New York Law Review

Tag: Waiver

  • People v. Jackson, No. 22 (N.Y. 2017): Preservation of Sandoval Challenges and Waiver of Antommarchi Rights

    People v. Jackson, No. 22 (N.Y. March 28, 2017)

    To preserve a challenge to a trial court’s Sandoval ruling, a party must make a specific and timely objection at the time of the ruling or when the court has an opportunity to change it, unless the court expressly decides the issue raised on appeal in response to a protest. A defendant can waive their right to be present at sidebar conferences.

    Summary

    The New York Court of Appeals addressed two primary issues in People v. Jackson: (1) whether the defendant preserved for appellate review a challenge to the trial court’s Sandoval ruling, which permitted the prosecution to introduce the fact of a prior juvenile delinquency adjudication, and (2) whether the defendant validly waived his right to be present at sidebar conferences during jury selection. The Court held that the defendant’s challenge to the Sandoval ruling was unpreserved because he failed to make a specific objection. The Court further held that the defendant had validly waived his right to be present at sidebar conferences. The Court affirmed the Appellate Division order.

    Facts

    The defendant was prosecuted on charges arising from unrelated sexual attacks on two female acquaintances. Prior to trial, the prosecution sought permission to question the defendant, if he testified, about prior convictions and bad acts. During a Sandoval/Molineux hearing, the defendant opposed the prosecution’s request, arguing that the prior offenses were juvenile offenses. The court ruled that the prosecution could elicit that the defendant had been adjudicated a juvenile delinquent and received probation, but not the facts underlying the adjudication. The defendant did not object. Later, during a People v. Antommarchi hearing, the court informed the defendant of his right to be present during sidebar conversations, but he could waive the right to avoid being seen in custody by the jury. The defendant signed a written waiver of his right to be present.

    Procedural History

    The defendant was convicted of predatory sexual assault and criminal sexual act in the first degree. The trial court imposed a sentence of 25 years to life on the predatory sexual assault conviction and 25 years on the criminal sexual act conviction. The Appellate Division affirmed the judgment, concluding that the Sandoval ruling was harmless error and the defendant validly waived his right to be present at sidebar conferences. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendant preserved for appellate review his challenge to the trial court’s Sandoval ruling.
    2. Whether the defendant validly waived his right to be present at sidebar conferences.

    Holding

    1. No, because the defendant failed to make a specific and timely objection to the Sandoval ruling.
    2. Yes, because the record showed that the defendant was informed of his rights, consulted with his attorney, and signed a written waiver.

    Court’s Reasoning

    The Court of Appeals explained that a challenge based on a Sandoval error must be preserved for appellate review by a specific and timely objection. To preserve an issue, counsel must register an objection and apprise the court of the grounds for the objection. The Court found that the defendant’s challenge to the Sandoval ruling was unpreserved because the defendant did not argue at the hearing that it would be legal error to permit the prosecution to elicit that he was adjudicated a juvenile delinquent. The defendant merely argued that the actions should not be judged based on a young offender’s undeveloped mind. Since the defendant did not object, the trial court had no opportunity to change its ruling and avoid the alleged error. The Court also held that the trial court did not expressly decide the issue of whether it was erroneous to allow the prosecution to introduce the fact of the juvenile adjudication because the objection wasn’t based on the legal prohibition.

    Regarding the waiver of the right to be present at sidebar conferences, the Court cited People v. Antommarchi and noted that a defendant has the right to be present. However, a defendant may waive this right. The Court found that the defendant validly waived his rights because he was informed of his right to be present, consulted with his attorney, and signed a written waiver.

    Practical Implications

    This case emphasizes the importance of making specific and timely objections to preserve issues for appellate review. Attorneys must clearly articulate the legal basis for their objections to provide the trial court with an opportunity to correct any errors. If counsel fails to object, the issue is not preserved, and will be unable to raise the issue on appeal. Moreover, the case confirms that a defendant can waive their right to be present at sidebar conferences if the waiver is knowing, voluntary, and intelligent. Legal practitioners should ensure that any waivers are properly documented, with the defendant fully informed of their rights and the consequences of waiving them. If the objection is not specific, it can result in the defendant being unable to appeal a potential error made by the trial court.

  • People v. Medina, 13 N.Y.3d 260 (2009): Double Jeopardy and Partial Verdicts on Lesser Included Offenses

    People v. Medina, 13 N.Y.3d 260 (2009)

    When a jury returns a guilty verdict on a lesser-included offense but fails to reach a verdict on the greater offense, a retrial on the greater offense is barred by double jeopardy unless the defendant affirmatively waived double jeopardy protections with specific knowledge of the implications.

