New York Law Review

Tag: 2013

  • People v. Syrell, 22 N.Y.3d 922 (2013): Right to Counsel on Appeal for Indigent Defendants

    22 N.Y.3d 922 (2013)

    An indigent defendant is entitled to counsel on their first appeal as of right, even when the appeal’s dismissal is based on a procedural issue like failure to timely perfect, as this involves a discretionary determination on the merits.

    Summary

    Defendant Syrell’s appeal was dismissed by the Appellate Division for failure to timely perfect it. The Court of Appeals reversed, holding that the Appellate Division erred in failing to assign counsel to represent Syrell before dismissing his first-tier appeal as of right. Even though the dismissal was based on a procedural rule (untimely perfection), the court considered it a discretionary determination on the merits of a threshold issue, requiring counsel for indigent defendants to ensure their rights are protected during the appellate process.

    Facts

    The defendant was convicted of a crime and sought to appeal. The Appellate Division dismissed the appeal because the defendant failed to perfect the appeal in a timely manner, citing its rule mandating automatic dismissal for such failures.

    Procedural History

    The Appellate Division dismissed the defendant’s appeal. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case for further proceedings.

    Issue(s)

    Whether the Appellate Division must assign counsel to an indigent defendant before dismissing their first-tier appeal as of right based on a failure to timely perfect the appeal.

    Holding

    Yes, because the dismissal, even for failure to timely perfect, constitutes a discretionary determination on the merits of a threshold issue, and the defendant is entitled to counsel to argue against the dismissal.

    Court’s Reasoning

    The Court of Appeals relied on the principles established in Evitts v. Lucey, Douglas v. California, Taveras v. Smith, and Halbert v. Michigan, which collectively affirm an indigent defendant’s right to counsel on a first appeal as of right. The court emphasized that where an appeal involves consideration of the merits and claims not yet presented by appellate counsel, the appellate court must assign counsel. The court reasoned that even though the Appellate Division has a rule mandating dismissal of untimely perfected appeals, the decision to dismiss still involved discretion. The court noted that the defendant was ill-equipped to represent himself in opposing the dismissal motion. Therefore, the Appellate Division’s failure to appoint counsel without considering indigency or the merits of the dismissal warranted reversal. The court instructed the Appellate Division to determine if the defendant was indigent and, if so, to assign counsel to litigate the dismissal motion, then determine if dismissal is appropriate. The court highlighted that under New York law, the dismissal of a first-tier appeal based on fugitive disentitlement is a threshold issue requiring counsel (citing Taveras v. Smith). The court distinguished the situation from an automatic bar to appeal, noting that discretionary elements remained (citing People v. Evans). The Court emphasizes the importance of ensuring indigent defendants have adequate legal representation during critical stages of the appellate process, particularly when discretionary decisions impacting their right to appeal are being made by the court.

  • People v. Doll, 21 N.Y.3d 665 (2013): Applying the Emergency Exception to Miranda

    People v. Doll, 21 N.Y.3d 665 (2013)

    The emergency exception to Miranda allows police questioning without warnings when there is a reasonable belief, grounded in fact, that an emergency exists requiring immediate assistance, even without certainty of a crime or victim.

    Summary

    Scott Doll was found walking covered in fresh blood, offering inconsistent explanations. Police, believing someone might be injured, questioned him without Miranda warnings. This led them to the body of Doll’s business partner. Doll also made incriminating statements to a friend while in custody, overheard by an officer. The New York Court of Appeals held the initial questioning was justified under the emergency doctrine, as police reasonably believed someone needed immediate aid. The court further held that the statements to the friend were admissible because the police did not initiate the conversation or pressure Doll to speak.

    Facts

    A 911 call reported a suspicious person, Scott Doll, walking on a road. A deputy found Doll matching the description, wearing camouflage and a hood. Doll dropped a metal object and held a lug wrench. He had wet bloodstains on his clothes. Doll claimed he was walking for his blood pressure and his van was nearby. The deputy agreed to give him a ride. A firefighter told the deputy that Doll had been hiding between cars at the automotive garage. The deputy detained Doll and frisked him. Doll stated he was wearing his deer butchering outfit but did not explain why the blood was wet.

