New York Law Review

Tag: 2014

  • People v. Gordon, 23 N.Y.3d 643 (2014): Sufficiency of Evidence for Robbery Absent Recovery of Stolen Property

    23 N.Y.3d 643 (2014)

    A conviction for robbery can be sustained even if the stolen property is not recovered from the defendant, provided there is sufficient evidence for the jury to infer that the defendant used force with the conscious objective of retaining stolen property.

    Summary

    Hazel Gordon was convicted of robbery and assault after a department store incident where security personnel suspected her of stealing earrings. Although no merchandise was recovered, witnesses testified that Gordon concealed earrings and later threatened security guards with pens when confronted outside the store. The Appellate Division reduced the robbery convictions to petit larceny, citing the lack of recovered property. The Court of Appeals reversed, holding that the absence of recovered property does not preclude a robbery conviction if other evidence supports the inference that the defendant used force to retain stolen property. The court emphasized that intent is a factual question for the jury.

    Facts

    Rayon James, a loss prevention officer, observed Gordon selecting two sets of earrings, concealing them, and dropping the backings on the floor. Gordon made multiple layaway stops without visibly purchasing merchandise. Upon exiting the store, Gordon was stopped by security guard Michael Lisky, who suspected her of shoplifting. Gordon became aggressive, pounding Lisky’s chest and later brandishing pens, threatening the guards. Gordon’s son allegedly displayed a knife and discarded items in a nearby cemetery, but neither stolen merchandise nor the knife were recovered. Gordon then hit another employee, Lance Pappas, with her car while fleeing the scene.

    Procedural History

    Gordon was convicted in Supreme Court of robbery in the first degree, two counts of robbery in the second degree, and assault in the second degree. The Appellate Division modified the judgment, reducing the robbery convictions to petit larceny, finding insufficient evidence to infer that Gordon used force to retain stolen property since no property was recovered. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s decision regarding the robbery convictions, reinstating the original convictions.

    Issue(s)

    1. Whether a conviction for robbery in the first and second degrees can be sustained when the allegedly stolen property is not recovered from the defendant or her accomplices.

    2. Whether there was sufficient evidence to prove that the defendant acted with the conscious objective to cause physical injury to Lance Pappas for the assault conviction.

    Holding

    1. Yes, because the failure to recover stolen property from a defendant does not preclude a jury from inferring that the defendant used force with the conscious objective of preventing resistance to the retention of that stolen property when there is other evidence supporting that inference.

    2. Yes, because the testimony from the victim and several eyewitnesses that the defendant swerved into Pappas, and his testimony as to the physical injuries he incurred were more than enough to sustain the jury’s guilty verdict.

    Court’s Reasoning

    The Court of Appeals reasoned that a jury can infer intent to forcibly steal property from a defendant’s conduct and the surrounding circumstances. The court rejected the notion that recovery of the stolen property is a prerequisite for a robbery conviction. “The applicable culpability standard — intent—require[s] evidence that, in using or threatening physical force, [the] defendant’s ‘conscious objective’ was either to compel [the] victim to deliver up property or to prevent or overcome resistance to the taking” or retention thereof (quoting People v. Smith, 79 NY2d 309, 315 [1992]). The court emphasized that intent is a question for the jury, which may consider the defendant’s actions inside and outside the store. The court noted that requiring recovery of stolen property would allow defendants to escape prosecution by disposing of the evidence. The court found sufficient evidence, including the defendant’s suspicious behavior in the store, the removal of earring backings, and the violent reaction to security guards, to support the jury’s conclusion that the defendant used force to retain stolen property. As to the assault charge, the court found sufficient evidence existed to sustain the conviction.

  • People v. Patel, Andrews, Kruger, 22 N.Y.3d 606 (2014): Limits on Coram Nobis Relief for Untimely Appeals

    People v. Patel, Andrews, Kruger, 22 N.Y.3d 606 (2014)

    Coram nobis relief for an untimely appeal is a narrow exception, available only when a defendant has no other procedural recourse and could not reasonably have discovered the attorney’s failure to file a timely notice of appeal within the one-year statutory grace period.

    Summary

    The New York Court of Appeals clarified the scope of coram nobis relief for defendants seeking to file untimely appeals, particularly in light of the decision in People v. Syville. The Court held that coram nobis is a narrow exception, available only when a defendant has no other procedural recourse and could not reasonably have discovered the attorney’s failure to file a timely notice of appeal within the one-year statutory grace period. The Court reversed the Appellate Division’s grant of coram nobis relief in Patel because Patel had previously sought relief under CPL 460.30 within the one-year period. The Court affirmed the denial of coram nobis relief in Andrews because Andrews failed to offer sufficient factual allegations supporting his claim of ineffective assistance. The Court also affirmed the denial of coram nobis relief in Kruger, holding that it does not extend to discretionary criminal leave applications to the Court of Appeals.

