New York Law Review

Tag: 2010

  • State v. Andrew O., 15 N.Y.3d 842 (2010): Improperly Attacking Witness Credibility Based on Religious Beliefs

    15 N.Y.3d 842 (2010)

    Attacking a witness’s credibility based on their religious beliefs, except under extraordinary circumstances, is sufficiently prejudicial to warrant a new trial, especially when the trial judge fails to give a prompt and clear corrective instruction.

    Summary

    In a civil management proceeding against Andrew O., the State’s attorney improperly attacked the credibility of Andrew O.’s expert witness based on his religious beliefs during cross-examination and closing statements. The New York Court of Appeals reversed the Appellate Division’s affirmation of the jury’s verdict, holding that questioning the expert about his religious beliefs was prejudicial and warranted a new trial because the trial hinged on expert testimony, and the judge failed to provide adequate corrective instructions regarding the improper remarks.

    Facts

    The Attorney General filed a petition seeking civil management of Andrew O., a detained sex offender. During the jury trial, the State’s attorney questioned Andrew O.’s expert witness, a psychologist, extensively about his religion (Yoism), its tenets, and its founders, over repeated objections from Andrew O.’s counsel. In his closing statement, the State’s attorney emphasized the expert’s religious beliefs to the jury, suggesting it should influence their assessment of the expert’s credibility. The State’s attorney also warned the jurors about the potential for future victims if they did not find Andrew O. to be mentally abnormal.

    Procedural History

    Supreme Court found probable cause to believe Andrew O. was a sex offender requiring civil management. A jury determined that Andrew O. suffered from a mental abnormality. Supreme Court then concluded Andrew O. was a dangerous sex offender requiring confinement and committed him to a secure treatment facility. The Appellate Division affirmed the jury verdict, deeming the religious inquiry harmless error. One Justice dissented. The New York Court of Appeals reversed, ordering a new trial.

    Issue(s)

    Whether the State’s attorney’s cross-examination of the expert witness regarding his religious beliefs, coupled with the remarks during closing arguments, was sufficiently prejudicial to warrant a new trial.

    Holding

    Yes, because any attempt to discredit a witness based on their religious beliefs is improper and prejudicial unless under extraordinary circumstances, and the trial judge failed to provide prompt and clear corrective instructions.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in People v. Wood, which established that discrediting a witness based on religious beliefs is generally improper and requires a new trial unless extraordinary circumstances exist and the trial judge provides a prompt and clear corrective instruction. The Court emphasized that religious beliefs are irrelevant to credibility. The Court found no extraordinary circumstances that would justify the religious inquiry in this case, especially because the trial centered on the credibility of expert testimony. The Court noted that the trial judge did not adequately address the improper cross-examination; in fact, the judge overruled objections to it. Furthermore, the judge’s reminder that argument is not testimony was insufficient to cure the prejudice from the State’s attorney’s inflammatory remark about potential future victims. The Court stated, “With limited exceptions . . . , any attempt to discredit or otherwise penalize a witness because of his religious beliefs … is improper, because those factors are irrelevant to the issue of credibility.” While the evidence of Andrew O.’s mental abnormality was presented by the state, the court found that the case “boiled down to a battle of the experts in which Andrew O.’s expert was portrayed as unreliable because he adhered to an out-of-the-mainstream religion.” The court thus reasoned that it was impossible to know whether or not the jury was prejudiced by the line of questioning. Because of the reasons above, the Court of Appeals reversed the lower court’s decision.

  • People v. Cecunjanin, 15 N.Y.3d 487 (2010): Attempted Sexual Abuse Requires Victim’s Helplessness at Time of Attempt

    People v. Cecunjanin, 15 N.Y.3d 487 (2010)

    To be convicted of attempted sexual abuse of a physically helpless person, the prosecution must prove the victim was physically helpless at the specific moment the defendant attempted to commit the sexual contact.

    Summary

    Defendant was convicted of attempted sexual abuse in the first degree and unlawful imprisonment after an incident involving an intoxicated woman at his bar. The Court of Appeals reversed the attempted sexual abuse conviction, finding insufficient evidence that the woman was physically helpless at the moment the defendant allegedly attempted to subject her to sexual contact. While the woman was highly intoxicated and possibly helpless at times, the evidence showed she resisted the defendant’s advances, indicating she was not physically helpless during those specific moments. The Court affirmed the unlawful imprisonment conviction.