    Procedural History

    Doll was indicted for second-degree murder. He moved to suppress his statements and physical evidence, arguing an illegal arrest and Miranda violations. The County Court denied most of the motion, finding the emergency doctrine applicable, but suppressed DNA evidence. The Appellate Division affirmed. The Court of Appeals affirmed, finding the police actions justified by the emergency doctrine.

    Issue(s)

    1. Whether the emergency exception to Miranda applies when police lack definitive knowledge of a crime or injured victim, but possess a reasonable, fact-based belief that an emergency situation requiring immediate assistance exists.

    2. Whether statements made by a defendant to a friend in the presence of a police officer constitute a custodial interrogation requiring suppression in the absence of Miranda warnings.

    Holding

    1. Yes, because the emergency doctrine is premised on reasonableness, not certitude, and the police had a reasonable belief based on empirical facts that someone may have been seriously injured and in need of imminent emergency assistance.

    2. No, because the police did not initiate the conversation or act in a manner designed to elicit incriminating statements from the defendant; therefore, the statements were voluntary and admissible.

    Court’s Reasoning

    The Court of Appeals relied on the emergency doctrine, which allows questioning without Miranda warnings when police reasonably believe an emergency requires immediate assistance. The court cited Michigan v. Fisher, Brigham City v. Stuart, New York v. Quarles, People v. Molnar, People v. Krom, and People v. Mitchell. The court emphasized the situation: Doll was found with fresh blood, offered inconsistent explanations, and refused to clarify the blood’s source. This created a reasonable belief that someone might be injured. The court stated that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” (People v Molnar, 98 NY2d at 331).

    The court distinguished the situation from a typical custodial interrogation regarding Doll’s statements to his friend. Citing Arizona v. Mauro, the court noted that the investigator did not question Doll and that “officers do not interrogate a suspect simply by hoping that he will incriminate himself” (Arizona v. Mauro, 481 US at 529). The woman initiated the conversation. Doll was aware the officer was present. The court found no evidence of a “psychological ploy” to circumvent the right to counsel. Therefore, Doll’s statements were voluntary and admissible. The dissent argued that Mauro was distinguishable, but the majority argued the facts are similar because the officer in Mauro admitted he listened to record incriminating statements.

  • Murphy v. New York State Division of Housing & Community Renewal, 21 N.Y.3d 649 (2013): Succession Rights and Agency Discretion in Mitchell-Lama Housing

    Murphy v. New York State Division of Housing & Community Renewal, 21 N.Y.3d 649 (2013)

    An administrative agency’s denial of succession rights in Mitchell-Lama housing is arbitrary and capricious when based solely on a technical noncompliance (failure to file an income affidavit) without considering overwhelming evidence of primary residency and the lack of connection between the noncompliance and the applicant’s eligibility.

    Summary

    Paul Murphy sought succession rights to his deceased mother’s Mitchell-Lama apartment, where he had lived since infancy. The DHCR denied his application because his mother failed to file an income affidavit listing him as a co-occupant for one of the two years prior to her vacatur. The Court of Appeals held that DHCR’s decision was arbitrary and capricious, given the extensive evidence of Murphy’s lifelong residency and the lack of any indication that the missing affidavit was related to Murphy’s income or occupancy. The Court emphasized that regulations serve to prevent the dislocation of long-term residents and facilitate affordable housing.

    Facts

    Paul Murphy had resided in a Southbridge Towers apartment, a Mitchell-Lama housing complex, since he was one month old in 1981. In 2000, his parents vacated the apartment. In 2004, Murphy applied for succession rights. Southbridge Towers rejected his application, and DHCR denied his subsequent appeal based on the fact that Murphy’s mother, the tenant-of-record, did not file an annual income affidavit listing Murphy as a co-occupant for 1998, one of the two years preceding her vacatur.

    Procedural History

    Murphy filed a CPLR article 78 petition in Supreme Court challenging DHCR’s determination. Supreme Court denied DHCR’s motion to dismiss, annulled the agency’s decision, and granted Murphy’s succession petition. The Appellate Division affirmed this decision. The Court of Appeals granted DHCR’s motion for leave to appeal.

