New York Law Review

Tag: New York Court of Appeals

  • People v. Galindo, 22 N.Y.3d 716 (2014): Applying the Statutory Presumption of Unlawful Intent in Firearm Possession

    People v. Galindo, 22 N.Y.3d 716 (2014)

    Possession of a weapon creates a permissive statutory presumption of intent to use it unlawfully, which the jury may accept or reject based on the totality of the evidence.

    Summary

    Oliverio Galindo was convicted of criminal possession of a weapon after shooting his cousin. The prosecution relied on Penal Law § 265.15(4), which states that possession of a weapon is presumptive evidence of intent to use it unlawfully. Galindo argued that the evidence was insufficient because he claimed the shooting was accidental. The New York Court of Appeals affirmed the conviction, holding that the statutory presumption allowed the jury to infer unlawful intent from the possession of the loaded firearm, and the jury was entitled to weigh all the competing inferences in deciding whether to accept or reject the presumption, even if the defendant presented evidence suggesting the shooting was accidental.

    Facts

    Oliverio Galindo shot his cousin, Augustine Castaneda, in the leg. Both worked at Broome Street Bar. Galindo accompanied Castaneda to the hospital. Galindo initially told his manager, Luis Flores, that they were mugged, but later admitted he accidentally shot Castaneda while “showing the gun.” Galindo disposed of the gun near the hospital. While in prison, Galindo urged an unidentified woman to tell Castaneda not to testify in court.

    Procedural History

    Galindo was indicted on two counts of second-degree criminal possession of a weapon. The trial court denied Galindo’s motions to dismiss. The jury convicted Galindo on both counts. The Appellate Division affirmed the conviction, finding sufficient evidence of intent based on the statutory presumption. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the statutory presumption of unlawful intent arising from possession of a weapon, under Penal Law § 265.15(4), is sufficient to support a conviction for criminal possession of a weapon in the second degree, even when the defendant claims the weapon was discharged accidentally?

    Holding

    Yes, because the statutory presumption allows the jury to infer unlawful intent from the possession of the weapon, and the jury is entitled to weigh all the competing inferences in deciding whether to accept or reject the presumption.

    Court’s Reasoning

    The Court of Appeals held that a statutory presumption is a permissible evidentiary device that allows the jury to infer a particular fact from established facts. Penal Law § 265.15(4) creates a permissive presumption, meaning the jury is not required to accept the presumed fact (unlawful intent) but may do so. The prosecution must first prove the predicate fact (possession of the weapon) beyond a reasonable doubt. Once this is done, the presumption becomes part of the prosecution’s prima facie case. The defendant can rebut the presumption with contrary proof, but the jury ultimately decides whether to accept or reject the presumption.

    The court emphasized that the People weren’t required to prove intent to use the gun unlawfully against Castaneda specifically, but rather against “another” person. The court found that Galindo’s actions after the shooting, such as disposing of the gun and lying about the incident, supported the inference of unlawful intent. The Court stated: “[T]hat is exactly what the legislature intended Penal Law § 265.15 (4) to permit a jury to do: find that a defendant intended to use a weapon unlawfully merely because he or she possessed that weapon.”

    The dissent argued that Galindo’s admission of an accidental shooting negated any inference of unlawful intent, and there wasn’t sufficient evidence to support the jury’s finding. The majority rejected this argument, noting that the jury was entitled to weigh the competing inferences and that the evidence, viewed in the light most favorable to the People, supported the conviction.

  • New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health, 23 N.Y.3d 681 (2014): Limits on Agency Regulatory Authority

    23 N.Y.3d 681 (2014)

    An administrative agency exceeds its regulatory authority when it engages in policymaking by resolving difficult social problems and choosing between competing ends, a power reserved for the legislative branch.

    Summary

    The New York City Board of Health adopted a rule (the “Portion Cap Rule”) that restricted the size of sugary drinks sold by food service establishments. Several organizations challenged the rule, arguing that the Board exceeded its regulatory authority. The New York Court of Appeals held that the Board exceeded its authority by engaging in policymaking, which is reserved for the City Council. The court emphasized that the Board’s decision involved balancing competing concerns of public health and economic costs without legislative guidance, thus overstepping its regulatory bounds by making choices among competing policy goals.

