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EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION OF DRUG POSSESSION; WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion by Judge Rivera, determined the evidence supported the jury’s consideration of the “drug factory presumption” re: possession of drugs.  In addition, the Court of Appeals held the decision whether to testify before a grand jury is a strategic decision to be made by the attorney, not the defendant, and, in order to demonstrate ineffective assistance in this context, a defendant must show prejudice. The presence of some loose cocaine on the floor, some baggies and a razor blade was sufficient to trigger the “drug factory presumption”, i.e., a presumption of possession by everyone in close proximity to the cocaine. Without the presumption, there would not have been enough evidence defendant possessed the drugs:

 

While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package[d] or otherwise prepare[d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them … . * * *

While the right to testify before a grand jury is significant and “must be scrupulously protected” …, “a prospective defendant has no constitutional right to testify before the [g]rand [j]ury” … . In contrast to the “constitutional nature of the right to testify at trial” … , the right to testify before the grand jury is a limited statutory right … . Whether to exercise that right is a decision that requires “the expert judgment of counsel” … because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses” — quintessential matters of strategy … . The various risks and benefits that must be considered render the decision of whether to exercise this statutory right “an appropriate one for the lawyer, not the client” … .

In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a “defense counsel’s failure to timely facilitate defendant’s intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel” … . That is, even where no strategy is involved, a defendant must show prejudice … . People v Hogan, 2016 NY Slip Op 01207, CtApp 2-18-16

 

CRIMINAL LAW (EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/EVIDENCE (CRIMINAL, SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/ATTORNEYS (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT)/INEFFECTIVE ASSISTANCE (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE)/GRAND JURY (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE TO SUPPORT INEFFECTIVE ASSISTANCE CLAIM)

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DEFENSE COUNSEL NOT INEFFECTIVE; EVIDENCE OF CHILD’S MULTIPLE DISCLOSURES OF SEX ABUSE WAS NOT BOLSTERING; DEFENSE COUNSEL ARTICULATED LEGITIMATE REASONS FOR NOT CALLING A MEDICAL EXPERT.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel was not ineffective in a child sex abuse case.  The central issues concerned the evidence of the child’s disclosures of the alleged abuse to several people (including the People’s expert), the prosecutor’s emphasis on the multiple disclosures without objection, and defense counsel’s failure to call a medical expert. The Court of Appeals held defense counsel articulated arguably legitimate reasons for not calling an expert, and the evidence of multiple disclosures did not constitute bolstering, but rather was properly admitted as background information, fleshing out the investigation, and the People’s expert’s diagnosis:

In Ludwig [24 NY3d 221], we acknowledged that “New York courts have routinely recognized that ‘nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'” and assisting in the completion of the narrative of events which led to the defendant’s arrest … . Here, the testimony of the child’s mother, sister, principal and the two officers fulfilled these legitimate nonhearsay purposes, and defense counsel’s objections to the testimony of the witnesses ensured that the witnesses did not specifically repeat what the child told them.

The majority of [the People’s medical expert’s] testimony as to the child’s specific allegations of sexual abuse was admissible under People v Spicola (16 NY3d 441 [2011]). In Spicola, we held that testimony of a nurse-practitioner concerning the child’s history of sexual abuse was permissible testimony because the child’s statements to the nurse-practitioner “were germane to diagnosis and treatment” and therefore “were properly admitted as an exception to the hearsay rule” (16 NY3d at 451). Applying Spicola here, the trial court properly admitted [the expert’s] testimony. The testimony explained why the child was being examined by [the expert] and why the normal results of the physical examination did not indicate that the child had not been subjected to sexual abuse. This background information completed the narrative and was properly permitted under the exception to the hearsay rule. Moreover, defense counsel lodged an objection to [the expert’s] testimony concerning the child’s history; however, that objection was overruled. Defense counsel can hardly be deemed ineffective on this score.

