New York Law Review

Author: The New York Law Review

  • People v. Mcintosh, 23 N.Y.3d 1135 (2014): Preservation of Claims Regarding Post-Release Supervision During Plea Bargains

    People v. Mcintosh, 23 N.Y.3d 1135 (2014)

    A defendant must preserve a claim that a guilty plea was not knowing, voluntary, and intelligent due to a failure to advise about post-release supervision by objecting at sentencing, even if the trial court failed to mention post-release supervision during the plea colloquy.

    Summary

    The New York Court of Appeals considered whether a defendant, who was not informed about post-release supervision (PRS) during his plea colloquy, preserved his claim that his plea was unknowing and involuntary. The court held that because the defendant had multiple opportunities to object to the imposition of PRS at sentencing and failed to do so, he did not preserve his claim for appeal. The court distinguished this case from prior precedent by emphasizing the defendant’s opportunity to object at sentencing, which triggered the preservation requirement.

    Facts

    The defendant, Mcintosh, was indicted on burglary and criminal mischief charges. During a plea bargain offer, the court advised Mcintosh about the minimum prison sentence and the possibility of PRS. The defendant requested time to consider the offer. Three days later, he accepted the plea bargain. During the plea colloquy, the court reiterated the prison term but did not mention PRS again. Mcintosh pleaded guilty. Prior to sentencing, the defendant failed to cooperate with probation and did not appear for sentencing. At a subsequent sentencing hearing in absentia, the court imposed a five-year determinate sentence followed by three years of PRS, to which the defense counsel did not object. The defendant was later arrested and brought before the court; still, no objection to PRS was made. The defendant appealed, arguing that his conviction should be vacated because he was not informed about PRS during the plea. The Appellate Division affirmed the conviction.

    Procedural History

    The County Court set forth a plea bargain offer. The defendant pleaded guilty. The defendant failed to appear for sentencing. The County Court sentenced the defendant in absentia, imposing PRS. The defendant was later arrested and brought before the court. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendant preserved his claim that his plea was not knowing, voluntary, and intelligent under People v. Catu because the County Court failed to reiterate the term of PRS during the plea colloquy.

    Holding

    1. No, because the defendant had ample opportunity to object to the PRS component prior to and during sentencing, he was required to preserve his claim.

    Court’s Reasoning

    The court referenced its prior holding in People v. Catu, which established that a defendant must fully understand the consequences of a guilty plea, including PRS, to make a knowing, voluntary, and intelligent choice. The court recognized that PRS is a significant component of a sentence. However, the court distinguished the case from Catu. The Court found that, unlike in Catu, here, the defendant had multiple opportunities to object to the PRS component, which were: 1) at the initial scheduled sentencing; 2) at his sentencing in absentia; and 3) at the appearance on August 17. The court cited People v. Murray to support the view that when the defendant has an opportunity to object but does not, preservation of the issue is required. The court emphasized that neither the defendant nor his counsel objected to the imposition of PRS at any of these junctures, thereby failing to preserve the claim. The court reasoned that by failing to object at sentencing, the defendant waived his right to challenge the PRS component of his sentence on appeal.

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  • Matter of New York City Coalition to End Lead Poisoning v. Giuliani, 248 N.Y. 339 (2014): Prevailing Party Status Under the New York State Equal Access to Justice Act and the Catalyst Theory

    Matter of New York City Coalition to End Lead Poisoning v. Giuliani, 248 N.Y. 339 (2014)

    A party is considered a “prevailing party” under the New York State Equal Access to Justice Act (EAJA) if their lawsuit prompted a change in the position of the party from whom they seek reimbursement of legal fees, even if a court order was not obtained.

    Summary

    The New York City Coalition to End Lead Poisoning (Coalition) sought attorney’s fees under the New York State Equal Access to Justice Act (EAJA) after the New York City Human Resources Administration (HRA) reversed a decision to reduce a petitioner’s shelter allowance. The petitioner argued that the lawsuit prompted HRA’s reversal, making her a “prevailing party” under EAJA, even though the court did not issue a ruling. The Court of Appeals reversed the Appellate Division’s decision, finding that even if the catalyst theory was applicable, the State of New York did not change its position, so attorneys’ fees were not recoverable.