    Facts

    In June 2012, the New York City Department of Health and Mental Hygiene proposed an amendment to the City Health Code, seeking to restrict the size of cups and containers for sugary beverages sold by food service establishments. The proposed “Portion Cap Rule” would prohibit food service establishments from selling sugary drinks in containers larger than 16 fluid ounces. A “sugary drink” was defined as a non-alcoholic beverage sweetened with sugar or caloric sweeteners, containing more than 25 calories per 8 fluid ounces, and not containing more than 50 percent milk. The rule did not apply to establishments regulated by the New York State Department of Agriculture and Markets, such as supermarkets and convenience stores.

    Procedural History

    In October 2012, several organizations filed a hybrid CPLR article 78 proceeding and declaratory judgment action challenging the Portion Cap Rule. The Supreme Court, New York County, granted the petition, invalidated the rule, and permanently enjoined its enforcement, finding that the Board had exceeded its regulatory authority and that the rule was arbitrary and capricious. The Appellate Division unanimously affirmed, holding that the Board overstepped its authority under the principles set forth in Boreali v. Axelrod. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the New York City Board of Health exceeded the scope of its regulatory authority by adopting the Portion Cap Rule, thereby infringing upon the legislative jurisdiction of the City Council.

    Holding

    Yes, because by adopting the Portion Cap Rule, the New York City Board of Health engaged in policymaking by choosing among competing policy goals without legislative delegation or guidance, thus exceeding its regulatory authority and infringing upon the legislative jurisdiction of the City Council.

    Court’s Reasoning

    The Court of Appeals held that the New York City Charter designates the City Council as the sole legislative body, and the Board of Health’s authority is regulatory, not legislative. The court applied the framework established in Boreali v. Axelrod to determine whether the Board had improperly engaged in policymaking. The court noted several factors indicating the Board had overstepped its authority: (1) the Board weighed competing concerns of public health and economic costs, attempting to strike a compromise, which is a uniquely legislative function; (2) the Board created a comprehensive set of rules without legislative guidance; and (3) the state legislature and City Council had previously considered and rejected similar measures. The court emphasized that while regulations necessarily involve an analysis of societal costs and benefits, the Board’s actions here went beyond mere rulemaking. Instead, the Board made difficult and complex choices between broad policy goals, such as valuing health considerations relative to economic ends and choosing between different methods of influencing citizens’ decision-making, such as indirect methods like limiting container size versus direct methods like outright bans. By choosing between public policy ends in these ways, the Board of Health engaged in law-making beyond its regulatory authority. The court clarified that its decision should not be interpreted to prohibit an agency from attempting to balance costs and benefits but rather highlighted that the agency had not been given any legislative guidelines at all for determining how the competing concerns of public health and economic cost are to be weighed.

  • Norex Petroleum Ltd. v. Access Industries, Inc., 23 N.Y.3d 604 (2014): Interplay of Borrowing and Savings Statutes

    23 N.Y.3d 604 (2014)

    When a nonresident plaintiff’s timely action in New York federal court is terminated on non-merits grounds, the plaintiff can refile the claims in state court within six months under New York’s savings statute, even if the claim would be untimely in the jurisdiction where the cause of action accrued.

    Summary

    Norex, a Canadian company, initially sued in federal court in New York, alleging RICO violations and state law claims related to the takeover of a Russian oil company. The federal case was dismissed on jurisdictional grounds after years of litigation. Norex then refiled the state law claims in New York state court within six months. The defendants argued the state claims were time-barred under CPLR 202 because Alberta, where Norex’s economic injury occurred, has a shorter statute of limitations and no savings statute. The New York Court of Appeals held that because the initial federal action was timely, CPLR 205(a) allowed the refiling in state court, regardless of Alberta’s laws.

    Facts

    Norex, a Canadian company, claimed the defendants illegally took control of a Russian oil company in 2002, causing economic harm to Norex in Alberta. Norex sued in the Southern District of New York in February 2002, alleging RICO violations and adding state law claims later. The federal district court initially dismissed on forum non conveniens, but the Second Circuit reversed. After further proceedings and an intervening Supreme Court decision (Morrison v. National Australia Bank Ltd.), the Second Circuit ultimately affirmed dismissal for failure to state a claim in December 2010. Norex then filed in New York State Supreme Court in March 2011.

