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Trial Judge’s Failure to Conduct an Inquiry Concerning a Juror’s Conduct During the Trial Required Reversal

The First Department reversed a conviction because the trial judge did not conduct an inquiry (in which defense counsel could participate) concerning the disqualification of a juror relating to conduct occurring during the trial.  The juror had informed a court officer that the juror had been invited to a breakfast with the District Attorney:

In People v Buford (69 NY2d 290 [1987]), the Court of Appeals set forth the basic framework to be followed when the trial court is considering disqualifying a juror because of conduct that occurs during the trial. As the Court noted, the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. Although the Court of Appeals acknowledged that “[a]n in camera inquiry may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror,” here defense counsel wanted the juror questioned (id. at 299 n 4). We conclude that there should have been an inquiry, in which defense counsel could participate, because the disclosure indicated a possible issue related to that juror’s continued ability to serve in an impartial manner… .  People v Ventura, 2014 NY Slip Op 001182, 1st Dept 1-14-14

 

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Police Did Not Have Reasonable Suspicion of Criminal Activity, Defendant Had Right to Ignore Police Command to Stop

In a full-fledged opinion by Justice Richter, the First Department reversed the denial of defendant’s motion to suppress.  After a police officer stopped a vehicle (a Lexus), the officer saw the defendant approach the vehicle on foot, receive a bag from the driver, and walk away.  The defendant was then ordered to stop:

After pulling the driver of the Lexus over for a traffic infraction, Detective Mongelli observed his nervous demeanor, and learned that his license had been revoked. The detective then saw defendant arrive at the Lexus, receive a black bag from the driver, and walk away. These observations provided, at most, a founded suspicion of criminal activity. … In response to this founded suspicion that criminal activity was afoot, Detective Mongelli was permitted to conduct a common-law inquiry. But the police actions here went beyond a level two intrusion and constituted a level three stop and detention.  * * * Furthermore, the detective’s command to “turn the bag over” constituted at least a level three intrusion, requiring reasonable suspicion. * * *

It is well established that a citizen has a right not to respond to law enforcement inquiries and to walk away from the police …[.] [T]he Court of Appeals reaffirmed this principle and described an individual’s “right to be let alone” as the distinguishing factor between the level of intrusion permissible under the common-law right to inquire and the right to make a forcible stop. The Court reasoned that “[i]f merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion . . . the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified” … . The Court concluded that to elevate a level two inquiry to a level three stop, the police must obtain additional information or make additional observations of suspicious behavior sufficient to establish reasonable suspicion … . Because no such additional information or observations existed here, the police lacked reasonable suspicion to justify the seizure that occurred. People v Major, 2014 NY Slip Op 00197, 1st Dept 1-14-14

 

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Conveyance from Mother to Son Not Made in “Good Faith” and Therefore Was Constructively Fraudulent

In a full-fledged opinion by Justice Tom, the First Department determined that a conveyance of an apartment from mother to son, after an arbitration award against the mother, was not done in “good faith” and therefore constituted a constructively fraudulent conveyance under Debtor and Creditor Law sections 273-a and 278:

The Debtor and Creditor Law identifies two indicia of “fair consideration” for conveyed property: the adequacy of what is given in exchange for it and “good faith.” With regard to value, § 272(a), governing a conveyance made in exchange for the property, provides for the receipt of something that is “a fair equivalent therefor,” and § 272(b), governing an antecedent debt or present advance, applicable herein, provides for an “amount not disproportionately small as compared with the value of the property.” * * *

“Fair consideration” under Debtor and Creditor Law § 272 is not only a matter of whether the amount given for the transferred property was a “fair equivalent” or “not disproportionately small,” which the parties vigorously dispute, but whether the transaction is made “in good faith,” an obligation that is imposed on both the transferor and the transferee … . The determination of whether such obligation has been met is one that rests on the circumstances of the individual matter … . Sardis v Frankel, 2014 NY Slip Op 00080, 1st Dept 1-7-14

 

Relatives of Persons Buried in Defendant Cemetery Could Not Sue As Beneficiaries of the Charitable Trust Set Up to Ensure Perpetual Care of the Cemetery Plots

In a full-fledged opinion by Justice Saxe, the First Department determined that the relatives of persons buried in defendant cemetery did not have standing to sue as beneficiaries of a charitable trust which was supposed to ensure perpetual care of the cemetery plots.  [However, one of the plaintiffs, who himself was a donor to the charitable trust, did have standing to sue:

EPTL article 1, which governs charitable trusts, specifically includes trusts for the perpetual care of graves: “Dispositions of property in trust for the purpose of the perpetual care … of cemeteries or private burial lots in cemeteries … shall be deemed to be for charitable and benevolent purposes” (EPTL 8-1.5). The statute directs the State Attorney General to protect and enforce the interests and rights of the beneficiaries: “The attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts” (EPTL § 8-1.1[f] [emphasis added]). “The obvious purpose of this provision was to provide a mechanism for enforcement of trusts whose beneficiaries were unascertainable” … . * * *