    Issue(s)

    Whether DHCR’s denial of Murphy’s succession application was arbitrary and capricious, given the extensive evidence of his primary residence and the sole basis for denial being the tenant-of-record’s failure to file an income affidavit listing him as a co-occupant for one of the two relevant years.

    Holding

    Yes, because DHCR’s decision lacked a sound basis in reason and disregarded the overwhelming evidence of Murphy’s primary residence and the lack of a connection between the missing affidavit and his eligibility for succession.

    Court’s Reasoning

    The Court of Appeals emphasized that an administrative agency’s determination must have a rational basis and cannot be arbitrary or capricious. It cited Matter of Peckham v Calogero, 12 NY3d 424, 431 (2009), stating that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts.” The Court acknowledged DHCR’s interest in the timely filing of income affidavits but stated that the principal purpose of such affidavits in the succession context is to provide proof of the applicant’s primary residence. Here, Murphy provided ample evidence of his residency. The Court noted that regulations providing for succession rights serve the important purpose of preventing dislocation of long-term residents. While DHCR is afforded considerable deference in interpreting its own regulations, the Court must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented. The Court stated, “Courts must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case” (Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]). Because DHCR did not dispute Murphy’s residency for 32 years, the Court held that relying solely on his mother’s technical noncompliance for a single year to justify evicting him was arbitrary and capricious. The court distinguished this situation from one where the income affidavit was filed, but the applicant’s name was omitted for reasons related to co-occupancy or income. The court emphasized that its holding does not treat a failure to file more leniently than an inaccurate filing, but rather focuses on the reason for the omission and the overwhelming evidence of residency. The dissent is not mentioned explicitly but footnote #1 addresses it, stating that Murphy’s affirmative showing was not limited to “shifting explanations for his mother’s neglect to file.”

  • Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626 (2013): Estoppel and Compelling Arbitration for Non-Signatories

    Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626 (2013)

    A non-signatory to an arbitration agreement can only be compelled to arbitrate when they knowingly exploit the agreement and receive direct benefits flowing directly from it, not merely indirect benefits from the contractual relationship.

    Summary

    Belzberg, a financial advisor, directed funds from Winton, a corporation he advised, to Verus for an investment. Profits were then directed to Lindbergh, a friend of Belzberg. When a tax issue arose related to the investment, Jefferies, pursuant to its agreement with Verus, initiated arbitration. Verus then brought a third-party claim in arbitration against Belzberg, Lindbergh, and Winton. Belzberg sought to stay the arbitration, arguing he wasn’t a signatory to the Jefferies-Verus agreement. The Court of Appeals held that Belzberg couldn’t be compelled to arbitrate because the benefit he received (indirectly, through Lindbergh) was not a direct benefit flowing from the Jefferies-Verus agreement itself, but rather from his relationship with Winton.

    Facts

    In 2008, Belzberg and Khan (Verus) discussed an investment opportunity. Belzberg directed $5 million from Winton to Verus’s brokerage account at Jefferies for the Fording Trade. Verus added $1 million of its funds. After the merger, Jefferies wired funds, including $223,655.25 in profits from the Winton funds, to Verus. Verus wired the $5 million back to Winton and, as instructed by Belzberg’s company, Gibralt Capital, wired the profits to Lindbergh, a friend of Belzberg. Canadian tax authorities subsequently claimed Jefferies owed $928,053.45 in withholding tax on the Fording Trade.

    Procedural History

    Jefferies commenced arbitration against Verus. Verus asserted third-party claims against Belzberg, Lindbergh, Winton, and Gibralt. Belzberg, Lindbergh, Winton, and Gibralt petitioned to stay arbitration. The Supreme Court stayed arbitration for Gibralt, compelled Winton to arbitrate, and held the proceeding in abeyance for Belzberg and Lindbergh. The Supreme Court determined Belzberg and Lindbergh were not subject to arbitration. The Appellate Division reversed, compelling Belzberg to arbitrate. The Court of Appeals granted Belzberg’s motion for leave to appeal.

    Issue(s)

    Whether Belzberg, a non-signatory to the arbitration agreement between Jefferies and Verus, can be compelled to arbitrate under the direct benefits estoppel theory because he allegedly received a direct benefit from that agreement.

    Holding

    No, because Belzberg did not receive a direct benefit from the arbitration agreement. The benefit derived from his position with Winton, not directly from the Jefferies-Verus agreement.