    Facts

    Catherine, the alleged victim, became extremely intoxicated at a bar owned by the defendant, Cecunjanin. Her blood alcohol content was .267%. While at the bar, she engaged in some mild displays of affection with Cecunjanin, whom she knew. As Catherine’s intoxication increased, Cecunjanin became more aggressive, making rude comments, preventing her from leaving, tugging at her shirt, and touching her thighs. He led her to a storage room with another man, where they pulled at her clothes and tried to kiss her. Catherine resisted, refusing to go upstairs with them and sitting on the floor. At one point, she was unable to open the storage room door. Cecunjanin prevented her from answering her cell phone. The encounter ended when Catherine’s father arrived.

    Procedural History

    Cecunjanin was indicted for attempted sexual abuse in the first degree, unlawful imprisonment in the second degree, and forcible touching. The jury convicted him on the first two counts. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented at trial was sufficient to prove beyond a reasonable doubt that Catherine was “physically helpless” at the moment Cecunjanin attempted to subject her to sexual contact, as required for a conviction of attempted sexual abuse in the first degree under Penal Law § 130.65(2).

    Holding

    No, because the evidence showed that while Catherine may have been physically helpless at some points, she was able to resist Cecunjanin’s advances, proving she was not physically helpless during the specific moments of the alleged attempted sexual contact.

    Court’s Reasoning

    The Court focused on the statutory definition of “physically helpless” as “unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00 [7]). The Court acknowledged Catherine’s extreme intoxication and the testimony of her friends indicating she was slouched, unresponsive, and at one point, slid off her stool. However, the Court found no evidence that Cecunjanin attempted to subject her to sexual contact during those specific moments of helplessness. The Court highlighted Catherine’s testimony that she held her arms up to block Cecunjanin from putting his hands under her shirt, stating, “The argument is self-refuting; she could not have blocked him if she were helpless.” The Court distinguished this case from People v. Teicher, 52 NY2d 638 (1981), where the victim was weakened by sedation but still able to remove her hand from the defendant’s person. In Teicher, the court inferred a lack of capacity to consent to the initial touching due to her weakened condition. Here, the Court emphasized that Catherine actively resisted Cecunjanin’s attempts, demonstrating that she was not physically helpless at the time of the attempted contact. The court stated, “A reading of the record as a whole shows that Catherine may well have been physically helpless at some times, and that defendant may have attempted to subject her to sexual contact at other times, but there is no evidence that the two occurred together.” The Court affirmed the Appellate Division with the modification to vacate the conviction for attempted sexual abuse.

  • Meegan v. Brown, 14 N.Y.3d 382 (2010): Interpretation of Wage Freeze Legislation

    Meegan v. Brown, 14 N.Y.3d 382 (2010)

    When interpreting statutes designed to address a municipality’s fiscal crisis, courts should broadly construe provisions allowing for wage freezes to achieve the legislature’s intent of ensuring long-term financial stability.

    Summary

    This case concerns the interpretation of New York Public Authorities Law § 3858, which empowers the Buffalo Fiscal Stability Authority (BFSA) to impose wage freezes during a fiscal crisis. The Court of Appeals held that a wage freeze imposed by the BFSA suspended not only base salary increases but also step increases and increments. The Court reasoned that allowing step increases to accrue during the freeze would undermine the statute’s purpose of achieving long-term fiscal stability for the City of Buffalo. The decision emphasizes a broad interpretation of the law to effectuate its remedial purpose.

    Facts

    In 2003, a State Comptroller report highlighted Buffalo’s financial distress. In response, the New York Legislature created the Buffalo Fiscal Stability Authority (BFSA) to address the city’s fiscal crisis. In April 2004, the BFSA imposed a wage freeze, preventing any increases in wages, including salary adjustments according to plan and step-ups or increments. The wage freeze was lifted in July 2007. The unions representing city employees argued that employees were entitled to advance the four salary steps they would have received had the freeze not been imposed. The City argued employees were only entitled to a one-step increase.

