New York Law Review

Author: The New York Law Review

  • People v. Kims, II, 24 N.Y.3d 421 (2014): Limits of the ‘Drug Factory’ Presumption

    People v. Kims, II, 24 N.Y.3d 421 (2014)

    The “drug factory” presumption of Penal Law § 220.25(2), which allows jurors to infer possession based on proximity to drugs in plain view, does not apply when a defendant is apprehended outside the premises and not in immediate flight.

    Summary

    Stanley Kims was convicted of drug possession charges. The prosecution relied on the “drug factory” presumption, arguing Kims was in close proximity to drugs found in his apartment even though he was arrested outside. The New York Court of Appeals held that the presumption was improperly applied because Kims was not in “close proximity” to the drugs at the time of his arrest, as he was outside the apartment and not fleeing. The Court reversed the convictions for criminal possession of a controlled substance in the first and third degrees, ordering a new trial on those counts, but affirmed the remaining convictions.

    Facts

    Detective McNitt received information that Kims was operating a drug stash house. Kims’ parole officer, Glennon, visited Kims’ residence and saw Kims and his cousin, Sawyer, exit the building. Glennon called out to Kims, who then reversed his car. Glennon observed Kims reach into the vehicle’s console area. Officers drew their guns and ordered Kims and Sawyer to exit the vehicle. Drugs were found on Sawyer and in the car. After Kims’ arrest, officers conducted a protective sweep of the apartment and found drugs and drug paraphernalia in open view. A search warrant later revealed more drugs and cash.

    Procedural History

    Kims was indicted on drug possession charges. The trial court denied Kims’ motion to suppress the evidence found in the apartment. The jury convicted Kims on all counts. The Appellate Division modified the judgment, reversing the convictions for criminal possession of a controlled substance in the first and third degrees and ordering a new trial on those counts, while affirming the remaining convictions. Both the People and Kims were granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred in charging the jury on the presumption of knowing possession under Penal Law § 220.25(2) when the defendant was apprehended outside the premises.

    2. Whether, if the charge was given in error, the error was harmless.

    Holding

    1. Yes, because the defendant was not in “close proximity” to the drugs as required by Penal Law § 220.25(2) when he was apprehended outside the premises and not in immediate flight.

    2. No, because it is impossible to determine whether the jury based its verdict on the improper presumption or the alternative charge of constructive possession.

    Court’s Reasoning

    The Court reasoned that Penal Law § 220.25(2) allows a jury to presume knowing possession when a defendant is in “close proximity” to drugs in open view, under circumstances evincing a drug sale operation. The purpose of this “drug factory” presumption is to assist police in identifying culpable individuals involved in a drug business within premises being used for drug operations. The Court emphasized that “close proximity” requires the defendant to be sufficiently near the drugs to suggest participation in the drug operation, and that structural barriers may be a factor. However, once a defendant has left the premises, the justification for the presumption weakens, unless the defendant is caught in immediate flight. In Kims’ case, he was outside the premises, had entered his vehicle, and was not fleeing when apprehended. Therefore, the “drug factory” presumption did not apply. The Court applied the precedent set in People v. Martinez, stating that when a jury renders a general verdict and it’s unclear whether the verdict was based on an erroneous charge (the drug factory presumption) or a proper one (constructive possession), the error isn’t harmless. Because the jury could have based its verdict on the improper presumption, a new trial was ordered. The Court further held that while references to Kims’ alleged gang affiliation were improperly admitted, the error was harmless due to the overwhelming evidence of guilt. Additionally, the protective sweep was justified by exigent circumstances. The Court found Kims’ other claims to be without merit or unpreserved.

  • People v. Ludwig, 24 N.Y.3d 221 (2014): Admissibility of Prior Consistent Statements to Explain Investigation in Child Sexual Abuse Cases

    People v. Ludwig, 24 N.Y.3d 221 (2014)

    In child sexual abuse cases, a witness’s prior consistent statements are admissible for the nonhearsay purpose of explaining the investigative process and the sequence of events leading to the defendant’s arrest, especially when the defendant challenges the complainant’s credibility or alleges a motive to fabricate.

