New York Law Review

Tag: 1982

  • Glamm v. Allen, 57 N.Y.2d 87 (1982): Statute of Limitations Tolling in Legal Malpractice Cases Against Deceased Attorneys

    Glamm v. Allen, 57 N.Y.2d 87 (1982)

    In legal malpractice actions against the estate of a deceased attorney, the statute of limitations is tolled both by the continuous representation doctrine and by CPLR 210(b), which provides an 18-month tolling period after the attorney’s death if the malpractice cause of action existed prior to death.

    Summary

    Richard Glamm sued the estate of attorney Reinhart, alleging malpractice for failure to file a timely notice of claim against the City of Amsterdam. The alleged malpractice occurred when Reinhart failed to file a notice of claim within 90 days of Glamm’s injury in 1969. Reinhart died in 1976. The Court of Appeals held that the continuous representation doctrine tolled the statute of limitations until Reinhart’s death. Furthermore, CPLR 210(b) provided an additional 18-month tolling period after Reinhart’s death, because the cause of action accrued when the notice of claim filing deadline passed during Reinhart’s representation. Thus, the action, commenced in 1980, was timely.

    Facts

    Richard Glamm was injured in April 1969 while assisting Amsterdam firefighters. Glamm hired attorney Reinhart to represent him. Reinhart filed a claim under the Volunteer Firemen’s Benefit Law, believing this was the correct avenue for recovery, but did not file a notice of claim against the City of Amsterdam as required by General Municipal Law § 50-e. Glamm’s claim under the Volunteer Firemen’s Benefit Law was ultimately denied in November 1976. Reinhart died in October 1976. Successor attorneys filed a late notice of claim, but it was rejected. Glamm then sued Reinhart’s estate for malpractice in April 1980, alleging failure to file a timely notice of claim.

    Procedural History

    The trial court denied the estate’s motion for summary judgment based on the statute of limitations. The Appellate Division reversed, granting summary judgment to the estate, reasoning that the statute of limitations expired three years after the executrix was appointed and that CPLR 210(b) was inapplicable. Glamm appealed to the Court of Appeals.

    Issue(s)

    1. Whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action?

    2. Whether CPLR 210(b) applies to toll the statute of limitations for 18 months after the attorney’s death, given that the alleged malpractice occurred prior to death?

    Holding

    1. Yes, because the continuous representation doctrine tolls the statute of limitations until the attorney-client relationship ends, which occurred at Reinhart’s death.

    2. Yes, because the cause of action for malpractice accrued when Reinhart failed to file a timely notice of claim, which was prior to his death; therefore, CPLR 210(b) applies.

    Court’s Reasoning

    The court reasoned that a malpractice action accrues at the date of the malpractice. Here, it occurred when Reinhart failed to file the notice of claim within the statutory 90-day period. The continuous representation doctrine tolls the statute of limitations because a client should not be expected to sue their attorney while the attorney is still representing them. The court quoted Greene v. Greene, 56 NY2d 86, 94, stating that a client has “a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered.” The tolling ends when the representation ceases, in this case, at Reinhart’s death.

    Additionally, CPLR 210(b) tolls the statute for 18 months after the death of a person against whom a cause of action exists. The court emphasized that the malpractice cause of action must have existed before the attorney’s death for CPLR 210(b) to apply. Since the failure to file the notice of claim occurred before Reinhart’s death, the statute was tolled for 18 months after his death. “What is important is when the malpractice was committed, not when the client discovered it.” Therefore, combining the continuous representation toll and the CPLR 210(b) toll, Glamm’s action was timely.

  • People v. John BB., 56 N.Y.2d 482 (1982): Constitutionality of Roving Roadblocks in High-Crime Areas

    People v. John BB., 56 N.Y.2d 482 (1982)

    A roving roadblock, conducted uniformly and without discrimination in a sparsely populated area with a high incidence of recent burglaries, does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures when its purpose is to gather information about the burglaries.

    Summary

    Following a series of burglaries in a remote area, police established a roving roadblock, stopping all vehicles to gather information. The defendants were stopped, and a subsequent search of their vehicle revealed stolen items, leading to their confessions. The New York Court of Appeals held that the roadblock was constitutional because it was conducted uniformly, without discrimination, and served a legitimate purpose of gathering information in an area where traditional investigative methods were impractical. The court balanced the state’s interest in investigating the crimes against the individual’s right to be free from unreasonable governmental intrusion.

