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January/February 2014, Vol. 56, No. 1


The State Bar is pleased to provide you with case summaries and legislation alerts prepared by CasePrepPlus™, the Association’s affinity partner. CasePrepPlus™ is an online service highlighting and summarizing the most recent and significant New York appellate cases (with links to the full opinions), and Second Circuit and U.S. Supreme Court cases having significance for New York practitioners—plus alerts and reminders about recent legislation and uniform rules changes.

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Court of Appeals

CRIMINAL LAW. TRIALS. VERDICTS. INCONSISTENT/LEGAL SUFFICIENCY DISTINCTION. In this case involving a commercial building fire loss, defendant (building owner) was acquitted of arson and reckless endangerment, but convicted of insurance fraud for making a false statement to his fire insurance carrier that he did know the cause of the fire. On appeal, the defendant contended that the verdict was inconsistent because without the jury finding that he committed arson, he could not have submitted a false claim to his carrier. The Appellate Division affirmed the conviction, holding that there was legally sufficient evidence to support the verdict that the defendant concealed the cause of the fire from his insurance carrier. The Court of Appeals affirms (6-1). “A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count.” However, an inconsistent verdict does not provide a reviewing court with power to overturn it. Rather, it is the trial court that may exercise discretion in pointing out the inconsistency to the jury, issuing further instructions, and then having it continue deliberations. “In contrast, a conviction that is not supported by legally sufficient evidence should be overturned.” Here, there was sufficient evidence for the jury to conclude that the defendant committed insurance fraud by submitting a written statement to his carrier that concealed information about the cause of the fire. People v. Abraham. Decided 11/26/13.  

CRIMINAL LAW. MHL ARTICLE 10. CIVIL CONFINEMENT. “STRICT AND INTENSIVE SUPERVISION AND TREATMENT” (SIST). APPLICABILITY. Respondent, a mentally retarded convicted sex offender who was released from incarceration, was found by a jury in a MHL article 10 proceeding to suffer from a mental abnormality as defined by the statute. The Supreme Court, after negotiations between the State and the respondent, eventually ordered the respondent’s confinement in an inpatient facility that, in its opinion, did not constitute a “secure treatment facility,” which is the only recognized facility authorized for confinement under MHL article 10. The Appellate Division affirmed, holding that the respondent’s confinement in the subject facility did not violate his substantive due process rights because it provided “strict and intensive supervision and treatment” (SIST) as provided under the statute. The Court of Appeals reverses and remits the matter to the Supreme Court for further proceedings. MHL article 10 provides for only two dispositional outcomes: (1) confinement; or (2) participation in an outpatient SIST program. Accordingly, absent a finding that the respondent suffers from a condition that requires his confinement in a secure facility, his involuntary confinement as part of an SIST program violates the plain language of MHL article 10. State of New York v. Nelson D. Decided 11/26/13.

First Department

CIVIL PROCEDURE. MOTIONS. EXTENSION OF TIME TO SERVE PROCESS. CPLR 306-b. FAILURE TO ATTEMPT “NAIL AND MAIL” SERVICE. In this personal injury action, the defendant moved to dismiss the complaint for lack of personal jurisdiction. In response, the plaintiff cross moved to extend the time to serve process [CPLR 306-b]. Order granting defendant’s motion and denying plaintiff’s cross motion is affirmed. The plaintiff’s process server failed to attempt “nail and mail” service [CPLR 308(4)] after attempting to effectuate service at defendant’s address pursuant to CPLR 308(1) and (2). Kennis v. Meleco. Decided 11/26/13.  

CIVIL PROCEDURE. DISBARMENT OF PARTY’S ATTORNEY. 30-DAY STAY OF PROCEEDINGS. CPLR 321(e). In this matter where defendants’ counsel was disbarred, the defendants’ answer was stricken and their counterclaims were dismissed upon plaintiff’s motion when they failed to appear for a court directed conference. Order granting defendants’ motion to vacate the orders is granted. Where a party’s attorney is disbarred, an automatic stay takes effect until thirty days after notice to appoint another attorney is served on the affected party [CPLR 321(c)]. Here, the court’s order directing the defendants to appear did not constitute a “notice to appoint another attorney” within the meaning of CPLR 321(c). Accordingly, the 30-day period never began to run and the automatic stay was still in effect at the time of the conference. Scirica v. Colantonio. Decided 11/26/13.