    Facts

    • People v. Vinod Patel: Patel pleaded guilty to possessing child pornography and waived his right to appeal. Within the one-year grace period, he sought permission to file a late notice of appeal, claiming ineffective assistance. The Appellate Division initially rejected his application. After Syville, Patel sought coram nobis relief, which the Appellate Division granted.
    • People v. Churchill Andrews: Andrews pleaded guilty to selling narcotics and waived his right to appeal. He later filed a CPL article 440 motion, which was denied. He then moved for coram nobis relief, claiming ineffective assistance for failure to file a notice of appeal. The Appellate Division rejected both applications.
    • People v. Kevin Kruger: Kruger pleaded guilty to burglary and waived his right to appeal. The Appellate Division affirmed his conviction. Kruger later sought coram nobis relief to file a late criminal leave application, claiming his lawyer failed to do so. The Appellate Division denied the motion.

    Procedural History

    • Patel: The Appellate Division initially denied Patel’s CPL 460.30 motion but later granted coram nobis relief. The People appealed to the Court of Appeals.
    • Andrews: The Supreme Court denied Andrews’ CPL article 440 motion. The Appellate Division affirmed that denial and also denied his coram nobis motion. Andrews appealed the coram nobis decision to the Court of Appeals.
    • Kruger: The Appellate Division denied Kruger’s coram nobis motion. Kruger appealed to the Court of Appeals.

    Issue(s)

    1. Whether coram nobis relief is available when a defendant has previously sought relief under CPL 460.30 within the one-year grace period.
    2. Whether a motion for coram nobis relief provided sufficient factual allegations to support the assertion that the lawyer failed to inform the defendant about pursuing an appeal or file a notice of appeal.
    3. Whether the reasoning of Syville applies to discretionary criminal leave applications to the Court of Appeals.

    Holding

    1. No, because coram nobis is available only when a defendant has no other procedural recourse.
    2. No, because Syville requires a defendant to demonstrate that appellate rights were lost as a result of ineffective assistance, supported by specific factual allegations.
    3. No, because there is no federal constitutional right to legal representation on a discretionary application for an appeal to a state’s highest court.

    Court’s Reasoning

    The Court emphasized that Syville established a narrow exception to the CPL 460.30 time limit for coram nobis relief, available only in rare cases where a defendant has no other procedural recourse. In Patel, the Court reasoned that because Patel had availed himself of the CPL 460.30 procedure within the one-year grace period, he could not later seek similar relief via coram nobis. The Court distinguished pre-CPL cases, noting that they were largely abrogated by the codification of coram nobis remedies.

    In Andrews, the Court found that Andrews’ coram nobis application lacked sufficient factual allegations to support his claim of ineffective assistance. Unlike the defendants in Syville, Andrews made only perfunctory claims without providing specific details or countering the attorney’s assertion that Andrews had decided against an appeal.

    Regarding Kruger, the Court distinguished between appeals as of right and discretionary criminal leave applications. Because there is no federal constitutional right to counsel for discretionary appeals to a state’s highest court, the failure to file a CLA does not necessarily establish ineffective assistance of counsel or a due process violation. The court stated, “[U]nlike an appeal as of right, however, there is no federal constitutional entitlement to legal representation on a discretionary application for an appeal to a state’s highest court (see Ross v Moffitt, 417 US 600, 615-616 [1974]; Halbert v Michigan, 545 US at 611-612; Hernandez v Greiner, 414 F3d 266, 269-270 [2d Cir 2005]). Thus, the failure to file a CLA, standing alone, does not necessarily establish that Kruger was deprived of effective assistance of counsel or due process of law (see Wainwright v Torna, 455 US 586, 587-588 [1982]).”

  • People v. Gillotti, 23 N.Y.3d 841 (2014): SORA Risk Assessment and Child Pornography Offenses

    People v. Gillotti, 23 N.Y.3d 841 (2014)

    In Sex Offender Registration Act (SORA) cases involving child pornography, courts may assess points under factors 3 (number of victims) and 7 (relationship to victim) based on the number of children depicted and the stranger relationship, respectively; however, a defendant requesting a downward departure need only prove mitigating circumstances by a preponderance of the evidence.

    Summary

    This case addresses whether courts can assess points under SORA guidelines factors 3 and 7 in child pornography cases, and what standard of proof applies to requests for downward departures. The Court of Appeals held that points can be assessed under factors 3 and 7, and that the Sex Offender Registration Board’s (the Board’s) position statement does not prohibit this. The Court also determined that defendants requesting a downward departure must prove mitigating facts by a preponderance of the evidence, not clear and convincing evidence. The Court reasoned this approach best balances the offender’s liberty interests and public safety concerns. The court noted that the guidelines themselves permit the assessment of points under factor 3 in child pornography cases.