Trial counsel’s failure to request that a limiting instruction be given to the jury that the child’s testimony concerning the disclosures she made to other individuals should not be accepted for the truth of her allegations, does not render her ineffective in light of the totality of her representation of defendant … . Moreover, defense counsel was not ineffective for failing to object to the prosecutor’s summation comments referencing the testimony of the witnesses to whom the victim had disclosed. Despite the dissent’s argument to the contrary, the failure to object to the prosecutor’s statement on summation does not negate the overall meaningful representation provided to defendant by his counsel. Defense counsel zealously advocated for defendant, making multiple successful objections which limited the testimony of several prosecution witnesses. Additionally, defense counsel may have made a strategic choice not to object during summation given that the witnesses were not able to testify to the specifics of the child’s allegations … . She may have felt that such an objection would not be worthwhile given the limited testimony elicited from the witnesses. Such a strategic decision does not support a finding of ineffectiveness … . People v Gross, 2016 NY Slip Op 01204, CtApp 2-18-16

CRIMINAL LAW (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/ATTORNEYS (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/EVIDENCE (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)/EXPERT EVIDENCE (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/BOLSTERING (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND)/BACKGROUND INFORMATION (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)

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APPELLATE DIVISION PROPERLY DECIDED APPEAL ON GROUNDS WHICH WERE NOT EXPLICITLY STATED BY THE TRIAL COURT BUT WHICH WERE IMPLICIT IN THE TRIAL COURT’S RULING.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the Appellate Division did not exceed its statutory powers when it decided an evidentiary issue on grounds which were implicit in the trial court’s ruling, but not explicitly stated by the trial court. The trial judge had ruled rebuttal testimony was admissible to show defendant’s witness had lied when she testified she was currently “just friends” with the defendant. The Appellate Division found the testimony was admissible to show the defendant’s witness’s bias or motive to fabricate. The Court of Appeals held that the “bias or motive to fabricate” reasoning simply recognized the underlying premise of the trial court’s ruling, and did not violate the rule that the Appellate Division cannot decide an appeal on a ground not ruled upon by the lower court. The Court of Appeals also ruled that evidence of uncharged acts of violence against or witnessed by the child sex-abuse victim were admissible to explain the victim’s delay in reporting the abuse, and the expert evidence of Child Sexual Abuse Accommodation Syndrome was properly presented despite jurors stating in voir dire that a child’s delay in reporting would be understandable. With respect to the Appellate Division’s review powers, the Court of Appeals wrote:

Where a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge’s stated reasoning. Moreover, nothing in the language of CPL 470.15 (1) … prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination, as it did in defendant’s case. Unlike the case where the Appellate Division renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant’s favor—the type of appellate overreaching prohibited by CPL 470.15 (1) … , the Appellate Division here affirmed the evidentiary ruling on the ground relied on by the trial court, namely to establish the defense witness lied that she and defendant were merely friends, as well as the unspoken, record-supported inferences that can be drawn from that testimony. We therefore conclude that the Appellate Division acted within its statutory appellate review power.

Any other interpretation of CPL 470.15 (1) would require a trial judge to state every analytic step underlying a determination to admit or deny evidence, no matter how obvious the reasoning from the record. This approach demands a heretofore unexpected level of descriptive technical exactitude. It would require the judiciary to participate in a laborious exercise, without obvious commensurate benefit to the parties or our system of justice. We do not mean that a trial court’s evidentiary rulings may go unexplained, that the Appellate Division may hypothesize the basis for a judge’s determination where a record is wholly devoid of reason, or that an appellate court may comb through the entirety of a record solely to cobble together some theory for the trial court’s conclusion. There must be sufficient articulation of a “reviewable predicate” … . Thus, where the trial court’s decision is fully articulated the Appellate Division’s review is limited to those grounds, but where the trial court gives a reason and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15 (1) when it considers those inferences. People v Nicholson, 2016 NY Slip Op 01206, CtApp 2-18-16