Second Department 

CRIMINAL PROCEDURE. TRIALS. VOIR DIRE. CHALLENGE FOR CAUSE. SON RECENTLY ARRESTED AND BEING PROSECUTED. Defendant, who was convicted by a jury of assault and robbery, contended on appeal that the trial court improperly granted the ADA’s challenge for cause to a juror whose son was recently arrested and being prosecuted. Conviction is affirmed. The prospective juror’s responses to questioning during voir dire failed to demonstrate an absolute belief that her son’s arrest and prosecution would not have an influence on her verdict [CPL 270.20(1)(b)]. People v. Hoke. Decided 11/27/13.

PERSONAL INJURY. SIDEWALK OBSTRUCTION. CHILDREN’S RIDE. NYC ADMINISTRATIVE CODE. Plaintiff, a sidewalk pedestrian, was injured while rounding a corner onto Broadway from a side street when his left elbow struck a “Mickey Mouse” children’s ride that was placed in front of the defendants’ pizza shop. In moving for summary judgment, the abutting owners contended that the ride was open and obvious, not inherently dangerous, and complied with the provisions of NYC Administrative Code §19-136(a), (j). Order granting defendants’ motion is reversed, and motion denied. The abutting owners failed to establish their prima facie entitlement to summary judgment because they did not demonstrate that the placement of the ride complied with the Code and that, given how the accident occurred, the ride was open, obvious and not inherently dangerous. Toro v. Friedland Properties, Inc. Decided 11/27/13.

Third Department 

CRIMINAL PROCEDURE. PLEAS. VALIDITY. MENTAL ILLNESS. PSYCHOTROPIC MEDICATIONS. Defendant, a former police officer and a lawyer, moved to vacate his plea to two counts of aggravated harassment in the second degree as a hate crime on the ground that it was invalid because he was suffering from a mental illness at the time and was on psychotropic medication. In support, the defendant submitted substantial documentation and opinion evidence that the bizarre behavior underlying the criminal allegations against him resulted from a bipolar disorder and medication. Order denying defendant’s motion without a hearing is reversed, with the matter remanded for a hearing. Although a post-judgment motion ordinarily can be decided on the “papers,” a hearing is required where facts outside the record are material [CPL 440.30(5)]. Here, a hearing is required because further development of the record is needed to determine the extent to which defendant’s mental incapacity impaired his understanding of his plea and whether he knowingly, voluntarily and intelligently entered it. People v. Hennessey. Decided 11/27/13.   

CRIMINAL LAW. TRIALS. SUMMATIONS. PREJUDICIAL COMMENTS BY PROSECUTOR. SHIFTING OF BURDEN OF PROOF. SPECULATION. ARGUMENTS NOT BASED UPON EVIDENCE. Defendant, who was convicted by a jury of assault and robbery, contended on appeal, among other things, that the prosecutor’s comments during summation were so prejudicial and improper that he was deprived of his right to a fair trial. Conviction is reversed, and a new trial ordered. The ADA improperly vouched for the credibility of a witness who testified for the People by commenting, “He’s telling the truth.” This was compounded by the ADA’s speculative comments that, “the only reason that the defendant wasn’t involved in the other robbery that was committed not long after the attack upon the victim was because he couldn’t be there with them,” which suggested that he would have been there had he not been in custody. This was made even more prejudicial by the ADA’s argument that the only way to believe the defendant was to believe that the entire justice system, including himself and the presiding judge, were involved in a conspiracy to frame and convict him, which was not based upon any evidence and, in effect, shifted the burden of proof. Thus, despite substantial evidence of the defendant’s guilt, the magnitude of the ADA’s comments were so great as to overcome any argument by the People that they constituted harmless error. People v. Forbes