    Facts

    The New York City Human Resources Administration (HRA) reduced a petitioner’s shelter allowance. The petitioner requested a “fair hearing” before the New York State Office of Temporary and Disability Assistance (OTDA). HRA agreed to restore the lost benefits retroactively. OTDA issued a “Decision After Fair Hearing” consistent with HRA’s representation. When HRA did not act, the petitioner’s attorney contacted OTDA seeking enforcement. OTDA responded that to its knowledge, HRA had complied. The petitioner commenced an Article 78 proceeding to compel HRA and another city agency to comply with the OTDA decision, and OTDA to enforce it. HRA subsequently restored the shelter allowance. The petitioner then sought attorneys’ fees from the State under New York State’s Equal Access to Justice Act (EAJA).

    Procedural History

    Supreme Court dismissed the proceeding as moot and denied the application for attorneys’ fees, citing the United States Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, which rejected the catalyst theory. The Appellate Division reversed, granted the application for attorneys’ fees, and remanded for a hearing. The Appellate Division recognized the catalyst theory. The Appellate Division granted the respondent leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether the catalyst theory applies to determine “prevailing party” status under New York’s EAJA.

    2. Whether the petitioner is entitled to attorneys’ fees under the catalyst theory.

    Holding

    1. The Court did not decide whether the catalyst theory applies to determine “prevailing party” status under New York’s EAJA.

    2. No, because even assuming the catalyst theory applies, the petitioner is not entitled to attorneys’ fees.

    Court’s Reasoning

    The court reasoned that the focus should be on whether the party from whom the fees are sought has changed their position in response to the lawsuit. The court stated, “Under the pre-Buckhannon federal precedent that petitioner would have us apply, a fee claimant recovers attorneys’ fees only if his or her lawsuit prompted a change in position by the party from which claimant seeks reimbursement.” The court emphasized that even if the catalyst theory was applied to determine “prevailing party” status, attorneys’ fees would not be recoverable because the State of New York (the party from whom fees were sought) had not altered its position. The City of New York changed its position. The court did not need to decide whether the catalyst theory is New York law, and took no position on that question. The court stated that, even if the catalyst theory applied, the petitioner could not recover fees because “the State has consistently sided with petitioner regarding HRA’s reduction of her shelter allowance.”

  • Graham Court Owner’s Corp. v. Taylor, 24 N.Y.3d 742 (2015): Reciprocal Attorneys’ Fees Clauses in Residential Leases

    Graham Ct. Owner’s Corp. v. Taylor, 24 N.Y.3d 742 (2015)

    New York’s Real Property Law § 234, which provides for reciprocal attorneys’ fees in residential leases, applies when a lease allows the landlord to recover fees related to a tenant’s breach, even if the fees are recovered through the re-renting process.

    Summary

    The New York Court of Appeals addressed whether a lease provision allowing a landlord to recover attorneys’ fees incurred in regaining possession after a tenant’s default triggered the reciprocal attorneys’ fees clause under Real Property Law § 234. The court held that it did. The landlord argued that because the fees were recovered through the re-renting process, and not directly from the tenant in an action for breach, § 234 did not apply. The court disagreed, holding that since the fees stemmed from the tenant’s breach of the lease, the statute’s requirement for reciprocity was met. The decision emphasizes the statute’s remedial purpose of equalizing the power between landlords and tenants and discouraging frivolous litigation.