    Court’s Reasoning

    The Court of Appeals emphasized that arbitration is a matter of contract and that non-signatories generally aren’t bound by arbitration agreements. While exceptions exist, such as the direct benefits estoppel theory, they are limited. This theory allows compelling a non-signatory to arbitrate if they “knowingly exploit” the agreement and receive direct benefits from it. The court clarified that a direct benefit flows directly from the agreement itself, whereas an indirect benefit arises when the non-signatory exploits the contractual relation but not the agreement. The court distinguished cases where a direct benefit was found (e.g., continuing to use a name under a settlement agreement containing an arbitration clause) from those where it was not (e.g., purchasing a company that had a contract with a competitor). Here, the Court found that Belzberg’s benefit (the diversion of profits) stemmed from his relationship with Winton, not directly from the Jefferies-Verus agreement. The court stated, “The profits belong to Winton, not Belzberg. Belzberg’s access to, and appropriations of, the profits is based not on any agreement involving Jefferies and Verus, but rather on his relationship with Win-ton.” The court deemed the connection too attenuated to justify applying the direct benefits estoppel theory, emphasizing that it is an exception to the general rule against compelling non-signatories to arbitrate. A mere extended causality is insufficient to establish a direct benefit. The Court indicated that a benefit must be one that can be traced directly to the agreement containing the arbitration clause; the mere existence of an agreement with attendant circumstances that prove advantageous to the nonsignatory would not constitute the type of direct benefits justifying compelling arbitration by a nonparty to the underlying contract. This case clarifies that the focus is on whether the non-signatory relies on the agreement itself for the derived benefit.

  • Georgitsi Realty, LLC v. Penn-Star Ins. Co., 21 N.Y.3d 606 (2013): Scope of Vandalism Coverage in Property Insurance Policies

    Georgitsi Realty, LLC v. Penn-Star Ins. Co., 21 N.Y.3d 606 (2013)

    Malicious damage covered by a property insurance policy for vandalism can result from acts not specifically directed at the insured property, but requires a state of mind reflecting a conscious and deliberate disregard of the interests of others, akin to that required for punitive damages.

    Summary

    Georgitsi Realty sued Penn-Star Insurance seeking coverage under a property insurance policy for damage to its building allegedly caused by excavation on an adjacent property. The policy covered vandalism, defined as willful and malicious damage. The Second Circuit certified questions to the New York Court of Appeals regarding whether vandalism can occur when the damage isn’t directly targeted and what mental state is required. The Court of Appeals held that vandalism coverage can extend to damage from acts not directed at the property, but requires a showing of malice equivalent to that required for punitive damages: a conscious and deliberate disregard of the interests of others.

    Facts

    Georgitsi Realty owned an apartment building. Armory Plaza, Inc. owned the adjacent lot and began excavation for a new building. Georgitsi claimed the excavation caused cracks and settling in its building. Despite violations and stop-work orders from the Department of Buildings and a temporary restraining order from the Supreme Court, Armory continued excavation. Georgitsi filed an insurance claim with Penn-Star under its “named perils” policy, which included vandalism coverage. Penn-Star denied the claim.

    Procedural History

    Georgitsi sued Penn-Star in Supreme Court. The case was removed to the United States District Court for the Eastern District of New York, which granted summary judgment for Penn-Star. Georgitsi appealed to the Second Circuit Court of Appeals, which certified two questions to the New York Court of Appeals.

    Issue(s)

    1. Whether, for purposes of construing a property insurance policy covering acts of vandalism, malicious damage can be found to result from an act not directed specifically at the covered property?

    2. If so, what state of mind is required?

    Holding

    1. Yes, malicious damage may be found to result from an act not directed specifically at the covered property, because the term vandalism should not be limited to acts directly aimed at the damaged property.

    2. The state of mind required is such a conscious and deliberate disregard of the interests of others that the conduct in question may be called willful or wanton, because this standard aligns with the malice required for punitive damages and prevents the policy from becoming a general property damage coverage.

