New York Law Review

Tag: 1989

  • People v. Gaines, 74 N.Y.2d 358 (1989): Burglary Requires Intent to Commit a Crime at the Time of Unlawful Entry

    People v. Gaines, 74 N.Y.2d 358 (1989)

    To be convicted of burglary in New York, a defendant must have intended to commit a crime at the time of unlawfully entering a building; intent formed after the unlawful entry is insufficient to establish burglary.

    Summary

    Gaines was convicted of burglary. The New York Court of Appeals addressed whether the trial court erred by failing to instruct the jury that, for a burglary conviction based on unlawful entry, the intent to commit a crime must exist at the moment of entry. The Court of Appeals held that the intent to commit a crime must exist at the time of unlawful entry. The Court reasoned that burglary is treated as a serious felony due to the heightened danger when someone unlawfully enters a building with criminal intent. The court reversed Gaines’s conviction because the jury instructions could have misled the jury.

    Facts

    Gaines was arrested while exiting a building supply company through a window. He was wearing coveralls and a jacket belonging to a company employee, with company pens in the jacket pocket. Inside, desks were in disarray, but nothing else was missing. Gaines testified that he entered the building to seek shelter from the cold and snow after finding his friend was not home. He claimed he put on the jacket and coveralls to stay warm and denied touching anything else.

    Procedural History

    Gaines was convicted of burglary at trial. He appealed, arguing that the jury instructions were inadequate. The Appellate Division affirmed the conviction. Gaines then appealed to the New York Court of Appeals.

    Issue(s)

    Whether, for a burglary conviction based on unlawful entry, the jury must be instructed that the intent to commit a crime inside the building must exist at the time of the unlawful entry.

    Holding

    Yes, because burglary requires contemporaneous intent to commit a crime at the time of unlawful entry; intent formed after the entry is insufficient.

    Court’s Reasoning

    The Court of Appeals emphasized that burglary is considered a serious felony due to the heightened danger posed by an unlawful intrusion by someone with criminal intent. “A defendant who simply trespasses with no intent to commit a crime inside a building does not possess the more culpable mental state that justifies punishment as a burglar.” The court highlighted that the addition of “remains unlawfully” in the statute was intended to address situations where a person lawfully enters a building but remains after their authorization terminates (e.g., a shoplifter remaining after closing). The Court stated, “[t]he word ‘remain’ in the phrase ‘enter or remain’ is designed to be applicable to cases in which a person enters with ‘license or privilege’ but remains on the premises after termination of such license or privilege.” The court stated that the jury should have been instructed that they must find that he intended to commit a crime at the time he entered the premises unlawfully. Because the instructions given could have misled the jury into thinking that any illegal entry coupled with a subsequent crime constitutes burglary, the conviction was reversed.

  • People v. Peerless Insurance Company, 73 N.Y.2d 324 (1989): Enforceability of Bail Forfeiture Orders and Statutory Time Limits

    People v. Peerless Insurance Company, 73 N.Y.2d 324 (1989)

    When a bail bond is forfeited, the District Attorney must proceed against the surety within 60 days of the court adjournment where the bond was directed to be forfeited; failure to do so precludes recovery on the bond.

    Summary

    This case addresses whether the People’s failure to proceed against a surety within the 60-day period specified in CPL 540.10(2) precludes recovery on a bail bond. David Schonfeld failed to appear in court, resulting in a bail forfeiture order against Peerless Insurance Company, the surety. The District Attorney delayed filing the order to “accommodate” Peerless. The Court of Appeals held that the 60-day provision is mandatory, reversing the lower courts and finding that the People’s failure to act within the statutory period barred their recovery on the bond. This decision emphasizes the importance of strict adherence to statutory deadlines in bail forfeiture proceedings.

    Facts

    David Schonfeld was released on a $25,000 bail bond issued by Peerless Insurance Company. Schonfeld failed to appear in Albany County Court on October 18, 1985. The court issued a bench warrant and ordered forfeiture of the bail. A formal order revoking and forfeiting the bail was signed on October 22, 1985, directing entry of a $25,000 judgment against Peerless. The District Attorney delayed filing the forfeiture order until April 2, 1986, intending to give Peerless an opportunity to negotiate with the court. Peerless moved to preclude enforcement of the judgment, arguing the People failed to act within the 60-day period prescribed by CPL 540.10(2).