    Facts

    A landlord, Graham Court Owner’s Corp., initiated a holdover proceeding against its tenant, Kyle Taylor, after the tenant successfully filed a rent overcharge complaint with the New York State Division of Housing and Community Renewal (DHCR). The landlord alleged the tenant breached the lease by failing to obtain consent for electrical work. The lease, in paragraph 15, allowed the landlord to cancel the lease, retake possession, and relet the premises if the tenant defaulted. Clause (D)(3) of paragraph 15 stated that the landlord’s expenses, including reasonable legal fees, would be paid from any rent received from re-renting the apartment after the tenant’s default. The tenant denied breach, claimed retaliatory eviction, and counterclaimed for attorneys’ fees under Real Property Law § 234. The trial court dismissed the holdover proceeding finding the tenant had not breached the lease and the proceeding was retaliatory. It awarded the tenant fees under Real Property Law § 223-b, but not § 234. The Appellate Term modified the lower court, denying attorneys’ fees under Real Property Law § 223-b. The Appellate Division reversed in part, awarding the tenant attorneys’ fees under Real Property Law § 234.

    Procedural History

    The Civil Court dismissed the landlord’s holdover proceeding, finding that the tenant had not breached the lease and that the proceeding was retaliatory. The Civil Court awarded the tenant attorneys’ fees under Real Property Law § 223-b, but denied fees under § 234. The Appellate Term modified the lower court, denying attorneys’ fees under Real Property Law § 223-b. The Appellate Division modified the Appellate Term’s decision, awarding the tenant attorneys’ fees under Real Property Law § 234. The Appellate Division granted the landlord’s motion for leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether Real Property Law § 234 applies to a lease that permits a landlord to recover attorneys’ fees incurred in obtaining possession and re-renting the premises after a tenant’s default, but not in a direct action against the tenant for the breach.

    2. Whether the tenant was the prevailing party, thus entitled to fees under Real Property Law § 234.

    Holding

    1. Yes, because the lease allowed the landlord to recover attorneys’ fees as a result of the tenant’s breach, the reciprocal right to attorneys’ fees under Real Property Law § 234 was triggered.

    2. Yes, the tenant was the prevailing party because they successfully defended against the landlord’s holdover proceeding.

    Court’s Reasoning

    The court examined Real Property Law § 234, which provides that if a lease allows a landlord to recover attorneys’ fees for a tenant’s breach, then a reciprocal right to attorneys’ fees is implied in favor of the tenant. The key issue was whether the lease’s language triggered this reciprocity. The court focused on paragraph 15 of the lease, titled “Tenant’s default,” and clause (D)(3). Clause (D)(3) stated that the landlord’s expenses, including attorneys’ fees, would be paid from any rent received upon re-renting the apartment after the tenant’s breach. The court found this triggered § 234 because the attorneys’ fees were a consequence of the tenant’s breach and the landlord’s action to regain possession.

    The court rejected the landlord’s argument that the fees were simply costs of re-renting and not a direct recovery for the breach. The court stated that the statute does not require a direct action for breach, only that the fees stem from the breach. The court emphasized that Real Property Law § 234 is a remedial statute designed to equalize the power between landlords and tenants. “The overriding purpose of Real Property Law § 234 was to level the playing field between landlords and residential tenants, creating a mutual obligation that provides an incentive to resolve disputes quickly and without undue expense.” The court also addressed the landlord’s claim that the fees were an offset of the tenant’s debt; the court stated that by its language, clause (D)(3) must be read to assume that, but for this sequenced payment of attorneys’ fees, the tenant would be entitled to demand credit for the full rent collected by the landlord for reletting the premises, and to have that credit applied against any amount the tenant owed under the lease. Finally, the court found the tenant to be the prevailing party because they successfully defended the holdover proceeding.

    The court also cited Duell v. Condon, 84 N.Y.2d 773 (1995), as support for broadly interpreting the statute to further its remedial purpose. The court held that the lease provision allowing for attorneys’ fees triggered § 234, and the tenant was entitled to recover these fees, consistent with the intent of the legislature and the statute’s plain language.

  • Platek v. Allstate Indem. Co., 24 N.Y.3d 684 (2015): Interpreting Insurance Policy Exclusions for Water Damage and Ensuing Loss

    24 N.Y.3d 684 (2015)

    An ensuing loss provision in an insurance policy does not resurrect coverage for an excluded peril; instead, it provides coverage for a new loss that is of a kind not excluded by the policy and arises as a result of the excluded peril.

