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https://www.courtlistener.com/api/rest/v3/opinions/5903299/ | In an action for a judgment declaring that the plaintiffs’ judgment in an underlying negligence action would be enforceable as against the underinsured provisions of an automobile insurance policy issued by the respondent, the plaintiff appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated June 3, 1987, which, in effect, dismissed the action on procedural grounds.
Ordered that the order is reversed, with costs, the defendant’s time to serve an answer to the complaint is extended until 20 days after service upon it of a copy of this decision and order, with notice of entry, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits.
On May 31, 1985, the decedent Rachel Staskoski, 14 years of age, was struck and killed by an automobile owned by John *588Lynch and operated by Mary Lynch. The decedent’s nine-year-old brother Robert witnessed this occurrence. The plaintiffs initiated a negligence action against John and Mary Lynch to recover damages for the wrongful death of Rachel and the emotional trauma sustained by Robert. The Lynch vehicle had minimum insurance coverage. It is undisputed that the plaintiffs’ intestate and her brother were covered by an insurance policy providing for "underinsured motorist coverage”. The defendant claims that pursuant to the terms of its policy, the plaintiffs cannot proceed to judgment against the Lynches and then avail themselves of the underinsured motorists benefits unless the defendant consents to the prosecution of the underlying lawsuit. The defendant has refused to so consent. On the other hand, the plaintiffs contend that the defendant unreasonably and impermissibly interfered with the prosecution of the underlying negligence action and that the requirement in the policy of written consent by the defendant was unlawful.
Prior to the trial of the underlying negligence action, in open court, the parties herein stipulated to permit the plaintiffs to bring a declaratory judgment action against the defendant so as to resolve this dispute, as follows:
"mr. o’donnell [counsel for the plaintiffs]: In colloquy off the record, it was agreed that the plaintiff would bring a declaratory judgment proceeding against Geico, and I presume, counsel, you’d accept service?
"mr. frankel [counsel for GEICO]: Sure.”
Thereafter, pursuant to the stipulation, the plaintiffs commenced this action for a declaratory judgment by serving an order to show cause, together with a summons and complaint, upon the law firm representing the defendant. The Supreme Court, Kings County, dismissed this action for procedural reasons, namely, on the ground that the "plaintiffs have incorrectly proceeded by Order to Show Cause prior to service of the summons and complaint”. We disagree with that determination and reverse.
Although service of an order to show cause is not the proper method for commencing an action for a declaratory judgment, in this case an accompanying summons and complaint were also served upon the attorneys representing the defendant, who agreed by stipulation to the commencement of a declaratory judgment action against the defendant. Since this declaratory judgment action was validly commenced, it is incumbent upon the Supreme Court to make the required declaration involving an interpretation of the insurance policy. We note *589that disputes over the terms of an insurance policy are particularly suitable for a declaratory judgment action (see, Siegel, NY Prac § 437, at 580, 581), especially when the dispute depends on matters outside the bounds of the underlying negligence action (see, Nationwide Mut. Ins. Co. v Dennis, 14 AD2d 188, lv denied 10 NY2d 708).
Accordingly, the plaintiffs have presented a proper case for a declaration of their rights. We remit this matter to the Supreme Court, Kings County, for a determination of the issues on the merits. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903300/ | In an action for a judgment declaring the duty of the plaintiff State Farm Fire and Casualty Company (hereinafter State Farm) to defend and indemnify the appellant in an action brought against him by the defendant Irene S., Kenneth A. Polokoff appeals from (1) an order of the Supreme Court, Kings County (Golden, J.), dated December 22, 1986, which denied his motion for summary judgment and which granted State Farm’s cross motion for summary judgment, and (2) a judgment dated March 25, 1987, entered thereon.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the order dated December 22, 1986, is vacated, the cross motion is denied, the motion of appellant Polokoff for summary judgment is granted, it is declared that the plaintiff has a duty to defend the appellant in the underlying action, and the matter is remitted to the Supreme Court for a hearing with regard to the reasonable legal fees due the appellant for the costs incurred in defending the instant action; and it is further,
Ordered that the appellant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The underlying action in this case was commenced by the service of a complaint in which the plaintiff Irene S. alleged that the appellant had intentionally assaulted her as a result of which she sustained serious and severe injuries. The complaint also alleged that the appellant assaulted her with the *590intent to cause "severe and traumatic mental and emotional distress”. An amended complaint asserted additional causes of action to the effect that the appellant assaulted and raped the plaintiff Irene S. with the intent of transmitting genital herpes.