    Procedural History

    The County Court denied Peerless’s motion. The Appellate Division affirmed, relying on People v. Bennett and the statutory goal of punishing the defendant and surety. The New York Court of Appeals granted Peerless permission to appeal.

    Issue(s)

    Whether the District Attorney’s failure to proceed against the surety within the 60-day period specified in CPL 540.10(2) precludes the People’s recovery on the bail bond.

    Holding

    Yes, because the plain language and legislative history of CPL 540.10(2) indicate that the 60-day time limit is mandatory, and failure to comply forfeits the People’s ability to enforce the forfeiture order.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 540.10(2) uses the mandatory term “must,” requiring the District Attorney to proceed against the surety within 60 days. The court contrasted this with the permissive term “may” used for cash bail forfeitures, indicating a deliberate legislative choice. The legislative history of the statute, particularly a 1926 amendment, revealed an intent to “tighten up the law” and eliminate the District Attorney’s discretion to proceed “at any time.” The court emphasized that the legislature has the right to select methods to effectuate its goals. The court distinguished People v. Bennett, noting that while Bennett established when the surety’s debt matures, the present case concerned the “application of the remedy for its enforcement.” The court concluded that the timely entry of the forfeiture order is a prerequisite to the People’s ability to recover from the surety. The court analogized the 60-day provision to a statute of limitations, suspending the remedy if not timely pursued. The People’s delay to “accommodate” Peerless was the type of conduct the 60-day requirement was designed to prevent. The court quoted People v. Alejandro, 70 NY2d 133, 139, stating “mandatory provisions of a statute are generally treated as essential.”

  • Glenn v. Hoteltron Systems, Inc., 74 N.Y.2d 32 (1989): Recovery in Derivative Suits and Allocation of Damages

    Glenn v. Hoteltron Systems, Inc., 74 N.Y.2d 32 (1989)

    In a shareholder derivative suit, damages for corporate injury are typically awarded to the corporation, even if the wrongdoer is a shareholder, unless equitable considerations and the rights of creditors necessitate a different approach.

    Summary

    This case addresses the proper allocation of damages, legal expenses, and attorney’s fees in shareholder derivative suits, especially when the injured corporation is closely held and the wrongdoer is also a significant shareholder. The court held that damages should be awarded to the corporation, even if the wrongdoer indirectly benefits. The court also affirmed that legal expenses and attorney’s fees for the plaintiff shareholder should be paid out of the award to the corporation. This decision emphasizes the importance of protecting corporate assets for creditors and adhering to the established rules for derivative actions.

    Facts

    Jacob Schachter and Herbert Kulik were 50% shareholders and officers of Ketek Electric Corporation. Schachter diverted Ketek’s assets and opportunities to Hoteltron Systems, Inc., a corporation wholly owned by him. Kulik initiated a shareholder derivative suit against Schachter for breach of fiduciary duty. The lower court initially found neither party liable, but the Appellate Division found Schachter liable for diverting Ketek’s assets to Hoteltron.

    Procedural History

    The Supreme Court initially ruled neither party liable. The Appellate Division reversed, finding Schachter liable. Following a trial on damages, the Supreme Court awarded damages to Kulik personally, including profits from Hoteltron and Kulik’s legal expenses. The Appellate Division modified this, awarding profits to Ketek and directing Ketek to pay Kulik’s legal expenses. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether damages in a shareholder derivative suit involving a closely held corporation should be awarded directly to the innocent shareholder or to the corporation itself when the wrongdoer is also a shareholder.

    2. Whether legal expenses and attorneys’ fees should be paid by the wrongdoer or by the corporation out of the damage award.

    Holding

    1. No, because the diversion of corporate assets resulted in a corporate injury, and awarding damages to the corporation protects the rights of creditors and adheres to the general rule for derivative actions.

    2. The legal expenses should be paid by the corporation from the award, because this aligns with the principle of reimbursing the plaintiff for expenses incurred on the corporation’s behalf.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision, emphasizing the general rule that recovery in a shareholder derivative suit benefits the corporation. The court acknowledged the anomaly that Schachter, as a 50% shareholder, would indirectly benefit from the award to Ketek but reasoned that making an exception for closely held corporations would undermine the general rule. The court stated: “An exception based on that fact alone would effectively nullify the general rule that damages for a corporate injury should be awarded to the corporation.”

