New York Law Review

Tag: 2016

  • People v. Powell, 28 N.Y.3d 526 (2016): Admissibility of Third-Party Culpability Evidence

    28 N.Y.3d 526 (2016)

    In New York, the admissibility of third-party culpability evidence is governed by the standard balancing test of probative value versus the potential for undue prejudice, delay, and confusion, not a heightened evidentiary standard.

    Summary

    The New York Court of Appeals addressed whether the trial court erred in precluding evidence of third-party culpability. The defendant argued that the trial court’s application of the standard for admitting such evidence violated his constitutional right to present a complete defense. The Court of Appeals affirmed the lower court’s decision, holding that New York’s standard for admitting third-party culpability evidence, which requires balancing the probative value of the evidence against the potential for prejudice, delay, and confusion, does not violate a defendant’s constitutional rights. The court found that the trial court properly exercised its discretion in precluding the defendant’s speculative and ill-defined third-party culpability evidence.

    Facts

    Jennifer Katz was murdered, and her body was discovered in her home. The defendant, who had previously done gardening work for Katz, was found driving Katz’s car and possessed her jewelry. DNA evidence linked the defendant to the crime scene, including Katz’s body and clothing. The defendant made various statements to the police, including that he found the body and took the car and jewelry. Before trial, the defense sought to introduce evidence that Katz’s former boyfriend, Warren, was the beneficiary of a life insurance policy and to cross-examine Warren on his relationship with the victim. The trial court precluded this evidence, finding it speculative.

    Procedural History

    The defendant was convicted of murder in the first degree and other crimes. The Appellate Division affirmed the conviction, ruling that the trial court properly precluded the third-party culpability evidence. The Court of Appeals granted the defendant leave to appeal.

    Issue(s)

    1. Whether the trial court’s preclusion of third-party culpability evidence violated the defendant’s constitutional right to present a complete defense.

    Holding

    1. No, because the New York standard for admitting third-party culpability evidence, which applies a standard balancing test of probative value versus the potential for undue prejudice, delay, and confusion, does not violate the defendant’s constitutional right to present a complete defense.

    Court’s Reasoning

    The court analyzed whether New York’s evidentiary standard, as articulated in People v. Primo, violated the defendant’s constitutional rights. The court noted that states have broad latitude in establishing rules for excluding evidence. The Sixth and Fourteenth Amendments guarantee a meaningful opportunity to present a complete defense, but this right is not absolute. The court affirmed the trial court’s preclusion of the evidence because it was speculative and based on the theory that someone else “could have” committed the crime. The court emphasized that the Primo standard focuses on balancing probative value against potential adverse effects, which is consistent with the Supreme Court’s guidance in Holmes v. South Carolina. The Court of Appeals determined that the trial court did not abuse its discretion in precluding the evidence because the defendant’s offer of proof was speculative.

    Practical Implications

    This case clarifies the standard for admitting third-party culpability evidence in New York and reinforces the trial court’s broad discretion in applying evidentiary rules. It emphasizes that the admissibility of such evidence hinges on a balancing test, weighing the probative value against factors like prejudice, delay, and confusion. Lawyers should be prepared to articulate a clear and specific theory of third-party culpability, supported by evidence, and to address the balancing test in their arguments. This case highlights the importance of making a strong offer of proof and avoiding speculative assertions. It reaffirms that the court will assess the admissibility of third-party culpability evidence based on the proffer as articulated by counsel.

  • Government Employees Insurance v. Avanguard Medical Group, PLLC, 27 N.Y.3d 125 (2016): No-Fault Insurance and Reimbursement for Office-Based Surgery Facility Fees

    27 N.Y.3d 125 (2016)

    Under New York’s No-Fault Law, insurance carriers are not required to reimburse office-based surgery (OBS) centers for facility fees, as these fees are not explicitly included in the authorized fee schedules for medical services.

    Summary

    Avanguard Medical Group, an office-based surgery (OBS) center, sought reimbursement from GEICO for facility fees under New York’s No-Fault Law. GEICO denied the fees, arguing they were not reimbursable under the law. The New York Court of Appeals sided with GEICO, ruling that the No-Fault Law’s fee schedules, which do not include OBS facility fees, govern reimbursement. The court found no statutory basis to compel reimbursement for these fees, emphasizing that the legislature intended to control costs through specific fee schedules. The court rejected Avanguard’s arguments that facility fees are a “necessary expense” and must be reimbursed, as the controlling statute specifically limits reimbursement to services expressly covered in the fee schedules.