At the time of these alleged assaults the appellant was covered by a homeowners’ policy issued by State Farm which provided, inter alia, personal liability insurance for the insured for "damages because of bodily injury * * * to which this coverage applies”. The personal liability insurance also obligated State Farm to "provide a defense at our expense by counsel of our choice”. Specifically excluded from coverage was "bodily injury * * * which is expected or intended by the insured”.
After State Farm received notice of the initial complaint in the action by Irene S. it disclaimed liability on the ground that her injuries were the result of the appellant’s intentional acts and therefore were excluded from coverage under the policy.
On June 13, 1984, State Farm commenced this action for declaratory judgment seeking a judicial determination as to whether it was required to defend or indemnify the appellant in Irene S.’s action. For reasons not relevant here a default judgment was entered against the appellant which on appeal was vacated by this court (see, State Farm Fire & Cas. Co. v Shapiro, 118 AD2d 556). In reversing we noted that the "appellant’s [PolokofFs] claim that the damages sustained by [Irene S.] were unintended, if proved, would be within the policy coverage and, therefore, State Farm would be obligated to defend the underlying action against the appellant” (State Farm Fire & Cas. Co. v Shapiro, supra) at 557-558).
Thereafter the appellant moved for summary judgment, relying in large measure on our earlier decision (State Farm Fire & Cas. Co. v Shapiro, supra). State Farm cross-moved for summary judgment for a declaration that it was not obligated to defend or indemnify the appellant in the underlying action.
The Supreme Court granted summary judgment to State Farm finding "that under no theory could any of the acts alleged in [Irene S.’s] complaint be considered unintended or unexpected”. Therefore it held the injuries were not covered by the policy. The court further found that this court’s "discussion of the obligation to defend was not necessary for the disposition of the narrow issue before it of whether to open the default, hence, it was obiter dictum and therefore not binding as a rule of law in the instant case”.
*591In reaching our decision to vacate the prior default this court was required, as a threshold issue, to determine if the appellant had set forth a meritorious defense to the action. Therefore our finding that if the appellant proved that the damages sustained by Irene S. were unintended the injuries would be covered by the policy was more than just dicta. Our decision recognized that at the least State Farm was obligated to defend the appellant in the underlying action although a decision on State Farm’s ultimate responsibility would have to await the trial itself.
We further note that the decision of the Supreme Court "that under no theory could any of the acts alleged in [the] complaint be considered unintended or unexpected” would not relieve State Farm of its duty to defend since the policy only excluded from coverage "bodily injury * * * which is expected or intended”. Although several causes of action in the complaint alleged that the appellant intended to inflict certain injuries on the plaintiff, at least two causes of action merely alleged intentional acts which resulted in bodily injury. Our courts have recognized that "it is not legally impossible to find accidental results flowing from intentional causes, i.e., that the resulting damage was unintended although the original act or acts leading to the damage were intentional” (McGroarty v Great Am. Ins. Co., 36 NY2d 358, 364, rearg denied 36 NY2d 874; see also, Miller v Continental Ins. Co., 40 NY2d 675; State Farm Ins. Co. v Trezza, 121 Misc 2d 997).
The appellant is entitled to the reasonable legal costs of defending the instant action since he has been "cast in a defensive posture by the legal steps [the] insurer [has taken] in an effort to free itself from its policy obligations” (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21; see also, National Cas. Ins. Co. v City of Mount Vernon, 128 AD2d 332, 335). On remittal, a hearing should be held to determine the reasonable legal costs incurred by the appellant. Lawrence, J. P., Fiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903301/ | In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Morton, J.), dated March 13, 1987, which granted the defendants’ motion to dismiss the complaint on the ground of lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiffs’ contentions, the person served by *592their process server, who was stationed at a cash register to receive money from customers, was neither the "cashier” nor the "managing agent” of the defendant corporations (see, CPLR 311; Oustecky v Farmingdale Lanes, 41 Misc 2d 979; Colbert v International Sec. Bur., 79 AD2d 448, 449-455, lv denied 53 NY2d 608).