    Facts

    Approximately 40 burglaries occurred in vacant summer homes in a sparsely populated area of Sullivan County. Investigator Connors initiated surveillance, intending to stop all vehicles in the area and interview the occupants. Defendant Stephen CC.’s vehicle was stopped by police. Upon request, Stephen CC. exited the vehicle to provide his license and registration. Connors observed a rifle case and flashlights inside the car. The rifle case contained a pellet gun, which matched the description of one reported stolen. Audio speakers were found in the trunk. The defendants gave conflicting statements and were taken to headquarters.

    Procedural History

    The defendants were indicted on multiple counts of burglary. They moved to suppress their confessions and the evidence seized, arguing the stop was unconstitutional. The trial court denied the motion. The defendants pleaded guilty to attempted burglary and were adjudicated youthful offenders. The Appellate Division affirmed, upholding the validity of the roving roadblock. The New York Court of Appeals then reviewed the case.

    Issue(s)

    Whether a roving roadblock, conducted in a uniform and nondiscriminatory manner in a sparsely populated area with a recent series of burglaries, constitutes an unreasonable seizure in violation of the Fourth Amendment.

    Holding

    Yes, because the stop of the vehicle was made pursuant to a nonarbitrary, nondiscriminatory, and uniform procedure, involving the stop of all vehicles located in the heavily burglarized area, in order to facilitate the concededly legitimate function of acquiring information regarding the recent burglaries.

    Court’s Reasoning

    The Court of Appeals recognized that stopping an automobile constitutes a seizure subject to constitutional limitations. The reasonableness of the seizure depends on balancing the State’s interest against the individual’s interest in freedom from governmental interference. The court emphasized that the police procedure was nonarbitrary, nondiscriminatory, and uniform, mitigating the potential for abuse. The court distinguished the case from others involving random and discriminatory stops, such as United States v. Brignoni-Ponce. The court noted, “the elimination of the element of arbitrariness has been identified time and again as a critical factor in determining the reasonableness of official investigative activity of an intrusive nature.” The court found that the pellet gun and speakers were lawfully seized as the rifle case was in plain view, and its contents were examined for the officers’ protection. The pellet gun’s identification as potential contraband, combined with conflicting statements and information about the speakers, provided probable cause to search the vehicle’s trunk. The court stated, “the Fourth Amendment does not prohibit the police from employing a roving roadblock in a uniform and nondiscriminatory manner in a sparsely populated area in which there has been a recent series of burglaries.”

  • Weissman v. Evans, 56 N.Y.2d 458 (1982): Equal Protection and Judicial Salaries

    Weissman v. Evans, 56 N.Y.2d 458 (1982)

    When the state assumes responsibility for judicial salaries within a unified court system, disparities in pay between judges of the same court level in different localities violate equal protection guarantees if there is no rational basis for the difference.

    Summary

    Suffolk County District Court Judges sued state officials, arguing that the lower salaries they received compared to Nassau County District Court Judges violated equal protection after the state took over the court system. The New York Court of Appeals held that the salary disparity was unconstitutional because no rational basis existed for the different pay scales after the state assumed financial responsibility for the courts. The court ordered the state to equalize the salaries retroactively to October 1, 1978, emphasizing that the state’s prior reliance on differing local funding was no longer valid.

    Facts

    Prior to April 1, 1977, the salaries of District Court Judges in Suffolk and Nassau counties were determined and financed in part by the respective localities.
    The unified court budget act (effective April 1, 1977) made judicial personnel state employees, placing them on the state payroll.
    The act initially continued existing salary disparities, stating that salaries would remain in effect until altered by state law.
    In 1979, the Legislature established its own salary scales for District Court Judges but maintained the existing disparity.
    The Chief Administrator of the Courts reported that the salary disparity was “neither necessary, desirable nor equitable” and recommended equalization.
    The jurisdiction, practice, procedures, functions, duties, and responsibilities of the District Courts, as well as caseloads, were substantially the same in both counties.

    Procedural History

    The plaintiffs, District Court Judges of Suffolk County, sued the State, its Comptroller, the Chief Administrator of the Courts, and the County of Suffolk in Supreme Court, Westchester County.
    The Supreme Court granted summary judgment for the plaintiffs, declaring the salary disparity unconstitutional but allowed it to continue until October 1, 1980.
    The Appellate Division modified the judgment, extending the deadline for eliminating the disparity to April 1, 1982, and otherwise affirmed.
    Both the State and the plaintiff Judges appealed to the Court of Appeals. The State challenged the declaration of unconstitutionality, while the Judges contested the delay in implementing salary parity.