    Summary

    The New York Court of Appeals addressed an insurance coverage dispute concerning water damage to a home caused by a ruptured water main. The homeowners’ insurance policy contained a water damage exclusion but included an exception for sudden and accidental direct physical loss caused by fire, explosion, or theft resulting from the excluded water damage. The court found that the damage was directly caused by water on or below the surface of the ground, which was explicitly excluded by the policy. The court held that the exception to the water damage exclusion did not apply because the damage to the property was directly caused by the excluded peril (water), not a subsequent loss. Thus, the court reversed the lower court’s decision to grant summary judgment in favor of the insured and held that the water damage was not covered under the policy.

    Facts

    Plaintiffs’ home suffered water damage to its basement when a subsurface water main abutting their property ruptured. Plaintiffs filed a claim with their insurer, Allstate, under their homeowners’ insurance policy, but Allstate denied coverage, citing a water damage exclusion in the policy that excluded losses consisting of or caused by water on or below the surface of the ground. The policy included an exception to the water damage exclusion for sudden and accidental direct physical loss caused by explosion resulting from the water-related event. Plaintiffs argued that the water main explosion caused their water damage, thus falling under the exception.

    Procedural History

    Plaintiffs sued Allstate for breach of contract. The trial court granted summary judgment to the plaintiffs, holding that the damage was covered by the policy. The Appellate Division modified the trial court’s order by vacating the declaration and otherwise affirmed, finding the policy ambiguous. The Court of Appeals reversed the Appellate Division’s decision.

    Issue(s)

    1. Whether the water damage to plaintiffs’ home was excluded by the policy’s water damage exclusion.
    2. Whether the policy’s exception to the water damage exclusion, pertaining to sudden and accidental loss caused by explosion, applied to the plaintiffs’ loss.

    Holding

    1. Yes, because the loss was caused by water on or below the surface of the ground.
    2. No, because the exception was for subsequent loss, not for direct damage from an excluded peril.

    Court’s Reasoning

    The court applied three basic principles: (1) interpret the policy language; (2) the insured bears the burden of establishing coverage; and (3) an ensuing loss provision does not supersede an exclusion. The court first determined that the water damage exclusion unambiguously applied because the loss was caused by water on or below the surface of the ground. Then, the court analyzed the exception to the water damage exclusion. It found that the exception for sudden and accidental loss caused by explosion was an “ensuing loss” provision, meaning it covered a secondary loss (e.g., fire) that occurs as a result of an excluded peril (water damage). According to the court, the damage to the plaintiffs’ home was directly caused by the water from the broken water main, an excluded peril. Since the explosion did not cause a separate loss, there was no “ensuing loss” and, therefore, no coverage under the exception. As the Court stated, the policy language “provides coverage when, as a result of an excluded peril, a covered peril arises and causes damage.” The court distinguished between a loss caused directly by water and a loss caused by an explosion resulting from the water, the latter of which would have triggered coverage. The court further reasoned that interpreting the exception to cover water damage would contradict the exclusion’s clear intent to deny coverage for such damages. The court emphasized that the ensuing loss exception does not “resurrect coverage for an excluded peril.”

  • Barclays Bank PLC v. BDC Finance L.L.C., 23 N.Y.3d 356 (2014): Interpreting Contractual Dispute Resolution Clauses and Establishing Material Issues of Fact

    23 N.Y.3d 356 (2014)

    When interpreting a contract, courts must give fair and reasonable meaning to the language used, and summary judgment is inappropriate when material issues of fact exist regarding compliance with the terms of the agreement.

    Summary

    In this case, Barclays Bank and BDC Finance were parties to several financial agreements involving collateral calls. BDC issued a collateral call to Barclays, which Barclays disputed. The agreements contained a dispute resolution mechanism. When a dispute arose, the party disputing the call was required to notify the other party and transfer any undisputed amount. BDC argued that Barclays failed to comply with this mechanism, leading to a default. The Court of Appeals found that material issues of fact existed regarding whether Barclays complied with the dispute resolution process and whether it was therefore in default. It reversed the Appellate Division’s grant of summary judgment for BDC, remitting the case for further proceedings.