    The Court emphasized that awarding damages directly to the innocent shareholder could impair the rights of creditors. “The fruits of a diverted corporate opportunity are properly a corporate asset. Awarding that asset directly to a shareholder could impair the rights of creditors whose claims may be superior to that of the innocent shareholder.”

    Regarding attorneys’ fees, the court cited Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5, affirming that attorneys’ fees are incidents of litigation not collectable from the loser unless authorized by agreement, statute or court rule. The court reasoned that the basis for awarding attorneys’ fees in derivative suits is to reimburse the plaintiff for expenses incurred on the corporation’s behalf, and these costs should be borne by the corporation itself.

  • State of New York v. Barone, 74 N.Y.2d 332 (1989): Court’s Authority to Order Bond for Landfill Closure

    State of New York v. Barone, 74 N.Y.2d 332 (1989)

    A court of equity has the authority to order a polluting landfill owner, who has repeatedly violated environmental regulations and court orders, to post a bond ensuring the closure of the landfill and remediation of environmental hazards, so that taxpayers do not bear the cost.

    Summary

    The State of New York, through the Department of Environmental Conservation (DEC), sought a court order to compel the closure of an illegal landfill operated by the defendants. The defendants repeatedly violated regulatory directives and prior judicial orders related to the landfill. The Supreme Court ordered the landfill closed and, at the Attorney General’s request, required the defendants to post a $4.5 million bond to cover the closure expenses. The Court of Appeals affirmed, holding that the Supreme Court had the equitable authority, supported by statutory provisions, to order the bond, given the defendants’ history of non-compliance and the need to ensure the landfill’s safe closure. This case demonstrates the broad equitable powers of the court to protect the environment and public health.

    Facts

    Defendants owned a 12-acre site in Tuxedo, NY, and contracted with Material Transport Service to deposit construction and demolition debris to level the land. The DEC discovered the landfill operation within two weeks of its commencement and notified defendant Barone that a permit was required. Despite multiple warnings from the DEC, the illegal dumping continued. The landfill emitted pervasive foul odors. Defendants also used industrial waste as landfill cover, violating a temporary restraining order. The defendants failed to produce subpoenaed records and were found to be hindering the DEC investigation.

    Procedural History

    The DEC sought a temporary restraining order in Supreme Court, which was initially granted, modified, and then made total after further violations. After 12 days of hearings, the Supreme Court issued an injunction ordering the landfill to cease operations and store the industrial waste. Subsequently, the State applied for a bond to ensure payment of the anticipated costs of permanent closure. The Supreme Court ordered the defendants to post a $4.5 million bond. The Appellate Division affirmed the bond order. The defendants appealed to the Court of Appeals.

    Issue(s)

    Whether a court of equity has the authority to order landfill owners, who have violated environmental regulations and court directives, to post a bond to ensure the payment of costs associated with the judicially-ordered closure of the landfill.

    Holding

    Yes, because equity may appropriately require polluting landfill owners, who have failed to comply with DEC and court directives issued during the proceeding, to post a bond to insure that taxpayers will not bear the cost of accomplishing a judicially decreed elimination of health hazards created by defendants.

    Court’s Reasoning

    The Court of Appeals grounded its decision in the traditional judicial equity power (NY Constitution, article VI, § 7) and CPLR 3017(a), which allows courts to grant appropriate relief. The court cited Phillips v West Rockaway Land Co., 226 NY 507, 515, emphasizing the flexible nature of equity jurisdiction. The court also relied on ECL 27-1313(5)(a), which allows the DEC to recover expenses in court for remedial programs at hazardous waste sites when the responsible party refuses to act. This statute aligns with the court’s objective of ensuring the defendants bear the cost of rectifying the harm they caused. The court highlighted the defendants’ repeated disregard for DEC notices and court orders, justifying the need for a bond to ensure accountability. The court emphasized the need for a flexible approach when the DEC seeks judicial assistance to enforce environmental regulations (ECL 71-2727[2]). The court distinguished Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 and Morgenthau v Citisource, Inc., 68 NY2d 211, finding sufficient legislative intent to hold polluters responsible, and the DEC had authority to seek court assistance. The court found the trial court’s procedure to be fair and that the evidence supported the amount of the bond. The court reasoned that protection of natural resources requires a resolute use of judicial authority and that constricting the court’s authority would encourage further transgressions and nullify the court’s writ. The court noted the defendants were given “every opportunity” to refute the DEC’s evidence but failed to present any contradictory evidence of their own.