    Issue(s)

    Whether the salary disparity between District Court Judges in Suffolk and Nassau counties, after the State assumed responsibility for the court system’s budget, violates the equal protection clauses of the Federal and State Constitutions.
    Whether, if a violation exists, the remedy should be applied retroactively, and if so, from what date.

    Holding

    Yes, because after the State assumed responsibility for judicial salaries, there was no rational basis for the geographic classification resulting in the disparate salaries. The prior history of differing local funding could not justify the continued disparity under a unified state system.
    Yes, the remedy should be applied retroactively to October 1, 1978, because the Legislature had the opportunity to rectify the unconstitutional differential at that time when it fixed salaries retroactively, and doing so aligns with principles of equity and fairness.

    Court’s Reasoning

    The court reasoned that the historical salary differential, arising from differing county funding practices, could not justify the disparity after the State took over the court system. The State’s argument that geographical distinctions alone justify unequal treatment was rejected, citing that such distinctions must have a rational basis. Quoting Manes v. Goldin, the court emphasized that there must be “some ground of difference having a fair and substantial relation to the object of the legislation.”
    The court applied the test from Matter of Abrams v. Bronstein, requiring a comparison of the classification to the governmental objective to determine if the classification rests upon some ground of difference having a fair and substantial relation to the object. The court found no rational basis for the geographical classification supporting the disparate salaries, as it contravened the objective of a unified court system funded by the State.
    Regarding the retroactive application, the court noted the legislative failure to address the disparity when fixing salaries in 1979. The court concluded that applying the remedy retroactively to October 1, 1978, aligns with equity and fairness, as it was the date the legislature fixed salaries. Delaying the remedy would unfairly penalize those who retired, affecting their pension bases. The court also invoked the principle that a remedy should be coextensive with the wrong, citing Albemarle Paper Co. v. Moody.

  • Matter of County of Monroe, 57 N.Y.2d 660 (1982): Determining Independent Contractor Status Based on Supervision and Control

    Matter of County of Monroe, 57 N.Y.2d 660 (1982)

    The determination of whether an employer-employee relationship exists, as opposed to an independent contractor relationship, hinges primarily on the degree of supervision and control exercised by the purported employer.

    Summary

    This case concerns whether a security services contract between Monroe County and a private company, Star, created an employer-employee relationship or an independent contractor relationship. The Court of Appeals held that Star was an independent contractor, focusing on the lack of supervision and control by the county over Star’s employees. The court emphasized that the performance of similar duties and the possibility of contract termination were not determinative factors, and the county demonstrated good faith through significant cost savings.

    Facts

    Monroe County contracted with Star to provide security guard services, replacing its own guard employees. Star’s employees performed duties similar to those of the former county employees. The contract allowed the county to terminate the agreement with notice. The County’s buildings were protected by a monitoring and communications system, requiring interrelation between Star guards and county employees. The County saved in excess of $100,000 a year using Star personnel.

    Procedural History

    The Special Term initially held that an employer-employee relationship existed. The Appellate Division reversed, finding that Star was an independent contractor. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the contract between Monroe County and Star created an employer-employee relationship, thereby requiring the county to adhere to civil service regulations, or whether Star operated as an independent contractor.

    Holding

    No, because the weight of the evidence supports the conclusion that Star acted as an independent contractor due to the lack of supervision and control exercised by Monroe County over Star’s employees.

    Court’s Reasoning

    The Court of Appeals emphasized that supervision and control are the key factors in determining whether an employer-employee relationship exists. While the same duties were performed and the contract was terminable, these factors were not determinative. The court found that the county’s employees did not supervise or control Star’s guards. Communication between the county and Star’s employees was merely the passing of information, not the giving of orders. The actions taken by Star’s employees were pursuant to the contract. The court noted the good faith of the district demonstrated by significant cost savings. The court stated, “Although because of the monitoring and communications system that protected the district’s buildings there was a necessary interrelationship between work of Star’s guards and that of the district’s employees, the latter neither supervised nor controlled the former.” The court also noted that Star guards directed traffic and delivered mail because the contract called for them to do so and used district equipment because it was more cost-effective. The checking in and out of Star employees with the district served only as a means of tracking hours worked for billing purposes, not as an exercise of control.