The plaintiffs did not present any evidence that the appropriate person to serve on behalf of the defendant corporations was avoiding service (see, McDonald v Ames Supply Co., 22 NY2d 111, 115), or that the process server made a proper inquiry of the defendant’s own employees, and delivered the summons according to their directions (see, Fashion Page v Zurich Ins. Co., 50 NY2d 265, 273).
Accordingly, the Supreme Court, Kings County, properly granted the defendants’ motion to dismiss the complaint on the ground of lack of personal jurisdiction (cf., Macchia v Russo, 67 NY2d 592, 595). Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903302/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Lewis B. Stone, J.), rendered on or about November 17, 2011, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Andrias, J.P., Renwick, Freedman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903303/ | In an action, inter alia, to recover damages for breach of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated April 15, 1986, which granted the *593defendants’ motion for summary judgment and denied its cross motion for summary judgment.
Ordered that the order is modified, on the law, by deleting therefrom the provision which granted the motion and by substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff.
The plaintiff was the owner of real property, improved with a large catering hall and parking lot located in Brooklyn. In 1968, Polish National Alliance of Brooklyn, U.S.A. (hereinafter PNA) loaned $50,000 to the plaintiff and took back a mortgage on the subject property. In early 1976, the plaintiff defaulted on the loan and PNA commenced a foreclosure action against it. Despite the plaintiffs default in answering the complaint, PNA agreed to accept interest payments and to withhold further prosecution of the action in order to provide the plaintiff with an opportunity to resolve its financial difficulties.
Pursuant to a contract of sale dated May 22, 1981, the plaintiff agreed to sell the subject property to the defendants for the sum of $260,000 with a down payment of $26,000. In paragraph 8 of the rider to the contract, the defendants acknowledged "that the mortgage on the premises is in default and that there is presently outstanding a foreclosure action”. Paragraph 8 of the rider to the contract also provided as follows: "In the event that it is determined that a foreclosure sale will be conducted prior to the closing of title, the Purchaser[s] obligate * * * themselves to either satisfy said mortgage or purchase said mortgage for their own account”. The defendants recorded the contract of sale in the County Clerk’s office in June 1981. As of that date, the notice of pendency filed against the property by PNA in 1977 had expired. A new notice was not filed until August 1981.
Thereafter, PNA resumed prosecution of the foreclosure action when the plaintiff defaulted in making the interest payments. However, PNA never joined the defendants herein as party defendants in the foreclosure action. A judgment of foreclosure and sale was thereafter entered. Upon the failure of the defendants to satisfy the mortgage or purchase it, as they were required to do by the contract between the plaintiff and the defendants, PNA purchased the property at a foreclosure sale held on October 28, 1981. PNA immediately assigned its successful bid to one Halkias, who subsequently received delivery of the Referee’s deed.
In ensuing litigation, it was determined, first by a decision *594of this court in Polish Natl. Alliance v White Eagle Hall Co. (98 AD2d 400) and then by a subsequent order of the Supreme Court, Kings County, that the foreclosure sale was in all respects valid as against the plaintiff. However, in Polish Natl. Alliance v White Eagle Hall Co. (supra, at 406), this court held that the defendants herein were necessary, if not indispensable, parties to the foreclosure action, and that, in the absence of their joinder in the foreclosure action, their rights (as contrasted with those of the plaintiff), were "unaffected by the judgment of foreclosure and sale”.
In addition, an action by the defendants herein, as plaintiffs, against Halkias, to clear title to the subject property, was settled in April 1985. Pursuant to the settlement, the defendants herein waived any claim to the property, and, in exchange, received from Halkias the principal sum of $300,000, plus the sum of $69,179 which the defendants had paid to redeem the property from a tax foreclosure sale, pursuant to their obligation under paragraph 8 of the rider to their contract with the plaintiff.