    Summary

    Daniel Ludwig was convicted of predatory sexual assault against a child. At trial, the court allowed testimony from the complainant’s half-brother and mother, repeating the complainant’s disclosure of the abuse. Ludwig argued this was improper bolstering. The Court of Appeals affirmed the conviction, holding that the testimony was admissible for the nonhearsay purpose of explaining how the abuse came to light and triggered the investigation. The court reasoned the testimony was relevant to the complainant’s credibility, considering Ludwig’s defense that the complainant fabricated the allegations.

    Facts

    The complainant alleged that her father, Daniel Ludwig, sexually abused her in his basement living quarters when she was in third and fourth grades. She kept the abuse secret until she told her half-brother that the backyard smelled “weird,” leading to a disclosure of the abuse to her mother. Ludwig denied the allegations, suggesting the complainant misconstrued instances where she caught him masturbating. The defense argued the complainant fabricated the allegations.

    Procedural History

    Ludwig was indicted on one count of predatory sexual assault against a child. He was convicted after a jury trial and sentenced to 16 years to life. The Appellate Division affirmed the conviction. The New York Court of Appeals granted permission to appeal and affirmed the Appellate Division’s ruling.

    Issue(s)

    Whether the trial court erred in allowing the complainant’s half-brother and mother to testify about the complainant’s prior consistent statements regarding the sexual abuse, arguing it was improper bolstering.

    Holding

    No, because the testimony was admitted for the nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to Ludwig’s arrest, and was relevant to the complainant’s credibility, especially considering Ludwig’s claim that the allegations were fabricated.

    Court’s Reasoning

    The Court of Appeals reasoned that while prior consistent statements are generally precluded by the hearsay rule, the testimony in this case was not offered to prove the truth of the matter asserted (i.e., that the abuse occurred). Instead, it was offered to explain the circumstances surrounding the complainant’s disclosure, which was relevant because Ludwig claimed the complainant fabricated the allegations. The court highlighted that the witnesses did not recite details of the abuse, but described the complainant’s demeanor and the actions taken after the disclosure. The court cited People v. Rosario, noting that nonspecific testimony about a child-victim’s reports of sexual abuse does not constitute improper bolstering when offered to explain the investigative process. The court distinguished this case from prior cases where such statements were improperly introduced as prompt outcry exceptions. A concurring opinion agreed with the result, stating that testimony to the victim’s out-of-court disclosure of the abuse will be admissible where it is relevant to the victim’s credibility. The dissent argued that the testimony was introduced to bolster the complainant’s credibility and establish the truth of the accusation and should be inadmissible hearsay.

  • Motorola Credit Corp. v. Standard Chartered Bank, 1 N.Y.3d 157 (2014): Limits on Enforcing Judgments Against Foreign Bank Branches

    Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d 157 (2014)

    Under New York law, a restraining notice served on a bank in New York is not effective to freeze assets held in a foreign branch of that bank; the bank’s branches are considered separate entities for post-judgment enforcement proceedings.

    Summary

    Motorola sought to enforce a judgment against the Uzans by serving a restraining notice on Standard Chartered Bank in New York, attempting to reach assets held in the Uzans’ accounts in the bank’s foreign branches. The New York Court of Appeals addressed the question of whether such a notice is effective to restrain assets held outside of the United States. The Court held that the “separate entity rule” applies, meaning that a bank branch is treated as a separate entity; therefore, a restraining notice served within New York is not effective to freeze assets held in branches outside of the state. This decision reaffirms a long-standing principle aimed at preventing undue burden on banks and respecting international comity.

    Facts

    Motorola obtained a multi-billion dollar judgment against the Uzans. To enforce this judgment, Motorola served a restraining notice on Standard Chartered Bank in New York. The intent was to freeze assets held by the Uzans in the bank’s branches located outside of the United States. Standard Chartered Bank argued that the restraining notice was ineffective to reach assets held in its foreign branches, citing the separate entity rule.