  • People v. Moselle, 57 N.Y.2d 97 (1982): Warrantless Blood Draws and Admissibility in Court

    People v. Moselle, 57 N.Y.2d 97 (1982)

    Blood samples taken from a defendant without consent or a court order are inadmissible in prosecutions for driving under the influence or under the Penal Law, except when taken in compliance with Vehicle and Traffic Law § 1194.

    Summary

    This case consolidates three appeals concerning the admissibility of blood samples taken without consent from individuals involved in car accidents. The New York Court of Appeals held that, absent consent or a valid court order, blood samples are inadmissible in DUI and Penal Law prosecutions unless obtained in compliance with Vehicle and Traffic Law § 1194. This decision rests on the preemption of blood sample authorization by Vehicle and Traffic Law § 1194 for DUI cases and CPL 240.40 for other criminal prosecutions. The court emphasized the need for either explicit statutory authorization or a court order before such samples can be taken and used as evidence.

    Facts

    In People v. Moselle, the defendant was involved in an accident, and officers detected a strong odor of alcohol. A blood sample was taken without his consent or arrest. The blood alcohol content (BAC) was .17%. In People v. Daniel, the defendant crashed his van, and officers found alcohol in the vehicle. The defendant was semiconscious, and a blood sample was taken without consent. His BAC was .22%. In People v. Wolter, the defendant collided head-on with another vehicle, resulting in a fatality. He was arrested for driving while intoxicated but refused a blood test. Despite his refusal, a sample was taken, revealing a BAC of .23%.

    Procedural History

    In Moselle, the defendant was convicted of violating Vehicle and Traffic Law § 1192(2), but the Erie County Court reversed the conviction. In Daniel, the Erie County Court granted the defendant’s motion to suppress the blood test results, which the Appellate Division affirmed. In Wolter, the Livingston County Court ruled that the blood test could be used in the manslaughter trial but not the DUI charge. The Appellate Division reversed Wolter’s conviction. The Court of Appeals granted permission to appeal in all three cases.

    Issue(s)

    1. Whether blood samples taken without consent or a court order are admissible in prosecutions for operating a motor vehicle while under the influence of alcohol under Vehicle and Traffic Law § 1192 when the procedural requirements of Vehicle and Traffic Law § 1194 are not observed.
    2. Whether blood samples taken without consent or a court order are admissible in prosecutions under the Penal Law.

    Holding

    1. No, because absent a manifestation of the defendant’s consent thereto, blood samples taken without a court order other than in conformity with the provisions of subdivisions 1 and 2 of section 1194 of the Vehicle and Traffic Law are inadmissible in prosecutions for operating a motor vehicle while under the influence of alcohol under section 1192 of that law.
    2. No, because blood samples taken without a defendant’s consent are inadmissible in prosecutions under the Penal Law unless taken pursuant to an authorizing court order.

    Court’s Reasoning

    The court based its decision on two legislative enactments: Vehicle and Traffic Law § 1194 and CPL 240.40. Section 1194 authorizes chemical blood tests for DUI prosecutions only under specific conditions (arrest or breath test indication of alcohol) and explicitly states that “if the person refuses to submit to such chemical test, the test shall not be given.” CPL 240.40 outlines discovery procedures, including obtaining non-testimonial evidence like blood samples, but requires a court order. The court found that the Legislature, by enacting these provisions, preempted the field of blood sample authorization. The court stated, “No room is then left for the taking of samples of blood otherwise than pursuant to a court order issued under CPL 240.40 or a court order otherwise authorized by law (or in conformity with § 1194). The negative inference is that the taking of blood in any other manner is foreclosed.” Therefore, because the blood samples in these cases were taken without either consent or a valid court order, they were deemed inadmissible. The court emphasized that “exigent circumstances” might excuse the failure to obtain a court order, but do not provide a source of authority to conduct discovery.

  • People v. Schaeffer, 56 N.Y.2d 462 (1982): Harmless Error and Confessions Obtained in Violation of Right to Counsel

    People v. Schaeffer, 56 N.Y.2d 462 (1982)

    A confession obtained in violation of a defendant’s right to counsel is presumptively prejudicial, and its admission at trial requires reversal of the conviction unless the prosecution proves beyond a reasonable doubt that the error was harmless.