The instant action was commenced by the plaintiff in September 1985 against the defendants to recover, inter alia, damages for breach of contract. After joinder of issue, the defendants moved and the plaintiff cross-moved for summary judgment.
In their motion for summary judgment, the defendants argued, inter alia, that the title of the plaintiff to the subject property was "extinguished by virtue of the foreclosure sale” and that the plaintiff was "unable to deliver anything of value”.
In its cross motion for summary judgment, the plaintiff’s counsel argued, inter alia, that: "Plaintiff lost title because defendants failed to satisfy the mortgage and stop the foreclosure action. Thus, defendants’ claim they do not have to pay plaintiff because plaintiff does not have title is the most outrageous claim of 1985. These defendants promised to satisfy the very mortgage that was foreclosed. These very defendants by their breach of agreement took plaintiff out of title and now have the nerve to say plaintiff cannot deliver title”.
Again, in support of the plaintiff’s cross motion for summary judgment, the plaintiff’s president referred to the defendants’ obligation pursuant to paragraph 8 of the rider to the contract dated May 22, 1981, and argued:
"Thus, while defendants knew plaintiffs rights were liable to be cut off they completely failed to comply with their duty *595under the contract, to wit: to satisfy the mortgage. This failure constitutes a cause of action and defendants do not deny they failed to perform their duty. I believe that this is an open and shut case of breach of agreement by defendants so not only must their motion be denied, but that plaintiff should be granted summary judgment.
"Note—the purchaser obligated itself to satisfy the mortgage and failed to so do before the referee’s sale, thereby creating the loss suffered by plaintiff.
"Had defendants not so agreed plaintiff would have sold to another or refinanced to satisfy the mortgage. This was a material promise and condition to the contract”.
The Supreme Court, Kings County, granted the defendants’ motion for summary judgment and denied the plaintiff’s cross motion for summary judgment, holding: "The court dismissed the claim of White Eagle Hall and upheld the foreclosure sale. Thus plaintiff was completely divested of title to said premises and is unable to perform in accordance with the contract of sale. In fact, plaintiff has nothing to sell and therefore has no right to retain the down payment on the contract or have its escrowee attorney Mitchell S. Chmielewski withhold such funds from defendants.”
We disagree with the reasoning employed, and the result reached by the Supreme Court, Kings County.
The thrust of the plaintiff’s argument was that it lost title to the subject property because of the defendants’ breach of their duty, pursuant to paragraph 8 of the rider to the contract dated May 22, 1981, to satisfy the mortgage or purchase the mortgage, in the event that "it is determined” that a foreclosure sale was to be conducted prior to the closing of title. The contract’s language indicates that knowledge of the foreclosure sale triggered the defendants’ obligation under the contract. However, the contract is ambiguous as to which of the parties to the contract had the duty to ascertain when the foreclosure sale was going to take place. For instance, if it was the plaintiff’s duty to determine that a foreclosure sale had been scheduled and to advise the defendants of same, then the plaintiff could not recover since it did not fulfill that duty. If, on the other hand, it was the defendants’ duty to ascertain when the sale was to take place and to then satisfy or purchase the mortgage (which they concededly did not do) then the plaintiff could recover. In order to resolve this question, a trial is necessary so that a full exploration of the parties’ intent and their conduct can be made.
*596We have reviewed the plaintiffs remaining contentions and find them to be without merit (see, McGrath v Hilding, 41 NY2d 625; Sharp v Kosmalski, 40 NY2d 119; Naimoli v Massa, 81 Misc 2d 431). Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362779/ | 686 F. Supp. 400 (1988)
James STAFFER, Plaintiff,
v.
The STATEN ISLAND HOSPITAL and Joseph Suarez, Defendants.
No. 88 CV 1039.
United States District Court, E.D. New York.
May 5, 1988.
Bernard D. Friedman, New York City, for plaintiff.
Michael F. Close, Barry, McTieran & Moore, New York City, for defendants.
MEMORANDUM AND ORDER
McLAUGHLIN, District Judge.
