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The Court’s Failure to Respond to Jury Note Requesting Transcripts of Recorded Phone Calls, Portions of Which Were Translated from Spanish to English, Mandated Reversal

The Court of Appeals reversed the appellate division and held that the court’s failure to respond to the jury’s request for transcripts of recorded phone calls, portions of which were translated from Spanish to English, was reversible error. The request, under the facts, was substantive, not ministerial. Therefore, the court was required to inform counsel of the request and to respond to it:

For reasons stated in People v Silva (24 NY3d 294 [2014] …, the Appellate Division erred in holding that reversal was not required. Contrary to the Appellate Division’s determination, the jury’s request to see the transcripts did not merely require “the ministerial actions of informing the jury that none of the items they requested were in evidence” … . Inasmuch as a significant portion of defendant’s conversations were conducted in Spanish, the jury could not be expected to understand the recordings without the aid of the transcripts … . Moreover, the trial court expressly invited the jurors to ask for the transcripts during deliberations and told them the procedure by which they could see the transcripts, which involved reassembling the jury in the courtroom. Thus, the jury’s requests for the transcripts required a substantive response, and reversal is required because these “substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the court[]” (Silva, 24 NY3d at 300). People v Mendez, 2015 NY Slip Op 07786, CtApp 10-27-15

 

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Under the Circumstances Plaintiff Could Not Strictly Comply with the Whistleblower Statute by Complaining to the Very People Involved in the Wrongful Conduct—Plaintiff Entitled to Back Pay and Prejudgment Interest for Retaliatory Demotion

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that plaintiff had complied with the whistleblower statute and was entitled to prejudgment interest on his award for retaliatory demotion. The statute, Civil Service Law  75-b, requires that any allegedly wrongful act first be reported to the “appointing authority.” However, in this case, the “appointing authority” were the very people plaintiff alleged committed the wrongful act. In this circumstance plaintiff’s complaints to his immediate superiors and then to the inspector general were deemed to comply with the statute. The Court of Appeals also reasoned that, because the purpose of the whistleblower statute is to make whistleblowers whole, the award of prejudgment interest under the statute is proper:

Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee’s good faith effort to report the misconduct should be evaluated with attention to the employee’s practical inability to report to the appointing authority. The “good faith” provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here. * * *

Here, an overall view of the comprehensive package of remedies listed in Labor Law § 740 (5), including undefined “compensation” and “remuneration,” demonstrates that the Legislature sought to make a whistleblowing plaintiff whole, which would include an award of prejudgment interest.  … [B]ecause the remedies listed in the statute appear to seek to make a whistleblowing plaintiff whole, awarding prejudgment interest would serve that purpose. By demoting plaintiff rather than awarding him a planned promotion and significant raise, defendants deprived plaintiff of access to what would have been a higher salary for a period of over 10 years. Awarding back pay with interest would serve to make plaintiff whole; thus, he is entitled to such a recovery. Tipaldo v Lynn, 2015 NY Slip Op 07698, CtApp 10-22-15

 

Attempt to Violate a Prison Rule Is Sufficient to Find a Violation/Intent Is Irrelevant

The Court of Appeals affirmed the finding that the petitioner-inmate had violated the prison rule prohibiting the possession of loose stamps in the prison library. Petitioner argued he did not violate the rule because he was found in possession of the loose stamps outside of the library and he did not intend to violate the rule . However, the Court of Appeals determined an attempt to violate a prison rule is sufficient (petitioner acknowledged he was on his way to the library when the stamps were found) and the petitioner’s intent was not an element of the offense:

Prison rules state explicitly that inmates who attempt “to violate institutional rules of conduct . . . [are] punishable to the same degree as violators of such rules . . . . [and] may be cited for attempts . . . whether or not the text of an actual rule contains such term[]” (7 NYCRR 270.3 [b]). Petitioner testified during the disciplinary hearing that he was carrying the loose stamps while on his way to the law library. Thus, by his own admission, he is guilty of an attempt to violate the provision, and as a consequence Rule 113.22. Furthermore, whether petitioner was aware that he was in violation of a restriction on loose stamps is irrelevant because Rule 113.22 applies regardless of the inmate’s intent. Matter of Bottom v Annucci, 2015 NY Slip Op 07696, CtApp 10-22-15