    Facts

    Avanguard Medical Group, an accredited OBS center, billed for surgical procedures performed on patients covered by the No-Fault Law. Avanguard charged separately for professional services (billed through Metropolitan Medical & Surgical P.C.) and for OBS facility fees. GEICO, the no-fault insurance carrier, paid for the professional fees but refused to reimburse Avanguard for the facility fees, which the center claimed covered the use of its physical location, equipment, and support staff. GEICO then sued for a declaratory judgment that it was not legally obligated to reimburse Avanguard for these OBS facility fees.

    Procedural History

    The Supreme Court denied GEICO’s motion for summary judgment. The Appellate Division, Second Department, reversed and granted GEICO’s motion, declaring that GEICO was not required to reimburse Avanguard for the facility fees. The Court of Appeals granted leave to appeal from the Appellate Division’s order.

    Issue(s)

    1. Whether the Insurance Law § 5102 requires no-fault insurance carriers to reimburse OBS centers for facility fees.

    Holding

    1. No, because the statute limits reimbursement to fees specified in the established fee schedules, which do not include OBS facility fees.

    Court’s Reasoning

    The court emphasized that the No-Fault Law aims to contain costs by implementing statutory ceilings and regulatory fee schedules for services. Insurance Law § 5102(a)(1) defines “basic economic loss” and identifies the reimbursable services. However, this section is subject to limitations outlined in § 5108, which authorizes fee schedules. The court found no express authorization for facility fee reimbursement for OBS centers in these schedules, unlike the provisions for hospitals and ambulatory surgery centers (ASCs). The court rejected Avanguard’s argument that the absence of specific exclusion meant the fees were covered. The court clarified that the lack of a fee schedule for OBS facility fees meant they were not reimbursable. The court referenced the legal framework requiring insurers to report overcharging, further illustrating the law’s cost-containment intent. The court stated, “…the legislature sought to cap payments and impose uniform fee rates in accordance with the regulatory schedules.” Moreover, the court noted that the fee schedules did cover fees for hospitals and ASCs, which are subject to extensive regulations under Public Health Law, unlike OBS centers.

    Practical Implications

    This case provides clarity on the scope of reimbursement under New York’s No-Fault Law. It establishes that OBS centers cannot collect facility fees unless specifically authorized by applicable fee schedules. Attorneys representing medical providers should advise clients to structure billing practices in compliance with the existing fee schedules. Insurance companies are not required to reimburse for fees that are not explicitly included. This case highlights the importance of understanding the interplay between statutory provisions and regulatory guidelines when analyzing healthcare reimbursement claims. The decision reinforces the legislative intent to control healthcare costs through fixed fees and detailed regulations.

  • NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 27 N.Y.3d 175 (2016): Agency Rulemaking and the Separation of Powers

    27 N.Y.3d 175 (2016)

    An agency’s rulemaking authority is limited by the separation of powers doctrine; an agency cannot exceed its legislative mandate by making value judgments and creating comprehensive rules without legislative guidance.

    Summary

    In NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, the New York Court of Appeals addressed whether the Office of Parks, Recreation and Historic Preservation (OPRHP) exceeded its authority by enacting a regulation that prohibited smoking in certain outdoor areas under its jurisdiction. The court reaffirmed the principles established in *Boreali v. Axelrod*, holding that OPRHP’s regulation was a permissible exercise of its delegated powers. The court found that OPRHP did not overstep the bounds of its authority because the legislature had provided guidance on the issue of smoking, and the agency was merely filling in the details of a broader policy. The court applied the *Boreali* factors to assess the agency’s actions and determined that OPRHP’s rule did not constitute legislative policymaking.

    Facts

    NYC C.L.A.S.H., Inc. (CLASH), a non-profit organization representing smokers, challenged a regulation adopted by OPRHP. The regulation, 9 NYCRR 386.1, prohibited smoking in state parks and other designated outdoor areas under OPRHP’s jurisdiction. OPRHP manages 179 state parks and 35 historic sites. CLASH argued the regulation violated the separation of powers doctrine. The Supreme Court initially sided with CLASH, declaring the regulation invalid due to separation of powers concerns. However, the Appellate Division reversed the decision, finding that OPRHP had acted within its authority. CLASH appealed to the Court of Appeals.

    Procedural History

    CLASH filed a hybrid Article 78 proceeding and declaratory judgment action in the Supreme Court, challenging the regulation. The Supreme Court ruled in favor of CLASH, finding the regulation invalid. The Appellate Division, however, reversed the Supreme Court’s decision, upholding the regulation. CLASH then appealed the Appellate Division’s decision to the New York Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    Whether OPRHP exceeded its delegated authority by enacting a regulation prohibiting smoking in certain outdoor areas under its jurisdiction, thereby violating the separation of powers doctrine.

    Holding

    No, because OPRHP acted within the confines of its delegated authority and did not usurp the legislature’s power.

