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IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR’S SUMMATION, REQUIRED REVERSAL.

The First Department reversed defendant's conviction because the prosecutor improperly elicited testimony about the grand proceedings and the justification defense from an assistant district attorney (ADA) called as a prosecution witness. In addition, the prosecutor improperly referred to “facts” not in evidence during summation. The defendant was alleged to have fired at police officers who were pursuing him. The testimony of the ADA was elicited in anticipation of a defense the officers testified falsely in the grand jury to protect themselves from indictment for shooting defendant. However, the defendant never raised that defense. The ADA was improperly allowed to explain the justification defense (apparently to show the shooting by the officers was justified) and the grand jury procedure (apparently to demonstrate the grand jury found the officers credible):

Comments regarding grand jury composition and proceedings have repeatedly been held to be improper when made by a court, and the same rationale applies when made by a prosecutor … . * * *

By permitting the witness to instruct the jury on the law of justification during the People's case, and apply the law to the facts of this case, “the court improperly surrendered its nondelegable judicial responsibility” … . “The court's delegation of this critical judicial function to the [prosecutor-witness] significantly impaired the integrity of the proceedings and deprived the defendant of a fair trial” … . * * *

The prosecutor must “stay within the four corners of the evidence,” may not refer to matters not in evidence,” should not “call upon the jury to draw conclusions which are not fairly inferrable from the evidence,” or make arguments that “have no bearing on any legitimate issue in the case” … .

Here, on two separate occasions during his summation, the prosecutor did exactly that. People v Melendez, 2016 NY Slip Op 04328, 1st Dept 6-7-16

CRIMINAL LAW (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/ATTORNEYS (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)

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ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE.

The First Department determined the admission of a machine generated blood test for sexually transmitted disease, without the testimony of the technician who operated the machine, did not violate the confrontation clause. The court distinguished a recent Court of Appeals case, People v John, 2016 NY Slip Op 03208, which held an analyst who draws conclusions from raw data must testify before the relevant test results can be admitted:

The lab report at issue here was of the purely “machine generated” category, and the witness whose testimony defendant claims was required was, at best, a technician who tested the accuracy of the machine before placing the sample in it for testing. Under People v John and the U.S. Supreme Court cases on which it relies, the report generated by the machine should not be treated as testimonial, and the absence of testimony by the technician who calibrated the machine did not violate defendant’s Sixth Amendment right of confrontation. “[T]he testing and procedures employed . . . were neither discretionary nor based on opinion; nor did they concern the exercise of fallible human judgment over questions of cause and effect” … . In addition, contrary to defendant’s argument, the report did not directly link him to the crimes, since the “test results, standing alone, shed no light on the guilt of the accused” … , notwithstanding that they provided circumstantial evidence of guilt in light of other evidence. People v Alcivar, 2016 NY Slip Op 04329, 1st Dept 6-7-16

CRIMINAL LAW (ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/EVIDENCE (CRIMINAL LAW, ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/CONFRONTATION CLAUSE (ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/MACHINE GENERATED BLOOD TEST RESULTS (CRIMINAL LAW, ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)

NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Andrias, over an extensive dissenting opinion, determined a New York City local law mandating the disclosure of information about the selection process for construction of affordable housing was not preempted by state statutes and was not unconstitutional:

Although one may reasonably argue, as does the dissent, that the disclosure requirements imposed by the law are costly, difficult or cumbersome, or that the law will not remedy corruption in the developer selection process or further the flexible and economical implementation of publicly funded housing, the wisdom, necessity or efficacy of the law is not the province of the courts… .  … [T]he only issue before us is whether Local Law No. 44 is unconstitutional because it is preempted by state statutes or violates the Due Process and Equal Protection Clauses of the New York State Constitution. Applying well established precedent to the facts, we find that Local Law No. 44 does not unlawfully interfere with or frustrate [New York City Department of  Housing Preservation and Development (HPD)'s] authority under the City Charter or impermissibly conflict with the State Legislature's delegation of authority and discretion over affordable housing programs to HPD, and that it is not otherwise unconstitutional. New York State Assn. for Affordable Hous. v Council of the City of N.Y., 2016 NY Slip Op 04320, 1st Dept 6-2-16

MUNICIPAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/AFFORDABLE HOUSING (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/PREEMPTION (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/LOCAL LAW (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)/HOUSING  (NYC LOCAL LAW REQUIRING DISCLOSURE ABOUT THE SELECTION PROCESS FOR CONSTRUCTION OF AFFORDABLE HOUSING IS NOT PREEMPTED BY STATE LAW AND IS NOT UNCONSTITUTIONAL)

HOMEOWNER’S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME.