    Court’s Reasoning

    The Court of Appeals relied on Cresthill Indus. v Providence Washington Ins. Co. and Louisville & Jefferson County Metro. Sewer Dist. v Travelers Ins. Co., which allowed recovery under vandalism policies even when the acts were not specifically directed at the damaged property. The court reasoned that vandalism, as ordinarily understood, doesn’t require a specific intent to accomplish a particular result. “Where damage naturally and foreseeably results from an act of vandalism, a vandalism clause in an insurance policy should cover it.”

    Regarding the required state of mind, the Court adopted the standard used for punitive damages, requiring a “conscious and deliberate disregard of the interests of others that [it] may be called wilful or wanton” (Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013], quoting Dupree v Giugliano, 20 NY3d 921, 924 [2012]). The Court emphasized that insurance against vandalism should not become general property damage coverage, and insureds desiring broader coverage should obtain and pay for it. The court notes the term vandalism brings to mind “people who smash and loot than business owners who seek their own profit in disregard of the injury they do to the property of others.” However, the court finds no “principled distinction” between the two.

  • People v. Santiago, 21 N.Y.3d 901 (2013): Prior Out-of-State Conviction of a Minor and Second Felony Offender Status

    People v. Santiago, 21 N.Y.3d 901 (2013)

    A prior out-of-state conviction cannot be used as a predicate felony for enhanced sentencing in New York if the defendant was under the age of 16 at the time of the out-of-state conviction, and the equivalent New York crime is not one for which a person under 16 can be held criminally responsible.

    Summary

    Carlos Santiago, Jr. was convicted of sexual abuse and unlawful imprisonment. The prosecution sought to sentence him as a second felony offender based on a prior Pennsylvania conviction for third-degree murder when Santiago was 15. Santiago argued that because a 15-year-old could not be prosecuted for the equivalent crime in New York (second-degree manslaughter), the Pennsylvania conviction could not serve as a predicate felony. The Court of Appeals held that the Pennsylvania conviction could not be used for enhanced sentencing because New York law categorically prohibits the prosecution of individuals under 16 for crimes like second-degree manslaughter, making the prior conviction invalid as a predicate felony.

    Facts

    • Carlos Santiago, Jr. was convicted in New York of two counts of first-degree sexual abuse and one count of second-degree unlawful imprisonment on May 23, 2008.
    • At the sentencing hearing, the prosecution sought to sentence Santiago as a second felony offender.
    • This request was based on a prior Pennsylvania conviction from January 1993 for third-degree murder, when Santiago was 15 years old.
    • Defense counsel objected, arguing lack of nexus and that Santiago would have been eligible for youthful offender status in New York.

    Procedural History

    • The County Court adjudicated Santiago a second felony offender and sentenced him accordingly.
    • On appeal, Santiago argued that the Pennsylvania conviction could not serve as a predicate felony because he was 15 when convicted, and New York law prohibits prosecuting 15-year-olds for equivalent crimes like second-degree manslaughter.
    • The Appellate Division concluded that Santiago failed to preserve this argument.
    • The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the issue of the defendant’s age at the time of the prior out-of-state conviction was properly preserved for appellate review.
    2. Whether a prior out-of-state conviction can be used as a predicate felony conviction when the defendant was under 16 at the time of that conviction, and the equivalent crime in New York is not one for which a person under 16 can be held criminally responsible.

    Holding

    1. Yes, because the sentence’s illegality was readily discernible from the trial record, falling within an exception to the preservation rule.
    2. No, because New York law categorically prohibits the prosecution of individuals under 16 for crimes like second-degree manslaughter, making the prior conviction invalid as a predicate felony.

    Court’s Reasoning

    The Court of Appeals reasoned that the case fell within an exception to the preservation rule because the illegality of the sentence was evident from the record. This was due to undisputed facts readily available in the pre-sentencing report and raised by defense counsel. The Court cited People v. Nieves and People v. Samms to support this exception, noting that the relevant dates were in the record and undisputed. The court emphasized that “there was no question as to defendant’s date of birth and the date of his conviction for the Pennsylvania crime, both of which appeared in the presentencing report reviewed by both parties and County Court.”

    The Court applied Penal Law § 30.00(1), which states that a person must be at least 16 years old to be criminally responsible. The Court stated, “So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second-degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (1) (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.” This categorical prohibition distinguishes infancy from affirmative defenses or discretionary determinations like youthful offender status.