    Court’s Reasoning

    The Court of Appeals applied the principles established in *Boreali v. Axelrod*. It reiterated that the separation of powers doctrine is fundamental in New York’s system of government. The court examined whether the agency’s actions fell within the scope of its legislative mandate. *Boreali* established a four-factor test to determine if an agency’s rulemaking oversteps its authority, which are not mandatory but serve as overlapping guidelines: (1) whether the agency made value judgments and resolved social problems; (2) whether the agency created comprehensive rules without legislative guidance; (3) whether the legislature had unsuccessfully tried to reach agreement on the issue; and (4) whether the agency used special expertise. The court found that OPRHP did not overstep the bounds of its authority and correctly applied the *Boreali* factors. The court noted that the legislature had provided some guidance on regulating smoking (Public Health Law). The court concluded OPRHP was filling in the details of that policy, not creating a comprehensive set of rules.

    Practical Implications

    This case provides critical guidance on the permissible scope of agency rulemaking in New York. It underscores the importance of legislative guidance and the limits on agency authority. Attorneys should analyze cases involving agency regulations by: examining whether the agency is implementing a pre-existing legislative policy or creating new ones, considering the relevant *Boreali* factors and weighing the separation of powers considerations. Furthermore, agencies must act within the confines of their delegated powers and cannot usurp the authority of the legislature. This decision offers insights into how agencies must balance their expertise with the limits of their statutory mandates.

  • Chanko v. American Broadcasting Companies, Inc., 27 N.Y.3d 46 (2016): Breach of Physician-Patient Confidentiality and Intentional Infliction of Emotional Distress

    27 N.Y.3d 46 (2016)

    A physician’s duty to maintain patient confidentiality, established by statute, is breached when confidential information is disclosed to those not involved in the patient’s care, and is not dependent on the sensitivity or embarrassment associated with the information; claims for intentional infliction of emotional distress require conduct that is extreme and outrageous, exceeding all bounds of decency.

    Summary

    The New York Court of Appeals addressed a case involving the filming of a patient’s medical treatment and death in a hospital emergency room for a television documentary. The court held that the hospital and treating physician could be liable for breach of physician-patient confidentiality due to unauthorized disclosure, but that the conduct did not rise to the level of “extreme and outrageous” required for intentional infliction of emotional distress. The court emphasized the breadth of the physician-patient privilege and the high standard for intentional infliction of emotional distress claims, distinguishing this case from prior rulings.

    Facts

    Mark Chanko was treated at New York-Presbyterian Hospital after being hit by a car. While he was being treated, an ABC News crew filmed a documentary series, with the hospital’s permission, but without Chanko’s or his family’s knowledge or consent. After Chanko’s death, the filming continued, and the events were included in an episode of the documentary series, 16 months later his widow, Anita Chanko, and other family members saw the footage, leading to distress. The family sued the hospital, the physician, and ABC, alleging breach of confidentiality and intentional infliction of emotional distress.

    Procedural History

    The trial court dismissed most claims but allowed breach of physician-patient confidentiality against the hospital and physician, and intentional infliction of emotional distress against all defendants, to proceed. The Appellate Division reversed, dismissing the entire complaint. The Court of Appeals granted the plaintiffs leave to appeal, addressing the viability of these claims.

    Issue(s)

    1. Whether the complaint sufficiently states a cause of action against the hospital and physician for breach of physician-patient confidentiality.

    2. Whether the conduct of the defendants was sufficiently “extreme and outrageous” to support a claim for intentional infliction of emotional distress.

    Holding

    1. Yes, because the complaint alleged an unauthorized disclosure of confidential medical information, and the physician-patient privilege should be construed broadly.

    2. No, because the defendants’ conduct, while potentially insensitive, did not meet the high threshold of “extreme and outrageous” behavior required for this tort.

    Court’s Reasoning

    The court found the breach of physician-patient confidentiality claim was adequately stated. The physician-patient privilege, codified in CPLR 4504, aims to encourage open communication between patients and providers by protecting patient privacy. The privilege covers all information acquired during treatment and is not limited to embarrassing information. Here, the hospital and doctor allowed the filming and disclosure to the film crew without the patient’s consent. The court noted that a lack of consent could be inferred from the allegations of the complaint.

    Regarding intentional infliction of emotional distress, the court found the defendants’ actions were not sufficiently outrageous. The court emphasized that this tort requires conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The court cited prior cases where the behavior was not found outrageous enough to satisfy this standard. The fact that the footage shown was edited to include less than three minutes of content was a significant factor in the court’s decision. Therefore, the court held that the defendants’ conduct, while reprehensible, did not meet the stringent standard required to support this claim.