    Procedural History

    The United States District Court for the Southern District of New York ruled in favor of Motorola, holding that the restraining notice was effective. Standard Chartered Bank appealed to the Second Circuit Court of Appeals, which certified a question to the New York Court of Appeals regarding the applicability of the separate entity rule to post-judgment enforcement proceedings. The New York Court of Appeals accepted the certified question.

    Issue(s)

    Whether a restraining notice served on a bank in New York pursuant to CPLR article 52 is effective to restrain assets held in a branch of that bank located outside of New York State.

    Holding

    No, because under the separate entity rule, a bank branch is treated as a separate entity, and a restraining notice served in New York does not reach assets held in foreign branches.

    Court’s Reasoning

    The Court of Appeals relied on the long-standing “separate entity rule,” which treats each branch of a bank as an independent entity for purposes of attachment and execution. The Court reasoned that this rule protects banks from the impractical burden of having to check with all of their branches worldwide whenever a restraining notice is served. The Court also emphasized the importance of international comity, stating that applying New York law to assets held in foreign branches could create conflicts with the laws of other jurisdictions. The Court stated, “[A]s a practical matter, a bank served with a restraining notice has to know with certainty whether it is obligated to freeze an account. The separate entity rule promotes predictability and avoids the burden of requiring a bank to search each of its branches worldwide upon service of a restraining notice.” While acknowledging the advancements in technology that facilitate communication between bank branches, the Court maintained that the separate entity rule remains a sound policy. The dissent argued that the separate entity rule is an obsolete concept given modern technology and that it allows judgment debtors to evade enforcement of judgments by placing assets in foreign bank branches. The dissent also pointed to the Court’s prior decision in Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533 (2009), which held that CPLR article 52 has extraterritorial reach, as being inconsistent with the separate entity rule. However, the majority distinguished Koehler, emphasizing that it did not involve the separate entity rule. The court explicitly declined to overturn the separate entity rule, leaving any potential change to the legislature.

  • People v. Cullen, 24 N.Y.3d 1014 (2014): Admissibility of Out-of-Court Statements to Explain Investigative Process

    24 N.Y.3d 1014 (2014)

    Out-of-court statements are admissible, not for their truth, but to explain the sequence of events in a police investigation, provided the jury is instructed on the limited purpose of the evidence.

    Summary

    The New York Court of Appeals affirmed the conviction of William Cullen for rape and incest. The court held that testimony regarding the complainant’s initial disclosure of sexual misconduct to her mother and a counselor was admissible, not to prove the defendant’s guilt, but to explain the timeline of the investigation. The court reasoned that because the defense challenged the complainant’s delay in reporting the abuse, evidence explaining the circumstances of her disclosure was relevant. A concurring opinion agreed with the outcome but disagreed with the majority’s reasoning, finding any error harmless due to the overwhelming evidence.

    Facts

    The complainant, born in 1993, discovered in early 2006 that William Cullen was her biological father. After meeting him, she moved in with him in June 2006 and resided with him until mid-October 2007. She visited him a few more times before entering the Cayuga Home for Children (CHC) in December 2007. Later that month, she discovered she was pregnant. She revealed that Cullen had forced her to have sex with him beginning in the summer of 2007, including during her last visit in November 2007. Initially, she falsely identified another person as the father, but later disclosed the truth to a CHC counselor.

    Procedural History

    In March 2009, Cullen was indicted for rape, incest, and related charges. At trial, the Supreme Court allowed the prosecution to question the complainant’s mother and the CHC counselor about the complainant’s disclosure of the defendant’s conduct. The jury convicted Cullen, and he was sentenced to 15 years in prison. The Appellate Division affirmed the conviction. The New York Court of Appeals granted permission to appeal and affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the trial court erred in allowing the prosecution to elicit testimony from the complainant’s mother and CHC counselor regarding the complainant’s initial disclosures of sexual misconduct, arguing that such testimony constituted improper bolstering of the complainant’s testimony.