    Facts

    Neil Gillotti possessed numerous pornographic videos and images featuring children. He admitted to downloading them as a teenager. George Fazio uploaded child pornography files to a website. Both were convicted and required to register under SORA in New York. The Board prepared risk assessment instruments (RAI) for both, and in both cases, the People requested the court to adjudicate the defendants at a higher risk level by assigning them additional points pursuant to factors that did not form the basis of the Board’s recommendation. Both defendants challenged the imposition of points under factors 3 and 7.

    Procedural History

    In *People v. Gillotti*, the SORA court adjudicated Gillotti a risk level three sex offender, assigning points under factors 3 and 7. The Appellate Division affirmed, requiring clear and convincing evidence for a downward departure. In *People v. Fazio*, the SORA court adjudicated Fazio a risk level two sex offender, including points under factor 3. The Appellate Division affirmed. Both defendants appealed to the Court of Appeals.

    Issue(s)

    1. Whether a SORA court may assess points against a child pornography offender under the plain language of guidelines factor 3, which is based on the number of victims involved in the offender’s crime?

    2. Whether the Board’s position statement prohibits a SORA court from assigning points to an offender under factors 3 and 7?

    3. Whether an offender requesting a downward departure in a SORA case must prove the supporting facts by clear and convincing evidence or by a preponderance of the evidence?

    Holding

    1. Yes, because factor 3 permits scoring points based on the number of different children depicted in the child pornography files.

    2. No, because the Board’s position statement does not bar the assignment of points under factors 3 and 7 in child pornography cases.

    3. Preponderance of the evidence, because that standard best balances the offender’s liberty interests and public safety concerns.

    Court’s Reasoning

    The Court reasoned that children depicted in child pornography are “victims” under SORA. “The whole point of the child pornography statutes is to protect children like these from exploitation by pornographers—an exploitation to which defendant, by consuming the pornographers’ product, contributed.” *Gillotti*, 23 N.Y.3d at 854-855 (quoting *People v Johnson*, 11 NY3d 416 (2008)). Factor 3’s plain language allows assessing points when “[t]here were three or more victims.” *Id.* at 855. The Board’s position statement is not binding; it is not an amendment to the guidelines. The Court emphasized that the government has an interest in “the protection of the community against people who have shown themselves capable of committing sex crimes” and the legislature sought to carefully guard a defendant’s liberty interest. *Id.* at 863. “Consistent with that legislative intent and the general practice in civil cases, we hold that a defendant must prove the existence of the mitigating circumstances upon which he or she relies in advocating for a departure by a mere preponderance of the evidence.” *Id.* at 864.

  • KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., 23 N.Y.3d 582 (2014): Scope of Insurance Law § 3420(d)(2) Disclaimer Requirement

    KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., 23 N.Y.3d 582 (2014)

    Insurance Law § 3420(d)(2), requiring timely disclaimer of liability, applies only to death and bodily injury claims arising from accidents, not to environmental contamination claims; for non-qualifying claims, common-law waiver and estoppel principles apply to determine the validity of a disclaimer.

    Summary

    KeySpan Gas East Corp. sought a declaration that its insurers had a duty to defend and indemnify it for environmental damage at former manufactured gas plant (MGP) sites. The insurers argued late notice of the potential claims. The Appellate Division applied Insurance Law § 3420(d)(2), requiring a disclaimer “as soon as reasonably possible.” The Court of Appeals reversed, holding that Section 3420(d)(2) applies only to death or bodily injury claims, not environmental damage claims. The Court remitted the case to the Appellate Division to determine if the insurers waived their late-notice defense under common-law principles.

    Facts

    Long Island Lighting Company (LILCO) notified its excess insurers, including Munich Reinsurance, in October and November 1994 about “environmental concern[s]” at retired MGP sites in Bay Shore and Hempstead. LILCO mentioned potential regulatory action and a property damage claim. Between 1995 and 1996, LILCO provided supplemental information to the insurers, including notice of a formal demand from the New York State Department of Environmental Conservation (DEC) to investigate and remediate the sites. The insurers reserved their rights but did not formally disclaim coverage. KeySpan acquired LILCO’s rights through assignment.

    Procedural History

    KeySpan commenced a declaratory judgment action in September 1997. The insurers asserted late notice as a defense and moved for summary judgment. Supreme Court granted summary judgment for the Bay Shore site but denied it for the Hempstead site, finding a question of fact regarding the reasonableness of the notice delay. The Appellate Division modified, finding that LILCO’s notice was untimely as a matter of law for both sites, but declined to award summary judgment to the insurers because of a potential waiver of their right to disclaim coverage based on late notice. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Insurance Law § 3420(d)(2) applies to environmental contamination claims, thus requiring an insurer to disclaim coverage “as soon as reasonably possible” after learning of grounds for disclaimer.