CRIMINAL LAW (APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT’S RULING)/APPEALS (CRIMINAL APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT’S RULING)/CRIMINAL LAW (EVIDENCE OF UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM’S DELAY IN REPORTING)/EVIDENCE (UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM’S DELAY IN REPORTING)/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (EXPERT EVIDENCE ADMISSIBLE EVEN THOUGH JURORS STATED IN VOIR DIRE THEY UNDERSTOOD WHY A CHILD WOULD DELAY IN REPORTING ABUSE)

MECHANISMS FOR SEEKING DEFERRAL OF MANDATORY SURCHARGE EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined, where a sentence of incarceration exceeds 60 days,  a sentencing judge does not have the power to waive the mandatory surcharge. The only mechanism available to such a defendant who seeks to demonstrate the inability to pay the surcharge is a motion for resentencing:

… [T]he relevant statutes prohibit judicial waiver of a mandatory surcharge, require collection of any unpaid amounts from an inmate’s funds as of the moment of confinement and throughout the period of incarceration, and provide for deferral under limited circumstances, namely an inability to pay that is not solely due to incarceration. A person subject to a mandatory surcharge may seek to defer payment at any time after sentencing, by way of a motion to resentence under CPL 420.10 (5). In addition, persons sentenced to confinement of 60 days or less, may avoid filing such motion, and instead present information in support of a request to defer on the appearance date set forth on a summons issued pursuant to Penal Law § 60.35 (8). Under either procedural mechanism, if the court grants a deferral it must place its reasons on the record … , and issue a written order, which shall be treated as a civil judgment in accordance with CPLR 5016 … . This statutory scheme is structured to further the legislative goals of raising revenue and ensuring payment of the mandatory surcharge by persons convicted of crimes. People v Jones, 2016 NY Slip Op 01208, CtApp 2-18-16

CRIMINAL LAW (SENTENCING, DEFERRAL OF MANDATORY SURCHARGE)/SENTENCING (DEFERRAL OF MANDATORY SURCHARGE)/MANDATORY SURCHARGE (DEFERRAL)

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DELEGATION CLAUSES, PLACING THE DETERMINATION OF ARBITRABILITY IN THE ARBITRATOR, NOT THE COURT, ENFORCEABLE UNDER FEDERAL ARBITRATION ACT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined “delegation clauses” in insurance-related contracts were enforceable under the Federal Arbitration Act (FAA). The “delegation clauses” required that the initial determination whether a dispute is arbitrable is to be made by the arbitrator, not the court. Before reaching the merits, and after explaining the history of the FAA and the McCarran-Ferguson Act, the Court of Appeals decided, under the facts, the McCarran-Ferguson Act did not remove the matter from the jurisdiction of the FAA:

 

… [A] review of the record reveals that [the insureds] did not specifically direct any challenge to the delegation clauses empowering the arbitrators to determine gateway questions of arbitrability … . Those delegation provisions, which state that the arbitrators “have exclusive jurisdiction over the entire matter in dispute, including any question as to its arbitrability,” are valid because the parties “clearly and unmistakably” agreed to arbitrate arbitrability … . As the delegation clauses are severable from the remainder of the agreements to arbitrate, we must enforce them according to their terms and, under these circumstances, the question of arbitrability is one for the arbitrators … . …

… [W]e hold that the FAA applies to the [contracts in issue] because it does not “invalidate, impair, or supersede” … any insurance regulations and, consequently, the McCarran-Ferguson Act is not triggered … . Further, because the parties clearly and unmistakably delegated the question of arbitrability and enforceability of the arbitration clauses to the arbitrators — in provisions that were not specifically challenged by the insureds — the FAA mandates that the arbitration provisions be enforced as written. Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 2016 NY Slip Op 01209, CtApp 2-18-16

 

ARBITRATION (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE ARBITRATOR, ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT)/FEDERAL ARBITRATION ACT (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE HANDS OF THE ARBITRATOR, ENFORCEABLE)/INSURANCE LAW (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE HANDS OF THE ARBITRATOR, ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT)

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DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL IN LIGHT OF A CONFLICTING REZONING LAW IN EFFECT PRIOR TO THE APPROVAL.