    2. Whether the defendant received ineffective assistance of counsel.

    Holding

    1. No, because the testimony was admitted for the nonhearsay purpose of explaining the sequence of events that led to the charges against the defendant, and the jury was instructed that the testimony was not evidence of the defendant’s guilt.

    2. No, because the defendant’s claim of ineffective assistance of counsel was without merit.

    Court’s Reasoning

    The Court of Appeals held that the trial judge did not abuse his discretion in allowing testimony regarding the complainant’s revelations to explain the investigative process. The court noted that the defense challenged the complainant’s delayed reporting of the abuse, arguing that her accusations stemmed from resentment towards the defendant. Therefore, the prosecution was permitted to present evidence explaining the circumstances of her delayed disclosure. The trial court provided a limiting instruction to the jury, clarifying that the testimony was not evidence of the defendant’s guilt but rather served to explain the subsequent conduct of the witnesses and the unfolding of the investigation.

    Chief Judge Lippman, in concurrence, disagreed with the majority’s reasoning, referencing his dissent in the companion case, People v. Ludwig. However, he concurred in the result, finding that the trial court had confined the statements to the report of abuse and prohibited witnesses from repeating the complainant’s description of the crime itself. He concluded that, given the overwhelming evidence against the defendant, the error was harmless.

    Judge Smith concurred in result for reasons stated in his concurring opinion in People v Ludwig.

  • People v. McLean, 22 N.Y.3d 127 (2013): Police Can Rely on Attorney’s Statement of Discontinuance

    People v. McLean, 22 N.Y.3d 127 (2013)

    When police are told by a suspect’s lawyer that the lawyer no longer represents him, they may question the suspect without violating his right to counsel.

    Summary

    The New York Court of Appeals held that police did not violate a defendant’s right to counsel when they questioned him after his attorney stated he no longer represented him. McLean, previously represented by Kouray for a robbery charge, provided information about a murder in exchange for a plea deal. Years later, after Baker implicated McLean in the murder, detectives spoke with Kouray, who stated he no longer represented McLean. Subsequently, the detectives questioned McLean, who provided a new statement implicating himself in the murder. The Court of Appeals found that the police reasonably relied on Kouray’s statement and were not required to take further steps to ascertain the status of the attorney-client relationship.

    Facts

    In 2003, McLean, represented by attorney Kouray, offered information about a murder to get a lighter sentence on a robbery charge. He provided a statement to Detective Sims in Kouray’s presence. In 2006, after Antoan Baker implicated McLean in the murder, Detective Sims contacted Kouray to inquire if he still represented McLean. Kouray stated he did not. Detectives then interviewed McLean in prison, after administering Miranda warnings, about the murder. McLean provided a new, more incriminating statement.

    Procedural History

    McLean was indicted for murder. His motion to suppress the 2006 statement was denied, and he pleaded guilty. His direct appeal, arguing a violation of his right to counsel, was initially rejected due to an insufficient record. McLean then moved to set aside his conviction under CPL 440.10, again arguing a right to counsel violation. The County Court denied the motion after an evidentiary hearing. The Appellate Division affirmed. The dissenting Justice granted leave to appeal to the Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    Whether the police violated McLean’s right to counsel when they questioned him after his attorney told them that he no longer represented him.

    Holding

    Yes, because the police had a reasonable basis to believe that the attorney-client relationship had ceased when McLean’s attorney explicitly stated he no longer represented him.

    Court’s Reasoning

    The Court relied on the principle established in People v. Arthur, 22 N.Y.2d 325 (1968) and People v. West, 81 N.Y.2d 370 (1993), which generally prohibits questioning a defendant in the absence of counsel once an attorney has entered the proceeding, unless the defendant affirmatively waives his right to counsel in the attorney’s presence. However, the Court distinguished the present case from West, where police failed to make any inquiry regarding the status of the attorney-client relationship. Here, the police specifically asked Kouray if he still represented McLean, and Kouray responded in the negative.