    Procedural History

    The Unions initiated Article 78 proceedings and a declaratory judgment action challenging the suspension of step-up plan wage increases. Supreme Court granted the petitions, holding that the statute only applied to wages lost during the freeze, not to longevity and promotional steps. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Public Authorities Law § 3858(2)(c) authorized the BFSA to suspend step increases and increments during a wage freeze, such that employees were not entitled to accrue those increases during the freeze period and receive them upon its lifting.

    Holding

    Yes, because the statute empowers the BFSA to suspend all salary and wage increases, including step-ups and increments, and prohibits the accrual of retroactive pay adjustments of any kind during the freeze. The legislature’s intent was to provide the City of Buffalo with long-term fiscal stability.

    Court’s Reasoning

    The Court interpreted Public Authorities Law § 3858(2)(c)(i) and (iii) together. The Court found that the statute plainly permits the BFSA to suspend all salary and wage increases, including any “step-ups” and “increments” (Public Authorities Law § 3858 [2] [c] [i]). It further provides that “no retroactive pay adjustments of any kind shall accrue or be deemed to accrue during the period of wage freeze” (§ 3858 [2] [c] [iii] [emphasis added]). The term “retroactive pay adjustments of any kind” must be read broadly. The Court reasoned that allowing step increases to accrue during the freeze would undermine the purpose of the statute, which was to achieve long-term fiscal stability for the City of Buffalo. The Court stated, “In that provision, the Legislature declared that the “maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern.” This remedial legislation was enacted to provide the City of Buffalo with “long-term fiscal stability,” ensuring confidence of investors in the City’s bonds and notes and to protect the economy of the region.” The Court further noted that “[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby” (id. § 3873). Therefore, the intent of the statute supports the City’s position that step increases were suspended during the freeze.

  • Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 14 N.Y.3d 232 (2010): Primary Insurer’s Duty to Defend Entire Action

    Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 14 N.Y.3d 232 (2010)

    When a complaint against an insured contains at least one claim potentially covered by a primary insurance policy, the insurer has a duty to defend the entire action, precluding any duty of an excess insurer where its policy provides excess coverage when “any Loss arising from any claim” is covered by other insurance.

    Summary

    This case involves a dispute between two insurers, Hermitage (CGL policy) and Federal (D&O policy), over the cost of defending Fieldston against two lawsuits. Hermitage argued Federal should contribute to defense costs, claiming Federal’s D&O policy covered most claims. The Court of Appeals held that because Hermitage’s CGL policy potentially covered one claim (injurious falsehood) in each lawsuit, Hermitage had a primary duty to defend the entire action. Federal’s D&O policy’s “other insurance” clause made its coverage excess since Hermitage’s policy covered at least one claim. Thus, Hermitage bore the entire defense cost, illustrating the broad duty to defend.

    Facts

    Hermitage issued a CGL policy to Fieldston, and Federal issued a D&O policy. Chapel Farm sued Fieldston in federal court, alleging “injurious falsehood” and other claims. Hermitage defended Fieldston under a reservation of rights, arguing Federal’s D&O policy was primary. After the federal suit was dismissed, Villanova (formerly Chapel Farm) sued Fieldston in state court with similar claims. Hermitage again defended under a reservation of rights, seeking reimbursement from Federal. The state court dismissed the injurious falsehood claim, and Federal then assumed the defense.

    Procedural History

    Two declaratory judgment actions were filed to determine the insurers’ responsibilities. In the first action (federal lawsuit), the Supreme Court ruled Hermitage was primary. In the second action (state lawsuit), the Supreme Court found neither insurer had proved their position as a matter of law. The Appellate Division reversed both rulings, holding Federal was required to contribute to defense costs. The Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s initial ruling on the federal case and granting summary judgment to Federal on the state case.

    Issue(s)

    Whether Hermitage’s primary duty to defend against the injurious falsehood claim triggers a primary duty to defend against all causes of action in the complaints, precluding any obligation by Federal under its “other insurance” clause.

    Holding

    Yes, because under the terms of Federal’s D&O policy, there existed “other insurance” (Hermitage’s CGL) that covered the “loss” arising from the defense of the underlying actions; when a policy has a clause making it excess to other valid insurance, the insurer is not required to contribute to a defense already covered by another policy.