    Summary

    Medina was charged with third-degree and seventh-degree criminal possession of a controlled substance. The jury found him guilty on the seventh-degree charge (a lesser-included offense) but could not reach a verdict on the third-degree charge. A mistrial was declared on the unresolved count. Before a second trial, Medina argued double jeopardy barred retrial on the third-degree charge. The Court of Appeals reversed the Appellate Division, holding that because Medina did not explicitly waive his double jeopardy rights with knowledge of the implications of CPL 300.40(3)(b), retrial on the third-degree charge was impermissible.

    Facts

    The defendant, Medina, was indicted on charges of criminal possession of a controlled substance in the third and seventh degrees. During the trial, the jury deliberated and returned a partial verdict, finding Medina guilty of the seventh-degree possession charge, a misdemeanor and a lesser-included offense of the third-degree charge. The jury was unable to reach a verdict on the third-degree felony charge. A mistrial was declared solely as to the third-degree charge, and the jury was discharged.

    Procedural History

    Prior to the commencement of the second trial on the third-degree charge, Medina moved to dismiss the indictment, arguing that retrial was barred by double jeopardy. The trial court denied the motion, and Medina was subsequently convicted of third-degree criminal possession. The Appellate Division affirmed the conviction. The Court of Appeals reversed, holding that retrial on the third-degree charge violated double jeopardy principles.

    Issue(s)

    Whether the defendant’s retrial on the charge of criminal possession of a controlled substance in the third degree was barred by double jeopardy after the jury returned a guilty verdict on the lesser-included offense of criminal possession of a controlled substance in the seventh degree but was unable to reach a verdict on the third-degree charge, and a mistrial was declared on that count.

    Holding

    Yes, because when the jury returned a guilty verdict on the lesser-included offense, it operated as an acquittal on the greater offense by operation of law, and the defendant did not affirmatively waive his double jeopardy protections with sufficient knowledge of the implications before the mistrial was declared.

    Court’s Reasoning

    The Court of Appeals relied heavily on CPL 300.40(3)(b), which states that if a jury renders a partial verdict of guilty on a lesser included offense, but is unable to agree on a verdict on a higher offense, that is deemed an acquittal of the higher offense. The Court distinguished this case from People v. Echevarria, 6 N.Y.3d 89 (2005), where the defendant explicitly disavowed the protection against double jeopardy. Here, the Court noted the absence of any such explicit waiver. The Court emphasized that for a waiver of double jeopardy to be effective, it must be knowing and intelligent. In this case, neither the court nor the parties discussed the double jeopardy implications of taking a partial verdict. Therefore, Medina’s failure to object to the mistrial did not constitute a waiver of his double jeopardy rights. The court cited People v. Fuller, 96 N.Y.2d 881 (2001), reaffirming that once a defendant is acquitted of a greater charge due to a verdict on a lesser-included offense, they cannot waive the protections of double jeopardy. The dissent argued that the case was indistinguishable from Fuller, and that Medina’s actions were based on a misunderstanding of the law, similar to the defendant in Fuller. The dissent argued that, absent an explicit, knowing waiver of double jeopardy rights, the retrial should be barred. The majority rejected the argument that simply requesting a mistrial constitutes a waiver, especially when the defendant is unaware of the double jeopardy implications.

  • Police Benevolent Assn. of N.Y. State Troopers, Inc. v. Division of N.Y. State Police, 13 N.Y.3d 93 (2009): Right to Counsel During Critical Incident Reviews

    Police Benevolent Assn. of N.Y. State Troopers, Inc. v. Division of N.Y. State Police, 13 N.Y.3d 93 (2009)

    A union’s failure to explicitly negotiate for representation rights during critical incident reviews in a collective bargaining agreement constitutes a waiver of any such right, even if the union previously assumed the right existed.

    Summary

    The Police Benevolent Association (PBA) sought a judgment declaring that state troopers have a right to counsel or union representation during “critical incident reviews.” These reviews are conducted after incidents involving death, serious injury, or firearm discharge by a trooper. While the PBA assumed this right existed under the collective bargaining agreement (CBA), the Division of State Police later changed its policy. The Court of Appeals held that because the CBA only explicitly provided for representation during administrative interrogations, the PBA had waived any right to representation during critical incident reviews. The court emphasized the importance of explicit negotiation for specific rights within collective bargaining.