    The Court reasoned that the police are not required to take all imaginable steps to protect a defendant’s right to counsel. The court stated: “Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more.” The Court found that by inquiring with Kouray and receiving an unequivocal answer, the police discharged their burden to ascertain the status of the representation. This decision emphasizes the importance of direct inquiry with the attorney of record and provides a clear standard for police conduct in such situations. The Court indicated that its holding does not mean that “the right to counsel is interminable” as stated in West. It clarified that the outcome would be different if police had reason to believe the attorney-client relationship had ended, which in this case, they did.

  • People v. Tankleff, 49 A.D.3d 160 (2d Dep’t 2007): Admissibility of Expert Testimony on False Confessions

    People v. Tankleff, 49 A.D.3d 160 (2d Dep’t 2007)

    Expert testimony on the reliability of confessions, including factors that can lead to false confessions, is admissible when it is relevant to the specific circumstances of the case and the expert is qualified.

    Summary

    This case addresses the admissibility of expert testimony regarding false confessions. Martin Tankleff was convicted of murdering his parents, largely based on his confession to police. On appeal, Tankleff argued the trial court erred in precluding expert testimony on factors influencing the reliability of confessions. The Appellate Division held that the trial court erred in precluding the expert testimony because Tankleff’s confession had inconsistencies that made the testimony relevant. This ruling highlights the importance of allowing expert testimony to assist juries in evaluating the validity of confessions, particularly when there are indicia of unreliability or coercion.

    Facts

    Martin Tankleff was convicted of the murders of his parents, based primarily on a confession he made to detectives during interrogation. Tankleff initially denied any involvement but, after being told he failed a polygraph test (which was inadmissible), he confessed to the crime. He later recanted the confession, claiming it was coerced and false. Prior to trial, Tankleff sought to introduce expert testimony on factors that can lead to false confessions, aiming to cast doubt on the reliability of his statement to the police. The trial court denied this request, deeming the expert testimony inadmissible.

    Procedural History

    Tankleff was convicted in the trial court. He appealed to the Appellate Division, Second Department, arguing that the trial court erred in precluding expert testimony on false confessions. The Appellate Division reversed the conviction and ordered a new trial, finding that the exclusion of the expert testimony was an abuse of discretion.

    Issue(s)

    Whether the trial court erred in precluding expert testimony regarding factors that could have influenced the reliability of the defendant’s confession.

    Holding

    Yes, because the expert testimony on factors associated with false confessions was relevant to the particular circumstances of the defendant’s confession and would have aided the jury in evaluating the confession’s reliability.

    Court’s Reasoning

    The Appellate Division emphasized that expert testimony is admissible if it would help to clarify issues calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The court noted that while jurors may generally understand that a person can falsely confess, they may lack an understanding of the specific psychological factors and interrogation techniques that can contribute to false confessions. Citing inconsistencies within Tankleff’s confession, along with the interrogation tactics used by the detectives, the court found that expert testimony was especially relevant in this case. The court distinguished cases where expert testimony on eyewitness identification was deemed inadmissible because unlike eyewitness testimony, the dynamics of police interrogations and their potential to induce false confessions are not within the common knowledge of jurors. The court also noted that the exclusion of the expert testimony prejudiced Tankleff, as his confession was a critical piece of evidence presented by the prosecution. The court referenced People v. Lee, 96 N.Y.2d 157 (2001), as a guiding precedent for determining the admissibility of expert testimony in such cases, reiterating that the testimony must be directly relevant to the circumstances of the confession at issue. The court stated: “Under the circumstances presented here, expert testimony regarding false confessions should have been admitted to aid the jury in reaching a determination as to the reliability of the defendant’s confession.”

  • Powers v. 31 E 31 LLC, 23 N.Y.3d 84 (2014): Establishing Foreseeability in Landowner Negligence Cases

    23 N.Y.3d 84 (2014)

    A landowner’s duty to maintain property in a reasonably safe condition extends to foreseeable uses of the property, even if those uses are not explicitly authorized, and the question of foreseeability is generally one for the jury.