  • People v. Coleman, 74 N.Y.2d 381 (1989): Factual Impossibility and Attempted Crimes

    People v. Coleman, 74 N.Y.2d 381 (1989)

    A defendant can be convicted of attempt even if the completed crime was factually impossible, provided the crime could have been committed had the circumstances been as the defendant believed them to be.

    Summary

    Coleman was convicted of attempted promoting prostitution and grand larceny after soliciting an undercover officer he believed to be a 15-year-old runaway to become a prostitute and stealing her necklace. The New York Court of Appeals affirmed the conviction, holding that his mistaken belief about the officer’s age did not negate his culpability for attempted promoting prostitution in the second degree. The court reasoned that because he intended to commit the crime and performed acts towards its commission, the factual impossibility (the officer being 24, not 15) was not a defense under Penal Law § 110.10.

    Facts

    Coleman approached a 24-year-old undercover police officer, believing she was a 15-year-old runaway.

    He encouraged her to engage in prostitution and offered to be her pimp.

    Coleman asked the officer for her gold chain, and when she refused, he snatched it and later sold it for $30.

    Procedural History

    Coleman was convicted by a jury of attempted promoting prostitution in the second degree and grand larceny in the third degree.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Coleman’s mistaken belief about the undercover officer’s age negates his culpability for attempted promoting prostitution in the second degree, where the completed crime was factually impossible due to the officer’s actual age.

    Holding

    No, because under Penal Law § 110.10, factual impossibility is not a defense to a charge of attempt when the crime could have been committed had the circumstances been as the defendant believed them to be.

    Court’s Reasoning

    The Court of Appeals relied on Penal Law § 110.10, which states that it is not a defense to a prosecution for attempt that the completed crime was factually impossible if the crime could have been committed had the attendant circumstances been as the person believed them to be.

    The court distinguished this case from People v. Campbell, 72 N.Y.2d 602 (1988), explaining that Campbell involved strict liability for an unintended result, while this case involves a mistake about an aggravating circumstance (the victim’s age) and not the core conduct (promoting prostitution).

    The court emphasized that Coleman knowingly acted to promote prostitution, which is the core conduct prohibited by the statute. His mistaken belief about the victim’s age related to an aggravating element of the offense, not the underlying criminal conduct.

    The court reasoned that because the defendant’s mistake related to an aggravating element of the offense, and not to the core conduct that is proscribed by the statute, such mistake does not affect the defendant’s ability to act with the mental culpability required to complete the underlying offense and thus is no obstacle to his conviction for an attempt of that offense.

    The court stated, “The defendant did all that was necessary to complete the crime of promoting prostitution in the second degree and would have been guilty of the completed crime if the attendant circumstances had been as he believed them to be, that is, if the officer had been 15 instead of 24. The defendant’s mistake in that respect should not block his conviction for the attempt where it is the sole obstacle to his conviction for the completed crime.”

  • Edelman v. Axelrod, 74 N.Y.2d 833 (1989): Establishing Hearing Officer Bias in Administrative Proceedings

    Edelman v. Axelrod, 74 N.Y.2d 833 (1989)

    To establish hearing officer bias in an administrative proceeding, there must be support in the record for the bias and proof that the outcome flowed from the alleged bias.

    Summary

    This case addresses the standard for establishing hearing officer bias in administrative proceedings. The Court of Appeals reversed the Appellate Division’s order, reinstating the respondent’s determination. The Court held that the petitioner failed to provide sufficient evidence of bias on the part of the hearing officer, as the unsworn memorandum alleging the hearing officer was the respondent’s employee was inadequate. Additionally, the petitioner’s claim regarding a violation of Civil Service Law § 72 was not raised at the agency level and therefore could not provide a basis for relief.