    Holding

    No, because Insurance Law § 3420(d)(2) applies only to insurance cases involving death and bodily injury claims arising out of a New York accident and brought under a New York liability policy.

    Court’s Reasoning

    The Court of Appeals reasoned that the Appellate Division erred in applying the strict timeliness standard of Insurance Law § 3420(d)(2) to this case. The statute’s plain terms limit its application to cases involving death and bodily injury claims. The court emphasized that the statute was enacted to “aid injured parties” by encouraging prompt resolution of liability claims (citing Allstate Ins. Co. v Gross, 27 NY2d 263, 267 [1970]). Because the environmental contamination claims did not involve death or bodily injury, Section 3420(d)(2) was inapplicable. The court stated, “Where, as here, the underlying claim does not arise out of an accident involving bodily injury or death, the notice of disclaimer provisions set forth in Insurance Law § 3420 (d) are inapplicable” (citing Vecchiarelli v Continental Ins. Co., 277 AD2d 992, 993 [4th Dept 2000]). The Court directed the Appellate Division to consider the issue of waiver under common-law principles, requiring a clear manifestation of intent to abandon the late-notice defense, rather than the heightened standard of Section 3420(d)(2). The Court cited Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 (2006), among other cases, regarding the elements of common law waiver. The court explicitly disapproved of appellate division cases to the contrary, stating: “To the extent Estee Lauder Inc. v OneBeacon Ins. Group, LLC (62 AD3d 33 [1st Dept 2009]), cited by the Appellate Division here, and other Appellate Division cases hold that Insurance Law § 3420 (d) (2) applies to claims not based on death and bodily injury… those cases were wrongly decided and should not be followed.” This makes the case significant because it clarifies and restricts the application of Section 3420(d)(2).

  • Working Families Party v. Fisher, 22 N.Y.3d 543 (2014): Standard for District Attorney Disqualification

    Working Families Party v. Fisher, 22 N.Y.3d 543 (2014)

    A district attorney seeking self-disqualification under County Law § 701(1) must demonstrate a good faith and reasonable basis for believing they are disqualified, a less stringent standard than when disqualification is sought by an adverse party.

    Summary

    This case concerns the appointment of a special district attorney to investigate potential election law violations. The Richmond County District Attorney, Daniel Donovan, sought his own disqualification, which was granted. The Working Families Party challenged the appointment, arguing the standard for disqualification wasn’t met and proper procedures weren’t followed. The Court of Appeals held that prohibition was an appropriate remedy to challenge the appointment, but ultimately affirmed the appointment, finding Donovan had a good faith basis for disqualification, and procedural errors in the appointment process were not substantial enough to invalidate it.

    Facts

    Daniel Donovan, the Richmond County District Attorney, applied for an order relieving him and his assistants from a case involving potential election law violations. He submitted an affirmation under seal detailing the facts warranting this action. The Deputy Chief Administrative Judge (DCAJ) granted the application and appointed Roger Bennet Adler as special district attorney. Adler then issued grand jury subpoenas, prompting the Working Families Party to challenge Adler’s appointment.

    Procedural History

    The Working Families Party initiated an Article 78 proceeding to vacate Adler’s appointment and quash the subpoenas. The Appellate Division denied the petition, holding that prohibition was not an appropriate remedy because the special prosecutor’s function was “executive in nature.” The Court of Appeals granted leave to appeal. The Court of Appeals affirmed the Appellate Division’s judgment, but on different grounds, holding that prohibition was appropriate but that the appointment was valid.

    Issue(s)

    1. Whether prohibition is an appropriate remedy to challenge the appointment of a special prosecutor.

    2. Whether the District Attorney demonstrated sufficient grounds for disqualification under County Law § 701(1) to warrant the appointment of a special prosecutor.

    3. Whether procedural irregularities in the appointment of the special prosecutor warrant nullifying the appointment.

    Holding

    1. Yes, because “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court.”

    2. Yes, because Donovan had a good faith, reasonable basis for believing he was disqualified from pursuing the investigation.

    3. No, because the procedural flaws were not substantial enough to justify nullifying the appointment.

    Court’s Reasoning

    The Court of Appeals reasoned that prohibition is an appropriate remedy to challenge the appointment of a special prosecutor because it provides a prompt and definitive answer to the validity of the appointment. Delaying this determination could lead to wasted resources and potential inability to prosecute cases. The Court distinguished Matter of McGinley v Hynes, noting that it did not involve a challenge to the validity of the appointment itself.

    Regarding the standard for disqualification, the Court rejected the argument that a district attorney has unreviewable discretion to recuse themselves. However, it also rejected the stringent standard applied when an adverse party seeks disqualification. Instead, the Court adopted the “good faith application containing the reasonable grounds for his belief that he is so disqualified” standard from People v Schrager. The Court found that Donovan met this standard based on the record, which remained sealed.