    Facts

    Barclays Bank and BDC Finance entered into a series of agreements, including total return swaps, governed by a master agreement, schedule and credit support annex (CSA). These agreements allowed either party to demand collateral based on changes in the value of underlying debt instruments. A dispute arose on October 6, 2008, when BDC made a collateral call on Barclays. Barclays disputed the call. Under the CSA, Barclays was required to notify BDC of the dispute and transfer any undisputed amount. BDC argued Barclays failed to comply with these terms, leading to a default. Barclays partially transferred a disputed amount and claimed it was in compliance.

    Procedural History

    BDC filed suit in New York Supreme Court for breach of contract and declaratory judgment. Both parties moved for summary judgment. The Supreme Court denied BDC’s motion but granted part of Barclays’ motion. The Appellate Division modified the lower court’s decision by granting BDC’s motion and denying Barclays’ cross-motion. Barclays appealed to the Court of Appeals, which reversed and remanded the case.

    Issue(s)

    1. Whether Barclays was required to transfer the full Return Amount on the next business day after BDC’s request, as per the

  • Margerum v. City of Buffalo, 24 N.Y.3d 724 (2015): Notice of Claim Not Required for Human Rights Law Claims; Summary Judgment Inappropriate in Discrimination Cases

    24 N.Y.3d 724 (2015)

    A notice of claim is not required as a condition precedent to bringing a Human Rights Law claim against a municipality, and summary judgment is generally inappropriate in cases involving employment discrimination.

    Summary

    White firefighters sued the City of Buffalo, alleging reverse discrimination under the New York Human Rights Law after the City allowed promotion eligibility lists to expire, thereby allegedly denying them promotions. The trial court granted summary judgment for the plaintiffs on the issue of liability, finding the City did not have a strong basis in evidence to believe it would face disparate impact liability in a related federal case. The New York Court of Appeals reversed the summary judgment ruling, holding that the trial court had improperly decided liability at the summary judgment stage and also clarified that a notice of claim is not required for Human Rights Law claims against a municipality, differentiating these claims from tort claims requiring pre-suit notice.

    Facts

    The City of Buffalo had been subject to federal court orders regarding discriminatory hiring practices in its fire department. The City allowed promotion eligibility lists to expire before their maximum duration. White firefighters who would have been promoted had the lists been extended sued the City, claiming reverse discrimination under the Human Rights Law. The City moved to dismiss, arguing the firefighters failed to file a notice of claim as required under General Municipal Law. The plaintiffs cross-moved for summary judgment on liability, which was granted by the trial court.

    Procedural History

    The trial court denied the City’s motion to dismiss and granted summary judgment for the plaintiffs. The Appellate Division affirmed the denial of the motion to dismiss, finding no notice of claim was needed and, after a subsequent Supreme Court case (Ricci v. DeStefano), reversed the grant of summary judgment, finding the City failed to meet a “strong basis in evidence” standard. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the plaintiffs were required to file a notice of claim under General Municipal Law § 50-i before commencing an action alleging violations of the New York Human Rights Law.

    2. Whether the trial court properly granted summary judgment to the plaintiffs on the issue of liability, given the factual disputes concerning the City’s actions.

    Holding

    1. No, because Human Rights Law claims are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i.

    2. No, because factual issues remained regarding the City’s motivation and justification for its actions that should not have been decided at the summary judgment stage.

    Court’s Reasoning

    The Court of Appeals first addressed the notice of claim requirement. It held that the General Municipal Law provisions requiring a notice of claim applied only to tort actions and did not apply to claims brought under the Human Rights Law. The Court cited prior Appellate Division cases, which have consistently held that a notice of claim is not required for claims based on the Human Rights Law, concluding that “Human rights claims are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i.”