    Facts

    The petitioner, Edelman, challenged an administrative determination made by the respondent, Axelrod. The specific nature of the underlying administrative action is not detailed in the memorandum opinion, but the challenge centered on the alleged bias of the hearing officer who presided over the administrative hearing. The petitioner asserted that the hearing officer was biased because he was allegedly an employee of the respondent, Axelrod.

    Procedural History

    The case began at the administrative level. The respondent made a determination adverse to the petitioner. The petitioner then appealed the determination, likely through an Article 78 proceeding, arguing that the hearing officer was biased. The Appellate Division reversed the administrative determination. The Court of Appeals then reversed the Appellate Division’s order and reinstated the respondent’s original determination.

    Issue(s)

    1. Whether the petitioner presented sufficient evidence to establish hearing officer bias as a matter of fact, warranting the reversal of the administrative determination.

    2. Whether the petitioner’s claim regarding a violation of Civil Service Law § 72, raised for the first time on appeal, provides a basis for relief.

    Holding

    1. No, because the petitioner’s only evidence of bias was an unsworn memorandum asserting that the hearing officer was allegedly the respondent’s employee, which is insufficient to establish bias as a matter of fact.

    2. No, because the claim was not raised or relied upon at the agency level.

    Court’s Reasoning

    The Court of Appeals applied the established standard for proving hearing officer bias, stating: “To establish Hearing Officer bias as a matter of fact, there must be support in the record for the bias and proof that the outcome flowed from the alleged bias.” The Court found that the petitioner’s evidence, an unsworn memorandum, failed to meet this standard. The court emphasized that there was no sworn testimony or other reliable evidence to substantiate the claim that the hearing officer was an employee of the respondent or that any alleged bias affected the outcome of the hearing. The Court cited Matter of Warder v Board of Regents, 53 NY2d 186, 197 as precedent. Regarding the Civil Service Law § 72 claim, the court invoked the well-established principle that arguments not raised at the agency level are waived on appeal. The Court cited Matter of Klapak v Blum, 65 NY2d 670, 672 and Matter of Seitelman v Lavine, 36 NY2d 165, 170 to support this proposition. This ensures that agencies have the first opportunity to address and resolve issues within their purview. The court cited People ex rel. Packwood v Riley, 232 NY 283, 286 stating an administrative hearing must be conducted by an unbiased Hearing Officer.

  • Town of Knox v. Waste Stream Management, Inc., 73 N.Y.2d 562 (1989): Local Sanitary Codes and Preemption

    73 N.Y.2d 562 (1989)

    Local sanitary codes are not preempted by state regulations if the local codes comply with at least the minimum applicable standards set forth in the state sanitary code, even if the local standards are more stringent.

    Summary

    This case addresses the validity of a town sanitary code that imposed stricter standards for sewage and effluent disposal than state regulations. The New York Court of Appeals held that the town’s sanitary code was valid because the Public Health Law explicitly states that local regulations complying with the minimum state standards are not inconsistent with the state code. The court also found that the State’s pollutant discharge elimination system (SPDES) permit regulation did not preempt local regulation in this area, as the state regulation was not so broad or detailed as to supersede all local regulation.

    Facts

    The Town of Knox enacted Section 10 of its Sanitary Code, which established more stringent standards than existing state regulations for sewage and effluent disposal on the ground surface. Waste Stream Management, Inc. challenged the validity of Section 10, arguing that it was inconsistent with state regulations and preempted by the State’s pollutant discharge elimination system (SPDES) permit regulation.

    Procedural History

    Waste Stream Management, Inc. initiated an Article 78 proceeding challenging the validity of Section 10 of the Town of Knox Sanitary Code. The lower courts initially sided with Waste Stream Management, but the New York Court of Appeals reversed, dismissing the Article 78 proceeding and declaring Section 10 valid.

    Issue(s)

    1. Whether Section 10 of the Sanitary Code of the Town of Knox, which provides more stringent standards than state regulations for sewage and effluent disposal, is impermissibly inconsistent with state regulations.
    2. Whether the State Department of Environmental Conservation’s regulation of sewage and effluent disposal has been impliedly preempted by the State pollutant discharge elimination system (SPDES) permit regulation.

    Holding

    1. No, because the Legislature has provided that local laws which comply with at least the minimum applicable standards set forth in the sanitary code shall be deemed not inconsistent with such code.
    2. No, because the SPDES regulation is not so broad in scope or so detailed as to require a determination that it has superseded all existing and future local regulation.