    Addressing the procedural flaws, the Court acknowledged that the DCAJ should have more meticulously followed the procedure outlined in Section 200.15 of the Uniform Rules for the New York State Trial Courts. However, the Court determined that these irregularities did not warrant nullifying the appointment because they did not prejudice any party. The Court prioritized the public interest in avoiding a lengthy investigation being restarted.

    The Court emphasized the importance of ensuring the validity of a prosecutor’s appointment early in the process to avoid wasting resources and potentially hindering prosecutions.

  • Quadrant Structured Products v. Vertin, 23 N.Y.3d 549 (2014): Interpreting No-Action Clauses in Trust Indentures

    23 N.Y.3d 549 (2014)

    A trust indenture’s no-action clause that bars enforcement of contractual claims arising under the indenture, but omits reference to “the Securities,” does not bar a security-holder’s independent common-law or statutory claims.

    Summary

    Quadrant, a security holder, sued Athilon and related parties for alleged wrongdoing. The defendants sought dismissal based on a no-action clause in the indenture agreement. The Delaware Supreme Court certified questions to the New York Court of Appeals regarding the interpretation of the no-action clause under New York law, specifically whether the omission of “the Securities” from the clause limited its applicability to only contractual claims arising under the Indenture, or if it extended to all common law and statutory claims. The Court of Appeals held that the no-action clause, limited to the “Indenture,” did not bar independent common-law or statutory claims.

    Facts

    Athilon issued securities, including subordinated notes purchased by Quadrant. Athilon entered into trust indentures with Trustees. Quadrant alleged that EBF, after acquiring Athilon, controlled Athilon’s Board and took actions favoring EBF’s interests to the detriment of senior securityholders like Quadrant. These actions included paying interest on junior notes despite an agreement to defer such payments and paying above-market-rate service fees to an EBF affiliate. Quadrant, as a security holder, then sued asserting breaches of fiduciary duty, seeking damages and injunctive relief, and fraudulent transfer claims.

    Procedural History

    Quadrant sued in the Delaware Court of Chancery, and the defendants moved to dismiss, arguing the suit was barred by the no-action clause in the indenture. The Court of Chancery dismissed the complaint, citing Delaware cases applying New York law. The Delaware Supreme Court reversed and remanded, asking the Court of Chancery to analyze the significance of the difference between the no-action clause in this case and those in the cited Delaware cases. Upon remand, the Court of Chancery concluded the clause applied only to contractual claims arising under the indenture. The Delaware Supreme Court then certified questions to the New York Court of Appeals.

    Issue(s)

    1. Whether, under New York law, a trust indenture no-action clause expressly precluding a security holder from initiating action regarding “this Indenture,” but omitting reference to “the Securities,” precludes enforcement only of contractual claims arising under the Indenture, or whether it also precludes enforcement of all common law and statutory claims.

    2. Whether the Delaware Court of Chancery’s finding that the no-action clause precludes enforcement only of contractual claims arising under the Indenture is a correct application of New York law.

    Holding

    1. Yes, because under New York law, the absence of any reference to “the Securities” in the no-action clause precludes enforcement only of contractual claims arising under the Indenture, and not all common law and statutory claims.

    2. Yes, because the Vice Chancellor’s Report on Remand correctly interpreted New York law by concluding that claims not based on default of the securities, which the Trustee cannot assert, are not barred by the no-action clause.

    Court’s Reasoning

    The Court of Appeals emphasized that a trust indenture is a contract, and under New York law, interpretation of indenture provisions is a matter of basic contract law. The court relied on the language of the contract, stating that “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). The court reasoned that no-action clauses are to be “strictly construed.” Because the no-action clause only referred to actions “upon or under or with respect to this Indenture” and made no mention of suits “on the securities,” it was limited to indenture contract rights. The Court distinguished this from cases where the no-action clause referred to both the indenture and the securities, in which case the securityholder’s claims are subject to the terms of the clause regardless of whether they are contractual or arise from common law or statute. The court also rejected the argument that the purpose of the no-action clause was to prevent all individual securityholder suits, noting that some claims, like those against the trustee, cannot be prohibited by a no-action clause. The court also quoted the commentary to a model no-action clause from the Ad Hoc Committee for Revision of the 1983 Model Simplified Indenture, which stated: “[t]he clause applies, however, only to suits brought to enforce contract rights under the Indenture or the Securities, not to suits asserting rights arising under other laws”.

  • People v. Wisdom, 23 N.Y.3d 971 (2014): Correcting Unsworn Grand Jury Testimony

    People v. Wisdom, 23 N.Y.3d 971 (2014)

    An isolated procedural error in a grand jury proceeding, such as the failure to administer an oath during a witness’s initial testimony, does not automatically warrant dismissal of the indictment if the error is promptly corrected and does not prejudice the defendant.