    Summary

    Charles Schaeffer was convicted of murder. At trial, the prosecution introduced several incriminating statements he made to the police. Schaeffer argued that one of the statements, a detailed confession made at the police station, was obtained after his right to counsel had attached because he requested his mother to call an attorney, and the police refused to speak with the attorney. The New York Court of Appeals held that the admission of this tainted statement was not harmless error because it was the most detailed and inculpatory statement, potentially influencing the jury’s assessment of Schaeffer’s motive and credibility. Thus, the Court of Appeals reversed the conviction and ordered a new trial.

    Facts

    Charlie Angelos was found murdered in the bar where he worked. Detectives investigating the murder asked Schaeffer to accompany them to the police station. At the station, Detective McTigue advised Schaeffer of his rights. Schaeffer initially denied owning a gun and being the last person at the bar with the victim. After being confronted with contradictory information, Schaeffer admitted to shooting Angelos and stated he would show the police where the gun was hidden. At Schaeffer’s mother’s house, after retrieving a gun, Schaeffer’s mother told police a lawyer was on the phone. McTigue refused to speak to the lawyer. Schaeffer was then taken back to the station, where he gave a detailed confession describing the events leading up to the shooting.

    Procedural History

    At a suppression hearing, the trial court ruled that all of Schaeffer’s statements were admissible. These statements were admitted at trial, and Schaeffer was convicted. The Appellate Division affirmed the conviction, holding that the admission of the tainted statement was harmless error. Schaeffer appealed to the New York Court of Appeals.

    Issue(s)

    Whether the erroneous admission of a detailed station house statement, taken after the defendant’s right to counsel had attached and the police refused to speak with counsel, was harmless error in light of other properly admitted statements.

    Holding

    No, because the People failed to prove beyond a reasonable doubt that the erroneously admitted statement did not contribute to the defendant’s conviction. The order of the Appellate Division was reversed, the tainted statement suppressed, and the case remitted for a new trial, because the tainted statement was the most detailed and inculpatory, and it independently contributed to the jury’s understanding of Schaeffer’s motive.

    Court’s Reasoning

    The court emphasized that the harmless error rule, especially in cases involving confessions, requires a high standard of proof. The prosecution must demonstrate beyond a reasonable doubt that the error did not contribute to the conviction. The court noted that confessions are “almost sure to weigh most heavily with fact finders.” The court then outlined a framework for assessing harmlessness in cumulative statement cases, focusing on the degree of duplication between tainted and untainted statements, the nature and extent of their differences, and the reliability and persuasiveness of the untainted matter. Citing People v. Crimmins, 36 NY2d 230, 237, the court reiterated that the error must be “harmless beyond a reasonable doubt”. The court found the improperly admitted statement was the most detailed and inculpatory, and it contained information about Schaeffer’s potential motive (robbery) that was not present in the other statements. The court stated: “Especially is this true when the flawed evidence, as here, is in the nature of a confession, since, as pragmatic practitioners long ago learned, confessions of crime, supremely self-condemnatory acts, are almost sure to weigh most heavily with fact finders”. The court concluded that, because the tainted statement independently contributed to the jury’s understanding of Schaeffer’s motive and undermined his credibility, the error was not harmless beyond a reasonable doubt.

  • People v. Orlando, 56 N.Y.2d 446 (1982): Warrantless Vehicle Search Incident to Arrest Based on Probable Cause

    People v. Orlando, 56 N.Y.2d 446 (1982)

    A warrantless search of a vehicle parked in a public place is permissible when the police have probable cause to believe it contains contraband or evidence of a crime, especially when the search is closely connected in time and location to a lawful arrest of the vehicle’s owner.

    Summary

    Orlando was arrested after presenting forged prescriptions at a pharmacy. He admitted his car, parked nearby, contained more forged prescriptions and illegally obtained drugs. Without a warrant, police searched the car and found incriminating evidence. The New York Court of Appeals upheld the search, finding that the police had probable cause to believe the car contained contraband based on Orlando’s statements and the pharmacist’s information. The court emphasized the car’s public location and the close proximity in time and place of the search to the lawful arrest, justifying the warrantless search under established precedent concerning vehicle searches.

    Facts

    Detectives investigated forged prescriptions at a Pathmark Pharmacy. A pharmacist trainee identified Orlando as the person who submitted three prescriptions for Charles Bandel. These prescriptions were on Dr. Leon Oxman’s forms. Dr. Oxman confirmed he did not prescribe drugs for anyone named Bandel and reported missing prescription pads. Orlando returned to the pharmacy and was identified by the trainee. He admitted to presenting the prescriptions and was arrested. After receiving Miranda warnings and waiving his rights, Orlando admitted his car, parked alongside the pharmacy, contained additional forged prescriptions and illegally obtained drugs.