    Court’s Reasoning

    The Court of Appeals based its decision primarily on the language of Public Health Law § 228 (3), which states that “[l]ocal laws, ordinances or regulations which comply with at least the minimum applicable standards set forth in the sanitary code shall be deemed not inconsistent with such code.” The court reasoned that because Section 10 of the Town of Knox Sanitary Code met this condition, it was not impermissibly inconsistent with state regulations, even though it imposed stricter standards.

    Regarding preemption, the court applied the principle that state regulation must be “so broad in scope or so detailed as to require a determination that [the state law] has superseded all existing and future local regulation” (citing Jancyn Mfg. Corp. v. County of Suffolk, 71 NY2d 91, 99). The court found that the SPDES regulations did not meet this threshold, meaning that local governments could still impose their own regulations in this area. The court thus rejected the argument that the State’s involvement in regulating pollutant discharge implicitly preempted local control over sewage and effluent disposal. The decision emphasizes the balance between state and local authority in environmental regulation, allowing localities to implement stricter standards when deemed necessary, provided they meet the minimum state requirements. This ensures a baseline level of environmental protection while accommodating local concerns and priorities. The court does not explicitly discuss dissenting opinions, as the decision was unanimous.

  • People v. Smalls, 74 N.Y.2d 746 (1989): Right to Counsel at Lineup and Independent Source for Identification

    74 N.Y.2d 746 (1989)

    A defendant has a right to counsel at a lineup when a removal order has been issued to secure the defendant’s attendance, and in the absence of a hearing to determine independent source, in-court identification testimony from witnesses exposed to an uncounseled lineup is inadmissible.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and ordered a new trial because the defendant’s right to counsel was violated during pretrial lineups. The lineups occurred without counsel present despite a removal order securing the defendant’s attendance. The Court of Appeals held that the admission of the lineup evidence was not harmless error because the key issue at trial was identification, and the in-court identifications of the witnesses who attended the lineup were tainted. The court also addressed errors related to the testimony of an informant witness.

    Facts

    The defendant was convicted of robbery and other charges. The People’s case rested significantly on eyewitness identifications. Two witnesses identified the defendant at lineups conducted without the presence of counsel, despite a removal order in place to ensure the defendant’s attendance. Another witness was a police informant who testified in exchange for a reduced sentence on an unrelated charge.

    Procedural History

    The defendant was convicted at trial. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal and then reversed the Appellate Division’s order, remanding the case for a new trial.

    Issue(s)

    1. Whether the lineup testimony of the two witnesses should have been suppressed due to the absence of counsel during the lineups, given that a removal order was issued to secure the defendant’s attendance.

    2. Whether the erroneous admission of the lineup evidence was harmless beyond a reasonable doubt.

    3. Whether the in-court identification testimony of the witnesses who attended the uncounseled lineups was admissible without a hearing to determine if the testimony had an independent source.

    4. Whether the trial court erred in instructing the jury regarding the informant-witness’s testimony.

    Holding

    1. Yes, because a removal order had been issued to secure defendant’s attendance at the pretrial identification procedures, defendant had a right to the presence of counsel during the lineups.

    2. No, because the only significant issue at defendant’s trial was identification, and the People’s strongest evidence came from the two eyewitnesses who had been exposed to the uncounseled lineups.

    3. No, because in the absence of a hearing to determine whether that testimony had an independent source, it cannot be assumed that that testimony was not also tainted and subject to exclusion.

    4. Yes, because the court should have instructed the jury to scrutinize the informant’s testimony carefully and determine whether any benefit he received affected the truthfulness of that testimony, and the court’s erroneous instruction created an imbalance.

    Court’s Reasoning

    The court reasoned that because a removal order was issued to secure the defendant’s attendance at the lineups, the defendant had a right to counsel under People v. Coleman, 43 NY2d 222. Since the defendant did not waive that right, the lineups conducted without counsel violated the defendant’s constitutional rights.

    The court found that the error was not harmless beyond a reasonable doubt, as required by People v. Crimmins, 36 NY2d 230, 237, because identification was the only significant issue at trial. Two of the four witnesses connecting the defendant to the crime were subject to serious impeachment, and the other two eyewitnesses had been exposed to the uncounseled lineups.