    Facts

    The Division of State Police conducts critical incident reviews after incidents where a trooper’s actions result in death or serious injury, or the discharge of a firearm. Until 2001, both the PBA and the Division assumed that troopers had a collectively bargained right to representation during these reviews, similar to administrative interrogations. In May 2001, Trooper Taney was involved in a fatal accident and was denied union representation during the critical incident review. Subsequently, in a separate incident, troopers involved in a shooting were also denied representation. The Division then restated its policy, allowing counsel but restricting private conversations before the interview. Later, the Division further modified its policy to offer use immunity for compelled statements and to separate critical incident review personnel from administrative investigation personnel.

    Procedural History

    The PBA and several troopers filed an action seeking declaratory and injunctive relief, arguing that the Division’s critical incident review policies violated Civil Service Law § 75 (2) and their constitutional right to counsel. Supreme Court granted summary judgment to the plaintiffs. The Appellate Division reversed, holding that the plaintiffs lacked standing. The Court of Appeals dismissed the plaintiffs’ appeal as of right, then granted their motion for leave to appeal. The Court of Appeals assumed standing for the purposes of the appeal, but affirmed the Appellate Division’s dismissal of the complaint.

    Issue(s)

    Whether the collective bargaining agreement between the PBA and the Division of State Police provided troopers with a right to counsel or union representation during critical incident reviews.

    Holding

    No, because the collective bargaining agreement only explicitly provided for representation during administrative interrogations that could lead to discipline, the PBA effectively waived any right to representation during critical incident reviews.

    Court’s Reasoning

    The Court of Appeals reasoned that while the Taylor Law requires public employers to bargain in good faith, statutory and due process rights can be surrendered during collective bargaining. In this case, the CBA explicitly provided for representation during administrative interrogations (CBA § 16.2 [A] [8]), but was conspicuously silent on the right to counsel during critical incident reviews as described under CBA § 16.1 (D), which states that “members may be requested and are expected to properly respond and if requested, submit written memoranda detailing all necessary facts.” Because the PBA only agreed to a right to counsel during administrative interrogations, it necessarily waived any representation right troopers may have had during critical incident reviews. The court noted that if the PBA disagreed with the Division’s application of CBA § 16.1 (D) to critical incident reviews, it was obligated to submit that grievance to binding arbitration, as provided in CBA § 15.4. The court emphasized that “statutory and due process rights may even be surrendered during collective bargaining.” The absence of an explicit provision for representation during critical incident reviews indicated a waiver of that right, regardless of prior assumptions. The court implicitly endorsed the Division’s argument that critical incident reviews do not relate to discipline, making them subject to collective bargaining, and that the troopers failed to secure this right through bargaining.

  • People v. Mitchell, 10 N.Y.3d 819 (2008): Waiver of Objection to Jury Instructions

    10 N.Y.3d 819 (2008)

    A defendant’s failure to object to erroneous jury instructions regarding multiple acts that could constitute the charged crime results in a waiver of the claim on appeal, provided the indictment itself is valid and sufficiently specific.

    Summary

    Curtis Mitchell was convicted of burglary and possession of burglar’s tools. The indictment charged him with one count of burglary based on an incident on August 28, 2004. At trial, the prosecution presented evidence of two separate entries into the same building on that date. The trial court instructed the jury that they could convict based on either entry, as long as they were unanimous as to at least one. Mitchell did not object. On appeal, Mitchell argued that the conviction should be reversed because the jury could have convicted him based on an entry not specifically charged in the indictment. The New York Court of Appeals affirmed the conviction, holding that Mitchell waived his objection to the jury instructions by failing to raise it at trial.

    Facts

    A building superintendent observed Mitchell and a co-defendant prying open the door of a building at 18 East 16th Street in Manhattan around 1:30 AM on August 28, 2004. They entered and later exited. Approximately two hours later, the superintendent saw them repeat the process at the same location. This time, police intercepted them after they left the building. Mitchell was carrying a knapsack containing tools commonly used for burglary, including gloves, a flashlight, a screwdriver, and a chisel.

    Procedural History

    The grand jury indicted Mitchell on one count of burglary and one count of possession of burglar’s tools. At trial, the People presented evidence of both entries into the building. The trial court instructed the jury that it could convict based on the first, second, or both entries, provided they were unanimous as to at least one. Mitchell did not object to the jury instructions. The jury found Mitchell guilty. Mitchell appealed, arguing that the jury instructions were improper because he was only indicted on one count of burglary. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant’s failure to object to erroneous jury instructions at trial, where the jury was permitted to consider multiple acts to support a single count of burglary in the indictment, constitutes a waiver of the objection on appeal.