… [A]llowing relatives to bring lawsuits as to each lot, plot or grave could create endless litigation, substantially depleting the trust assets. Enforcement of the subject charitable trusts is therefore best left to the Attorney General, so as not to expose the trust funds to money-draining multiple lawsuits, and to avoid setting a precedent of allowing a broad, vague beneficiary base to commence multiple actions against a charitable trust. Lucker v Bayside Cemetary, 2013 NY Slip Op 08835, 1st Dept 12-31-13

 

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

Untimely Summary Judgment Motion Denied—No Showing of Good Cause for the Delay/Motion Was Mislabeled as a Cross Motion

In a full-fledged opinion by Justice Feinman, over a dissent, the First Department determined an untimely motion for summary judgment was properly denied because there was no explanation for the delay.  The court noted the motion was mislabeled as a cross-motion because it did not address the issues raised in the original motion, but rather addressed the allegations in the complaint:

Brill v City of New York (2 NY3d 648 [2004]) addressed the “recurring scenario” of litigants filing late summary judgment motions, in effect “ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice” (2 NY3d at 650). Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed … .  * * * Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. * * *

We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is “good cause shown” for the delay. * * *

To the extent [the] motion was directed at the complaint, as opposed to any cross claims …, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party… . Kershaw v Hospital for Special Surgery, 2013 NY Slip Op 08548, 1st Dept 12-24-13

 

 

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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year

The First Department, in a full-fledged opinion by Justice Saxe, determined that the part performance exception to the statute of frauds should not be applied to contracts that cannot be performed within one year.  The court first explained what “capable of performance within one year” means, and then looked at the controlling statute (General Obligations Law 5-701 (a)(1):

Before addressing the central issue of the applicability of a part performance exception for contracts that must be in writing under General Obligations Law § 5-701, I note … the oral contract alleged here was categorized as a contract incapable of performance within one year of its making (General Obligations Law § 5-701[a][1]). The application of § 5-701(a)(1) is limited to contracts that “have absolutely no possibility in fact and law of full performance within one year” … . “[T]he statute does not include an agreement which is simply not likely to be… performed, nor yet one which is simply not expected to be performed within the space of a year. Neither does it include an agreement which, fairly and reasonably interpreted, admits of a valid execution within that time, although it may not be probable that it will be” … . So, the determination of whether an alleged oral contract can possibly be performed within one year of its making is not conducted by looking back at the actual performance; it requires analysis of what was possible, looking forward from the day the contract was entered into. * * *

Analysis of the part performance exception must begin by emphasizing that General Obligations Law § 5-701 lacks any provision for a part performance exception such as that explicitly provided for by General Obligations Law § 5-703, which concerns contracts for the conveyance of an interest in real property. That is, while § 5-703(4) specifically provides, “Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance,” the broader statute of frauds provision of § 5-701 contains nothing of the sort – although, notably, it contains other exceptions … .

Two relevant principles of statutory construction apply here. The first is that “a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” … . The second is that an “inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inferring that the Legislature authorized a part performance exception for an oral contract that is not capable of performance within one year violates these principles. Gural v Drasner, 2013 NY Slip Op 08391, 1st Dept 12-17-13

 

Tenured Teacher Can Not Be Compelled to Testify In a Proceeding Where Such Testimony Would Be Admissible in a Subsequent Department-of-Education Disciplinary Proceeding

In a full-fledged opinion by Justice Freedman, the First Department determined a tenured teacher could not be compelled to testify in the New York City School District’s “Special Commission of Investigation” (SCI) proceeding.  The testimony would be admissible in a Department of Education (DOE) disciplinary hearing.  Education Law 3020(1) and 3020-a provides that tenured employees shall not be required to testify at any disciplinary hearing:

Based on the above cited Education Law provisions, the [3rd] Department has held that requiring testimony of a tenured teacher in an SCI proceeding conflicted with Education Law § 3020-a because testimony or evidence obtained at such a hearing would be admissible in a DOE disciplinary hearing. That court said, “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system'” … . * * *

Accordingly, the judgment of the Supreme Court …which … denied the petition to compel respondent to comply with a subpoena ad testificandum and dismissed the proceeding … should be affirmed…  .  Matter of Condon v Sabater, 2013 NY Slip Op 08368, 1st Dept 12-12-13

 

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Uncovered Baseboard Radiator May Constitute an Unsafe Condition Created by Landlord

The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective.  The infant plaintiff, who suffers from mental retardation and cerebral palsy, was burned when her face and hand was in contact with an uncovered baseboard radiator for an unknown period of time.  Nina W v NDI King Ltd Partnership, 2013 NY Slip Op 08202, 1st Dept 12-10-13

 

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