    Procedural History

    Norex initially filed in the U.S. District Court for the Southern District of New York. The District Court granted a motion to dismiss based on forum non conveniens, but the Second Circuit reversed. The District Court then dismissed for lack of subject matter jurisdiction, which was affirmed by the Second Circuit. Norex then commenced an action in New York Supreme Court. The Supreme Court dismissed the complaint as time-barred. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    Whether CPLR 205(a), New York’s savings statute, permits a nonresident plaintiff to refile claims in state court within six months of a federal action’s non-merits termination, when the suit would be untimely in the jurisdiction where the claims accrued, due to CPLR 202, New York’s borrowing statute.

    Holding

    Yes, because once the initial action was timely commenced in federal court in New York, the borrowing statute’s purpose of preventing forum shopping was fulfilled, and CPLR 202 had no further role to play.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 202’s purpose is to prevent forum shopping by nonresidents seeking to take advantage of New York’s longer statute of limitations. Once Norex filed a timely action in federal court in New York, that purpose was served. The court emphasized that CPLR 205(a) is designed to ensure a diligent suitor the right to a hearing on the merits. Quoting Gaines v. City of New York, the court stated, “The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” Because the initial federal action was timely under CPLR 202, the subsequent state court action was also considered timely commenced at the time of the initial action under CPLR 205(a). The Court rejected the argument that Alberta’s lack of a savings statute affected the analysis, emphasizing that CPLR 202 had already been satisfied by the timely filing of the initial action. The Court distinguished Besser v Squibb & Sons, noting that the revival statute in that case was explicitly intended to benefit only New York residents, whereas CPLR 205(a) contains no such limitation. The Court concluded that its interpretation best comports with the statutory language and honors both the borrowing statute’s purpose and the savings statute’s goal of resolving actions on their merits.

  • Matter of Doyle, 23 N.Y.3d 653 (2014): Standard for Removing a Judge for Appearance of Impropriety

    Matter of Doyle, 23 N.Y.3d 653 (2014)

    Removal of a judge is warranted even in the absence of actual impropriety when the conduct creates a strong appearance of impropriety that undermines public confidence in the integrity of the judiciary, especially when coupled with a prior disciplinary history.

    Summary

    This case concerns the removal of Surrogate Judge Cathryn M. Doyle from office based on allegations of creating an appearance of impropriety. The New York Court of Appeals upheld the State Commission on Judicial Conduct’s determination that Judge Doyle’s actions, specifically involving her dealings with a court employee and a potential litigant, warranted removal, despite the absence of proven actual impropriety. The Court emphasized the importance of maintaining public confidence in the judiciary and considered Judge Doyle’s prior disciplinary history in reaching its decision. A dissenting opinion argued for a lesser sanction of censure, citing the referee’s finding that Judge Doyle was a credible witness.

    Facts

    Judge Doyle was the Surrogate of Albany County. An attorney, Gary DiNardo, sought appointment as a court evaluator. DiNardo also represented clients in matters before Judge Doyle. Judge Doyle had a close relationship with a court employee, Lisa Circe, who was also DiNardo’s girlfriend. Judge Doyle attended social events with DiNardo and Circe. Judge Doyle appointed DiNardo as a court evaluator and made other favorable decisions regarding him. These actions created the appearance that DiNardo received preferential treatment because of his relationship with Circe and Judge Doyle. A separate incident involved Judge Doyle intervening in a landlord-tenant dispute on behalf of Circe, which further suggested an abuse of her judicial position.

    Procedural History

    The New York State Commission on Judicial Conduct investigated Judge Doyle’s conduct. The Commission determined that Judge Doyle violated judicial ethics rules by creating an appearance of impropriety. The Commission recommended Judge Doyle’s removal from office. The New York Court of Appeals reviewed the Commission’s determination and the recommended sanction. The Court of Appeals affirmed the Commission’s decision and ordered Judge Doyle’s removal.

    Issue(s)

    Whether the State Commission on Judicial Conduct abused its discretion when it determined that Judge Doyle should be removed from her position as Surrogate Judge.

    Holding

    No, because Judge Doyle’s conduct created a strong appearance of impropriety and undermined public confidence in the integrity of the judiciary, particularly in light of her prior disciplinary history.