    Holding

    Yes, because while a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution, the indictment in this case was valid and sufficient, and the defendant failed to preserve the objection to the jury instructions by raising it at trial.

    Court’s Reasoning

    The Court of Appeals reasoned that the indictment was valid because it charged Mitchell with burglary on a specific date at a specific location. While the prosecution presented evidence of two distinct burglaries, each conformed to the details specified in the indictment. The court emphasized that because there was no jurisdictional defect (i.e., the indictment was facially valid), Mitchell was required to object to the erroneous jury instructions at trial to preserve the issue for appeal. His failure to object constituted a waiver. The Court distinguished this situation from one where the indictment itself is fundamentally flawed, which would be a nonwaivable jurisdictional defect. The court implicitly reinforced the importance of timely objections to ensure fair trials and prevent strategic sandbagging by defendants. The court stated, “Although, as defendant argues, a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution, here there is no jurisdictional infirmity…Because there is no jurisdictional error, defendant was required to object to the judge’s erroneous jury instructions in order to avoid waiver.”

  • Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18 (2008): Agreements Waiving Rent Stabilization Benefits Are Void

    10 N.Y.3d 18 (2008)

    An agreement by a tenant to waive the benefit of rent stabilization laws in exchange for the ability to use an apartment as a second home at an illegally inflated rent is void and unenforceable, regardless of court approval of the initial settlement.

    Summary

    This case addresses the enforceability of an agreement where tenants waived their rent stabilization rights in exchange for the landlord allowing them to use the apartment as a second home and charging them an illegally high rent. The New York Court of Appeals held that such agreements are void as against public policy, regardless of whether the agreement was part of a court-approved settlement. The court emphasized that the Rent Stabilization Code explicitly prohibits tenants from waiving their rights and that the agreement distorted the housing market without benefiting those the rent stabilization laws were designed to protect.

    Facts

    Victoria Munroe and Eric Saltzman rented three rent-stabilized apartments in Manhattan. An initial dispute over an alleged illegal sublease was settled with a so-ordered stipulation in 1996. This agreement recognized the tenants as lawful rent-stabilized tenants but at a monthly rent of $2,000, substantially above the legal maximum. The tenants waived the right to challenge the rent’s legality and were allowed to maintain the apartment regardless of their primary residence. The apartments were deregulated in 2000 without the tenants’ objection. In 2003, the landlord initiated eviction proceedings, claiming the tenants did not use the apartments as their primary residence, leading to a declaratory judgment action in 2004.

    Procedural History

    The Supreme Court initially granted summary judgment to the tenants, upholding the agreement. The Appellate Division reversed, declaring the agreement void and granting summary judgment to the landlord. The Appellate Division granted the tenants leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether an agreement where a tenant waives rent stabilization benefits in exchange for the right to maintain a non-primary residence at an illegally inflated rent violates public policy and is void under the Rent Stabilization Code.

    2. Whether the “negotiated settlement” exception to Rent Stabilization Code § 2520.13 applies to an agreement that sets an illegal rent.

    3. Whether the statute of limitations bars a challenge to an agreement that was allegedly void at its inception.

    Holding

    1. Yes, because such agreements directly contravene the purpose of rent stabilization laws by allowing tenants to waive their protections and pay illegally inflated rents, distorting the housing market.

    2. No, because the “negotiated settlement” exception applies only to bona fide settlements of existing disputes and not to agreements designed to circumvent rent stabilization laws.

    3. No, because a statute of limitations does not validate an agreement that was void from its inception; the action seeks to declare that no valid contractual obligations ever existed.

    Court’s Reasoning

    The Court of Appeals relied heavily on Rent Stabilization Code § 2520.13, which states that agreements waiving rent stabilization benefits are void. The court rejected the tenants’ argument that enforcing the agreement would not violate public policy, stating that the rent stabilization laws aim to ensure apartments are rented at legal maximums or deregulated when conditions allow. The court found that the agreement distorted the market without aiding the intended beneficiaries of rent stabilization laws.

    The court further clarified that the “negotiated settlement” exception did not apply, as the agreement was not a bona fide settlement of a genuine dispute. Instead, it was a mechanism to circumvent the rent stabilization laws by setting a rent significantly higher than the legal maximum. As the court stated, “The obvious purpose of the settlement was not to resolve a dispute about what the law permitted, but to achieve something the law undisputedly did not and does not permit.”