    The Court highlighted the key feature as “the infancy statute’s categorical nature.” For offenses not listed as exceptions, neither the court nor the prosecution has discretion to prosecute an infant defendant. The Court concluded that because the prior conviction was for an offense for which a sentence to imprisonment was not authorized in New York due to the defendant’s age, it could not serve as a predicate felony.

  • Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 (2013): Indefinite Leave and Differing Disability Standards in State and City HRL

    Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 (2013)

    Under the New York State Human Rights Law, a request for indefinite leave is not considered a reasonable accommodation, but the New York City Human Rights Law provides broader protections and places the burden on the employer to prove undue hardship and that the employee could not perform essential job functions with reasonable accommodation.

    Summary

    Giuseppe Romanello, an executive at Intesa Sanpaolo, was terminated after informing his employer of his severe and disabling illnesses and an “indeterminate” return-to-work date. He sued, alleging disability discrimination under both the New York State Human Rights Law (State HRL) and the New York City Human Rights Law (City HRL). The Court of Appeals held that while the State HRL claim was properly dismissed because indefinite leave is not a reasonable accommodation under that statute, the City HRL claim should be reinstated because the City HRL places the burden on the employer to prove that no reasonable accommodation would allow the employee to perform the job’s essential functions.

    Facts

    Giuseppe Romanello, an executive with Intesa Sanpaolo (Intesa), became ill and unable to work, diagnosed with major depression and other disorders. After nearly five months of paid leave, Intesa inquired about his return. Romanello’s counsel responded that his return date was “indeterminate” due to his ongoing illnesses. Intesa then terminated his employment, even as he sought and received long-term disability payments under Intesa’s policy.

    Procedural History

    Romanello sued Intesa, alleging disability discrimination under the State HRL and City HRL. The Supreme Court dismissed both claims. The Appellate Division affirmed. The plaintiff appealed to the Court of Appeals from so much of the Appellate Division order as affirmed the dismissal of the severed first and second causes of action.

    Issue(s)

    1. Whether the plaintiff stated a claim for disability discrimination under the New York State Human Rights Law (State HRL) when he requested an indefinite leave of absence.

    2. Whether the plaintiff stated a claim for disability discrimination under the New York City Human Rights Law (City HRL) when he requested an indefinite leave of absence.

    Holding

    1. No, because under the State HRL, a “reasonable accommodation” does not include indefinite leave; thus, the first cause of action was properly dismissed.

    2. Yes, because the City HRL provides broader protections for discrimination plaintiffs, and the employer bears the burden of proving that the employee could not perform the essential functions of the job with reasonable accommodation.

    Court’s Reasoning

    The Court distinguished between the State HRL and City HRL. Under the State HRL, a disability is “limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292 [21]). The Court stated that indefinite leave is not considered a reasonable accommodation under the State HRL, citing Phillips v City of New York, 66 AD3d 170, 176 (1st Dept 2009). Because Romanello requested an “indeterminate” leave, he failed to state a claim under the State HRL.

    However, the Court emphasized the broader protections of the City HRL, stating that its provisions “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof” and “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). The City HRL does not define disability with reference to reasonable accommodation, as the State HRL does (Administrative Code of City of NY § 8-102 [16]). Instead, it requires employers to “make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job,” and it is the employer’s burden to prove undue hardship and that the employee could not, with reasonable accommodation, perform the job (Administrative Code § 8-107 [15] [a]; Phillips, 66 AD3d at 183). Since Intesa did not attempt to meet this burden, the City HRL claim should not have been dismissed.

  • People v. Alcide, 21 N.Y.3d 687 (2013): Judge’s Participation in Testimony Readback

    People v. Alcide, 21 N.Y.3d 687 (2013)

    While a trial judge should generally avoid participating in readbacks of testimony to the jury, doing so is not a mode of proceedings error requiring reversal absent preservation, unless the judge’s actions demonstrate bias that deprives the defendant of a fair trial.

    Summary

    James Alcide was convicted of murder and weapon possession. During jury deliberations, the jury requested readbacks of testimony from two key witnesses. The trial judge, in an effort to expedite the process, participated in the readbacks by reading either the questions or the answers. Alcide argued that this participation constituted a mode of proceedings error, requiring reversal even without an objection. The New York Court of Appeals held that while it’s generally advisable for a judge not to participate in readbacks, doing so does not constitute a mode of proceedings error unless it demonstrates bias, and that Alcide’s claim was unpreserved.