The Court of Appeals determined petitioners did not have a vested right in a conditional final site approval because it was not reasonable for petitioners rely on the approval in light of the conflicting local law rezoning the property:

An owner of real property can acquire a common law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a “legally issued permit,” the landowner “effect[s] substantial changes and incur[s] substantial expenses to further the development” and “[t]he landowner’s actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless” (see generally 4 Rathkopf’s The Law of Zoning and Planning § 70:20 [4th ed]). Here, it was not reasonable for petitioners to rely on the December 2007 conditional Final Site Approval of the development, in carrying out any substantial actions furthering the development. In particular, in 2005, the year before the rezoning of petitioners’ property by means of Local Law No. 3 (2006) of Town of Newburgh, the Town Planning Board had repeatedly warned petitioners of the proposed rezoning. The December 2007 Approval itself did not engender expectations to the contrary. It included a statement of the new zoning status of the property. Additionally, while petitioners challenged the rezoning in court, petitioners must have been “cognizant of the potential for an eventual legal ruling that the Local Law was in fact valid” … . Matter of Exeter Bldg. Corp. v Town of Newburgh, 2016 NY Slip Op 00999, CtApp 2-11-16

ZONING (DEVELOPER DID NOT HAVE A VESTED RIGHT IN A CONDITIONAL FINAL SITE APPROVAL)

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PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR OPINIONS ON THE CAUSE OF PLAINTIFF’S IN UTERO INJURIES WERE ARRIVED AT USING A GENERALLY ACCEPTED METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY FROM GASOLINE FUMES IN CAR MANUFACTURED BY DEFENDANT BMW.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court’s preclusion of plaintiff’s experts’ opinions on causation of plaintiff’s in utero injuries was proper. Plaintiff alleged his severe birth defects were caused by gasoline fumes breathed by his mother when she drove a car manufactured by defendant BMW. Plaintiff’s experts attempted to demonstrate a causal connection between breathing the fumes and the in utero injuries. The Court of Appeals held the experts had not demonstrated their opinions were reached by employing a methodology generally accepted in the scientific community:

 

Not only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a toxin to have caused his injuries, but the expert also must do so through methods “found to be generally accepted as reliable in the scientific community” … . This “general acceptance” requirement, also known as the Frye test, governs the admissibility of expert testimony in New York. It asks “whether the expert’s techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Although unanimity is not required, the proponent must show “consensus in the scientific community as to the [methodology’s] reliability” … .

Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness, headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability. Therefore, the courts below properly granted defendants’ motion to preclude their testimony at trial. Sean R. v BMW of N. Am., LLC, 2016 NY Slip Op 01000, CtApp 2-11-16

 

TOXIC TORTS (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/EVIDENCE (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/EXPERT OPINION EVIDENCE (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)/FRYE TEST (EXPERTS’ OPINION THAT PLAINTIFF’S IN UTERO INJURIES WERE CAUSE BY GASOLINE FUMES NOT SUPPORTED BY ACCEPTED METHODOLOGY)

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FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED WAS NOT IN FRONT OF DEFENDANT’S PROPERTY. STANDING ALONE, DOES NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, found that a property owner, West River, which had a statutory duty to maintain an abutting sidewalk, was not entitled to summary judgment based solely on the fact that the defect in the sidewalk over which plaintiff tripped was not in front West River’s property. The expansion joint over which plaintiff tripped was in front of a neighboring property (the Mercado property). However, a nearby portion of the sidewalk which had subsided was in front of West River’s property. Therefore, to be entitled to summary judgment, West River was required to demonstrate it did not breach its duty to maintain the sidewalk, or that any such breach was not the proximate cause of plaintiff’s fall.  Simply demonstrating the expansion joint over which plaintiff tripped was not in front of West River’s property was not enough:

 

Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liability. Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) [of the Administrative Code of the City of New York] imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of that injury. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Under the circumstances of this case, summary judgment should have been denied. Sangaray v West Riv. Assoc., LLC, 2016 NY Slip Op 01002, CtApp 2-11-16

 

NEGLIGENCE (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SLIP AND FALL (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SIDEWALKS (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)