    Addressing the statute of limitations argument, the court emphasized that a statute of limitations does not validate a void agreement. The landlord’s action was not to enforce a contract, but to declare that no valid contract ever existed. The court affirmed the Appellate Division’s order, clarifying that the agreement was void as to both parties. While not prejudging any specific claims, the court suggested that the tenants might have a claim to recover excess rent paid, and potentially rescind the deregulation of the apartments, provided no statute of limitations applied. The court emphasized that the landlord, having successfully argued the agreement was void, could not then invoke it in their own defense.

  • People v. Hansen, 7 N.Y.3d 656 (2006): Waiver of Statute of Limitations Defense by Guilty Plea

    7 N.Y.3d 656 (2006)

    A defendant who pleads guilty waives the right to assert a statute of limitations defense, as it is neither a jurisdictional matter nor a right of constitutional dimension that survives a guilty plea.

    Summary

    Defendant appealed his conviction for rape and sodomy, arguing ineffective assistance of counsel because his attorney failed to move to dismiss the indictment on statute of limitations grounds. The New York Court of Appeals held that the defendant waived this defense by pleading guilty. The Court reasoned that a guilty plea marks the end of a criminal case and generally prevents review of claims relating to pre-plea rights deprivations. The statute of limitations defense is waivable and does not fall within the limited exceptions for jurisdictional or fundamental constitutional rights that survive a guilty plea. Therefore, the defendant’s claim was foreclosed by his guilty plea.

    Facts

    In 1993, a sexual assault occurred. The incident was reported, and a semen sample was collected. The case was closed as “unfounded” due to the victim’s reluctance to pursue the complaint. In 1996, the defendant, while imprisoned on unrelated charges, provided a blood sample for a DNA database. In 2003, the sample linked him to the 1993 assault. He was subsequently charged with rape and sodomy.

    Procedural History

    The defendant filed a pro se motion to dismiss the indictment based on the statute of limitations, but the court refused to entertain it because he was represented by counsel. The court warned defense counsel against frivolous motions. The defendant’s attorney did not file the motion. Subsequently, the defendant pleaded guilty to rape and sodomy, waiving his right to appeal. He later moved to vacate the judgment, claiming ineffective assistance of counsel. The Supreme Court denied the motion, holding that the guilty plea waived the statute of limitations defense. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendant waived his statute of limitations defense by pleading guilty.
    2. Whether the defendant was denied effective assistance of counsel.

    Holding

    1. Yes, because the statute of limitations defense is not a jurisdictional matter or a constitutional right that survives a guilty plea.
    2. No, because under the circumstances of this case, the defendant waived the right to have the issue reviewed; further, counsel secured a favorable plea agreement.

    Court’s Reasoning

    The Court of Appeals relied on precedent establishing that a guilty plea generally waives claims relating to pre-plea deprivations of rights. The Court distinguished between claims that survive a guilty plea (jurisdictional matters or fundamental constitutional rights) and those that are foreclosed (preindictment misconduct, selective prosecution, etc.). The Court stated that “[a] plea of guilty…marks the end of a criminal case, not a gateway to further litigation.” The statute of limitations, governed by CPL 30.10, is not a jurisdictional or constitutional right and can be waived. The court noted the right to assert this defense can be waived (see People v Mills, 1 NY3d 269 [2003]). The court further stated that the defendant waived his right to have this issue reviewed, due to his plea and the fact that counsel secured a favorable plea agreement. The court cited People v Lopez, 6 NY3d 248 [2006] stating that a valid waiver of the right to appeal includes the waiver of the right to invoke the Appellate Division’s interest of justice jurisdiction to reduce the sentence.

  • People v. Bouyea, 6 N.Y.3d 91 (2005): Validity of Second Felony Offender Sentencing

    People v. Bouyea, 6 N.Y.3d 91 (2005)

    A defendant can waive the right to receive a predicate felony statement and to challenge predicate felony allegations if information before the sentencing court establishes a prior felony conviction within the statutorily required timeframe.

    Summary

    Defendant Bouyea, incarcerated for rape and robbery, was arrested for possessing a shank. He pleaded guilty to attempted criminal possession of a weapon, agreeing to be sentenced as a second felony offender. The prosecution failed to provide a predicate felony statement at sentencing, but Bouyea waived the statement and declined to contest his prior felonies. The Court of Appeals affirmed the sentence, holding that because the sentencing court had information establishing a prior felony conviction within the statutory timeframe, Bouyea’s waiver was valid.

    Facts

    Defendant was serving a 20-year sentence for first-degree rape and first-degree robbery at Wende Correctional Facility.

    He was arrested for possessing a “shank” (a homemade weapon) while incarcerated.