    Practical Implications

    This case clarifies the scope of the physician-patient privilege in New York, emphasizing its broad protection of medical information. It serves as a reminder that any disclosure of such information to unauthorized parties can form the basis of a breach of confidentiality claim. It also underscores the high bar for establishing intentional infliction of emotional distress. Attorneys should carefully assess whether the conduct alleged is truly “extreme and outrageous” and, if not, should consider other causes of action.

    This case affects how hospitals, physicians, and media companies must act in their relationships with patients, especially in situations involving filming or recording. It also highlights the need for healthcare providers to balance their need to give information, the privacy concerns of patients, and the need to obtain informed consent before filming medical treatments and sharing patient information with external parties. The standard the court applied for intentional infliction of emotional distress continues to be a major hurdle for plaintiffs seeking damages on this basis.

  • Matter of Tierney v. New York State Office of Mental Health, 28 N.Y.3d 937 (2016): Out-of-Title Work and Civil Service Regulations

    Matter of Tierney v. New York State Office of Mental Health, 28 N.Y.3d 937 (2016)

    A government employee is not entitled to additional compensation for performing duties outside their job title if those duties are consistent with their existing title and responsibilities and are not substantially different from the normal duties of the employee’s position.

    Summary

    Thomas Tierney, a Safety and Security Officer 2 (SS02) at a New York State psychiatric center, served as Acting Chief Safety and Security Officer (CSSO) for a period and sought additional compensation for the extra duties. He filed a grievance claiming he was performing out-of-title work. The state’s Department of Civil Service (DCC) and the Governor’s Office of Employee Relations (GOER) denied his grievance, determining that the duties he performed were consistent with the SS02 title. The New York Court of Appeals affirmed, finding that the determination was rational and not arbitrary or capricious, as the duties performed were not substantially different from those expected of an SS02.

    Facts

    Thomas Tierney, employed by the Office of Mental Health (OMH) as an SS02, was assigned to the Hudson River Psychiatric Center. When the CSSO position became vacant, Tierney served as Acting CSSO. He filed a grievance seeking additional compensation for the work he performed while acting in the CSSO role, listing specific duties he undertook. OMH sustained the grievance at step 2 but deferred the decision to DCC. DCC compared the duties of CSSOs and SS02s and concluded that the duties Tierney performed were consistent with his SS02 title. GOER adopted DCC’s findings and denied the grievance.

    Procedural History

    Tierney filed a grievance with OMH seeking additional compensation for out-of-title work. The grievance was reviewed through three steps, involving OMH, DCC, and GOER. The DCC and GOER denied the grievance. Tierney then filed an Article 78 petition in the trial court, which dismissed the proceeding. The Appellate Division affirmed the lower court’s decision. The New York Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether GOER’s determination, adopting the findings of DCC, that Tierney’s duties as Acting CSSO were consistent with his SS02 position, was arbitrary and capricious.

    Holding

    1. No, because the Court of Appeals found that GOER’s determination was supported by a rational basis and was not arbitrary or capricious.

    Court’s Reasoning

    The court applied the standard of review for administrative determinations, stating that such decisions must be upheld if they have a rational basis and are not arbitrary or capricious. Civil Service Law § 61 (2) restricts employees from performing duties of a position unless they are duly appointed to it. The court noted that the record supported the determination that Tierney was performing duties consistent with his SS02 title. The court emphasized that the out-of-title work, which involved his performance as an Acting CSSO, did not meet the standard for additional compensation because the duties were a natural extension of his SS02 role. The court highlighted that the duties in his grievance form did not reflect the key distinctive duties of a CSSO. The court found that the DCC’s comparison of the duties was rational, and that GOER’s adoption of the DCC’s findings was therefore appropriate.

    Practical Implications

    This case reinforces the deference courts give to administrative agencies in civil service matters. It clarifies that employees are not entitled to additional compensation simply for performing duties outside their specific title, especially if those duties are within the scope of their existing job description. The case underscores the importance of a comprehensive analysis of job duties when evaluating claims of out-of-title work. It implies that government employees must provide complete details of their additional responsibilities in their grievances in order to get additional compensation. The decision should guide how the lower courts analyze similar cases involving civil service employees. The ruling also suggests that if a government employee performs out-of-title work over an extended period, they are not automatically entitled to compensation; the critical inquiry centers on the nature of the work performed.

  • People v. Johnson, 27 N.Y.3d 63 (2016): Sixth Amendment Confrontation Clause and Admissibility of Codefendant’s Statements

    27 N.Y.3d 63 (2016)

    The Sixth Amendment’s Confrontation Clause, as interpreted by *Bruton v. United States*, prohibits the admission of a non-testifying codefendant’s facially incriminating statements at a joint trial, even with limiting instructions, if those statements powerfully incriminate the defendant.