    The court emphasized that the in-court identification testimony of the witnesses who viewed the lineup was inadmissible without a hearing to determine whether the testimony had an independent source, citing United States v. Wade, 388 US 218, 240-241; People v. Coates, 74 NY2d 244; and People v. Dodt, 61 NY2d 408. The court noted, “in the absence of a hearing to determine whether that testimony had an independent source, it cannot be assumed that that testimony was not also tainted and subject to exclusion.” This underscored the importance of establishing that the in-court identification was based on the witness’s independent recollection of the crime and not influenced by the tainted lineup.

    Regarding the informant-witness, the court found that the trial court erred by not instructing the jury to carefully scrutinize the informant’s testimony for truthfulness, given the benefits he received. The court stated that “the informant’s testimony should be scrutinized carefully and a determination made as to whether any benefit he received affected the truthfulness of that testimony.” The court also noted the error in instructing the jury that the informant’s criminal past could be considered only insofar as it implicated his general credibility, thereby ruling out consideration of the more specific possibilities of bias and motive to falsify, citing People v. Bell, 38 NY2d 116, 123.

  • Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989): Special Duty and Municipal Liability for Police Protection

    Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989)

    A municipality is not liable for failure to provide police protection to a particular individual absent a “special relationship” creating a specific duty, which requires direct contact and justifiable reliance by the injured party on the municipality’s assurances.

    Summary

    Deborah Kircher was abducted and assaulted. Witnesses reported the incident to a Jamestown police officer, who failed to act. Kircher sued the city, alleging negligence. The New York Court of Appeals held that the city was not liable because Kircher did not have a “special relationship” with the police. The court emphasized the need for direct contact between the injured party and the municipality and justifiable reliance on the municipality’s assurances of protection, elements missing in this case because Kircher was unaware of the report made on her behalf. This decision reaffirms the principle that police protection is generally a duty owed to the public at large, not to specific individuals unless a special relationship exists.

    Facts

    Deborah Kircher was abducted from a parking lot. Witnesses, Allen and Skinner, saw Brian Blanco assault and abduct Kircher. They chased Blanco but lost him. Allen and Skinner then reported the incident to Officer Carlson, providing a description of Blanco and Kircher’s car. Carlson, assisting with a disabled municipal vehicle, said he would “call it in” but never did. Kircher was driven to another town, raped, assaulted, and locked in her car’s trunk for 12 hours. Kircher observed the witnesses attempting to follow her vehicle, but was unaware that they had reported the incident to the police.

    Procedural History

    Kircher sued the City of Jamestown and Officer Carlson, alleging negligence. The Supreme Court denied the defendants’ motion to dismiss, relying on Crosland v. New York City Tr. Auth. The Appellate Division reversed, granting summary judgment for the defendants, finding no “special relationship.” The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a municipality can be held liable for negligent failure to provide police protection to a specific individual absent a “special relationship” between the individual and the municipality, specifically requiring direct contact and justifiable reliance by the injured party.

    Holding

    No, because a “special relationship” requires both direct contact between the injured party and the municipality’s agents and justifiable reliance by the injured party on the municipality’s affirmative undertaking, neither of which were present in this case.

    Court’s Reasoning

    The court reaffirmed the rule that a municipality’s duty to provide police protection is generally owed to the public at large, not to specific individuals. A “special relationship” is required for liability, consisting of: (1) an assumption by the municipality of an affirmative duty to act; (2) knowledge that inaction could lead to harm; (3) direct contact between the municipality’s agents and the injured party; and (4) justifiable reliance on the municipality’s undertaking. Here, Kircher had no direct contact with the police and could not have relied on any assurances of assistance. The court stated, “[t]he elements of this ‘special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”.