    Court’s Reasoning

    The Court of Appeals emphasized that even the appearance of impropriety can be as damaging to the judiciary’s reputation as actual misconduct. The court stated, “The appearance of impropriety is ‘as damaging to public confidence in the courts as actual impropriety’” (quoting Matter of харченко, 20 N.Y.3d 388, 396 [2013]). The Court found that Judge Doyle’s actions, specifically her relationship with the court employee and the attorney, and her intervention in the landlord-tenant dispute, created a situation where it appeared she was using her position to benefit her friends and associates. The Court also considered Judge Doyle’s prior disciplinary history, which included a prior admonishment for improper conduct, as an aggravating factor. The court reasoned that while removal is a severe sanction, it was necessary to maintain public trust in the judiciary. The dissenting judge argued that censure would have been a more appropriate sanction. The dissent highlighted that the referee found Judge Doyle credible and candid and that the prior disciplinary action was unrelated to the current misconduct. The dissent further argued that the misconduct did not rise to the level of “truly egregious circumstances” necessary for removal. The majority, however, disagreed, finding that the appearance of impropriety, coupled with the prior discipline, warranted removal.

  • 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.

  • Capruso v. Village of Kings Point, 21 N.Y.3d 631 (2013): Applying the Continuing Wrong Doctrine to Public Trust Violations

    Capruso v. Village of Kings Point, 21 N.Y.3d 631 (2013)

    The continuing wrong doctrine tolls the statute of limitations for ongoing violations of the public trust doctrine related to unauthorized non-park use of dedicated parkland.

    Summary

    The Village of Kings Point sought to build a Department of Public Works (DPW) facility on a portion of dedicated parkland. Residents and the State of New York sued, alleging violations of the public trust doctrine. The Village argued the statute of limitations had expired because the non-park use of the land began decades earlier. The Court of Appeals held that the continuing wrong doctrine applied, allowing the challenge to proceed despite the passage of time because the ongoing non-park use constituted a continuous violation of the public trust.

    Facts

    The Village of Kings Point acquired Kings Point Park in the 1920s. In 1938, the Village leased the park to the Great Neck Park District. In 1946, the Village amended the lease to exclude the “Western Corner” of the park, intending to use it for a pistol range and storage. The Village renewed the lease with this exclusion. The Village erected structures, including a garage and a Quonset hut, on the Western Corner. In 2008, the Village proposed building a 12,000-square-foot DPW facility on the Western Corner, involving deforestation, regrading, and fencing.

    Procedural History

    Residents sued the Village in 2009 to enjoin the DPW project and current use of the Western Corner. The State of New York filed a similar suit. Supreme Court denied the Village’s motion to dismiss and granted a preliminary injunction. The Appellate Division affirmed. After discovery, Supreme Court granted summary judgment to the residents and the State, permanently enjoining the DPW project and ordering the removal of materials from the Western Corner. The Appellate Division modified the order, deleting the award of attorney’s fees, and affirmed. The Village appealed to the Court of Appeals.

    Issue(s)

    1. Whether the statute of limitations barred the action challenging the proposed DPW facility, given the Village’s prior non-park use of the land.

    2. Whether the continuing wrong doctrine applies to toll the statute of limitations for the Village’s ongoing non-park use of the Western Corner.

    3. Whether laches barred the claims brought by the plaintiffs and the State.

    Holding

    1. No, because the proposed DPW facility was a substantial change in the nature and scope of the existing non-park use.

    2. Yes, because the ongoing non-park use of parkland constitutes a continuous violation of the public trust doctrine.

    3. No, because laches does not apply to the State acting in a governmental capacity, nor does it apply when plaintiffs allege a continuing wrong.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order. The Court reasoned that the proposed DPW facility was not merely a change in the scope of existing non-park use but a substantial new intrusion. Therefore, the cause of action challenging the facility was not time-barred. Regarding the ongoing non-park use, the Court applied the continuing wrong doctrine, which tolls the statute of limitations when the harm is not traced exclusively to the initial objectionable act but is ongoing. The Court stated that “[t]he harm sustained by the public when structures having ‘no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred’ . . . cannot be traced exclusively to the day when the illegal encroachment began” (quoting Williams v Gallatin, 229 NY 248, 253 [1920]). Because the Village’s violation of the public trust doctrine was continuous, a new cause of action accrued with each successive day, allowing the plaintiffs to challenge the use despite the passage of time. The Court also rejected the Village’s laches defense, noting it did not apply to the State acting to protect a public interest, nor to ongoing wrongs. The court emphasized the unreasonableness of expecting ordinary citizens to know whether a municipality has obtained legislative approval for parkland uses. The court explicitly distinguished this case from a one-time event like the sale of parkland, leaving that issue for another day.