    Summary

    The New York Court of Appeals addressed the admissibility of a codefendant’s grand jury testimony in a joint trial where the codefendant did not testify. The court found that the admission of the codefendant’s redacted grand jury statements violated the defendant’s Sixth Amendment right to confront witnesses. The codefendant’s statements, which admitted possession of the drug-buy money, were deemed facially incriminating as they directly implicated the defendant in the charged robbery, particularly because the statements confirmed an element of the crime. The court reversed the conviction, finding that the error was not harmless given the inconsistencies in the prosecution’s evidence and the jury’s focus on the codefendant’s admissions.

    Facts

    Keith Johnson (defendant) was jointly tried with Joe Rushing (codefendant) for robbery and related charges arising from a drug-buy operation. An undercover police officer, UC44, attempted to purchase drugs from defendant. After a conversation, defendant and UC44 entered a car driven by the codefendant. UC44 handed the codefendant pre-recorded money. Defendant then pulled out a gun, prompting UC44 to alert other officers. The codefendant drove away, and officers pursued, eventually arresting both the defendant and codefendant. The pre-recorded money was found on codefendant. At trial, the prosecution introduced redacted grand jury statements from the codefendant, where he claimed he was driving around with Johnson, and a stranger approached asking about drugs and throwing money into the car. The codefendant admitted to having put the money in his pocket. The prosecutor heavily relied on these statements during her summation, arguing that they corroborated the police testimony and established Johnson’s guilt. Defendant’s counsel argued that UC44 fabricated the story to justify his actions and pointed to inconsistencies in the police testimony.

    Procedural History

    The trial court admitted the codefendant’s grand jury testimony. The jury found Johnson guilty. The Appellate Division reversed the judgment and remanded for a new trial, holding that admission of codefendant’s grand jury testimony was error under *Bruton*. The dissenting Justice held that the statement was not facially incriminating as to defendant. A Justice of the Appellate Division granted the People leave to appeal.

    Issue(s)

    1. Whether the admission of the codefendant’s grand jury statements violated the defendant’s Sixth Amendment right to confrontation under *Bruton v. United States*.

    2. If a *Bruton* violation occurred, whether the error was harmless beyond a reasonable doubt.

    Holding

    1. Yes, because the codefendant’s statements were facially incriminating and directly implicated defendant, thus violating his Sixth Amendment rights.

    2. No, because given inconsistencies in the evidence and the jury’s focus on the codefendant’s admissions of possession of the money, the error was not harmless.

    Court’s Reasoning

    The court applied the *Bruton* rule, which prohibits the admission of a non-testifying codefendant’s statements that directly incriminate a defendant in a joint trial, even with limiting instructions. The court distinguished between statements that are facially incriminating (covered by *Bruton*) and those that become incriminating only when linked with other evidence (*Richardson v. Marsh*). Here, the codefendant’s statement that he possessed the prerecorded money directly implicated defendant in the robbery, as it placed them both in the car when the transaction happened. The court rejected the argument that the statements were exculpatory. The court found the statements were powerfully incriminating as to defendant, and that the jury was likely to improperly use the codefendant’s statements to infer defendant’s guilt because of their direct nature. Since the case hinged on the jury’s assessment of the police version of events and the defendant’s claims of fabrication, the court concluded that the admission of the codefendant’s statements, which corroborated the police, could not be considered harmless error. The court underscored the importance of cross-examination, which was absent here, in testing the credibility of the codefendant’s statements.

    Practical Implications

    This case reinforces the *Bruton* rule, emphasizing that courts must carefully scrutinize a codefendant’s statements in joint trials. Prosecutors must be mindful of the rule, particularly when redacting statements, as any direct incrimination of the defendant, even if seemingly minimal, may be enough to trigger a *Bruton* violation. The ruling highlights the importance of severance in cases where a non-testifying codefendant’s statements cannot be adequately redacted to avoid implicating the other defendant. The decision is a reminder to trial courts of the limits to curative instructions: as the Court states, “the substantial risk that the jury, despite instructions to the contrary, [will] look[ ] to the incriminating extrajudicial statements in determining [a defendant’s] guilt” must be avoided. This case signals to defense attorneys the importance of vigorously challenging the admission of codefendant statements and seeking severance when the statements incriminate the defendant. Further, it demonstrates that even seemingly exculpatory statements that include an element of the crime (in this case, possession of the drug money) can be found facially incriminating and trigger a *Bruton* violation. Other cases have applied and followed the principles of this case. The case emphasizes that a court must focus on whether a statement inculpates the defendant, not whether the statement attempts to exculpate the non-testifying codefendant.