    Defendant was indicted for promoting prison contraband and criminal possession of a weapon.

    He pleaded guilty to attempted criminal possession of a weapon in the third degree in satisfaction of the indictment and agreed to be sentenced as a second felony offender.

    Procedural History

    Defendant pleaded guilty in the trial court.

    The People failed to submit a predicate felony statement to the sentencing judge as required by CPL 400.21(2).

    Defendant waived receipt of the statement and declined to contest his predicate felonies.

    The trial court sentenced him as a second felony offender.

    The Appellate Division affirmed the sentence.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant’s waiver of the right to receive a predicate felony statement and to controvert its allegations is valid when information before the sentencing court establishes that the defendant was convicted of a predicate felony within the time required by Penal Law § 70.06.

    Holding

    Yes, because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations was valid.

    Court’s Reasoning

    The Court of Appeals emphasized that to be sentenced as a second felony offender, a defendant must have been convicted of a predicate felony, as defined in Penal Law § 70.06(1)(b)(i), within 10 years of the commission of the present felony, subject to tolling for periods of incarceration, according to Penal Law § 70.06(1)(b)(iv), (v).

    The court reasoned that because the sentencing court had information establishing that Bouyea had a prior felony conviction within the statutory timeframe, his waiver of his rights was valid.

    The court relied on the fact that Bouyea had the opportunity to challenge his prior felony convictions, but he expressly waived that right. The court implicitly determined that the purpose of CPL 400.21(2) and (3)—to ensure the defendant is properly informed and has the opportunity to challenge the predicate felony—was satisfied here because the court independently possessed sufficient information.

    The court concluded, “Because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations was valid.”

  • Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Management, L.P., 7 N.Y.3d 96 (2006): Waiver and Estoppel in Non-Compete Agreements

    7 N.Y.3d 96 (2006)

    A party’s prior conduct can waive their right to enforce a contract provision, but the scope of that waiver is a question of fact for the jury, particularly when the relationship between the parties shifts from cooperation to competition. Moreover, estoppel requires justifiable reliance and cannot be determined as a matter of law if questions of fact exist regarding the reasonableness of reliance.

    Summary

    Fundamental Portfolio Advisors (FPA) sued Tocqueville Asset Management for breaching a non-compete agreement. The agreement prevented Tocqueville from soliciting FPA’s mutual funds without written consent. FPA initially encouraged Tocqueville to engage with the funds to facilitate a transfer of advisory responsibilities. However, the deal fell apart, and FPA alleged Tocqueville breached the non-compete clause. The Court of Appeals held that while FPA initially waived the non-compete agreement by fostering Tocqueville’s relationship with the funds, a factual dispute existed as to whether that waiver continued after the relationship turned adversarial. The court also found that estoppel was not established as a matter of law. The case was remanded for trial.

    Facts

    Lance Brofman founded the Fundamental Funds in the early 1980s. In 1996, Brofman and Vincent Malanga met with Robert Kleinschmidt and Christopher Culp of Tocqueville to discuss transferring FPA’s investment advisory assets. On September 24, 1996, Kleinschmidt and Culp signed a non-disclosure and non-compete agreement, prohibiting them from soliciting or engaging in business with the Fundamental Funds without FPA’s written consent. In early 1997, FPA and Tocqueville tentatively agreed to transfer investment advisory duties to Tocqueville for approximately $6 million. Culp began working in FPA’s offices and making presentations to the Funds’ boards. The boards then solicited formal proposals from several firms, including Tocqueville, and eventually voted to replace FPA with Tocqueville. Negotiations then stalled, and the SEC brought charges against Brofman.

    Procedural History

    FPA sued Tocqueville for breach of the non-compete agreement. The Supreme Court granted Tocqueville’s motion for summary judgment, finding FPA had waived the written consent requirement and was estopped from enforcing the clause. The Appellate Division affirmed. A dissenting Justice argued waiver and estoppel were inappropriate. The Court of Appeals modified by denying Tocqueville’s summary judgment motion and otherwise affirmed.

    Issue(s)

    1. Whether FPA waived its right to enforce the non-compete agreement by actively encouraging the Funds’ boards to hire Tocqueville.

    2. Whether FPA should be estopped from invoking the non-compete agreement.

    3. Whether FPA proved damages as a matter of law to overcome a motion for summary judgment.

    Holding

    1. No, because a question of fact exists as to whether FPA’s waiver continued after the relationship between FPA and Tocqueville changed from cooperation to competition.