    Court’s Reasoning

    The court emphasized that an insurer’s duty to defend is broader than the duty to indemnify and is triggered when a complaint alleges any cause of action that creates a reasonable possibility of recovery under the policy. The court quoted Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65 (1991), stating that the duty to defend “arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy.” The court further explained, quoting Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443 (2002), that if “ ‘ any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action.’ ” The court reasoned that because Hermitage’s CGL policy potentially covered the injurious falsehood claim, it had a duty to defend the entire action. Federal’s D&O policy had an “other insurance” clause that made its coverage excess when any loss was covered by another policy. “Loss” included “Defense Costs.” Therefore, Hermitage had the primary duty to defend without contribution from Federal. The Court stated, “If the policies were drafted using different language, we might hold differently, but we may not judicially rewrite the language of the policies at issue here to reach a more equitable result”. The court prioritized the plain language of the insurance contracts, even if the result appeared inequitable.

  • People v. Gonzalez, 16 N.Y.3d 28 (2010): Confrontation Clause and Witness Unavailability

    People v. Gonzalez, 16 N.Y.3d 28 (2010)

    The right to confrontation is violated when a witness provides adverse testimony on a non-collateral matter, and the defendant is not afforded a full and fair opportunity to cross-examine that witness due to the witness’s sudden unavailability, regardless of the reason for that unavailability.

    Summary

    Defendant Gonzalez was convicted of manslaughter and criminal possession of a weapon. A key witness, Ceballo, testified implicating Gonzalez in the shooting. After her testimony, she admitted to the prosecutor that she had seen Gonzalez with a gun, contradicting her initial statement. Ceballo became unavailable before the defense could cross-examine her about this inconsistency. The defense moved to strike Ceballo’s testimony, arguing a violation of the Confrontation Clause. The trial court denied the motion, and the Appellate Division affirmed. The Court of Appeals affirmed the conviction based on harmless error, but Chief Judge Lippman dissented, arguing that the denial of the opportunity to fully cross-examine Ceballo violated Gonzalez’s confrontation rights. The Court of Appeals majority held that because cross-examination occurred, there was no Confrontation Clause violation.

    Facts

    Loraine Ceballo testified that Gonzalez and a co-defendant ran through the lobby of her building after a shooting, and she initially stated she did not see them with guns. Later the same day, she admitted to the prosecutor that she did see a gun and received one from Gonzalez. Ceballo became unavailable before the defense could cross-examine her regarding this changed testimony. Gonzalez was convicted of manslaughter in the first degree and criminal possession of a weapon in the second degree.

    Procedural History

    The trial court denied Gonzalez’s motion to strike Ceballo’s testimony. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed, with Chief Judge Lippman dissenting in a separate opinion.

    Issue(s)

    Whether the defendant’s right to confrontation was violated when a key witness became unavailable for cross-examination after providing adverse testimony but before the defense could question her about a significant inconsistency in her statements.

    Holding

    No, because the witness was cross-examined, albeit before the change in her testimony was revealed, there was no violation of the Confrontation Clause. However, Chief Judge Lippman argued yes, because the defendant was denied a full and fair opportunity to test the witness’s credibility regarding her changed testimony, which directly implicated the defendant in the crime.

    Court’s Reasoning

    The majority found no Confrontation Clause violation because the witness was subjected to cross-examination. The Chief Judge, in dissent, argued that the right to confrontation is violated when a witness provides adverse testimony and the defendant is not afforded a full and fair opportunity to test that testimony through cross-examination. Lippman argued that the reason for the witness’s unavailability is irrelevant; the critical factor is whether the defendant had a chance to fully and fairly cross-examine the witness about all relevant aspects of their testimony. He distinguished this case from cases where the witness was available but the cross-examination was limited by the court. He cited People v Vargas, 88 NY2d 363, 380 (1996) and People v Chin, 67 NY2d 22 (1986) in support of his position that denial-of-confrontation claims may arise from a witness’s midtrial unavailability for cross-examination. Lippman stated, “If testimony adverse to the defendant upon a noncollateral matter has been placed before the jury and the defendant has not been afforded an opportunity fully and fairly to test that testimony by cross-examination, the right of confrontation has been infringed. Until today, there has never been a rule that the assertion of that right was somehow dependent upon the precipitant of a witness’s unavailability.” He ultimately concurred in the affirmance because the jury acquitted the defendant of the top counts, indicating they rejected Ceballo’s testimony, mitigating any potential prejudice.