    Summary

    Sidney Wisdom was indicted for burglary and attempted murder after a grand jury viewed a videotaped interview of a victim, Jane, who identified him as her assailant. Jane was not initially sworn in before the recording. The prosecution, realizing the error, obtained a second recording where Jane swore to the truth of her prior statements. The New York Court of Appeals held that the initial failure to administer an oath, although a procedural error, did not compromise the integrity of the grand jury proceeding because the error was rectified, and the defendant did not demonstrate prejudice.

    Facts

    Sidney Wisdom was accused of attempting to kill a four-year-old girl and her grandmother, Jane, during a burglary. Due to the severity of Jane’s injuries, the People videotaped her testimony for grand jury presentation. In the initial recording, Jane identified Wisdom as the assailant, stating she knew him. However, she was not administered an oath. The prosecutor, realizing the error, obtained a second recording where Jane swore to the truth and accuracy of her prior statements. The grand jury viewed both videos before indicting Wisdom.

    Procedural History

    Wisdom moved to dismiss the indictment, arguing the unsworn testimony compromised the grand jury’s integrity. The Supreme Court denied the motion, and a jury convicted Wisdom. The Appellate Division reversed, finding the grand jury proceeding defective. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the failure to administer an oath to a witness before their initial grand jury testimony, later corrected by a sworn affirmation of the prior statements, constitutes a defect impairing the integrity of the grand jury proceedings, warranting dismissal of the indictment.

    Holding

    No, because the lack of an oath was an oversight that was corrected, and the defendant failed to demonstrate prejudice, the grand jury proceeding was not fundamentally impaired.

    Court’s Reasoning

    The Court of Appeals acknowledged that an oath should have been administered during the first recording. However, the court emphasized that not every procedural error warrants dismissal of an indictment. The court applied the statutory standard requiring a “very precise and very high” showing of impairment to the grand jury proceedings (People v. Darby, 75 N.Y.2d 449, 455 [1990]). The court noted the absence of any nefarious intent to unfairly prejudice the defendant. Instead, the prosecution proactively sought to correct the error by obtaining a second, sworn statement from Jane, which the grand jury reviewed along with instructions regarding the initial omission. The Court determined that the defendant failed to establish a possibility of prejudice that would justify dismissing the indictment. The court emphasized that corrective measures were taken, and there was no evidence that the initial lack of oath substantially influenced the grand jury’s decision to indict. The court cited precedent, including People v. Adessa, 89 N.Y.2d 677, 686 (1997), underscoring that dismissal is an exceptional remedy reserved for cases where the integrity of the grand jury process is genuinely compromised. The Court reasoned that the purpose of the oath is to ensure truthfulness, and Jane’s subsequent sworn affirmation of her initial statements served this purpose, mitigating any potential prejudice to the defendant.

  • People v. Dumay, 23 N.Y.3d 518 (2014): Valid Waiver of Prosecution by Information

    People v. Dumay, 23 N.Y.3d 518 (2014)

    A defendant may knowingly and intelligently waive prosecution by misdemeanor information, even if the case was initially commenced by an information, and upon such waiver, the accusatory instrument need only satisfy the reasonable cause standard applicable to a misdemeanor complaint.

    Summary

    Joseph Dumay was arrested for obstructing governmental administration. He pleaded guilty in exchange for a 15-day sentence after his counsel stated, “So waive,” in response to the court’s inquiry about waiving prosecution by information. Dumay later appealed, arguing that he did not validly waive prosecution by information and that the accusatory instrument was facially insufficient. The Court of Appeals held that Dumay did validly waive prosecution by information, and the accusatory instrument met the reasonable cause standard required for a misdemeanor complaint. This decision underscores the importance of clear and affirmative acts demonstrating a defendant’s intent to waive statutory protections and prevents manipulation of the plea bargaining system.

    Facts

    Dumay was arrested on a public street in Brooklyn for obstructing a police officer. The accusatory instrument stated that Dumay “slammed the trunk of [the police officer’s] radio mounted patrol vehicle with an open hand and prevented said vehicle from moving by standing behind it and preventing [the police officer] from patrolling the neighborhood.” In court, Dumay agreed to plead guilty to obstructing governmental administration in exchange for a 15-day sentence. When the court asked defense counsel if Dumay waived prosecution by information, the defense attorney responded, “So waive.” Dumay admitted the facts during the plea allocution.

    Procedural History

    Dumay appealed his conviction to the Appellate Term, arguing he did not waive prosecution by information and the accusatory instrument was jurisdictionally defective. The Appellate Term affirmed, finding Dumay expressly waived his right, and the allegations were sufficient as a misdemeanor complaint. A Judge of the Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Dumay validly waived his right to prosecution by information.