    2. No, because the issue of whether equitable estoppel is warranted cannot be resolved as a matter of law based on the language of the non-compete agreement and the course of the parties’ dealings.

    3. No, because conflicting evidence in the record raises questions of fact on the issue of damages.

    Court’s Reasoning

    The Court of Appeals reasoned that while contractual rights may be waived if they are knowingly, voluntarily, and intentionally abandoned, waiver should not be lightly presumed. The Court agreed with the lower courts that FPA had initially waived enforcement of the non-compete agreement. However, a factual issue existed regarding the scope of this waiver. Once the relationship turned adversarial, a jury must determine whether FPA’s actions were sufficient to put Tocqueville on notice that it should cease dealings with the Funds. The non-compete agreement anticipated that FPA would permit Tocqueville to have discussions with the Funds, and such consent would not operate as a permanent waiver. As for estoppel, the court stated that, “estoppel is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought.” "By executing the agreement, Tocqueville understood that if a deal was not consummated it would be prohibited from engaging in business with the Funds. But similar to the issues surrounding application of the waiver doctrine, FPA’s conduct creates a question of fact as to whether Tocqueville could justifiably rely on FPA’s actions to reasonably conclude that the agreement would not be enforced and, if so, whether that belief induced Tocqueville to continue pursuing a contract with the Funds." Finally, the court found that based on the conflicting evidence regarding the amount of recovery that FPA may be entitled to if it sustains its burden of proving that the noncompete agreement was breached, this issue must be resolved by the trier of fact if it is determined that Tocqueville is liable for a breach of the noncompete agreement.

  • Ballard v. HSBC Bank USA, 8 N.Y.3d 661 (2007): Waiver of Personal Jurisdiction Based on Defective Notice of Petition

    8 N.Y.3d 661 (2007)

    A party waives objections to personal jurisdiction by actively participating in a proceeding without timely objecting to a defect in the commencement of the action on personal jurisdiction grounds.

    Summary

    Diane Ballard filed a petition in Supreme Court seeking review of a Human Rights Division order. Her notice of petition omitted the return date. HSBC, the respondent, filed a cross-petition asserting jurisdiction was proper, then moved to dismiss Ballard’s petition for lack of jurisdiction based on the missing return date. The Court of Appeals held that the omission of the return date was a waivable defect related to personal jurisdiction, not subject matter jurisdiction, and HSBC waived its objection by participating in the proceeding without raising a timely objection.

    Facts

    Diane Ballard, after an adverse determination by the Acting Commissioner of the NYS Division of Human Rights, filed a petition in Supreme Court seeking review.

    Ballard’s notice of petition did not include a return date because no Justice had been assigned.

    Ballard sent a letter to the assigned Justice and copied the respondents, proposing a return date.

    HSBC filed a cross-petition, specifying a return date and stating that jurisdiction was proper.

    HSBC then moved to dismiss Ballard’s petition, alleging a lack of jurisdiction and a statute of limitations bar based on the missing return date.

    Procedural History

    Ballard filed a petition in Supreme Court.

    HSBC filed a cross-petition and subsequently moved to dismiss Ballard’s petition.

    Supreme Court, in an advisory opinion, found a lack of subject matter jurisdiction and transferred the matter to the Appellate Division.

    HSBC moved to dismiss the petition in the Appellate Division for lack of subject matter jurisdiction and statute of limitations.

    HSBC then filed a second motion to dismiss on personal jurisdiction and statute of limitations grounds.

    The Appellate Division granted HSBC’s motion, stating a lack of subject matter jurisdiction.

    The Court of Appeals granted Ballard’s motion for leave to appeal.

    Issue(s)

    Whether the failure to include a return date in a notice of petition constitutes a non-waivable jurisdictional defect under Executive Law § 298, implicating subject matter jurisdiction.

    Whether HSBC waived its right to challenge the defect by actively participating in the proceeding without raising a timely objection.

    Holding

    No, because the omission of the return date, at best, invokes a claim of improper commencement or personal jurisdiction, not subject matter jurisdiction.

    Yes, because HSBC actively participated in the proceeding, asserted jurisdiction was proper in its cross-petition, and failed to timely object to the defect on personal jurisdiction grounds.

    Court’s Reasoning

    The Court of Appeals reasoned that subject matter jurisdiction concerns the court’s power to hear a case, conferred by the Constitution or statute. Technical defects in filings do not affect subject matter jurisdiction when they do not undermine the basis to hear a case.

    Executive Law § 298 gives the court competence to hear challenges to rulings by the Commissioner of the State Division of Human Rights.