    Procedural History

    Orlando was indicted on 36 counts of possessing forged instruments and one count of illegal drug possession. The trial court suppressed the 33 prescriptions found in an attaché case in the car but denied the motion to suppress the drugs found in paper bags. Orlando pleaded guilty to three counts related to the Pathmark prescriptions, satisfying the entire indictment. The Appellate Division affirmed the trial court’s decision. Orlando appealed to the New York Court of Appeals.

    Issue(s)

    Whether the warrantless search of Orlando’s parked vehicle, which yielded illegally obtained drugs, violated his Fourth Amendment rights against unreasonable searches and seizures, despite the existence of probable cause.

    Holding

    No, because the police had probable cause to believe the car contained contraband, and the search was closely connected in time and location to a lawful arrest, justifying the warrantless search of the vehicle parked in a public place.

    Court’s Reasoning

    The Court of Appeals emphasized the vehicle was parked in a public place, negating the need for a warrant based on location. The drugs were in paper bags within the passenger compartment, an area permissible for search under United States v. Ross and People v. Belton. While acknowledging that those cases involved moving vehicles, the court focused on the probable cause the detectives possessed. The pharmacist trainee, Dr. Oxman, and Orlando himself provided information leading the detectives to reasonably believe the car contained further contraband. The court cited Colorado v. Bannister, Carroll v. United States, and Chambers v. Maroney to support the warrantless search based on probable cause, even after the arrest of the vehicle’s occupant. The Court highlighted the lack of constitutional significance whether the vehicle is searched on-site or after impoundment, referencing Texas v. White and Cardwell v. Lewis. Quoting United States v. Ross, the court stated, “if an individual gives the police probable cause to believe a vehicle is transporting contraband, he loses the right to proceed on his way without official interference.” The Court also stated this result was based upon “the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests”. The court found this case consistent with prior holdings in People v. Middleton, People v. Milerson, People v. Clark, and People v. Singleteary, emphasizing the close proximity in time and space between the arrest and search. The court declined to address scenarios with greater separation in time, place, or circumstances.

  • Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66 (1982): Protecting Marital & Attorney-Client Privileges

    57 N.Y.2d 66 (1982)

    Confidential communications between spouses during marriage are privileged, even if made in contemplation of suicide; material protected by the Fifth Amendment and attorney-client privilege in a client’s hands retains that protection when transferred to an attorney for legal advice.

    Summary

    This case concerns a grand jury investigation into the attempted murder of Clara Vanderbilt. Dr. Rosen, a suspect, created two cassette tapes: one for his wife (Tape No. 1) and another found at his office (Tape No. 2). Rosen’s attorney, Rosner, refused to produce the tapes, asserting marital privilege and attorney-client/Fifth Amendment privileges. The Court of Appeals held Tape No. 1 was protected by marital privilege, barring its disclosure or examination for alterations. Tape No. 2 was protected by a combination of the attorney-client and Fifth Amendment privileges, but only if Rosen’s wife was acting as his agent when she transferred it to his attorney. The Court emphasized that transferring evidence to an attorney doesn’t automatically shield it if it wouldn’t have been protected in the client’s hands.

    Facts

    Clara Vanderbilt was found unconscious near Dr. Richard Rosen’s office after telling an acquaintance she was meeting him there.

    Rosen, aware he was a suspect, created a tape for his wife (Tape No. 1) and left another at his hospital office (Tape No. 2). He then attempted suicide.

    Rosen’s wife found Tape No. 1 and, on advice from a friend who was an attorney (Olick), did not listen to it and instead gave it to Olick.

    Tape No. 2 was retrieved from Rosen’s office and given to his wife.

    <n

    Rosen hired attorney Rosner, and Rosen’s wife gave him both tapes.

    During the investigation, Rosen’s wife revealed the existence of Tape No. 1, but Rosner refused to produce either tape, citing privilege.

    Procedural History

    The Bronx County Grand Jury subpoenaed the tapes.

    Rosner refused to comply with the subpoena and an ex parte court order.

    The trial court found Rosner in contempt but allowed time to surrender the tapes under seal.