    Summary

    Joseph Powers fell from a setback roof of an apartment building into an air shaft and sustained serious injuries. He sued the building owners, alleging negligence in failing to install a protective railing or wall. The New York Court of Appeals reversed the Appellate Division’s grant of summary judgment to the defendants, holding that issues of fact remained regarding the building’s compliance with applicable building codes and the foreseeability of the accident. The court emphasized the landowner’s duty to maintain property in a reasonably safe condition, considering foreseeable uses, even unauthorized ones.

    Facts

    Joseph Powers, while visiting a friend’s apartment, accessed a setback roof through a window. The setback roof lacked a railing around a 25-foot-deep air shaft. Powers later re-exited the apartment and fell into the air shaft, sustaining injuries. The building was constructed in 1909 and converted to multiple dwelling use later.

    Procedural History

    Powers sued the building owners for negligence. The Supreme Court denied the defendants’ motion for summary judgment. The Appellate Division reversed, granting summary judgment to the defendants. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    1. Whether the defendants’ summary judgment proof sufficiently refuted the plaintiff’s allegation that the building codes required a railing or parapet on the setback roof?

    2. Whether the plaintiff’s accident was foreseeable, precluding summary judgment for the defendants?

    Holding

    1. No, because the defendants failed to eliminate questions of fact concerning the applicability of building code exceptions and whether the building’s conversion to multiple dwelling use triggered an obligation to comply with updated building codes.

    2. No, because reasonable minds could differ as to whether the plaintiff’s use of the roof and his resulting fall were foreseeable.

    Court’s Reasoning

    The Court of Appeals held that the defendants, as the moving party for summary judgment, failed to demonstrate the absence of material issues of fact regarding compliance with building codes. Specifically, they did not conclusively prove that the roof was finished with gutters in 1909 (potentially exempting it from earlier code requirements) or that the later conversion to multiple dwelling use did not trigger an obligation to comply with the 1968 Building Code. The court found the engineer’s affidavit and certificate of occupancy insufficient to establish code compliance.

    Regarding foreseeability, the court cited Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982 (1993), which involved a similar fall from a setback roof. The court emphasized a landowner’s duty to maintain property in a reasonably safe condition extends to foreseeable uses, even unauthorized ones. The court noted the setback roof was accessible through a window, was large enough for multiple people, and there was evidence of prior use, making the accident foreseeable. As the court stated, “[t]he risk reasonably to be perceived defines the duty to be obeyed”. Because the defendants failed to establish a prima facie case for summary judgment on either code compliance or foreseeability, the burden did not shift to the plaintiff to offer opposing proof. The court remitted the case for further proceedings.

  • People v. Horton, 24 N.Y.3d 985 (2014): Establishing Witness Tampering Through Online Communication

    People v. Horton, 24 N.Y.3d 985 (2014)

    Evidence of online communications, including social media posts, can be sufficient to establish witness tampering if it demonstrates the defendant knew the person was a potential witness and wrongfully attempted to induce that person to avoid testifying.

    Summary

    The New York Court of Appeals affirmed a conviction for witness tampering, holding that the defendant’s Facebook posts and YouTube video identifying a confidential informant, combined with threatening comments, were sufficient evidence to prove he attempted to prevent her from testifying in a drug case. The court reasoned that the jury could reasonably infer the online communications were coded threats intended to dissuade the informant from testifying, particularly given the defendant’s knowledge of her role and the pending charges against his friend. The decision highlights the potential for online activity to constitute witness tampering.

    Facts

    A confidential informant assisted the Wayne County Sheriff’s Office in a controlled drug purchase from Clarence Jackson, which was recorded. Jackson was arrested and informed the defendant, Thomas Horton, about his arrest and intention to plead guilty, showing him the videotape. The confidential informant reported that Horton was “outing” her as an informant on Facebook, posting a clip of the surveillance video on YouTube with a link on his Facebook page. Horton and others made denouncing and threatening statements towards the informant on Facebook including “Snitches get stitches” and “I hope she gets what’s coming to her.”