  • People v. Wells Fargo Ins. Servs., Inc., 14 N.Y.3d 164 (2010): Insurance Broker’s Duty to Disclose Incentive Programs

    People v. Wells Fargo Ins. Servs., Inc., 14 N.Y.3d 164 (2010)

    An insurance broker does not have a common-law fiduciary duty to disclose to its customers incentive arrangements that the broker has entered into with insurance companies.

    Summary

    The Attorney General sued Wells Fargo, alleging the insurance broker engaged in fraudulent acts, unjust enrichment, common-law fraud, and breach of fiduciary duties by failing to disclose “incentive” arrangements with insurance companies. Wells Fargo allegedly steered clients to insurers offering kickbacks without informing clients. The complaint didn’t allege misrepresentations or demonstrable harm to clients. The New York Court of Appeals affirmed the dismissal, holding that absent misrepresentation or actual injury, an insurance broker doesn’t have a common-law fiduciary duty to disclose incentive programs. The Court reasoned that the broker’s dual agency status complicates the traditional principal-agent fiduciary relationship, and that a newly enacted regulation was a better remedy than creating a retroactive common-law rule.

    Facts

    Wells Fargo, an insurance brokerage firm, acted as an agent for organizations seeking insurance. They obtained quotes from insurers and offered recommendations. Wells Fargo entered into “incentive” arrangements with insurers, including the “Millennium Partners Program,” where insurers paid Wells Fargo based on the volume of business they brought. These incentive payments were not disclosed to Wells Fargo’s customers. The Attorney General alleged that Wells Fargo “steered” its customers to particular insurance companies based on these incentives.

    Procedural History

    The Supreme Court dismissed the Attorney General’s complaint with leave to replead. The Attorney General declined to replead, and appealed. The Appellate Division affirmed the dismissal. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether an insurance broker has a common-law fiduciary duty to disclose to its customers incentive arrangements that the broker has entered into with insurance companies.

    Holding

    No, because the relationship between an insurance broker and a purchaser of insurance is complex and because a prospective regulation is a better way of addressing this issue than a retroactive common-law rule.

    Court’s Reasoning

    The Court of Appeals reasoned that while insurance brokers act as agents for the insured, they also have a relationship with the insurer, often receiving compensation from them. This “dual agency status” complicates the traditional fiduciary duty analysis. The Court distinguished the case from situations involving affirmative misrepresentations or actual injury to the customer. The Court acknowledged that the non-disclosure of incentive arrangements “may be a bad practice.” However, it noted that a newly adopted regulation by the Insurance Department prohibited such non-disclosure prospectively. The court stated that “A regulation, prospective in effect, is a much better way of ending a questionable but common practice than what the Attorney General asks us to do here: in substance to outlaw the practice retroactively by creating a new common-law rule.” The court also referenced existing Appellate Division cases that held an insurance broker need not disclose contractual arrangements made with insurance companies. The court emphasized that the complaint did not allege that Wells Fargo did anything contrary to industry custom. Absent such allegations, the Court declined to impose a new common-law duty. The Court effectively deferred to the regulatory solution, finding it a more appropriate method for addressing the issue than creating a new, retroactive common-law rule.

  • People v. Rabb, 16 N.Y.3d 144 (2010): Necessity of Exhausting Normal Investigative Procedures Before Eavesdropping

    People v. Rabb, 16 N.Y.3d 144 (2010)

    Before obtaining an eavesdropping warrant, law enforcement must demonstrate that normal investigative procedures have been tried and failed, reasonably appear unlikely to succeed if tried, or are too dangerous to employ; generalized and conclusory statements are insufficient.

    Summary

    Defendants Rabb and Mason challenged an eavesdropping warrant, arguing the prosecution failed to show normal investigative measures were exhausted or unlikely to succeed. The investigation stemmed from activities of a minority labor coalition, P&D Construction Workers Coalition, suspected of using coercion to force construction companies to hire their workers. The New York Court of Appeals affirmed the lower courts’ denial of the motion to suppress, finding sufficient record support that normal investigative procedures were unlikely to succeed, given the collusive relationships and potential for witness intimidation. The Court emphasized that while wiretapping shouldn’t be a first step, all conceivable techniques need not be exhausted.