Plaintiff commenced this medical malpractice action in state court against defendants, The Staten Island Hospital ("Hospital") and Joseph Suarez, M.D. All of the parties are New York citizens and reside in this district. Defendants removed the action to this Court, asserting that the case presents a federal question under 28 U.S.C. § 1331. Defendants now move to transfer the case to the District Court for the Southern District of New York. See id. § 1404(a). Plaintiff cross-moves for an order to remand the case to the state court. See id. § 1447(c).
FACTS
Plaintiff was a deckhand employed by the Bouchard Transportation Company ("Bouchard"). He brought a personal injury action under the Jones Act, 46 U.S.C. App. § 688, against Bouchard in the Southern District of New York. Bouchard impleaded the Hospital and Suarez under Fed. R.Civ.P. 14, alleging malpractice that aggravated plaintiff's injuries. The claim against the Hospital was subsequently dismissed. Plaintiff did not join the Hospital or Suarez as defendants. The actions were tried to separate juries.
Pursuant to a verdict the Court entered judgment in the amount of $480,650.38 in favor of plaintiff against Bouchard. The judgment has been stayed pending Bouchard's appeal. The jury found that Suarez' negligence had contributed ninety percent *401 to plaintiff's physical injuries and one hundred percent to his pain and suffering. Suarez' motion to set aside the verdict is sub judice.
Shortly after the verdict on Bouchard's third-party claim, plaintiff commenced this malpractice action in the Supreme Court of the State of New York, Richmond County. Defendants removed the action to this Court under 28 U.S.C. § 1441, asserting that they are pendent parties to the case brought in the Southern District. Defendants move to transfer this action to the Southern District, see id. § 1404(a), where they apparently will seek to consolidate this case with the previously-filed one, see Fed.R.Civ.P. 18. Plaintiff argues that this case was removed improvidently and without jurisdiction, and moves to remand the action to state court under 28 U.S.C. § 1447(c).
DISCUSSION
Subject to specific statutory exceptions, any civil action brought in state court of which the district courts have original jurisdiction may be removed to the district and division where the action is pending. See 28 U.S.C. § 1441(a). Where original jurisdiction is founded upon a federal question, the action is removable regardless of where the defendants reside. See id. § 1441(b). A case removed "improvidently and without jurisdiction" must be remanded to the state court. Id. § 1447(c). Whether removal was proper must be determined from the complaint as it stood when the removal petition was filed. Rosenberg v. GWV Travel, Inc., 480 F. Supp. 95, 96 (S.D.N.Y.1979). On a motion for remand, the defendant bears the burden of proving that removal was proper. R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979).
Plaintiff asserts that removal was improper because no federal question is presented by this case. Defendants concede that the Complaint seeks relief solely under state law, but argue that jurisdiction may be exercised under the much-criticized pendent-party doctrine, see Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976), because of the close relationship between this case and plaintiff's Jones Act claim in the Southern District. I disagree.
A case may not be removed to federal court under § 1441(b) unless the complaint, which is crafted by plaintiff, alleges a claim that arises under federal law. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S. Ct. 2841, 2846-47, 77 L. Ed. 2d 420 (1983). The Complaint in this case alleges malpractice, which is a tort under state law. Defendants argue that had plaintiff chosen to join them as defendants in the case brought in the Southern District, then that court might have exercised jurisdiction under the pendent-party doctrine.[*]See Madarash v. Long Island Railroad, 654 F. Supp. 51, 53-54 (E.D.N.Y.1987); cf. Independent Bankers Association v. Marine Midland Bank, N.A., 757 F.2d 453, 463-65 (2d Cir.1985) (court had power to exercise pendent-party jurisdiction over state claim, but should have remanded case because of important and novel questions of state law), cert. denied, 476 U.S. 1186, 106 S. Ct. 2926, 91 L. Ed. 2d 554 (1986). Regardless of whether this is true, it is irrelevant. A pendent party, by definition, has been joined "at the behest of the plaintiff" to a federal question case. Aldinger, 427 U.S. at 15, 96 S. Ct. at 2420-21 (emphasis added). Defendants cite no authority for the proposition that a defendant may avail itself of a federal forum under pendent-party jurisdiction. Although in this case removal and transfer would be efficient, a plain reading of the Complaint leads me to conclude that the jurisdictional predicate for removal has not been met. Accordingly, plaintiff's cross-motion to remand the case to state court is granted. Defendants' motion to transfer the case is denied.