The First Department, reversing Supreme Court, determined the homeowner's exemption from liability under the Labor Law for one- and two-family homes applied, despite evidence three families lived in the home:

The applicability of the homeowner exemption is determined by a “site and purpose” test … , which “hinges upon the site and the purpose of the work” and “must be employed on the basis of the homeowners' intentions at the time of the injury” … . Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling … . Del Carnen Diaz v Bocheciamp, 2016 NY Slip Op 04305, 1st Dept 6-2-16

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)/HOMEOWNER'S EXEMPTION (LABOR LAW, HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)

GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS.

The First Department determined, under the facts, the police department's Glomar response to the request for documents was appropriate. A Glomar response refuses to admit or deny the existence of documents:

FOIL does not prohibit respondents from giving a Glomar response to a FOIL request — that is, a response “refus[ing] to confirm or deny the existence of records” where, as here, respondents have shown that such confirmation or denial would cause harm cognizable under a FOIL exception … . Although petitioners contend that such a response is impermissible in the absence of express statutory authorization, the Glomar doctrine is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . * * *

Respondents met their burden to “articulate particularized and specific justification” for declining to confirm or deny the existence of the requested records, which sought information related to NYPD investigations and surveillance activities … . In particular, respondents showed that answering petitioners' inquiries would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law § 87(2) (see § 87(2)[e], [f] … . Matter of Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, 1st Dept 6-2-16

FREEDOM OF INFORMATION LAW (FOIL) (GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)/GLOMAR RESPONSE (FOIL, GLOMAR RESPONSE, NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF DOCUMENTS, APPROPRIATE UNDER THE FACTS)

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OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND.

The First Department determined plaintiffs' opening statement, which alleged an intentional act by defendant, warranted dismissal of the negligence claims:

Plaintiffs' opening statement warranted dismissal of the negligence and negligent battery claims, because the claim that defendant … used excessive force in handcuffing plaintiff … is fatally inconsistent with the negligence claims … . Vaynshelbaum v City of New York, 2016 NY Slip Op 04302, 1st Dept 6-2-16

CIVIL PROCEDURE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/NEGLIGENCE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/OPENING STATEMENTS (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)

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PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED AND PURCHASED A CONTROLLING INTEREST, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS.

The First Department, in a full-fledged opinion by Justice Gische, determined plaintiff, a sophisticated investor, did not state a cause of action for fraud on the part of the company (DuCool) in which plaintiff invested:

Where a cause of action is based in fraud, “the complaint must allege misrepresentation or concealment of a material fact, falsity, scienter on the part of the wrongdoer, justifiable reliance and resulting injury” … . Furthermore, where the plaintiff is a sophisticated party, “if the facts represented are not matters peculiarly within the [defendant's] knowledge, and the [plaintiff] has the means available to [it] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, [the plaintiff] must make use of those means, or [it] will not be heard to complain that [it] was induced to enter into the transaction by misrepresentations” … . Circumstances constituting fraud must be set forth in a complaint in detail (CPLR 3016[b]). * * *

Plaintiff is an experienced and sophisticated investor. It did not plead facts to support the justifiable reliance element of fraud … . Plaintiff had total, unfettered access to every aspect of DuCool's company information both before and after its initial investment, even before it held a controlling interest in DuCool. Although learning through the due diligence conducted by its own technology and business consultants that there were frequent technological problems with DuCool products, some of them “severe,” plaintiff proceeded to invest in the company. Thereafter, as the 49% shareholder, plaintiff had the largest percentage ownership of any individual shareholder and it had access to information concerning the operations of the business. There is no factual basis on which to conclude that the alleged fraud involved matters peculiarly within defendants' knowledge, because plaintiff had the means to discover the truth behind any false claims about the condition of the company and whether this was a feasible investment… . MP Cool Invs. Ltd. v Forkosh, 2016 NY Slip Op 04159, 1st Dept 5-31-16

FRAUD (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)/CORPORATION LAW (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)/CORPORATION LAW (PLAINTIFF, A SOPHISTICATED INVESTOR, DID NOT STATE A CAUSE OF ACTION FOR FRAUD ON THE PART OF THE COMPANY IN WHICH PLAINTIFF INVESTED AND PURCHASED A CONTROLLING INTEREST, PLAINTIFF HAD THE MEANS TO DISCOVER THE TRUTH BEHIND ANY ALLEGED FALSE CLAIMS)

DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL.

