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MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT).

The First Department denied the Article 78 petition brought by news-media companies seeking to unseal the Molineux/Sandoval hearing transcript in the felony sexual misconduct prosecution of Harvey Weinstein. The presiding judge had closed the hearing to the public and sealed the record of it:

While the First Amendment guarantees the public and the press a qualified right of access to criminal trials … , this right of access may be limited where courtroom closure is necessitated by a compelling state governmental interest, and where the closure is narrowly tailored to serve that interest … . Such compelling interests may include the defendant’s right to a fair trial, including the right to “fundamental fairness in the jury selection process” … . …

Proceedings cannot be closed unless specific findings are made on the record, demonstrating that “closure is essential to preserve higher values and is narrowly tailored to serve that interest” … . Where the interest asserted is the right of the accused to a fair trial, specific findings must be made demonstrating that, “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent,” and “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights” … .

The subject matter of the Molineux /Sandoval hearing – allegations of prior uncharged sexual offenses by the defendant, the admissibilty of which is disputed – was likely to be prejudicial and inflammatory. Further, some or all of the allegations may have been determined to be inadmissible at trial, or may not be offered at trial even if found potentially admissible. Contrary to petitioners’ suggestion, the People have represented that some of the information has not yet been made public. Matter of New York Times Co. v Burke, 2019 NY Slip Op 03903, First Dept 5-16-19

 

DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO SAID HE WAS ‘NOT SURE’ HE COULD BE IMPARTIAL SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defendant’s for cause challenge to a prospective juror should have been granted:

The challenged panelist made a statement reflecting a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]), and the court did not elicit an unequivocal assurance that in rendering a verdict based on the evidence, the panelist could set aside any bias … . The juror expressly stated that he was “not sure” he could be impartial in a case involving a registered sex offender. His general statement about needing to hear the facts did not address his ability to overcome the specific bias he had expressed. “If there is any doubt about a prospective juror’s impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another”  … . People v Rodriguez, 2019 NY Slip Op 03734, First Dept 5-14-19

 

BROWN PAPER ON TOP OF GREEN DUST ALLEGEDLY CONSTITUTED A SLIPPERY CONDITION ON THE FLOOR CAUSING PLAINTIFF’S SLIP AND FALL, PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department determined plaintiff’s Labor Law 241 (6) and 200 causes of action should not have been dismissed. Plaintiff alleged brown paper on top of green dust (used to keep down dust) created a dangerous slippery condition which caused his slip and fall:

The motion court improperly dismissed plaintiff’s Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-1.7(d). The alleged presence of green dust on the floor created a triable issue as to whether a “foreign substance” created a slippery condition on the floor, in violation of this Code section, and whether such condition caused plaintiff’s accident … .

Plaintiff’s Labor Law § 200 and common-law negligence claims should similarly be reinstated as the court should not have analyzed plaintiff’s accident under the manner and means standard, but should instead have applied the dangerous condition standard … . The green dust was a dangerous condition that existed prior to plaintiff’s arrival at the job site it was not part of the work plaintiff was performing … . As such, there are triable issues of fact as to whether the general contractor … had notice of the hazardous condition of the floor … . In addition, the owner … failed to demonstrate the absence of actual or constructive notice of the hazardous condition on its part, since it failed to point to any probative evidence on this issue … . DeMercurio v 605 W. 42nd Owner LLC, 2019 NY Slip Op 03550 First Dept 5-7-19

 

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PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that “defendant is entitled to a new trial because the court provided written instructions to the jury, at its request, but over defendant’s objection (see People v Johnson , 81 NY2d 980 [1993]).”  The court also noted that the jury could have reasonably found that the hot liquid thrown by defendant qualified as a dangerous instrument (see Penal Law §§ 10.00[10],[13]; see also People v Adolph , 299 AD2d 257, 257 [1st Dept 2002], lv denied 99 NY2d 579 [2003]).”  People v Peralta, 2019 NY Slip Op 03539, First Dept 5-7-19

 

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, A CABLE TRAY FELL ON HIS HEAD FROM THE TOP OF TWO LADDERS, A SUBCONTRACTOR WAS LIABLE BECAUSE THE CONTRACT DELEGATED THE AUTHORITY TO CONTROL THE WORK TO THE SUBCONTRACTOR, THE LESSEE WAS LIABLE AS AN “OWNER” WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. A cable tray that was on top of two ladders fell on plaintiff’s head. The court further noted that USIS was liable as an agent of the owner because the subcontract delegated the authority to control the work to USIS, and AECOM. the lessee, was liable as an “owner” within the meaning of Labor Law 240 (1):

The cable tray that fell on plaintiff’s head from atop two ladders was an object that required securing to prevent it from falling … . The distance the tray fell was not de minimis and “the harm to plaintiff was the direct consequence of the application of the force of gravity” upon the unsecured cable tray … . Moreover, securing the cable tray against falling would not have been contrary to the purpose of the work … .