SO ORDERED.
NOTES
[*] Had plaintiff brought one action in state court in which he sued Bouchard under the Jones Act and the Hospital and Suarez for malpractice, the case could not have been removed to federal court. See 46 U.S.C. § 688(a) (incorporating prohibition of removal of actions brought under 45 U.S.C. §§ 51-60). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4146446/ | REVERSE, RENDER and DISMISS; and Opinion Filed February 17, 2017.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-16-00796-CV
STEPHEN X. SKAPEK, M.D., DANIEL BOWERS, M.D.,
PAUL DAVID HARKER-MURRAY, M.D., JEFFREY SCOTT KAHN, M.D.,
LAURA KLESSE, M.D., PATRICK LEAVEY, M.D., TAMRA SLONE, M.D.,
MARTHA STEGNER, M.D., TANYA WATT, M.D. AND NAOMI WINICK, M.D.,
Appellants
V.
CRAIG PERKINS AND KIMBERLY PERKINS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF CODY PERKINS, DECEDENT, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-00917
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Richter 1
Opinion by Justice Lang-Miers
In this accelerated interlocutory appeal, appellant Doctors appeal the trial court’s denial
of their respective motions for summary judgment in which they sought dismissal of medical
negligence claims pursuant to section 101.106(f) of the Texas Tort Claims Act. We reverse the
trial court’s order and render judgment dismissing appellees’ claims against the Doctors.
BACKGROUND
Craig and Kimberly Perkins, individually and as representatives of their deceased 16-
year-old son Cody, sued the Doctors and Children’s Medical Center of Dallas. As alleged in the
1
The Hon. Martin Richter, Justice, Assigned
Perkins’ third amended petition, on January 25, 2012, Cody had surgery at Children’s to remove
a brain tumor associated with the disease primary CNS lymphoma. The surgery was successful,
and Cody began chemotherapy as part of his follow-up care and treatment. The Perkins alleged
that the standard treatment protocol for Cody’s illness was not followed, however, and instead,
he was given an experimental protocol designed to treat patients with severe systemic disease,
which they claimed Cody did not have. They alleged that the treatment aggressively impaired
bone marrow growth and severely compromised Cody’s immune system. In March 2012, Cody
was admitted to Children’s with complications associated with this therapy. After a CT scan,
Cody was given a medication for infiltrates in his lungs. But the Perkins alleged that the
medication was discontinued after six days instead of the usual twenty-one days, and Cody was
discharged without a follow-up CT scan. They alleged that the Doctors continued Cody on the
improper chemotherapy protocol, and Cody’s condition deteriorated. In May 2012, Cody died
from complications related to the treatment.
The Perkins asserted that appellant Dr. Stephen X. Skapek deviated from the standard of
care by failing to use the standard treatment protocols for Cody’s tumor and instead
recommending and performing an experimental treatment when Cody was not an appropriate
candidate for that protocol. They asserted that appellants Drs. Daniel Bowers, Paul David
Harker-Murray, Laura Klesse, Patrick Leavey, Tamra Slone, Tanya Watt, Naomi Winick, and
Martha Stegner failed to recognize that Skapek had placed Cody on an improper protocol and
remove him from the protocol. They alleged that appellant Dr. Jeffrey Scott Kahn, an infectious
disease specialist, failed to keep Cody on the medication for his lungs for the proper amount of
time and failed to scan Cody’s chest prior to discharging him.
The Perkins asserted that all the Doctors, except Kahn, acted in their capacities as agents
and independent members of the Children’s Medical Center staff “acting within the course and
scope of [their] staff privileges.” They alleged that the Doctors and Children’s were negligent
–2–
and that the negligence proximately caused Cody’s injuries and death and proximately caused
their own injuries. They sought survival and wrongful death damages.