    Regarding summary judgment, the Court cited the Supreme Court case of Ricci v. DeStefano, which held that before taking race-based action, “the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” The Court emphasized that the standard of proof for claims under the New York Human Rights Law is in nearly all instances identical to Title VII and other federal law. The court explained that there were questions of fact surrounding the City’s actions that were inappropriate to resolve on summary judgment.

    The Court noted that the City’s motivations in allowing the eligibility lists to expire and the strength of any justifications were central to the issue of liability. The Court recognized that the City’s motivations were unclear. The Court of Appeals concluded, “In this case, the issue of liability turns on the factual circumstances behind the City’s actions, the strength of its justifications and its motivations.” The court determined that the trial court improperly granted summary judgment because questions of fact remained regarding the City’s motivations, and thus the case was sent back for further proceedings.

  • People v. Diack, 24 N.Y.3d 675 (2015): State Preemption of Local Sex Offender Residency Restrictions

    24 N.Y.3d 675 (2015)

    A local law restricting the residency of registered sex offenders is preempted by the state’s comprehensive regulatory scheme concerning the identification, monitoring, and management of sex offenders.

    Summary

    The New York Court of Appeals addressed the issue of whether a Nassau County law, Local Law No. 4-2006, which prohibited registered sex offenders from residing within 1,000 feet of a school, was preempted by state law. The court held that the state had occupied the field of sex offender regulation, including residency restrictions, through a comprehensive statutory and regulatory framework, including the Sex Offender Registration Act (SORA) and the Sexual Assault Reform Act (SARA), and subsequent legislation. Consequently, the local law was deemed invalid due to field preemption, as the state’s extensive regulation demonstrated an intent to preclude local governments from enacting their own residency restrictions. The court emphasized the state’s interest in statewide uniformity in sex offender management and the potential for local laws to undermine this goal.

    Facts

    The defendant, a registered sex offender, moved into an apartment in Nassau County within 500 feet of two schools, violating Local Law 4. The defendant was charged with violating Local Law 4, which prohibited sex offenders from living near schools and parks. The trial court dismissed the charge, finding preemption by state law. The Appellate Term reversed, but the Court of Appeals ultimately reversed the Appellate Term, agreeing with the trial court. The state’s regulatory framework encompassed SORA, SARA, the Sex Offender Management and Treatment Act (SOMTA), and Chapter 568 of the Laws of 2008, all of which demonstrated a comprehensive approach to managing sex offenders, including regulations regarding residency.

    Procedural History

    The Nassau County District Court initially dismissed the information against the defendant, holding that Local Law 4 was preempted by state law. The Appellate Term reversed the District Court’s decision, reinstating the information. The New York Court of Appeals granted the defendant leave to appeal the Appellate Term’s decision and ultimately reversed the Appellate Term, dismissing the information.

    Issue(s)

    1. Whether Nassau County Local Law 4, which restricts the residency of registered sex offenders, is preempted by New York State law.

    Holding

    1. Yes, because the state has occupied the field of sex offender regulation, the local law is preempted.

    Court’s Reasoning

    The Court of Appeals determined that the doctrine of field preemption applied. This doctrine restricts a local government’s police power when the legislature has enacted a comprehensive and detailed regulatory scheme in a particular area. The court found that the state’s enactment of SORA, SARA, SOMTA, and Chapter 568, among other legislative actions, demonstrated a clear intent to comprehensively regulate sex offenders, including their residency. SARA, for instance, mandates residency restrictions for sex offenders under certain conditions, and Chapter 568 regulates the placement of sex offenders. The court reasoned that the State’s actions, including the creation of a risk level system and regulations, established a “top-down” approach. The court found that the state laws created a uniform statewide policy. The Court stated, “[I]t is evident that the State has chosen to occupy it.” The Court reversed the Appellate Term’s order and dismissed the information, concluding that Local Law 4 was preempted.

  • People v. Diaz, 29 N.Y.3d 1126 (2017): Defendant’s Right to Testify Before the Grand Jury and Waiver of Immunity

    People v. Diaz, 29 N.Y.3d 1126 (2017)

    A defendant’s statutory right to testify before a grand jury is violated when the prosecution demands an unaltered waiver of immunity that includes provisions beyond the statutory requirements of CPL 190.45.