The First Department, reversing defendant's conviction, determined the trial court should have allowed the disabled and ill defendant to appear at trial remotely by video. Contrary to the trial court's reasoning, the prosecutor's consent to the procedure was not required:

… [T]he court erred in believing that CPL article 182 restricted its authority to use video conferencing to effectuate a defendant's right to be present at trial. “Although the Legislature has primary authority to regulate court procedure, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute,” and “[b]y enacting Judiciary Law § 2-b(3), the Legislature has explicitly authorized the courts' use of innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by [the court]” * * *

… [W]e conclude that where the court essentially accepted defendant's claims of extreme pain and physical distress, where the alternative of electronic appearance was actually available based on the court's own efforts, where it was not employed only because the court wrongly believed that it lacked the required discretion … , and where the accommodations actually offered by the court were far less efficacious, the court, despite the best intentions, failed to reasonably accommodate defendant's medical concerns … . In these circumstances, defendant's waiver of the right to be present was not knowing, voluntary, and intelligent … . People v Krieg, 2016 NY Slip Op 04134, 1st Dept 5-31-16

CRIMINAL LAW (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)/VIDEO (CRIMINAL TRIAL, (DISABLED, ILL DEFENDANT SHOULD HAVE BEEN ALLOWED TO APPEAR REMOTELY BY VIDEO AT TRIAL)

QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION.

The First Department determined a question of fact about the applicability of the emergency doctrine precluded summary judgment in favor of the plaintiff in this rear-end collision case. Plaintiff's car was stopped because of a flat tire. Defendant alleged he did not see plaintiff's car because his line of sight was blocked by a car in front which merged left just prior to the collision:

Although there is a presumption of liability based upon the rear-end collision (see Francisco v Schoepfer, 30 AD3d 275 [1st Dept 2006]), questions of fact exist as to whether the emergency doctrine applies so as to provide defendant with a reasonable excuse for the collision. Such issues include whether plaintiff's hazard lights were flashing, whether defendant maintained a safe distance behind the car driving in front of him, and whether under the circumstances defendant acted reasonably to avoid the collision … . Gonzalez v Marescot, 2016 NY Slip Op 04105, 1st Dept 5-26-16

NEGLIGENCE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/REAR-END COLLISION (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)/EMERGENCY DOCTRINE (QUESTION OF FACT WHETHER EMERGENCY DOCTRINE APPLIED TO REAR-END COLLISION)

ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the state, although the title owner of the property (Pier 40) where plaintiff was injured by a falling beam, was not subject to absolute liability under the Labor Law. Under the Hudson River Park Act, the day to day operation and management of Pier 40 was transferred to a public benefit corporation, the Hudson River Park Trust. The court was careful to note that leasing property does not relieve the owner of Labor Law liability. However, the terms of the Hudson River Park Act indicated the legislature's intent transfer Labor Law liability to the trust:

Section 5 of the Hudson River Park Act (Uncons Laws § 1645[1]), gives the Trust total “authority over the planning, design, construction, operation and maintenance of” the park; the Act also gives the Trust the right to receive rents and other revenues generated from the park (see §§ 1646[g], 1647[10]), although ownership and title would remain with the State (see § 1647[2], [3]). Also, notably, the Act directs that the Trust has the capacity to sue and be sued (§ 1647[1][d][v]), and requires that all tort actions commenced against the Trust comply with the notice of claim requirement of General Municipal Law § 50-e (§ 1651). Most importantly, the Act expressly states that “[u]pon the coming into existence of the trust, the trust shall succeed to all contracts, leases, licenses and other legal obligations respecting the park to which its predecessors are a party at or after the effective date of this act” (§ 1645 [1] [emphasis added]). The legislature's use of the term “succeed to” and its reference to all “other legal obligations” of its predecessors clearly reflects an intent to have the Trust take over all legal liability arising out of ownership of the Park's premises. Costa v State of New York, 2016 NY Slip Op 04119, 1st Dept 5-26-16

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)/HUDSON RIVER PARK TRUST (LABOR LAW, ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)

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