  • Perlbinder Holdings, LLC v. City of New York, 27 N.Y.3d 118 (2016): Vested Rights and Erroneously Issued Permits

    27 N.Y.3d 118 (2016)

    A party cannot acquire a vested right to develop property in accordance with a permit that was issued in error; any such permit can be revoked by the issuing agency, even if the party relied on the permit in good faith.

    Summary

    The New York Court of Appeals addressed whether Perlbinder Holdings, LLC, acquired a vested right to maintain a large advertising sign after the New York City Department of Buildings (DOB) revoked the permit for the sign. The DOB had initially approved the sign based on an erroneous interpretation of zoning regulations. Perlbinder argued it relied on the permit in good faith, incurring substantial expenses. The Court held that because the permit was issued in error, Perlbinder could not establish a vested right. It reversed the Appellate Division’s decision and dismissed the petition, finding no grounds to compel the city to allow the sign.

    Facts

    Perlbinder owned property with a pre-existing advertising sign. Zoning regulations changed, but the original sign was grandfathered. In 2002, Perlbinder obtained a variance to build a mixed-use building, also seeking to relocate and modify the sign. The original sign was demolished in 2008 due to building violations. Perlbinder applied for new sign permits, which were initially granted by the DOB. However, after a DOB audit, the permits were revoked because the sign violated zoning regulations. Perlbinder appealed to the Board of Standards and Appeals (BSA), which affirmed the revocation. Perlbinder claimed it relied in good faith on the DOB’s approvals, spending substantial funds on the new sign.

    Procedural History

    Perlbinder filed an Article 78 proceeding in Supreme Court, which denied the petition and upheld the BSA’s decision. The Appellate Division reversed, remanding the case to the BSA to determine whether Perlbinder was entitled to a variance based on the New York City Charter, finding the BSA’s denial of considering good faith incorrect. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Perlbinder acquired a vested right to maintain the new advertising sign despite the fact that the permit was erroneously issued.

    2. Whether the Appellate Division correctly remanded to the BSA to determine if a variance should be granted based on NY City Charter § 666(7).

    Holding

    1. No, because the permit was erroneously issued.

    2. No, because a variance determination was not the appropriate remedy.

    Court’s Reasoning

    The court reiterated the principle that a party can acquire a vested right if they rely on a valid permit, make substantial changes, and incur significant expenses. However, the court emphasized that “Vested rights cannot be acquired, however, where there is reliance on an invalid permit.” The court found the DOB’s initial approval was incorrect as the new sign did not qualify as a grandfathered replacement. The court also held that since the 2008 permit was unlawfully issued, Perlbinder could not rely on it to acquire vested rights. Furthermore, the court held that the Appellate Division erred by effectively converting Perlbinder’s appeal into a variance application under NY City Charter § 666(7) because that provision covers general authority while the request involved a zoning variance which requires different standards and procedures. The court directed that a determination of good faith, if a variance was sought, should be made by the agency.

    Practical Implications

    This case reinforces the importance of valid permits in establishing vested rights. Property owners and developers must ensure permits are properly issued under existing zoning regulations. Reliance on an invalid permit, even in good faith, does not create vested rights. Local government agencies are able to revoke permits issued in error to correct errors, even when the property owner has spent money in reliance on them. This case illustrates how significant a proper zoning analysis is to development. If the permit is invalid from the start, no amount of reliance will save it.

  • People v. Gross, 26 N.Y.3d 681 (2016): Effective Assistance of Counsel and the Admissibility of Prior Consistent Statements

    26 N.Y.3d 681 (2016)

    To establish ineffective assistance of counsel, a defendant must demonstrate that the attorney’s errors were so egregious as to deprive the defendant of a fair trial and that those errors prejudiced the defendant.

    Summary

    The New York Court of Appeals addressed whether trial counsel provided ineffective assistance in a child sexual abuse case. The defendant argued that counsel was ineffective for failing to object to the admission of prior consistent statements made by the child victim and for not presenting expert medical testimony. The Court held that the admission of prior consistent statements was permissible as background information, and the failure to call an expert witness was a strategic decision. Since the counsel’s performance, viewed in its totality, provided meaningful representation, the Court affirmed the conviction.

    Facts

    Gordon Gross was accused of child sexual abuse and was indicted for course of sexual conduct against a child and endangering the welfare of a child. The child victim testified to years of abuse, including anal penetration. The child’s statements of the abuse were disclosed to multiple individuals including the mother, sister, school principal, and police officers. Trial counsel did not request a limiting instruction regarding the child’s prior consistent statements, nor did counsel present expert testimony disputing the abuse. Witnesses (mother, sister, principal, police officers) testified regarding the child’s disclosure. The jury convicted Gross. His post-conviction motion alleging ineffective assistance of counsel was denied by the trial court and the Appellate Division. The Court of Appeals granted leave to appeal.