    Summary

    The New York Court of Appeals held that the defendant’s right to testify before a grand jury was violated when the prosecution refused to allow him to testify after he signed a waiver of immunity with certain provisions struck out. The court found that the defendant had satisfied the statutory requirements for a waiver of immunity under CPL 190.45, which only requires a waiver of the privilege against self-incrimination. The prosecution’s insistence on an unaltered waiver, including additional provisions, was deemed an infringement upon the defendant’s right to testify. The court emphasized that the defendant only needed to meet the requirements of the statute, and nothing more, to make a valid written waiver of immunity.

    Facts

    The defendant, Diaz, was indicted on charges of attempted criminal possession of a weapon and other related offenses. Diaz served notice of his intent to testify before the grand jury. The prosecution provided him with a waiver of immunity form which, in addition to the statutorily required provisions, also contained three additional paragraphs relating to his right to counsel, the scope of questioning, and the use of his testimony. Diaz struck out those three additional provisions and signed the form. The Assistant District Attorney (ADA) informed Diaz that he would not be allowed to testify unless he signed the unaltered waiver. Diaz did not sign the unaltered form and was consequently not permitted to testify.

    Procedural History

    After a jury conviction, the trial court found the defendant guilty and dismissed the indictment. The Appellate Division vacated the conviction, finding the defendant was denied his right to testify before the grand jury. The People appealed this decision to the New York Court of Appeals.

    Issue(s)

    Whether a defendant’s statutory right to testify before a grand jury is violated when the prosecution requires an unaltered waiver of immunity containing provisions beyond those mandated by CPL 190.45?

    Holding

    Yes, because the defendant complied with the statutory requirements for a waiver of immunity, the prosecution’s insistence on additional, non-statutory terms violated his right to testify.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision. The court found that Diaz met the necessary requirements for a valid written waiver of immunity under CPL 190.45 when he signed the document, even after striking out the additional provisions. The court reasoned that CPL 190.45 is clear, straightforward, and concise in its requirements. The court referenced that a waiver of immunity requires only a written instrument waiving the privilege against self-incrimination. The additional provisions regarding the right to counsel, the scope of questioning, and the use of testimony were not required by the statute. The prosecution improperly demanded an unaltered waiver. The Court of Appeals reiterated that the defendant’s right to testify before the grand jury “must be scrupulously protected.”

    The court emphasized that the prosecutor was not authorized to impose any additional requirements. A valid waiver of immunity was established when Diaz agreed to waive his right to self-incrimination. The court stated, “When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.” The court noted that a waiver of immunity, per the statute, requires only a written instrument waiving the privilege against self-incrimination.

  • People v. Repanti, 23 N.Y.3d 707 (2014): Harassment as a Lesser Included Offense of Attempted Assault

    23 N.Y.3d 707 (2014)

    Harassment in the second degree is not a lesser included offense of attempted assault in the third degree because the intent elements of the two crimes are distinct and it is theoretically possible to commit attempted assault without also committing harassment.

    Summary

    The New York Court of Appeals held that harassment in the second degree is not a lesser included offense of attempted assault in the third degree. The court clarified that to be considered a lesser included offense, it must be theoretically impossible to commit the greater crime without simultaneously committing the lesser offense. The court found that the intent elements for the two crimes are distinct; attempted assault requires intent to cause physical injury, while harassment requires intent to harass, annoy, or alarm. Therefore, the court affirmed the defendant’s conviction for both attempted assault and harassment, as the latter was not a lesser included offense of the former.

    Facts

    The defendant, Steven Repanti, and the complainant lived in the same senior community. Following an altercation in a staircase, Repanti was charged with attempted assault in the third degree. The prosecution subsequently added a charge of harassment in the second degree before trial. At trial, the complainant testified that Repanti forcefully “banged into” her with his shoulder. Repanti denied any physical contact. The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed, and the New York Court of Appeals granted leave to appeal.