Supreme Court correctly concluded that USIS Systems was liable under Labor Law § 240(1) as an agent of the owner … . Here, the terms of the subcontract by which USIS Systems subcontracted the work to USIS Electric demonstrate that USIS Systems had been delegated authority to direct and control the work … . Moreover, as premises lessee which contracted for the work, AECOM was an owner within the meaning of Labor Law § 240(1) … . Tropea v Tishman Constr. Corp., 2019 NY Slip Op 03533, First Dept 5-7-19

 

IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)

The First Department determined the reasons provided by the prosecutor for striking jurors in the face of Batson challenges were race-neutral. The concurrence called into question the validity of striking jurors on the basis of a “questionable assumption that social service workers, who volunteer in soup kitchens and work in HIV clinics, and persons who satisfy their civic duty as jurors in trials resulting in hung juries, are unduly sympathetic to criminal defendants:”

The court properly denied defendant’s application pursuant to Batson v Kentucky (476 US 79 [1986]). … The record supports the court’s finding that the nondiscriminatory reasons provided by the prosecutor for the challenges … were not pretextual. One panelist had previously served on a hung jury, which we have found to be a valid race-neutral reason for a peremptory challenge … . An additional non-pretextual explanation for challenging this panelist was the prosecutor’s association of her service as a coordinator at a soup kitchen with possible associations with drug users, which raised a concern with the prosecutor that she might have harbored sympathy towards a defendant charged with drug offenses. Somewhat analogously, we previously have found the absence of a racial pretext for peremptory challenges premised on a panelist’s social service orientation, which might lead the panelist to sympathize with someone in the defendant’s position … . People v Teran, 2019 NY Slip Op 03532, First Dept 5-7-19

 

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EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of unspecified paraphilic disorder (USPD) can be admitted in a sex offender civil management trial. The evidence was excluded at the Mental Hygiene Law article 10 trial. The verdict that defendant does not suffer from a mental abnormality was vacated and the petition was reinstated:

In Matter of State of New York v Hilton C. (158 AD3d 707 [2d Dept 2018] …), the 2nd Department held that the evidence in the record before it, which is similar to the evidence in the record presently before us, failed to establish that “the diagnosis of unspecified paraphilic disorder [USPD] has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible” … . In the absence of any other New York State appellate authority, Supreme Court … that USPD was precluded as a diagnosis in article 10 proceedings.

However, we find, contrary to the 2nd Department, and consistent with the decision in Matter of Luis S. v State of New York (166 AD3d 1550 [4th Dept 2018]) that the type of evidence presented at the Frye hearing … in this case — such as the evidence concerning the inclusion of USPD as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which signals its general acceptance by the psychiatric community — is sufficient to satisfy the State’s burden of showing that the USPD diagnosis meets the Frye standard.

Accordingly, the verdict that respondent does not suffer from a mental abnormality, rendered after the article 10 trial, from which USPD evidence was excluded, must be vacated, the petition reinstated, and the matter remanded for further proceedings, including a determination whether the evidence meets the threshold standard of reliability and admissibility … . Matter of State of New York v Jerome A., 2019 NY Slip Op 03531, First Dept 5-7-19

 

ALTHOUGH THERE IS CLEARLY A NEED FOR A STATUTORY MECHANISM TO KEEP CHILDREN WHO ABSCOND FROM PLACEMENT SETTINGS OFF THE STREETS AND SAFE FROM HARM, FAMILY COURT ACT 153 DOES NOT AUTHORIZE AN ARREST WARRANT FOR THIS PURPOSE (FIRST DEPT)

The First Department, in a full-fledged opinion by Justice Tom, determined that Family Court Act 153 does not authorize an arrest warrant for children who abscond from home or placement settings, notwithstanding that the arrest warrant is issued to keep the child safe and off the streets, and to ensure the child does not engage in self-destructive behavior. The First Department acknowledged that the Administration for Child Services (ACS) needs a mechanism for this purpose, but decided no such statutory mechanism exists at the moment:

These cases, consolidated for appeal, present the recurring issue whether Family Court Act § 153, relied on by Family Court, authorizes the issuance of a warrant for the protective arrest of a child who is neither a respondent nor a witness in a Family Court proceeding for purposes of ensuring the child’s health and safety rather than to compel his or her attendance in court. Notwithstanding that such protective arrests may have become a practice of Family Court under very compelling circumstances, in the absence of more explicit statutory authority we cannot endorse the legality of the practice. In reaching our conclusion, though, we do not suggest any criticism of the respective Family Courts in this case nor do we impute improper motives to the Administration for Children’s Services, various parties or even law enforcement, who, to all appearances, were operating on the best of motives. However, the issuance of an arrest warrant must proceed from explicit statutory authority. Such is lacking in this case, as is, notably, any authoritative decisional law.

The record clearly shows that the two children in these cases are at high risk of bringing harm to themselves or putting themselves in positions where others may harm them if they are left to their own choice of absconding from foster care facilities to enter life on the streets. … Both have significant vulnerabilities masked by aggressive and confrontational behavior. Both have displayed histories of absconding from home and placement settings, presenting the substantial risk that they would end up on the streets. … Both children are marked by multiple mental illness diagnoses and neurological impairments requiring medication which they often will not take and apparently did not take when they absconded, leading to the inevitable downward spiral during which each engaged in risky behavior. … The record also clearly demonstrates the likelihood that they will run away again if not in a controlled setting of some nature, thereby repeating the cycle of being at risk on the streets. Matter of Zavion O. (Donna O.), 2019 NY Slip Op 03554, First Dept 5-7-10

 

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VASTLY DIFFERENT ACCOUNTS OF THE INCIDENT PRECLUDED SUMMARY JUDGMENT, SUPREME COURT REVERSED, EXTENSIVE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined questions of fact precluded summary judgment. The plaintiff’s and defendants’ versions of events, which are vastly different, are explained in detail in the decision. Plaintiff, who was in the back of an ambulette with a patient in a wheelchair, alleged that the driver pulled out fast causing plaintiff to fall and causing the wheelchair to tip over onto plaintiff. The driver alleged he had fastened the wheelchair to the floor of the ambulette and made sure plaintiff was strapped into his seat. He further alleged he drove safely. The driver acknowledged that the wheelchair had tipped over backwards:

We disagree with the dissent’s statement that “defendants have failed to offer any explanation of the proximate cause of the accident.” It is plaintiff’s burden as the moving party for summary judgment to establish defendants’ negligence as a proximate cause of plaintiff’s injuries. Here, defendants adequately rebutted plaintiff’s claim of negligence on their part, and thus plaintiff has failed to establish defendants’ negligence and proximate cause. If a trier of fact finds defendants’ version of events to be credible, then no liability should be imposed on them. Bajaha v Mercy Care Transp., Inc., 2019 NY Slip Op 03457, First Dept 5-2-19​

 

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BY JOINING IN A PRE-ANSWER MOTION TO DISMISS DEFENDANT EXTENDED ITS TIME TO ANSWER UNTIL TEN DAYS AFTER NOTICE OF ENTRY OF THE ORDER DECIDING THE MOTION TO DISMISS, SINCE DEFENDANT WAS NOT IN DEFAULT, IT COULD APPEAL THE ORDER FINDING IT IN DEFAULT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not default. Defendant (Advisors) had joined in a pre-answer motion to dismiss, which extended the time for serving an answer until ten days after notice of entry of the order deciding the motion to dismiss. Because defendant was not in default, it could appeal:

Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants, pursuant to CPLR 3211(f) (see also CPLR 320[a]; 3012[a], [c]). Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it … . Here, Advisors did not default, but appeared by joining in defendants’ motion to dismiss the causes of action asserted against the individual named defendants, thereby extending its time to answer the complaint … . Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).

Defendant’s appeal from the order granting the default motion was proper, as it appeared and contested the application for entry of a default order below … . Accordingly, CPLR 5511, which generally prohibits an appeal from an order or judgment entered upon default, is inapplicable … . Levine v Singal, 2019 NY Slip Op 03438, First Dept 5-2-19

 

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