    Facts

    Alcide was convicted of fatally shooting a man in a grocery store. Key evidence included testimony from a bystander who identified Alcide as the shooter and the victim’s friend who saw Alcide fleeing the scene with a gun. The defense attacked the reliability and credibility of these witnesses, citing inconsistencies and potential biases. During deliberations, the jury requested readbacks of the testimony of the bystander and the first police officer on the scene.

    Procedural History

    Alcide was convicted in the trial court. He appealed to the Appellate Division, arguing that the trial judge committed mode of proceedings errors. The Appellate Division affirmed the conviction. Alcide appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial judge’s participation in the readback of testimony to the jury, by reading either the questions or answers, constituted a mode of proceedings error requiring reversal even in the absence of a timely objection.

    Holding

    1. No, because while it is generally advisable for a judge not to participate in readbacks of testimony, doing so does not constitute a mode of proceedings error unless it demonstrates bias that deprived the defendant of a fair trial, and Alcide’s claim was unpreserved.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. O’Rama, where the trial judge withheld the contents of a jury note from counsel. Here, the content of the jury’s requests for readbacks was disclosed in open court, and defense counsel had the opportunity to object to the judge’s proposed procedure. Because counsel did not object, the claim was unpreserved. The Court acknowledged the Second Department’s dictum in People v. Brockett that a trial judge should not participate as a reader during a read-back of testimony, as it might convey the impression that the court is aligned with a particular party. However, the Court clarified that such participation, while generally inadvisable, does not constitute a mode of proceedings error unless it creates a situation analogous to People v. De Jesus, where the judge’s conduct demonstrated clear bias against the defense. The court noted, “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws.” Here, the judge’s stated reasons for participating in the readbacks were to expedite the process and make it easier for the jury to follow, not to demonstrate bias. Because defense counsel failed to object to the judge’s participation in the readbacks at a time when the error could have been cured, the Court affirmed the Appellate Division’s order affirming Alcide’s conviction.

  • Soto v. J. Crew Inc., 21 N.Y.3d 562 (2013): Defines Cleaning Under New York Labor Law § 240(1)

    21 N.Y.3d 562 (2013)

    New York Labor Law § 240(1), which imposes liability on building owners and contractors for failing to provide safety devices to workers exposed to elevation-related risks, does not extend to routine maintenance tasks such as dusting a shelf in a retail store.

    Summary

    Jose Soto, a commercial cleaner, was injured when he fell from a ladder while dusting a shelf in a J. Crew store. He sued under Labor Law § 240(1). The New York Court of Appeals held that dusting a shelf was routine maintenance, not “cleaning” under the statute. The Court established a four-factor test to determine whether an activity qualifies as cleaning under § 240(1), focusing on the routine nature of the task, the need for specialized equipment, the elevation risks involved, and the connection to construction-related activities. Because Soto’s activity did not meet these criteria, his claim was dismissed.

    Facts

    Jose Soto, an employee of Whelan Cleaning Services, was assigned to clean a J. Crew retail store. His duties included daily maintenance such as vacuuming, mopping, and dusting. On the day of the incident, a J. Crew employee asked Soto to dust a six-foot-high display shelf. Soto, using a four-foot ladder, fell while dusting the shelf, sustaining injuries. The ladder was in proper working order.

    Procedural History

    Soto sued J. Crew and the building owner under Labor Law § 240(1). Supreme Court granted summary judgment to the defendants, dismissing the § 240(1) claim. The Appellate Division affirmed, holding that the dusting constituted routine maintenance and wasn’t protected by the statute. Soto appealed to the New York Court of Appeals.

    Issue(s)

    Whether the dusting of a display shelf in a retail store constitutes “cleaning” within the meaning of New York Labor Law § 240(1), thereby entitling the injured worker to the protections of the statute.

    Holding

    No, because the dusting of a display shelf is considered routine maintenance and does not involve the type of heightened elevation-related risks that Labor Law § 240(1) is designed to protect against.