    Procedural History

    The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed the convictions. The New York Court of Appeals granted Repanti leave to appeal.

    Issue(s)

    1. Whether harassment in the second degree is a lesser included offense of attempted assault in the third degree.

    Holding

    1. No, because it is not theoretically impossible to commit attempted assault without also committing harassment.

    Court’s Reasoning

    The court relied on New York’s Criminal Procedure Law (CPL) 1.20(37), which defines a lesser included offense. The court stated that to establish a lesser included offense, a defendant must show “that it is theoretically impossible to commit the greater crime without at the same time committing the lesser.” The court emphasized this determination must be based on a comparison of the statutes in the abstract, without reference to the specific facts of the case. The court found that attempted assault requires the intent to cause physical injury, while harassment requires the intent to harass, annoy, or alarm. The court explained, “an additional element or fact must be shown to be present in a case of harassment, requiring proof of an intent to harass, annoy or alarm, which is not a required element of an assault count.”

    The court cited *People v. Moyer*, which held that harassment is not a lesser included offense of assault, because it requires proof of an intent to harass, annoy, or alarm, which is not a required element of assault. The court also rejected Repanti’s argument that the *Stanfield* rule applied because the counts were based on the same conduct. The court clarified that *Stanfield* was limited by *Glover* which stated, “the theoretical impossibility requirement “is mandated by the provisions of CPL 1.20 (subd 37)”. The court affirmed the convictions based on the distinct intent elements of the two crimes.

  • Matter of Veronica P. v. Radcliff A., 22 N.Y.3d 668 (2014): Appeals of Expired Orders of Protection and the Mootness Doctrine

    Matter of Veronica P. v. Radcliff A., 22 N.Y.3d 668 (2014)

    An appeal from an expired order of protection is not moot if the order’s issuance has significant enduring consequences, even after it has expired.

    Summary

    The New York Court of Appeals addressed whether an appeal of an expired order of protection was rendered moot by the order’s expiration. The court held that the appeal was not moot because the order’s issuance had significant legal and reputational consequences for the respondent, which could be alleviated if the appeal were successful. The court emphasized the impact of the order on future legal proceedings, potential for impeachment, increased law enforcement scrutiny, and damage to the respondent’s reputation. The Court of Appeals reversed the Appellate Division’s dismissal of the appeal as moot and remitted the matter for consideration of the merits.

    Facts

    Veronica P. filed a family offense petition against her nephew, Radcliff A., alleging harassment and assault. Family Court issued a temporary order of protection and, after a hearing, found Radcliff A. guilty of a family offense (harassment in the second degree) and issued a two-year order of protection against him. Radcliff A. appealed the order. The order of protection expired while the appeal was pending.

    Procedural History

    Family Court found Radcliff A. guilty of a family offense and issued an order of protection. Radcliff A. appealed to the Appellate Division. The Appellate Division dismissed the appeal as moot because the order of protection had expired. The New York Court of Appeals granted Radcliff A. leave to appeal.

    Issue(s)

    1. Whether the appeal of an expired order of protection is rendered moot by the order’s expiration.

    Holding

    1. No, because the order of protection has enduring consequences for Radcliff A. that could be alleviated by a favorable appellate decision.

    Court’s Reasoning

    The court began by restating the general rule that an appeal is moot unless a decision will directly affect the parties’ rights and interests. However, the court recognized an exception: an appeal is not moot if it will eliminate readily ascertainable and legally significant enduring consequences of the order being appealed. The court found the order of protection had enduring consequences, including that the order of protection on its face strongly suggested Radcliff A. committed a family offense which could influence future sentencing in criminal cases or adverse civil adjudications. Also, the court noted that the order could be used for impeachment purposes and that the order would remain in a police database. Further, the court found the order placed a severe stigma on Radcliff A., potentially impacting his business contacts, social acquaintances, and employment opportunities. The Court of Appeals found that the consequences of the order’s issuance were substantial and enduring enough to prevent mootness. The Court then reversed the Appellate Division and remitted for consideration of the merits of the appeal.

    The court stated: “In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision.”