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BASED ON THE UNAMBIGUOUS LANGUAGE OF THE POLICY, THE TERM “OCCURRENCE” REFERRED TO EACH TIME A MEMBER OF THE CLASS WAS INJURED, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE; THEREFORE THE DEDUCTIBLE WAS TRIGGERED SEPARATELY FOR EACH INJURED CLASS MEMBER.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the policy-term “occurrence,” for purposes of applying the deductible for each “occurrence,” meant each time a member of the class was injured, and not the single injury to the class as a whole. The class action was brought by an arrestee who was illegally strip-searched at the county jail. 800 others similarly searched made up the class. The insurance policy taken out by the county included a deductible of $10,000 for each “occurrence.” The county argued that the injury to the class as a whole was a single occurrence and triggered only one $10,000 deductible. The court held that, based on the plain language of the policy, each strip-search constituted a separate occurrence. Therefore the $10,000 deductible applied to each member of the class (making the county liable for all the damage payments):

 

The plain language of the insurance policy indicates that the improper strip searches of the arrestees over a four-year period constitute separate occurrences under the policies at issue. Contrary to the County’s argument, the definition of “occurrence” in the policies is not ambiguous. The policy defines ‘occurrence’ as “an event, including continuous or repeated exposure to substantially the same general harmful conditions, which results in . . . ‘personal injury’ . . . by any person or organization and arising out of the insured’s law enforcement duties” (emphasis added). Thus, the language of the insurance policies makes clear that it covers personal injuries to an individual person as a result of a harmful condition. The definition does not permit the grouping of multiple individuals who were harmed by the same condition, unless that group is an organization, which is clearly not the case here. The harm each experienced was as an individual, and each of the strip searches constitutes a single occurrence … . Selective Ins. Co. of Am. v County of Rensselaer, 2016 NY Slip Op 01001, CtApp 2-11-16

 

INSURANCE LAW (CLASS ACTION, DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/CLASS ACTION (INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/MUNICIPAL LAW (CLASS ACTION, COUNTY’S INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)

FOR PURPOSES OF THE TEN-YEAR LOOK-BACK PERIOD FOR SECOND VIOLENT FELONY OFFENDER STATUS, THE DATE OF THE ORIGINAL SENTENCE TO PROBATION, NOT THE DATE OF THE SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant should not have been sentenced as a second violent felony offender because the operative prior conviction occurred outside the 10-year look-back period. Defendant was convicted of assault and sentenced to probation in 1994. He subsequently violated probation and was sentenced to incarceration in 1995. The lower courts used the 1995 sentence, which was within the 10-year look-back. But the Court of Appeals determined the 1994 sentence controlled. The revocation of probation in 1995 did not annul the original 1994 sentence:

 

The People would have us believe that sentence was imposed with respect to the prior conviction twice — once, in 1994, when defendant was subject to a period of probation through the original sentence, and again in 1995, when defendant was subject to a period of incarceration through the resentence. To be sure, the period of probation was imposed as part of a revocable sentence (Penal Law § 60.01 [2] [a] [i]), which is a “tentative [punishment in] that it may be altered or revoked” (Penal Law § 60.01 [2] [b]). For all other purposes, however, a revocable sentence “shall be deemed to be a final judgment of conviction” (id.), and where “the part of the sentence that provides for probation is revoked, the court must sentence [a defendant] to imprisonment or to [a] sentence of imprisonment and probation” (Penal Law § 60.01 [4] [emphasis added]). The legislature’s reference to the revocation of the part of the sentence imposing probation suggests that the substitution of a different punishment — such as incarceration — for the probation a defendant has violated does not constitute a new sentence, but rather a replacement of the original, conditional penalty reflected in the sentence.

Put differently, to revoke a penalty of probation does not equate to annulling a sentence. People v Thompson, 2016 NY Slip Op 00997, CtApp 2-11-16

 

CRIMINAL LAW (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SENTENCING (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SECOND VIOLENT FELONY OFFENDER STATUS/(TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)

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