    2. Whether the accusatory instrument met the factual sufficiency requirements of a misdemeanor complaint, specifically regarding the elements of intent and obstruction.

    Holding

    1. Yes, Dumay validly waived his right to prosecution by information because defense counsel affirmatively stated, “So waive,” in open court and in Dumay’s presence.

    2. Yes, the accusatory instrument met the requirements of a misdemeanor complaint because it established reasonable cause to believe Dumay committed the offense of obstructing governmental administration.

    Court’s Reasoning

    The Court of Appeals reasoned that a valid and sufficient accusatory instrument is a jurisdictional prerequisite to a criminal prosecution. While a misdemeanor information requires non-hearsay allegations establishing every element of the offense, a misdemeanor complaint only requires facts establishing reasonable cause. The Court emphasized that a defendant may knowingly and intelligently waive prosecution by information through an affirmative act. Here, defense counsel’s statement, “So waive,” constituted a clear waiver. The court rejected Dumay’s argument that he could not waive prosecution by information because the People initiated the case by information, clarifying that CPL 170.65 specifically allows such a waiver. The Court also reasoned that adopting Dumay’s interpretation would allow manipulation of the plea bargaining system and undermine the finality of convictions.

    Regarding the sufficiency of the complaint, the court noted that a misdemeanor complaint is adequate if it provides sufficient notice of the crime and establishes reasonable cause. Penal Law § 195.05 defines obstructing governmental administration as intentionally obstructing a public servant from performing an official function. The Court found the instrument provided enough facts: Dumay slammed the trunk of a marked police car and stood behind it, preventing the officer from patrolling. The court stated, “[C]riminal responsibility should attach to minimal interference set in motion to frustrate police activity.” Intent could be inferred from the act itself, as Dumay struck a “radio mounted patrol vehicle,” showing awareness of its official use. The Court concluded the instrument provided sufficient notice and prevented double jeopardy, affirming the Appellate Term’s order.

  • People v. Schroeder, 24 N.Y.3d 507 (2014): Admissibility of Expert Testimony on Blood Alcohol Content (BAC)

    People v. Schroeder, 24 N.Y.3d 507 (2014)

    In a prosecution for driving while intoxicated (DWI), expert testimony estimating the defendant’s blood alcohol content (BAC) is not considered “prima facie evidence” under Vehicle and Traffic Law § 1195(2), but the jury may consider such evidence when determining intoxication.

    Summary

    The case clarifies the admissibility and probative value of expert testimony regarding blood alcohol content (BAC) in DWI cases. The defendant, convicted of common law DWI, appealed, arguing that the trial court erred by refusing to instruct the jury that expert testimony estimating her BAC below the legal limit constituted “prima facie evidence” of non-intoxication. The Court of Appeals affirmed the conviction, holding that only BAC results from chemical tests, not expert opinions, are entitled to the statutory “prima facie evidence” weight. However, the Court also noted that a defendant is entitled, upon request, to an instruction that if the jury believes the expert’s estimation of BAC was below the legal limit, the jury may consider that fact when determining whether the defendant was intoxicated.

    Facts

    The defendant was stopped for speeding and subsequently given a breathalyzer test, which showed a BAC of .09%. At trial, the prosecution presented this evidence along with the arresting officer’s testimony regarding the defendant’s behavior (smell of alcohol, glassy eyes, failed field sobriety tests). The defense presented expert testimony from a pharmacologist who opined, based on the defendant’s testimony, that her BAC at the time of the stop was between .03% and .04%.

    Procedural History

    The defendant was acquitted of per se DWI but convicted of common law DWI in Town Court. The County Court affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a defense expert’s testimony estimating the defendant’s BAC below the statutory threshold constitutes “prima facie evidence” that the defendant was not intoxicated, thus entitling the defendant to a corresponding jury instruction.

    Holding

    No, because Vehicle and Traffic Law § 1195(2) explicitly limits the “prima facie evidence” effect to BAC results obtained from chemical tests administered pursuant to Vehicle and Traffic Law § 1194.

    Court’s Reasoning

    The Court based its reasoning on a strict interpretation of Vehicle and Traffic Law § 1195, which states that the specified probative value (including “prima facie evidence”) applies to “evidence of blood-alcohol content, as determined by such tests.” The Court emphasized that “such tests” refers to chemical tests administered under Vehicle and Traffic Law § 1194. Because the defense expert’s testimony was an opinion, not a chemical test result, it did not qualify for the statutory “prima facie evidence” weight.

    However, the Court clarified that juries should not be kept unaware of the BAC thresholds specified in the statute. The Court suggested that the jury should be instructed that if they find the defendant’s BAC was below 0.08%, based on the expert’s testimony, they *may* find that she was not in an intoxicated condition, although they are not required to do so. The Court highlighted the difference between this “if you find” instruction and the “prima facie evidence” charge, explaining that the former allows the jury to evaluate the evidence for itself, while the latter improperly instructs the jury on the weight to be given to the evidence.