    Procedural History

    Gross was convicted and sentenced in the trial court. The Appellate Division affirmed the conviction. Gross moved for post-conviction relief, arguing ineffective assistance of counsel. The County Court denied the motion. The Appellate Division affirmed the County Court. The Court of Appeals granted leave to appeal from the Appellate Division’s decision.

    Issue(s)

    1. Whether trial counsel’s failure to object to the admission and use of the child’s prior consistent statements violated Gross’s right to effective assistance of counsel.

    2. Whether trial counsel’s failure to consult or present testimony from an independent medical expert violated Gross’s right to effective assistance of counsel.

    Holding

    1. No, because the court found the testimony of each prosecution witness was properly admitted into evidence as background information.

    2. No, because the Court found trial counsel had strategic reasons for not calling an expert witness.

    Court’s Reasoning

    The Court analyzed the case under both the Sixth Amendment of the United States Constitution and New York’s constitutional requirement of effective assistance of counsel. The Court held that counsel provided meaningful representation, as demonstrated by her successful objections during the trial. Citing People v. Benevento, 91 NY2d 708 (1998), the Court stated that effectiveness is viewed in the totality of the circumstances. The Court determined that the testimony from the witnesses detailing the victim’s disclosures was properly admitted as background information explaining the investigative process. Further, the Court noted that Gross failed to provide the necessary foundation (an affidavit from an expert) to establish that an expert’s testimony would have benefited his case, and thus failed to establish ineffective assistance of counsel.

    The court also cited People v. Barboni, 21 NY3d 393 (2013), holding that counsel’s reasons for not calling an expert were strategic.

    Practical Implications

    This case reinforces the importance of the totality of the circumstances when assessing the effectiveness of counsel. Attorneys should consider that strategic decisions, such as not calling an expert witness, are generally protected. However, counsel must be able to articulate sound strategic reasons for their choices. This case also demonstrates the admissibility of prior consistent statements for explaining the investigative process. Further, the ruling impacts the evaluation of ineffective assistance claims by emphasizing the need for a strong evidentiary foundation to support arguments about how the case should have been handled. Attorneys should be careful to limit objections to the specific details of the abuse rather than type of serial testimony presented in this case

  • People v. Hogan, — N.E.3d –, 2016 NY Slip Op 01159 (2016): Drug Factory Presumption and the Scope of Effective Assistance of Counsel

    People v. Hogan, — N.E.3d –, 2016 NY Slip Op 01159 (2016)

    The drug factory presumption applies when circumstances suggest an intent to prepare drugs for sale, and a defendant’s decision to testify before a grand jury is a strategic one, thus falling under the purview of counsel.

    Summary

    In this case, the New York Court of Appeals addressed two key issues: the applicability of the drug factory presumption and the scope of effective assistance of counsel. The court held that the drug factory presumption was properly applied, given the circumstances. Furthermore, the court determined that the decision of whether a defendant should testify before a grand jury is a strategic decision that lies with defense counsel. The court affirmed the Appellate Division’s decision, upholding the defendant’s conviction.

    Facts

    Police executed a search warrant at the defendant’s former girlfriend’s apartment. They found packaged and loose cocaine, baggies, and a razor blade in open view in the kitchen. The prosecution sent notice to defense counsel indicating that the case would be presented to a grand jury. Defense counsel decided that the defendant would not testify before the grand jury and did not discuss the matter with the defendant. The grand jury indicted the defendant. At trial, the court considered the drug factory presumption. The defendant was convicted of drug possession charges.

    Procedural History

    The defendant moved to dismiss the indictment, which was denied. The defendant was convicted in a non-jury trial. The Appellate Division unanimously affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the drug factory presumption was properly applied under the circumstances of the case.

    2. Whether the defendant was denied effective assistance of counsel when counsel decided not to have him testify before the grand jury without consulting him.

    Holding

    1. Yes, because the circumstances, including the presence of packaged and loose drugs, paraphernalia, and a razor blade in plain view, supported an inference of preparation for sale.

    2. No, because the decision of whether to have a defendant testify before a grand jury is a strategic decision within counsel’s authority.

    Court’s Reasoning

    The court found that the drug factory presumption, as defined in Penal Law § 220.25 (2), was applicable. The court explained that the statute does not require a specific intent to prepare drugs for sale, but merely that the circumstances evince such an intent. The court cited previous cases where the presumption was properly applied when drugs and paraphernalia were found in plain view. The court found that the evidence presented at trial, including the presence of packaged and loose drugs and a razor blade, supported an inference that drugs were being prepared for sale.