    Procedural History

    Horton was arrested and convicted in Town Court for fourth-degree witness tampering. He was sentenced to one year in jail. Horton appealed to County Court, arguing insufficient evidence that he attempted to prevent the informant from testifying or knew she would testify. The County Court affirmed the conviction. A judge of the Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented was sufficient to establish that the defendant knew the confidential informant might testify in a proceeding and that he wrongfully sought to stop her from doing so through online communications.

    Holding

    Yes, because the evidence, viewed favorably to the prosecution, was sufficient for a jury to conclude that the defendant knew the informant might testify and that his online communications constituted a wrongful attempt to prevent her from doing so.

    Court’s Reasoning

    The Court of Appeals found that the evidence was sufficient to support the conviction. The court emphasized that after learning about Jackson’s arrest and the informant’s role, Horton posted communications online that the jury could reasonably infer were coded threats intended to induce the informant not to testify. The court also noted that Horton was in contact with the informant and her mother via Facebook messages. The court stated, “[A]fter learning about Jackson’s arrest and the confidential informant’s role as a witness against Jackson and, potentially, himself, defendant immediately posted communications on the Internet that the jury might have reasonably inferred were coded threats that were intended to induce the confidential informant not to testify.” The court concluded that Horton’s actions satisfied the elements of Penal Law § 215.10, which defines witness tampering as wrongfully inducing or attempting to induce a person to avoid testifying, knowing that person is or is about to be called as a witness. The court considered the totality of the circumstances, including the context of the Facebook posts and YouTube video, to determine that the defendant’s intent was to dissuade the informant from testifying.

  • Grace v. Law, 22 N.Y.3d 203 (2013): Impact of Failure to Appeal on Legal Malpractice Claims

    Grace v. Law, 22 N.Y.3d 203 (2013)

    A client’s failure to pursue an appeal in the underlying action bars a legal malpractice action only where the client was likely to have succeeded on appeal.

    Summary

    This case addresses whether a client’s failure to appeal an adverse ruling in an underlying case precludes a subsequent legal malpractice claim against their attorney. The New York Court of Appeals held that the failure to appeal bars the legal malpractice action only if the client was likely to have succeeded on appeal. This decision establishes a “likely to succeed” standard, requiring courts to determine the potential outcome of the unpursued appeal when evaluating the malpractice claim. The Court reasoned that this standard balances fairness and efficiency by allowing appellate courts to correct errors while preventing premature malpractice suits.

    Facts

    John Grace retained attorneys (the Brenna defendants, later replaced by the Law defendants) to sue the Veterans Administration (VA) for medical malpractice related to delayed eye treatment. The Law defendants later withdrew due to a conflict of interest, and the Brenna defendants resumed representation. The underlying action faced summary judgment motions. The District Court dismissed claims against Dr. Boghani and the University of Rochester as time-barred and dismissed claims against the VA based on Dr. Boghani’s status as an independent contractor. The remaining claim against the VA was discontinued based on advice from counsel. Grace then sued the Brenna and Law defendants for legal malpractice, alleging a failure to timely sue Dr. Boghani and the University.

    Procedural History

    The Supreme Court denied motions for summary judgment by both the Law and Brenna defendants. The Appellate Division affirmed, holding that the defendants failed to prove Grace was likely to succeed on appeal in the underlying action, therefore their negligence could have caused the damages. The Appellate Division granted leave to appeal to the Court of Appeals, certifying the question of whether the order was properly made.

    Issue(s)

    1. Whether a client must pursue an appeal in an underlying action before maintaining a legal malpractice claim against their attorney?
    2. What standard should govern whether failure to appeal an underlying action bars a subsequent legal malpractice claim?

    Holding

    1. No, because the failure to appeal bars the legal malpractice action only where the client was likely to have succeeded on appeal in the underlying action.
    2. The “likely to succeed” standard is the proper standard, because it is the most efficient and fair for all parties.