    The Court states, “The difference between our ‘if you find’ formulation and the ‘prima facie evidence’ charge that defendant here requested is substantive, not just verbal. The ‘prima facie’ charge instructs the jury on the weight to be given certain evidence — an instruction that is appropriate only when the evidence consists of chemical tests. The ‘if you find’ charge allows the jury to evaluate the evidence for itself — i.e., lets it choose to believe the expert or not — but instructs it as to the inferences it may draw after it has made that evaluation.”

    In effect, the court allows the jury to consider expert testimony about BAC, but clarifies that it does not carry the same statutory weight as a chemical test. This permits the defense to present evidence challenging intoxication without mandating a specific inference from that evidence, leaving the jury to determine the credibility and impact of the expert’s opinion.

  • People v. Golb, 23 N.Y.3d 455 (2014): Defines ‘Injury’ and ‘Benefit’ in Criminal Impersonation

    People v. Golb, 23 N.Y.3d 455 (2014)

    The terms “injure” and “benefit” in New York’s criminal impersonation statute (Penal Law § 190.25[1]) are not limitless but include tangible pecuniary injury, interference with governmental operations, and harm to reputation; however, the statute prohibiting aggravated harassment via communication is unconstitutionally broad.

    Summary

    Raphael Golb conducted an internet campaign to discredit scholars who disagreed with his father’s theories on the Dead Sea Scrolls, using pseudonyms and impersonating others to send disparaging emails and blog posts. He was convicted of multiple counts, including identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer. The New York Court of Appeals upheld some convictions (criminal impersonation and forgery) but vacated others (identity theft, aggravated harassment, and unauthorized computer use), clarifying the scope of the criminal impersonation and aggravated harassment statutes and defining the terms “injure” and “benefit”.

    Facts

    Norman Golb, defendant’s father, is a scholar of the Dead Sea Scrolls, holding a minority view. Raphael Golb, the defendant, engaged in a campaign to discredit scholars who supported the dominant theory, including Robert Cargill, Stephen Goranson, Lawrence Schiffman, Frank Cross, and Jonathan Seidel. Golb used pseudonyms and impersonated these scholars to send emails and publish blog posts that were critical of their work and promoted his father’s views. For example, he impersonated Schiffman, an NYU professor, and sent emails to Schiffman’s students and superiors admitting to plagiarism. He also created email accounts in the names of others to send disparaging messages.

    Procedural History

    A New York County grand jury indicted Golb on 51 counts. The jury convicted him on 30 counts. The Appellate Division modified the judgment, vacating one count of identity theft but otherwise affirming the convictions. Golb appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the terms “benefit” and “injure” in Penal Law § 190.25(1) (criminal impersonation) are unconstitutionally vague and overbroad, and whether reputational harm constitutes an “injury” under the statute.
    2. Whether Penal Law § 240.30(1)(a) (aggravated harassment) is unconstitutionally vague and overbroad.
    3. Whether the evidence was sufficient to support convictions for unauthorized use of a computer and identity theft.

    Holding

    1. Yes, the terms “injure” and “benefit” cannot be construed to apply to any injury or benefit, no matter how slight, but injury to reputation is within the “injury” contemplated by Penal Law § 190.25. However, the mere creation of email accounts does not constitute criminal impersonation.
    2. Yes, Penal Law § 240.30(1)(a) is unconstitutionally vague and overbroad because it criminalizes communications with the intent to annoy, which is not sufficiently limited.
    3. No, the evidence was insufficient to support the convictions for unauthorized use of a computer and identity theft because the prosecution failed to prove that Golb’s computer access was unauthorized or that he falsified business records.

    Court’s Reasoning

    The Court reasoned that while “injure” and “benefit” in the criminal impersonation statute cannot encompass every minor harm or advantage, they do extend to reputational harm. The Court stated, “Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property, and we believe the legislature intended that the scope of the statute be broad enough to capture acts intended to cause injury to reputation.” However, the mere creation of email accounts without use does not cause substantial harm.

    Regarding aggravated harassment, the Court found Penal Law § 240.30(1)(a) unconstitutional because it criminalizes communications intended to “annoy,” which is too broad and lacks necessary limitations on its scope, infringing on protected speech. The Court cited People v. Dietze, noting that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”

    Finally, the Court determined that the prosecution failed to prove that Golb’s use of NYU computers was “unauthorized” as required by Penal Law § 156.05, given his alumni status and library access. Moreover, the Court found insufficient evidence that Golb falsified any NYU business records, a necessary element of the identity theft charge. The Court noted, “[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity”.