    Regarding the ineffective assistance of counsel claim, the court held that the decision of whether a defendant should testify before a grand jury is a strategic decision reserved for counsel. The court noted that fundamental decisions, such as pleading guilty or waiving a jury trial, belong to the defendant, but strategic decisions, such as the selection of jurors or whether to seek a jury charge on lesser-included offenses, are within counsel’s purview. Because the decision not to have the defendant testify was a strategic one, and because the counsel stated his strategy on the record and defendant showed no prejudice, the court found that the defendant had not been denied effective assistance of counsel.

    Practical Implications

    This case reinforces the principle that the drug factory presumption may be applied when circumstances indicate preparation for sale, even without explicit evidence of intent. The case provides guidance for applying the presumption. Defense attorneys must understand the scope of the presumption and the types of evidence that will trigger its application. The decision also clarifies the division of authority between counsel and the client in criminal cases. It establishes that the decision of whether a defendant should testify before a grand jury is a matter of legal strategy, and that defense counsel has the authority to make that decision.

  • People v. Watson, 27 N.Y.3d 621 (2016): Conflicts of Interest in Public Defender Organizations

    People v. Watson, 27 N.Y.3d 621 (2016)

    A trial court has broad discretion to disqualify counsel when a potential conflict of interest exists, even within a public defender organization, especially when the defendant’s actions place the court in a dilemma of choosing between undesirable alternatives.

    Summary

    The New York Court of Appeals addressed whether a trial court abused its discretion by relieving a public defender from representing a defendant due to a potential conflict of interest. The defender’s office had previously represented a witness in the same incident, and the office imposed restrictions on the attorney’s actions, limiting his ability to investigate or cross-examine the witness. The Court of Appeals reversed the Appellate Division, holding that the trial court properly balanced the defendant’s right to counsel of choice against the need for effective assistance of counsel and the potential conflict of interest created by the office’s restrictions, which hindered the attorney’s ability to represent the defendant. The Court emphasized the trial court’s broad discretion in such matters and the importance of ensuring a fair trial.

    Facts

    Defendant was charged with weapons possession and resisting arrest. His attorney, employed by New York County Defender Services (NYCDS), discovered that another attorney from NYCDS had represented a potential witness, Stephens, in connection with the same incident. NYCDS supervisors, due to the prior representation, prohibited the attorney from searching for Stephens, calling him as a witness, or conducting any cross-examination if the prosecution called him. The defendant expressed a desire to keep his assigned counsel while also wanting Stephens to testify. After hearing these conflicting statements, the trial court relieved the attorney and assigned new counsel.

    Procedural History

    The trial court relieved defense counsel and assigned new counsel. The defendant was convicted. The Appellate Division reversed, finding the trial court abused its discretion. The Court of Appeals reversed the Appellate Division and remanded for consideration of the facts and issues raised but not determined on appeal to that court.

    Issue(s)

    1. Whether the trial court abused its discretion by relieving defense counsel due to a potential conflict of interest arising from the public defender’s prior representation of a witness in the same case.

    Holding

    1. Yes, because the trial court appropriately balanced the defendant’s right to counsel of choice against the need for effective assistance of counsel, considering the potential conflict of interest and restrictions imposed by NYCDS.

    Court’s Reasoning

    The court started by acknowledging the general rule that knowledge of one attorney in a large public defender organization is not automatically imputed to all. However, the Court found this case distinguishable from People v. Wilkins, where there was no pre-trial knowledge of the conflict. Here, the defense counsel became aware of NYCDS’s prior representation of Stephens, arising from the same incident, before the defendant’s trial. The court highlighted that defense counsel’s supervisors expressly restricted him from investigating or questioning Stephens, directly impinging on his representation of the defendant. The court recognized the trial court’s “substantial latitude in refusing waivers of conflicts of interest,” especially where a potential conflict could affect the trial’s outcome. The court found the defendant’s conflicting statements regarding wanting the attorney to continue representing him while also wanting Stephens to testify demonstrated an insufficient waiver of the conflict. Therefore, the trial court did not abuse its discretion in relieving counsel and ensuring the defendant received effective assistance.

    The court quoted from Wheat v. United States, stating that the trial court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

    Practical Implications

    This case clarifies that while knowledge is not automatically imputed in large public defender organizations, a conflict of interest can arise, particularly when the prior representation is related to the same incident. Trial courts have broad discretion to address potential conflicts. Attorneys working for public defender organizations should be vigilant in checking for potential conflicts and informing the court. Restrictions imposed by supervisors can create conflicts if they directly affect counsel’s ability to represent their client. The trial court must ensure the defendant knowingly waives the conflict if it is to be waived, as expressed by the defendant’s statements.