    Facts

    The Labor Racketeering Unit (LRU) investigated Akbar’s Community Services, finding they coerced construction companies. The investigation revealed P&D Construction Workers Coalition, run by Rabb and Mason, engaged in similar coercive techniques. A construction company president gave investigators a business card from “Divine” of P&D, with a cell phone number linked to Carol Rabb. Billing records showed frequent calls between “Divine” and Akbar’s leaders. An undercover LRU investigator learned from Rasberry that P&D could cause trouble at job sites. Another contractor reported being approached by a P&D agent. Intercepted calls between Walker and Rabb revealed collusive efforts between Akbar and P&D. Physical surveillance to identify Rabb proved unsuccessful.

    Procedural History

    Defendants were indicted for enterprise corruption and grand larceny. They moved to suppress evidence from the eavesdropping warrants, arguing the application for Rabb’s warrant didn’t meet CPL 700.15 (4). Supreme Court denied the motions. Rabb and Mason pleaded guilty, preserving their right to appeal the denial of their suppression motions. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the People’s application for an eavesdropping warrant against Rabb’s cell phone met the requirements of CPL 700.15(4), specifically, whether the application demonstrated that normal investigative procedures had been tried and failed, reasonably appeared unlikely to succeed if tried, or were too dangerous to employ.

    Holding

    Yes, because the People’s application demonstrated that normal investigative measures would reasonably have been unlikely to succeed if tried, based on the specific facts of the collusive relationship between Akbar and P&D, the potential for witness intimidation, and the limitations of other investigative techniques in this particular context.

    Court’s Reasoning

    CPL 700.15 (4) requires a showing that normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried, or to be too dangerous to employ. The Court emphasized that wiretaps should not be used as a routine first step in investigations. The legislative intent behind CPL article 700 was to balance privacy rights with society’s interest in fighting crime, especially organized crime, where traditional methods often fail to reach high-level members. The Court found that the LRU did not resort to wiretapping as a routine first step, referencing the contact with the construction contractor, the phone number registered to Rabb, and the undercover officer’s information. The application outlined collusive efforts between Akbar and P&D, including shared information about job sites. While physical surveillance, undercover operations, witness interviews, and search warrants were used in the Akbar investigation, the People provided reasons why those techniques would be unlikely to succeed against Rabb and Mason. Specifically, physical surveillance was limited, undercover efforts had limited success, witnesses were unlikely to testify due to fear, and grand jury subpoenas would publicize the investigation. The Court noted, “[a]n affidavit describing the standard techniques that have been tried and facts demonstrating why they are no longer effective is sufficient to support an eavesdropping order even if every other possible means of investigation has not been exhausted.” The Court concluded that the People provided “some basis for concluding that less intrusive investigative procedures [were] not feasible” quoting United States v. Howard, 350 Fed Appx 517, 519 (2d Cir 2009) and that it is not required “to resort to measures that will clearly be unproductive” quoting United States v. Terry, 702 F.2d 299, 310 (2d Cir. 1983). The Court rejected the argument that because normal measures succeeded in the Akbar case they would have succeeded here, concluding “Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely.”

  • Smith v. Central New York Regional Transportation Authority, 14 N.Y.3d 129 (2010): Termination of Common Carrier Duty to Alighting Passenger

    Smith v. Central New York Regional Transportation Authority, 14 N.Y.3d 129 (2010)

    A common carrier’s duty to an alighting passenger terminates once the passenger safely disembarks at a safe location, even if the passenger is a schoolchild, unless a specific statute imposes a further duty (e.g., statutes governing yellow school buses).

    Summary

    This case addresses the extent of a common carrier’s duty to an alighting passenger, specifically a schoolchild. A 12-year-old student, Derek Smith, was struck by a car after exiting a Centro bus and walking in front of it. The New York Court of Appeals held that Centro and its driver owed no further duty to Derek after he safely exited the bus at a safe location. The Court distinguished this situation from cases involving yellow school buses, which are subject to specific statutory requirements regarding safety equipment and procedures for alighting students. The key rationale was that the Centro bus was a public bus not subject to the same regulations as yellow school buses; therefore, the common carrier’s duty ended upon safe disembarkation.