 

Pregnant Woman Not Liable Under the Reckless Manslaughter Statute for Death of Baby Injured in Utero But Subsequently Delivered Alive by Cesarean Section

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissent, determined a pregnant women could not be convicted of reckless manslaughter for the death of her baby following a head-on collision. Defendant was in the wrong lane and struck an on-coming car, killing the two occupants. Defendant consented to a cesarean section because the baby was in distress (due to the accident). The baby was born alive but subsequently died. Defendant was convicted of manslaughter for recklessly causing the baby’s death. The Court of Appeals reversed noting that, had the baby died in utero, the baby would not have met the definition of “person” in the manslaughter statute:

Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant’s fetus died in utero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a “person” (Penal Law § 125.05 [1]; …). * * *

The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor. Conceivably, one could find it “reckless” for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother. At present, such conduct, if it caused a stillbirth, would not result in criminal prosecution of the mother if the fetus died in utero. Any change in the law with regard to such matters would be within the province of the legislature. People v Jorgensen, 2015 NY Slip Op 07699, CtApp 10-22-15

 

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Police Were Justified In Questioning Defendant’s Presence In Lobby of an Apartment Building Enrolled in the “Trespass Affidavit Program (TAP)”

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Rivera (in which Judge Lippman concurred), determined a police officer had the right to question defendant about his presence in the lobby of an apartment building. After defendant stated he did not live in the building and could not identify a resident who invited him there, he was arrested for trespass and a razor blade was seized from his pocket, The building was enrolled in the “trespass affidavit program (TAP)” which was described as a solicitation of police assistance for dealing with trespassers. The police officers entered the building to conduct a floor by floor search for trespassers:

Our analysis begins with the points “that whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact,” and that, in such circumstances, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” … . On the merits, our analysis proceeds under the first of the four levels of De Bour, which sets a low bar for an initial encounter: it “permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality” … .

Here the record reflects that the encounter occurred in a private space restricted by signage and a lock, and that police assistance in combating trespassing had been sought through enrollment in the TAP. Put simply, the coupling of defendant’s presence in the subject building with the private and protected nature of that location supports the intrusion giving rise to what became the seizure in question. We conclude that there is record support for the determination that the police had an objective credible reason to request information from defendant … .

In so concluding we note that the police patrol at issue here was intended in part to combat trespassing, that is, “knowingly enter[ing] or remain[ing] unlawfully in or upon a premises” (Penal Law § 140.05), that the building at issue was enrolled in the TAP for the purpose of addressing that problem, and that this branch of the TAP is rooted in tenant protection throughout Manhattan. Under these circumstances a police officer could have identified a trespasser only by requesting information. People v Barksdale, 2015 NY Slip Op 07694, CtApp 10-22-15

 

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Patient Held In a Mental Health Facility After the Court Order Authorizing Confinement Had Expired Was Entitled to Habeas Corpus Relief Pursuant to CPLR Article 70

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the appellate division, determined that a patient, who was held in a mental health facility pursuant to a court order which the facility neglected to extend, was entitled to release pursuant to a CPLR article 70 habeas corpus proceeding. The hospital unsuccessfully argued that the only habeas-corpus relief available to the patient was pursuant to Mental Hygiene Law 33.15 which required an inquiry into the patient’s mental state:

CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwise prescribed by statute” (CPLR 7001). However, nothing in the plain language of Mental Hygiene Law § 33.15 purports to limit the availability of the common-law writ in Mental Hygiene Law proceedings. Rather, section 33.15 enhances the efficacy of the writ of habeas corpus, as our case law dictates, and thereby ensures that patients are not committed and retained without due process of law. That is, Mental Hygiene Law § 33.15 allows patients to seek a writ of habeas corpus when they are being held pursuant to a court order but, nevertheless, believe they have sufficiently recovered from their mental illness so that their continued retention is unwarranted; in such cases, determining the legality of their retention would require an inquiry into their mental state. On the other hand, patients whose detention is otherwise unauthorized may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state.  People ex rel. DeLia v Munsey, 2015 NY Slip Op 07697, CtApp 10-22-15