    The Appellate Division reversed the trial court, finding Tape No. 1 protected by the marital privilege but ordering it tested for alterations. They ruled no privilege applied to Tape No. 2 and ordered its disclosure.

    The New York Court of Appeals heard the appeal.

    Issue(s)

    Whether Tape No. 1, a message from a husband to his wife prepared in contemplation of suicide, is protected by the marital privilege, and whether that protection extends to prevent examination for tampering.

    Whether Tape No. 2 is protected by a combination of the attorney-client privilege and the Fifth Amendment privilege against self-incrimination.

    Holding

    Yes, because the tape was a confidential communication induced by the marital relationship, the marital privilege protects both its contents and from examination for deletions.

    Yes, because an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands but only if the client gave the tape to the attorney and if the wife was acting as the husband’s agent when she transferred the tape to his attorney.

    Court’s Reasoning

    The court reasoned that the marital privilege protects confidential communications made because of the marital relationship. A suicide note to a spouse falls under this protection as it may be an attempt to preserve affection and explain the drastic act.

    The privilege remains intact even if third parties handle the communication, as long as the substance of the communication is not revealed. Here, only the existence of the tape was revealed, not its contents.

    Once a communication is determined to be privileged, it is irrelevant whether it has been altered; deletions are as much a part of the communication’s substance as the statements made. The court stated, “What is not said and whether deletions have been made are as much a part of a communication’s ‘substance’ as are the statements actually made.”

    Regarding Tape No. 2, the court acknowledged that Rosner could not directly assert Dr. Rosen’s Fifth Amendment rights. However, an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands.

    The attorney-client privilege extends to confidential communications made to obtain informed legal advice. Here, delivering the tape was necessary for Rosner to render legal advice.

    The court emphasized that the confidentiality of the tape’s message was maintained because none of the individuals who handled the tape listened to it. The court noted, “When Rosner finally received the tape, he received it with its contents undisclosed.”

    To assert the Fifth Amendment privilege, the evidence must be testimonial, and the act of producing it must also have a testimonial quality. A tape cassette is testimonial because it is an aural record of communication.

    The court noted that producing the tape would authenticate it, vouching for its accuracy. Therefore, the Fifth Amendment protection is available, but only if Dr. Rosen gave the tape to Rosner and Mrs. Rosen was acting as his agent.

    Judge Jasen dissented in part, arguing that the facts surrounding Tape No. 2 did not guarantee confidentiality and that Rosner did not establish that the tape was given for legal advice. Judge Jasen also argued that the tape should not be assumed to be self-incriminatory or testimonial.

  • Landgrebe v. County of Westchester, 57 N.Y.2d 50 (1982): Employer Reimbursement from Schedule Award After Consequential Injury

    Landgrebe v. County of Westchester, 57 N.Y.2d 50 (1982)

    An employer can only be reimbursed from a schedule award for wage payments advanced for the disability directly related to the injury that resulted in the schedule award, not for payments related to a prior, separate injury, even if the latter injury is found to be consequential.

    Summary

    This case addresses whether an employer can be reimbursed from a workers’ compensation “schedule award” for wage payments made during an employee’s initial disability when a later, consequential injury leads to the schedule award. The employee suffered a back injury, and the employer paid his full wages during his disability. Later, a recurrence of back pain caused a separate hand injury, resulting in a schedule award. The court held that the employer could only be reimbursed from the schedule award for wage payments related to the hand injury, not the initial back injury. This decision underscores that reimbursement must be tied to the specific injury underlying the schedule award, preventing employers from using the award to recoup unrelated prior expenses.

    Facts

    Donald Landgrebe, a Westchester County correction officer, injured his back at work on March 9, 1977. The county paid Landgrebe his full wages during his resulting disability, totaling $3,383.07. Landgrebe later suffered a hand injury when a recurrence of back pain, stemming from the original injury, caused him to fall while operating a snowblower at home. This resulted in the partial amputation of two fingers. The Workers’ Compensation Board determined the hand injury was consequential to the original back injury and awarded Landgrebe $4,422.50 as a “schedule award” for the permanent loss of use of his fingers.

    Procedural History

    The Workers’ Compensation referee initially directed the carrier to reimburse the county in full from the schedule award. The Workers’ Compensation Board modified this decision, allowing reimbursement only for payments advanced after the hand injury. The Appellate Division reversed and remitted the case. The Workers’ Compensation Board then appealed to the New York Court of Appeals.