The Doctors answered the lawsuit and moved to dismiss the claims against them under
section 101.106(f) of the Tort Claims Act, which states:
If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have been
brought under this chapter against the governmental unit, the suit is considered to
be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion
is filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). The Doctors asserted that they
were entitled to dismissal because they were employees of a governmental unit—The University
of Texas Southwestern Medical Center at Dallas—during their treatment of Cody at Children’s;
the alleged conduct fell within the scope of their employment with a governmental unit; and the
lawsuit could have been brought against the governmental unit. The Doctors moved that UT
Southwestern be named in the lawsuit in their place within thirty days.
The trial court did not rule on the Doctors’ motions, and after more than thirty days, they
each moved for summary judgment on the same ground. The Doctors provided summary
judgment evidence to support their arguments. The Perkins responded to the Doctors’ motions
maintaining that they raised a genuine issue of material fact about whether the Doctors were
employees of a governmental unit. After a hearing, the trial court denied the Doctors’ motions
and this interlocutory appeal followed.
In their sole issue on appeal, the Doctors contend that the trial court erred by denying
their motions for summary judgment. They argue that they conclusively established they were
entitled to dismissal of the suit under section 101.106(f) because they are employees of a
governmental unit and the Perkins could have sued the governmental unit.
–3–
STANDARD OF REVIEW
We review a trial court’s decision to deny a motion for summary judgment de novo.
Powell v. Knipp, 479 S.W.3d 394, 398 (Tex. App.—Dallas 2015, pet. denied). By moving for
summary judgment under section 101.106(f), the Doctors were asserting a claim of governmental
immunity. See id. (citing Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011)). A
defendant moving for summary judgment on the affirmative defense of governmental immunity
under section 101.106(f) must conclusively establish that (1) he was an employee of a
governmental unit; (2) the claims, if brought against the governmental employer, would fall
within the ambit of the Tort Claims Act; (3) the claims are based on conduct that was in the
general scope of his employment; and (4) he moved to substitute the governmental employer and
to be dismissed from the lawsuit. Id.; TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). If the
movant satisfies its burden, the burden shifts to the nonmovant to raise a disputed fact issue or an
exception to the affirmative defense. Powell, 479 S.W.3d at 398.
DISCUSSION
The Doctors contend they conclusively established they were entitled to dismissal under
section 101.106(f). Of the four elements the Doctors had to prove, the Perkins challenged only
the first element, that is, whether the Doctors established as a matter of law that they were
“employees” of UT Southwestern for purposes of section 101.106(f) and the Tort Claims Act.
Consequently, we limit our discussion to the disputed element.
The Tort Claims Act defines “employee” as:
a person who is in the paid service of a governmental unit by competent authority,
but does not include an independent contractor, an agent or employee of an
independent contractor, or a person who performs tasks the details of which the
governmental unit does not have the legal right to control.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2). This definition requires proof of “paid
service” and “legal right to control.” Id. The Doctors’ proof regarding “paid service” is
–4–
undisputed. Consequently, the only issue on appeal is whether the Doctors conclusively
established that UT Southwestern had the legal right to control their tasks at Children’s.
A party may establish legal right to control in two ways: 1) evidence of a contract that
expressly assigns the right of control or, absent a contract, 2) evidence of actual control over the
manner in which the work is to be performed. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606
(Tex. 2002). In this case, we deal with the second method.
Each Doctor provided as summary judgment evidence an affidavit that stated (1) the
Doctor was a salaried, full-time physician and faculty member employed by UT Southwestern in
the Pediatrics Department during the time the Doctor cared for and treated Cody at Children’s;
(2) UT Southwestern determined the hospitals where the Doctor was allowed to seek staff
privileges; (3) the Doctor treated patients at Children’s at the direction of and on behalf of UT
Southwestern; (4) the Doctor did not receive any compensation from Children’s for Cody’s
treatment; (5) the Doctor’s job duties as a faculty member at UT Southwestern included
providing medical care and treatment to patients like Cody at Children’s; (6) all care and
treatment the Doctor provided to Cody at Children’s was on behalf of UT Southwestern; (7)
whenever the Doctor provided medical care and treatment to a patient at any facility it was only
as a paid employee of UT Southwestern; (8) the Doctor was not allowed to retain any
professional fees the Doctor received outside of UT Southwestern but was required to give those
fees to the institution’s trust fund; (9) the Doctor’s relationship with Children’s was as a member
of its independent medical staff; and (10) Children’s independent medical staff included
physicians who were not employed by UT Southwestern.