    Facts

    Derek Smith, a 12-year-old student, rode a Centro bus that was contracted to transport students. He received bus safety instructions that included not crossing in front of the bus. On October 3, 2002, the bus driver missed Derek’s stop. After turning around, the bus stopped on the opposite side of the street from Derek’s usual stop. Derek exited the bus and immediately walked in front of it, into traffic, where he was hit by a car and severely injured.

    Procedural History

    Derek’s father sued Centro and the bus driver, Theodore Gray, alleging negligence. The Supreme Court granted summary judgment to the defendants. The Appellate Division modified the Supreme Court’s order, reinstating the common-law negligence claim. The Appellate Division then certified a question to the New York Court of Appeals.

    Issue(s)

    Whether a common carrier’s duty to an alighting passenger, specifically a schoolchild, extends beyond providing a safe place to disembark, such that the carrier is responsible for ensuring the passenger’s safe passage across the street after exiting the bus.

    Holding

    No, because the common carrier’s duty to an alighting passenger ends once the passenger safely disembarks at a safe location.

    Court’s Reasoning

    The Court of Appeals relied on the established rule that a common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark. Quoting Miller v Fernan, 73 NY2d 844, 846 (1988), the court stated, “a common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area.” The Court emphasized that once safe disembarkation occurs, no further duty exists, even if the passenger is a schoolchild crossing the street. The Court distinguished this case from Sewar v Gagliardi Bros. Serv. (51 NY2d 752 [1980]), which involved a yellow school bus subject to specific statutory regulations and safety equipment requirements under Vehicle and Traffic Law § 375 (20). The Centro bus was not subject to these rules and the driver had no legal authority to stop traffic to allow Derek to cross the street safely. Because the bus stopped at a safe location, the defendant’s duty was discharged. The court highlighted that imposing a continuing duty would place an unreasonable burden on common carriers operating public buses. There were no dissenting opinions.

  • People v. Aponte, 14 N.Y.3d 107 (2010): Is Attempted Stalking a Cognizable Crime?

    People v. Aponte, 14 N.Y.3d 107 (2010)

    A person can be charged with attempted stalking in the third degree under New York Penal Law because the statute proscribes specific conduct, and one can attempt to engage in that conduct, even if the intended result does not occur.

    Summary

    The New York Court of Appeals addressed whether attempted stalking in the third degree is a legally cognizable offense. The defendant was charged with stalking, harassment in the first degree, and harassment in the second degree based on allegations of following the complainant and making a death threat. The Criminal Court reduced the stalking charge to attempted stalking. The Court of Appeals held that attempted stalking is a valid offense because the stalking statute penalizes specific conduct, and a person can attempt to engage in that conduct. The court affirmed the Appellate Term’s order.

    Facts

    The misdemeanor complaint alleged that the defendant followed the complainant in his vehicle for three blocks as she walked to church. After she returned home and left with a friend, the defendant followed them for approximately five blocks, exited his vehicle, and confronted the complainant while she was in her friend’s car. He then told her, “I am going to kill you.” The complaint further stated the defendant had followed the complainant approximately 25 times over the previous three years at various locations.

    Procedural History

    The Criminal Court granted the prosecution’s motion to reduce the stalking charge to attempted stalking in the third degree. The defendant was convicted of attempted stalking in the third degree, harassment in the first degree, and harassment in the second degree after a bench trial. The Appellate Term affirmed the judgment. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether attempted stalking in the third degree is a legally cognizable offense under New York law.

    Holding

    Yes, because the stalking statute proscribes specific conduct, and a person can attempt to engage in that conduct, regardless of whether the intended result (fear, alarm, etc.) actually occurs.