    Issue(s)

    Whether an employer who has paid full wages to an employee during a period of disability resulting from a work-related injury can obtain full reimbursement of these payments out of a “schedule award” granted for a different, though consequential, injury.

    Holding

    No, because reimbursement from a schedule award is limited to wage payments advanced for the disability directly related to the injury that resulted in the schedule award. The employer cannot recoup costs associated with the initial back injury from the subsequent hand injury award.

    Court’s Reasoning

    The court reasoned that while section 25(4)(a) of the Workers’ Compensation Law allows employers to be reimbursed for wage payments made during disability, this right is not unlimited. The purpose of the law is to aid injured workers, and reimbursement should not create a situation where an employee is penalized for a subsequent injury. The court distinguished this case from Matter of Ott v. Green-Wood Cemetery, noting that Ott involved a single industrial episode, whereas this case involved two distinct injuries. The court emphasized that the schedule award for the hand injury was meant to compensate for the loss of use of the fingers and was “replacement for the partial loss of a hand; in fact, in the context of such a serious condition, the wage loss here, only for two weeks, was insignificant. The “schedule award” then has to be seen as an award for a dignitary loss or as a cushion against a future earning capacity at a time when the security and continuity of an ongoing employment may be gone.” Permitting the employer to recoup costs associated with the original back injury from this award would undermine its purpose. The court also highlighted policy considerations, stating that courts should avoid arrangements that convert “an unreimbursable portion of a past advance into a lien against funds which may likely be needed by an insured worker during times of future and largely unconnected disability”. As the court observed, “the language of section 25 (subd 4, par [a]) of the Workers’ Compensation Law favors matching a reimbursement and an award when a particular event brought both about.”

  • People v. Glover, 57 N.Y.2d 61 (1982): Establishing Lesser Included Offenses in New York

    People v. Glover, 57 N.Y.2d 61 (1982)

    A defendant is entitled to a lesser included offense charge only if (1) it is theoretically impossible to commit the greater crime without also committing the lesser crime, and (2) a reasonable view of the evidence supports a finding that the defendant committed the lesser offense but not the greater.

    Summary

    The New York Court of Appeals clarified the two-pronged test for determining when a defendant is entitled to a jury instruction on a lesser included offense. The Court emphasized that the first prong requires a theoretical, abstract comparison of the statutory definitions of the crimes, not an examination of the specific facts of the case. The second prong requires that there be a reasonable view of the evidence in the particular case that would support a finding that the defendant committed the lesser offense but not the greater. In this case, the court found that it is theoretically possible to sell drugs without the intent to aid another person in committing a Class A felony. Therefore, the defendant was not entitled to a charge of criminal facilitation as a lesser included offense of criminal sale of a controlled substance.

    Facts

    The defendant was charged with criminal sale of a controlled substance in the second degree. At trial, the defendant requested that the court also charge the jury on criminal facilitation in the second degree as a lesser included offense.

    Procedural History

    The trial court denied the defendant’s request to charge the jury on criminal facilitation. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal to consider whether the trial court erred in refusing to charge the jury on the lesser included offense.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request to charge the jury on criminal facilitation in the second degree as a lesser included offense of criminal sale of a controlled substance in the second degree.

    Holding

    No, because it is theoretically possible to commit the greater crime of criminal sale of a controlled substance without also committing the lesser crime of criminal facilitation.

    Court’s Reasoning

    The Court of Appeals articulated a two-pronged test for determining when a defendant is entitled to a lesser included offense charge. The first prong, derived from CPL 1.20(37), requires that it be “impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.” This is determined by comparing the statutes in the abstract, without reference to the specific facts of the case. The second prong, prescribed by CPL 300.50(1), requires “an assessment of the evidence of the particular criminal transaction in the individual case and a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.”

    The Court found that the defendant failed to satisfy the first prong. The Court reasoned that “it would be theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else in the commission of a class A felony (as, for instance, when the criminal transaction involved only the defendant and an undercover police buyer).” Because the defendant could not satisfy the first prong of the test, the Court held that the trial court did not err in refusing to charge the jury on criminal facilitation.

    The Court explicitly overruled prior cases like People v. Johnson, People v. Cionek, and People v. Hayes, “to the extent that our decisions…may be read as at variance with this application, they are no longer to be followed.” These cases had resolved the first inquiry by examining only the criminal transaction on which the particular prosecution was predicated.