    Court’s Reasoning

    The Court reasoned that not all cleaning activities fall under the protection of Labor Law § 240(1). While commercial window washing is covered, routine maintenance is not. The Court established a four-factor test to determine whether an activity qualifies as “cleaning” under the statute. These factors are: (1) whether the task is routine and recurring; (2) whether it requires specialized equipment or expertise; (3) whether it involves insignificant elevation risks; and (4) whether it is related to any ongoing construction or renovation project. The Court stated, “Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as “cleaning” under the statute, if the task: (1) is routine… (2) requires neither specialized equipment or expertise… (3) generally involves insignificant elevation risks… and (4)…is unrelated to any ongoing construction…project.” Applying these factors, the Court found that Soto’s dusting activity was routine, required no special skills or equipment, involved minimal elevation risks, and was unrelated to any construction project. Therefore, Soto was not engaged in “cleaning” as defined by Labor Law § 240(1). The court referenced the example in Dahar v Holland Ladder & Mfg. Co., stating this case presented a scenario analogous to the bookstore employee who climbs a ladder to dust off a bookshelf, which the legislature never intended to cover.

  • People v. Thompson, 21 N.Y.3d 557 (2013): Ineffective Assistance of Counsel and Peremptory Challenges

    People v. Thompson, 21 N.Y.3d 557 (2013)

    A defense attorney’s failure to use a peremptory challenge to remove a prospective juror who had a long-standing friendship with the prosecuting attorney does not automatically constitute ineffective assistance of counsel, especially if the overall fairness of the trial was not demonstrably impaired.

    Summary

    The defendant was convicted of manslaughter after a trial where a juror was seated who had a 40-year friendship with the District Attorney. Defense counsel challenged the juror for cause, but the challenge was denied. Despite having peremptory challenges available, counsel did not use one to remove the juror. The New York Court of Appeals held that the defense counsel’s failure to use a peremptory challenge, while questionable, did not amount to ineffective assistance of counsel because the defendant failed to show that the fairness of the trial was impaired. The Court emphasized that a single error by otherwise competent counsel must be egregious and prejudicial to warrant reversal.

    Facts

    The defendant was charged with murder. During jury selection, a prospective juror, William Peters, disclosed that he had been friends with the District Attorney for over 40 years, knew his wife, and socialized with him occasionally. Peters stated that the friendship would not affect his ability to be a fair and impartial juror. Defense counsel questioned Peters, who stated he had known the District Attorney to be wrong before.

    Procedural History

    The defense challenged Peters for cause, which the trial court denied. The defense did not use a peremptory challenge to remove Peters, who then sat on the jury. The jury acquitted the defendant of second-degree murder but convicted him of manslaughter. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether defense counsel’s failure to exercise a peremptory challenge against a prospective juror who had a long-standing friendship with the prosecuting attorney constituted ineffective assistance of counsel, thus depriving the defendant of his constitutional right to a fair trial.

    Holding

    No, because the defendant failed to demonstrate that the fairness of the trial was impaired by the juror’s presence, and the attorney’s decision, while potentially questionable, did not constitute an egregious and prejudicial error that deprived the defendant of his constitutional right to counsel.

    Court’s Reasoning

    The Court of Appeals acknowledged that the defense counsel’s decision not to use a peremptory challenge was questionable, especially considering the potential for bias or the lost opportunity to preserve the for-cause challenge for appeal. However, the Court reasoned that defense counsel may have had strategic reasons for keeping Peters on the jury, such as believing Peters would be favorable to the defense or would bend over backwards to be fair. The Court emphasized that to succeed on an ineffective assistance of counsel claim based on a single error, the defendant must show that the error was so serious that it deprived him of his constitutional right to a fair trial. Citing People v. Turner, the Court stated that such error must be “a defense as clear-cut and completely dispositive as a statute of limitations.” Here, the Court held that the relationship between the juror and the prosecutor, while raising concerns, did not reach that level of egregiousness. While it might have been wiser for the trial judge to excuse Peters, the Court found it debatable whether the court committed reversible error. The Court highlighted the lack of evidence showing the juror’s presence prejudiced the defendant. Thus, the Court concluded that the defense counsel’s representation, taken as a whole, was not ineffective.