    Court’s Reasoning

    The Court adopted the “likely to succeed” standard, holding that a client need not pursue an appeal before suing for legal malpractice unless they were likely to win on appeal. The Court reasoned that this standard promotes efficiency by allowing appellate courts to correct errors, and fairness by preventing premature malpractice suits. The Court rejected the argument that this standard requires undue speculation, noting that courts already assess hypothetical outcomes in malpractice cases. The Court distinguished the proposed “nonfrivolous/meritorious appeal” standard, stating that it would require nearly every client to pursue an appeal. Applying the “likely to succeed” standard, the Court affirmed the Appellate Division’s decision, finding insufficient evidence to determine that Grace would have succeeded on appeal by demonstrating that Dr. Boghani was a VA employee, rather than an independent contractor. The Court quoted Davis v. Klein, 88 N.Y.2d 1008, 1009-1010 (1996) stating “In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence”.

  • Davis v. Boeheim, 24 N.Y.3d 262 (2014): Defamation and the Fact vs. Opinion Distinction

    Davis v. Boeheim, 24 N.Y.3d 262 (2014)

    Statements that accuse someone of lying and acting with malicious intent can be considered statements of fact, especially when the speaker implies knowledge of undisclosed facts supporting their accusations.

    Summary

    Robert Davis and Michael Lang sued Syracuse University and its basketball coach, James Boeheim, for defamation after Boeheim publicly accused them of lying about being sexually abused by a former coach, Bernie Fine. The plaintiffs argued that Boeheim’s statements implied he had undisclosed facts supporting his accusations that they were motivated by money. The Court of Appeals held that Boeheim’s statements could be reasonably interpreted as conveying facts, not just opinions, especially considering his position of authority and access to information. This ruling reversed the lower court’s dismissal, allowing the case to proceed to discovery to fully evaluate the claims.

    Facts

    Davis and Lang alleged they were sexually abused by Bernie Fine, a Syracuse University basketball coach, starting in the 1980s. They reported the abuse to authorities and the university, but no action was taken. Years later, after the Penn State University scandal involving similar allegations, ESPN reported Davis and Lang’s claims. Boeheim, Fine’s long-time friend and colleague, publicly defended Fine and accused Davis and Lang of lying and seeking financial gain, implying they were motivated by the Penn State case.

    Procedural History

    Davis and Lang sued Boeheim and Syracuse University for defamation. The defendants moved to dismiss the complaint under CPLR 3211(a)(7), arguing Boeheim’s statements were non-actionable opinion. Supreme Court granted the motion. The Appellate Division affirmed. The Court of Appeals reversed the Appellate Division order, finding the complaint sufficiently stated a cause of action for defamation.

    Issue(s)

    Whether Boeheim’s statements that Davis and Lang were liars seeking money constitute non-actionable opinion or potentially defamatory statements of fact or mixed opinion.

    Holding

    Yes, because Boeheim’s statements could be reasonably interpreted by a reader as conveying facts about the plaintiffs, specifically, that they lied about the abuse for financial gain, and that Boeheim’s statements implied a basis in undisclosed facts supporting those accusations.

    Court’s Reasoning

    The Court applied a three-factor test to determine whether the statements were fact or opinion, considering: 1) whether the language had a precise, readily understood meaning; 2) whether the statements could be proven true or false; and 3) whether the context signaled opinion rather than fact. The court found the first two factors favored treating Boeheim’s statements as factual. On the third factor, the court considered the context: Boeheim was a respected figure within the university and community, and his statements implied access to information not available to the general public. Boeheim’s statements were made during a media investigation, lending more credibility to his assertions. The court noted, “[Boeheim’s] assertions that Davis previously made the same claims, for the same purpose, communicated that Boeheim was relying on undisclosed facts that would justify Boeheim’s statements that Davis and Lang were neither credible nor victims of sexual abuse.” While Boeheim denied knowledge of facts and used phrases like “I believe,” the court found that a reasonable reader could still interpret his statements as supported by undisclosed facts. The court emphasized that, at the motion to dismiss stage, the standard is whether *any* reasonable reading of the complaint supports a defamation claim. Because the complaint met this minimum pleading requirement, the Court of Appeals reversed the dismissal and allowed the case to proceed.