwise delegated to the Racing Board chair and Budget Director by statute. PERB's decision should be accorded deference as a decision within its area of expertise. Read as a whole, the language of the Side Letter Agreement “implicitly demonstrate[s] that the parties had reached accord” with respect to any limitations on the discretionary authority of the Budget Director to change the per diem compensation of seasonal employees. Matter of Kent v Lefkowitz, 2016 NY Slip Op 03650, CtApp 5-10-16

EMPLOYMENT LAW (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)/PUBLIC EMPLOYEES (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)/RACING AND WAGERING BOARD (NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW PSYCHIATRIC EXPERT PHOTOS OF VICTIM’S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE’S REVENGE THEORY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined defendant's counsel was not ineffective. Defendant was 15 when he stabbed the 12-year-old victim more than 20 times (the victim survived). The defendant claimed he blacked out and had no memory of the stabbing. The defense called an psychiatrist who testified defendant's mental condition, together with his use of marijuana, made it impossible for the defendant to form the intent to commit the crime. Defense counsel did not show the expert the photos of the victim's wounds and did not inform the expert of the prosecution's theory that the defendant considered the victim a “snitch” and attacked him for that reason:

Whatever the wisdom of counsel's strategy, we cannot say that it was inconsistent with the actions of a reasonably competent attorney. There is no evidence on this record of what information forensic experts ordinarily require in order to arrive at an expert conclusion, or what information the expert requested in this case. Nor is there any evidence of what information an attorney ordinarily would or should provide to such an expert, independently of the expert's request. Therefore, it is not clear that prevailing professional norms would have required counsel to provide the expert with photographs and hospital records of the victim's stab wounds or inform him of the prosecution's theory of the case … . People v Henderson, 2016 NY Slip Op 03649, CtApp 5-10-16

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)/INEFFECTIVE ASSISTANCE OF COUNSEL DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO SHOW EXPERT PHOTOS OF VICTIM'S WOUNDS AND FAILING TO INFORM EXPERT OF THE PEOPLE'S REVENGE THEORY)

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