 

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Multi-million Dollar Legal Malpractice Action Stemming from Commercial Mortgage-Backed Securities Dismissed

The Court of Appeals, in an extensive opinion by Judge Rivera, determined a multi-million dollar malpractice action should have been dismissed. The law firm, Cadwalader, was hired by the plaintiff, Nomura, in connection with Nomura’s commercial mortgage-backed securities investments. Cadwalader’s role was to advise and confirm that Nomura’s securitized commercial mortgage loans qualified as real estate mortgage investment conduit (REMIC) trusts. When a hospital which had been deemed REMIC-qualified by Cadwalader went bankrupt and defaulted on its loan, Nomura settled with the trustee for $67.5 million. Nomura then sued Cadwalader. The opinion is fact-specific and cannot be fairly summarized here. Based upon the facts and the evidence, the Court of Appeals determined Cadwalader demonstrated it had done what it was hired to do, and had exercised due diligence in fulfilling its limited obligations. Nomura failed to raise a question of fact to the contrary. Nomura, the court found, was seeking to impose duties upon Cadwalader which it had expressly reserved to itself. Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 2015 NY Slip Op 07693, CtApp 10-22-15

 

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Environmental Clean-Up Indemnification Agreement Between Seller and Buyer of Property Triggered by Department of Environmental Conservation’s (DEC’s) “Potentially Responsible Party (PRP)” Letter to Buyer

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the environmental clean-up indemnification agreement between the seller (Pyne) and buyer (Remet) of property was triggered by the Department of Environmental Conservation’s (DEC’s) letter to Remet. Although the letter referred to Remet as a “potentially” responsible party (PRP), the letter required that Remet enter into a consent agreement (re: the clean-up) with the DEC or, if no consent agreement is executed within 30 days, pay for the clean-up done by the DEC:

The plain language of the governing contractual indemnity provision, together with the language of the PRP letter and the surrounding facts and circumstances, demonstrate that Remet was entitled to indemnification because it was “required,” within the meaning of the sales agreement, to act in response to the PRP letter. The PRP letter stated that it pertained to an “Urgent Legal Matter,” indicated that a prompt reply was “necessary,” and set forth the consequences that would flow from Remet’s refusal to act. Regardless of whether Remet was designated a potentially responsible party or a responsible party, the letter demanded either a consent order or payment, and any language indicating that Remet’s response was voluntary must be read in terms of those demands. In other words, the PRP letter — by its terms — effectively marked the beginning of a “legal” process against Remet pursuant to the ECL, in which DEC expressly sought recovery from Remet for any amounts expended in remediating the [the site].

Additionally, the circumstances surrounding the execution of the indemnification clause include the parties’ awareness that, because the [site] was listed as an inactive hazardous waste site, the purchaser of the property at issue here risked incurring substantial expenses, and that Pyne accordingly deposited a large sum in escrow to cover at least a portion of those potential expenses. Remet Corp. v Estate of Pyne, 2015 NY Slip Op 07575, CtApp 10-20-15

 

Analytical Criteria for Determining Whether a Defect Is Trivial Explained

The Court of Appeals, in a full-fledged opinion by Judge Fahey, tackled the topic of “trivial defects” in slip and fall cases.  The court looked at three actions where the defect was deemed trivial, and reversed two of them. The court explained the analytical principles:

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” … . The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge …; a rough, irregular surface …; the presence of other defects in the vicinity …; poor lighting …; or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet … .

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with [our precedent]. Hutchinson v Sheridan Hill House Corp., 2015 NY Slip Op 07578, CtApp 10-20-15

 

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Sexual Conduct That Does Not Rise to the Level of a SORA Sex Offense May Be Considered Under the “Number of Victims” Risk Factor

The Court of Appeals determined that the “number of victims” risk factor (risk factor 3) under the Sex Offender Registration Act (SORA) properly included “sexual conduct” that did not amount to SORA level sex offenses and which involved “webcam chats:”

Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam … . People v Izzo, 2015 NY Slip Op 07576, CtApp 10-20-15

 

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