    The court distinguished this case from those where a condition precedent implicates subject matter jurisdiction, finding that the missing return date did not affect the court’s fundamental power to hear the case.

    The Court relied on its prior holdings in National Gypsum Co. and Harris v. Niagara Falls Bd. of Educ., emphasizing that defects in compliance with commencement procedures do not deprive a court of subject matter jurisdiction and are waived absent a timely objection.

    Regarding personal jurisdiction, the Court found that HSBC waived any objection by participating in the proceeding, asserting jurisdiction was proper in its cross-petition, and failing to timely raise a challenge to personal jurisdiction. “[D]efendants and respondents are warned that if they want to capitalize on technicalities they must mind their own procedures.”

    The court emphasized that HSBC’s initial motion at the Appellate Division did not seek dismissal on personal jurisdiction grounds. HSBC was required to either move to dismiss the petition before filing its cross petition or affirmatively raise the issue in an answer.

  • People v. Waldron, 8 N.Y.3d 463 (2007): Enforceability of Speedy Trial Waiver During Plea Negotiations

    People v. Waldron, 8 N.Y.3d 463 (2007)

    A defendant can waive their statutory speedy trial rights through a letter from counsel when the waiver is made to facilitate ongoing plea negotiations, and such a waiver does not require a contemporaneous record filed at the courthouse.

    Summary

    Defendant Waldron was arrested for engaging in obscene acts with children. His counsel initiated plea negotiations, deliberately delaying proceedings to potentially secure a better deal. Counsel sent a letter to the District Attorney waiving Waldron’s speedy trial rights to allow for ongoing negotiations. Subsequently, Waldron filed a pro se speedy trial motion. The court denied the motion, and Waldron was convicted. The New York Court of Appeals held that Waldron waived his statutory speedy trial rights and that his constitutional rights were not violated because the delay was primarily attributable to the defense’s plea bargaining strategy.

    Facts

    Matthew Waldron was arrested on January 23, 2000, for engaging in obscene acts with children. On February 1, 2000, a psychiatric exam was ordered. On March 20, 2000, Waldron retained new counsel, George Aney, who initiated plea negotiations with the District Attorney. Aney deliberately delayed the case to improve the potential plea offer, a strategy he communicated to Waldron. On July 11, 2000, Aney sent a letter to the District Attorney waiving Waldron’s speedy trial rights to schedule a dispositional hearing on or before September 15, 2000, for the purpose of avoiding the children testifying before the Grand Jury. Negotiations continued until November, and the offer was reduced. On November 30, 2000, Waldron filed a pro se speedy trial motion and discharged Aney.

    Procedural History

    Waldron was indicted on December 14, 2000, and arraigned on December 20, 2000. The Herkimer County Court denied Waldron’s speedy trial motion after a hearing. Waldron was convicted on July 12, 2001. The Appellate Division modified the sentence but affirmed the conviction, holding that Waldron had waived his speedy trial rights during plea negotiations. A Justice of the Appellate Division granted Waldron permission to appeal to the Court of Appeals.

    Issue(s)

    Whether a preindictment delay from July 11, 2000, to November 30, 2000, was properly excluded from time charged against the People when defense counsel engaged in plea negotiations during that period and sent a letter expressly waiving defendant’s speedy trial rights.

    Holding

    Yes, because defendant waived his statutory speedy trial rights through his attorney’s letter and conduct during plea negotiations, and his constitutional speedy trial rights were not violated because the delay was primarily for his benefit.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 30.30(1)(a) requires the People to be ready for trial within six months of the commencement of a criminal action, excluding days chargeable to the defense. The court found the period between July 11 and November 30 excludable because Aney explicitly waived speedy trial rights to complete ongoing plea negotiations, and Waldron was aware of this strategy. The court noted that while the July letter could have been clearer, “the letter, read in light of the negotiations that preceded and followed it, as described in Aney’s testimony, was a waiver of the delay between July 11 and November 30 because that was the time used by the defendant to negotiate with the District Attorney.” The Court rejected Waldron’s argument that CPL 30.30(4)(b) required a contemporaneous record of consent, clarifying that this section applies only to continuances granted by the court and does not prevent a defendant from waiving their right through counsel’s letter. Furthermore, the court applied the People v. Taranovich factors to determine whether the delay violated Waldron’s constitutional right to a speedy trial. While the delay was lengthy, it ultimately benefited Waldron by resulting in a reduced sentence offer, and the serious nature of the charges justified careful handling by the District Attorney. Balancing these factors, the Court concluded that Waldron’s constitutional rights were not violated.