    The court rejected the argument that the witnesses’ contact with the police could substitute for Kircher’s direct contact, explaining that the purpose of the special duty rule is to limit the class of citizens to whom the municipality owes a duty of protection. Allowing contact between a good Samaritan and the police to satisfy the direct contact requirement would undermine this purpose. Additionally, the court reasoned that reliance is critical because it provides the “essential causative link” between the municipality’s duty and the injury, and absent reasonable detrimental reliance, the consequences of the municipality’s inaction become too speculative. The court emphasized the need to prevent the exception from swallowing the general rule of governmental immunity. The Court reasoned that allowing the action would amount to an expansion of tort liability, which should be a legislative rather than a judicial decision. The court concluded, “Thus, in the absence of facts showing that the City of Jamestown, through its police force, affirmatively undertook to protect plaintiff and plaintiff detrimentally relied on the municipality’s assurances of protection, there is nothing to distinguish this unfortunate plaintiff from the numerous other crime victims for whom, tragically, police assistance has arrived too late.”

  • Berkowitz v. Chavo International, Inc., 74 N.Y.2d 144 (1989): Perfecting Security Interests in Promissory Notes

    74 N.Y.2d 144 (1989)

    To perfect a security interest in a promissory note, a secured party must take possession of the note unless the note constitutes part of chattel paper, in which case perfection can occur either by possession or filing.

    Summary

    This case addresses whether a creditor’s judgment lien on a promissory note has priority over a prior security interest claimed by a financing company. Chavo International, Inc. (Chavo) assigned its receivables to Congress Talcott Corp. (Talcott) under a factoring agreement. Later, Chavo received a promissory note from Forest Lake Ltd. (Forest Lake) as payment for assets. Susan Berkowitz obtained a judgment against Chavo and sought to enforce it against the Forest Lake note. The court held that the promissory note was an ‘instrument’ under UCC Article 9, requiring Talcott to take possession to perfect its security interest. Because Talcott did not possess the note, Berkowitz’s judgment lien had priority.

    Facts

    Susan Berkowitz won an arbitration against Chavo for unpaid sales commissions and obtained a judgment in California, which was then filed in New York. Prior to Berkowitz’s claim, Chavo had a factoring agreement with Talcott, assigning all present and future receivables to Talcott as security. Subsequently, Chavo sold assets to Forest Lake, receiving a promissory note in return. The note directed payments to Talcott to reduce Chavo’s debt under the factoring agreement. Berkowitz then served a restraining notice on Forest Lake to enforce her judgment against the note’s proceeds.

    Procedural History

    Berkowitz sought to enforce her judgment against the promissory note. Talcott moved to vacate Berkowitz’s restraining notice, claiming a superior security interest. The Supreme Court granted Talcott’s motion, holding that Talcott had a perfected security interest prior to Berkowitz’s lien. The Appellate Division reversed, holding that the promissory note was an ‘instrument’ requiring possession for perfection, which Talcott lacked. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the promissory note from Forest Lake to Chavo constitutes an ‘instrument’ under UCC Article 9?

    2. Whether the promissory note constitutes ‘chattel paper’ which could be perfected by filing instead of possession?

    3. Whether Talcott’s factoring agreement gave them a security interest in the note.

    Holding

    1. Yes, because the promissory note is a writing that evidences a right to payment of money and is of a type that is transferred in the ordinary course of business.

    2. No, because the promissory note and purchase agreement, taken together, do not evidence a monetary obligation and a security interest in specific goods.

    3. Yes, because the factoring agreement between Talcott and Chavo assigned to Talcott all of Chavo’s receivables, including “all obligations of every kind at any time owing to [Chavo]”.

    Court’s Reasoning

    The court reasoned that the promissory note met the definition of an ‘instrument’ under UCC 9-105(1)(i) because it was a writing evidencing a monetary obligation. The court addressed and rejected Talcott’s argument that the note constituted chattel paper. “Chattel paper” is defined as writings that evidence both a monetary obligation and a security interest in specific goods or a lease of specific goods. The court found that the purchase agreement, taken together with the promissory note, did not create a security interest in the assets sold. Chavo retained no residual interest in the assets. The court stated, “[C]hattel paper and non-negotiable instruments lie somewhere on the spectrum between the negotiable instrument on the one hand and the account on the other; for the former possession is everything, for the latter it is nothing.” Since Talcott didn’t possess the instrument, they did not have a perfected security interest, so Berkowitz’s lien had priority. The court emphasized the importance of possession for perfecting a security interest in instruments, stating that if possession were not required, Talcott’s security interest would have prevailed. The court found that the factoring agreement was broad enough to encompass the promissory note because it included “all obligations of every kind at any time owing to [Chavo].”