  • 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]).”

  • Giles v. Yi, 23 N.Y.3d 582 (2014): Medical Reports Required Before Defense Medical Examinations

    Giles v. Yi, 23 N.Y.3d 582 (2014)

    A plaintiff in a personal injury case is not required to create new medical reports solely for the purpose of satisfying discovery obligations before a defense medical examination, but must provide comprehensive reports from treating or examining medical providers that detail the injuries and conditions about which testimony will be offered at trial, even if it requires the providers to draft new reports.

    Summary

    This case addresses the scope of medical disclosure required under CPLR 3121 and 22 NYCRR 202.17(b)(1) in personal injury actions, particularly in the context of lead poisoning claims. The Court of Appeals held that plaintiffs are not required to create new medical reports solely for litigation purposes before a defense medical examination. However, plaintiffs must provide comprehensive reports from their treating or examining medical providers, detailing all claimed injuries. If existing reports are insufficient, the plaintiffs must request that the medical providers create adequate reports or seek relief from disclosure. The Court also clarified that plaintiffs do not need to provide reports causally linking the injuries to the defendant’s negligence at this stage.

    Facts

    Two plaintiffs, Giles and Hamilton, filed separate personal injury actions alleging they suffered various injuries due to childhood exposure to lead-based paint in rental properties owned by the defendants. Both plaintiffs provided some medical and educational records indicating lead poisoning and subsequent academic or behavioral issues, but these records did not fully substantiate all claimed injuries or causally link them to lead poisoning. The defendants requested additional medical reports detailing the diagnosis of each alleged injury and its causal relationship to the lead exposure.

    Procedural History

    In both cases, the Supreme Court granted the defendants’ motions to compel the plaintiffs to produce medical reports detailing a diagnosis of the alleged injuries caused by lead-based paint exposure, or be precluded from introducing proof of these injuries at trial, and denied the plaintiffs’ motions for a protective order. The Appellate Division affirmed these orders. The Appellate Division granted the plaintiffs leave to appeal, certifying the question of whether the orders were properly made.

    Issue(s)

    1. Whether a plaintiff in a personal injury case must create new medical reports solely to comply with pre-defense medical examination discovery obligations under 22 NYCRR 202.17(b)(1)?

    2. Whether a plaintiff must produce medical reports causally relating their injuries to the defendant’s negligence before the defense medical examination?

    3. Whether a court may take judicial notice, under CPLR 4511, of federal statutory findings regarding the dangers of lead-based paint exposure to avoid the need to prove general causation?

    Holding

    1. No, because plaintiffs are only required to produce reports from medical providers who have previously treated or examined them, but they must ensure these reports are comprehensive and detail all claimed injuries.

    2. No, because 22 NYCRR 202.17(b)(1) does not require medical reports to causally relate the injury to the defendant’s negligence at the initial disclosure stage.

    3. No, because CPLR 4511 allows judicial notice of law, not facts, and general causation in scientifically complex cases requires scientific evidence, not congressional findings.

    Court’s Reasoning

    The Court reasoned that requiring plaintiffs to generate new medical reports solely for litigation purposes would be unduly burdensome and potentially prevent legitimate claims due to financial constraints or lack of access to medical care. However, the court emphasized that 22 NYCRR 202.17(b)(1) obligates plaintiffs to provide comprehensive reports from treating and examining medical providers, detailing all injuries and conditions about which testimony will be offered at trial. If existing reports are insufficient, plaintiffs must request that their medical providers draft reports containing the necessary information. If that’s not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule.

    The Court clarified that requiring plaintiffs to produce medical reports causally relating their injuries to lead paint exposure before the defense medical examination exceeded the scope of 22 NYCRR 202.17(b)(1). The rule only requires a “description of the injuries, a diagnosis and a prognosis,” not a causal link to the defendant’s negligence. Causation is more appropriately addressed during expert discovery under CPLR 3101(d).

    Regarding the motion to take judicial notice of 42 USC § 4851, the Court held that CPLR 4511 allows a court to take notice of federal and foreign state law, not facts. The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not “law” that is relevant to Hamilton’s case. As the court stated, “Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains.”

  • 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. 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.