    Court’s Reasoning

    The Court of Appeals reasoned that under Penal Law § 110.00, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. The Court relied on its precedent in People v. Prescott, holding that “where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct.” The court also cited People v. Saunders, where it held that a defendant could be charged with attempted criminal possession of a weapon because the underlying crime proscribed particular conduct. The Court found that the stalking statute, Penal Law § 120.50(3), penalizes behavior that is likely to cause harm, and does not require proof of actual harm. The Court stated: “While the conduct penalized is defined as engaging in ‘a course of conduct . . . likely to cause’ certain consequences, there is nothing impossible about attempting to engage in such a course of conduct.” As an example, the court explained, “if a telephone call or e-mail were ‘likely to cause’ the consequences referred to, an attempt to make such a phone call or send such an e-mail—even if the communication never reached its intended recipient—would be an attempt.” The court concluded that because the statute strictly penalizes conduct, an attempt to engage in that conduct is not a legal impossibility. The court also agreed with the appellate court that the factual allegations in the complaint established every element of stalking in the third degree and harassment in the first degree.

  • Kowaleski v. New York State Dept. of Correctional Servs., 16 N.Y.3d 89 (2010): Enforceability of Arbitration Awards When Arbitrator Fails to Consider Retaliation Defense

    Kowaleski v. New York State Dept. of Correctional Servs., 16 N.Y.3d 89 (2010)

    An arbitration award must be vacated if the arbitrator fails to consider and determine the merits of an employee’s retaliation defense under Civil Service Law § 75-b, even if the collective bargaining agreement limits the arbitrator’s authority.

    Summary

    Barbara Kowaleski, a correction officer, was disciplined for alleged misconduct. She claimed the discipline was retaliatory for reporting a fellow officer’s misconduct and raised a defense under Civil Service Law § 75-b. The arbitrator found he lacked authority to consider the retaliation defense, found Kowaleski guilty of some charges, and upheld her termination. The New York Court of Appeals reversed, holding that the arbitrator exceeded his power by failing to consider the retaliation defense, which Civil Service Law § 75-b mandates must be considered, thus requiring the arbitration award to be vacated.

    Facts

    Barbara Kowaleski, a correction officer at Hale Creek Correctional Facility, was served with a notice of discipline for making inappropriate comments, arguing with a fellow employee, and being disrespectful to a supervisor in September and October 2004. Kowaleski claimed the disciplinary action was in retaliation for reporting a fellow officer’s misconduct in 2002, where she witnessed excessive force. Following her report, she was harassed by coworkers. The arbitrator determined he lacked the authority to consider the retaliation defense but would consider the evidence when determining witness credibility.

    Procedural History

    Kowaleski filed a grievance, and an arbitration hearing was held. The arbitrator upheld two of the three charges and determined termination was appropriate. Kowaleski filed a CPLR 7511 petition seeking to vacate the arbitrator’s opinion. Supreme Court found the arbitrator exceeded his power but declined to vacate the award, finding a separate basis for the disciplinary action. The Appellate Division affirmed. The Court of Appeals reversed, holding that the arbitrator’s failure to consider the retaliation defense required vacating the award.

    Issue(s)

    Whether an arbitration award must be vacated when the arbitrator fails to consider and determine the merits of an employee’s retaliation defense under Civil Service Law § 75-b, based on the arbitrator’s belief that the collective bargaining agreement limited such authority.

    Holding

    Yes, because Civil Service Law § 75-b mandates that the merits of such defense shall be considered and determined as part of the arbitration award.

    Court’s Reasoning

    The Court of Appeals reasoned that under CPLR 7511 (b), an arbitration award must be vacated if a party’s rights were impaired by an arbitrator who exceeded his power. An arbitrator exceeds his power when the award violates a strong public policy or exceeds a specifically enumerated limitation on the arbitrator’s power. Civil Service Law § 75-b prohibits public employers from retaliating against employees for reporting “improper governmental action.” The statute mandates that the arbitrator consider and determine the merits of a retaliation defense. The Court emphasized that the arbitrator’s failure to separately consider and determine Kowaleski’s affirmative defense of retaliation on the merits requires the award to be vacated.

    The Court noted that a disciplinary action may be retaliatory even if the employee is guilty of the alleged infraction. Civil Service Law § 75-b (3) requires an arbitrator to dismiss a disciplinary action based solely on retaliatory motive, regardless of the employee’s guilt or innocence. The Court quoted the Governor’s Approval Memorandum, stating the law establishes “a major right for employees—the right to speak out against dangerous or harmful employer practices.”

    The court emphasized that “[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision.”