Each Doctor also presented as summary judgment evidence a Memorandum of
Appointment with UT Southwestern for the time in which they treated Cody which stated that
the appointment was subject to “the Rules and Regulations of the Board of Regents of The
University of Texas System, Regental and UT System policies and the policies and procedures of
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UT Southwestern”; a W-2 Wage and Tax Statement showing the Doctor received wages from
UT Southwestern during the relevant time period; and an affidavit from UT Southwestern’s
human resources department corroborating the Doctor’s employment there. In addition, the
Doctors presented a consent form from Cody’s medical records in which Children’s advised the
Perkins that the physicians who treated Cody were not employees or agents of Children’s:
NOTICE TO ALL PATIENTS
The physicians who treat you/your child at Children’s Medical Center
(Children’s) are not employees or agents of Children’s. They are either (i)
independent physicians engaged in the private practice of medicine who have
staff privileges at Children’s; (ii) independent physicians who are independent
contractors and have staff privileges at Children’s; (iii) physicians employed by
the University of Texas Southwestern Medical Center or another institution who
have staff privileges at Children’s; or (iv) physicians participating in the care of
patients as part of a post-graduate medical education program. As a result, you
will be separately billed by the physicians for their services.
(Emphasis added).
The Doctors cite several cases to support their arguments that their evidence conclusively
established UT Southwestern controlled their tasks while at Children’s.
First, the Doctors argue that the Powell case controls our evaluation and resolution of this
appeal. See 479 S.W.3d 394 passim. In that case, we said that the doctor’s Memorandum of
Appointment showing he “was ‘subject to the provisions of the Rules and Regulations of the
Board of Regents of the University of Texas System, Regental and UT System policies, and the
policies and procedures’ of [UT Southwestern]” was sufficient to prove he was acting in the
scope of his employment for UT Southwestern when he provided medical services to the patient
in that case. Id. at 400. We also considered evidence that we do not have here, specifically, a
contract between Children’s and UT Southwestern which addressed some elements of control of
the doctor’s tasks. See id. at 402–04.
The Doctors also cite Murk v. Scheele, another “legal right to control” case. 120 S.W.3d
865 (Tex. 2003). In that case, the evidence showed that the doctor practiced only for UT Health
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Science Center as a member of UT’s faculty; all compensation came from UT; and the doctor’s
medical decisions were subject to regimens prescribed by UT. Id. at 867. The supreme court
found this evidence sufficient to show that the doctor was an employee of UT. Id.
Finally, the Doctors rely on Poland v. Willerson, No. 01-07-00198-CV, 2008 WL 660334
(Tex. App.—Houston [1st Dist.] Mar. 13, 2008, pet. denied) (mem. op.), to support their
arguments. The evidence to support “employee” status in that case was the doctor’s affidavit
stating he was a salaried employee of a governmental unit at all times relevant to the issues in the
lawsuit. Id. The court also found sufficient the doctor’s affidavit stating that at the time he treated
the complainant, he was acting within the scope of his employment with the governmental unit.
Id. at *7.
In addition to these cases, we recently considered similar issues in Lee v. Hunter, No. 05-
16-00325-CV, 2016 WL 7448338 (Tex. App.—Dallas Oct. 27, 2016, no pet.) (mem. op.). The
doctor in that case filed evidence similar to the evidence filed by the Doctors here: an affidavit
about the doctor’s employment relationship with UT Southwestern, a Memorandum of
Appointment, and a W-2 form. Id. at *1. We concluded the evidence was sufficient to satisfy the
doctor’s burden under section 101.106(f). Id. at *2–3.
We conclude that the Doctors satisfied their summary judgment burden.
In response to the Doctors’ arguments, the Perkins contend they raised a genuine issue of
material fact about the Doctors’ status as employees of UT Southwestern. They cite to several
provisions of Bylaws and Rules and Regulations that they contend show Children’s, not UT
Southwestern, controlled the details of the Doctors’ tasks at Children’s, even down to the color
of the ink the Doctors were required to use to write medical reports. But those Bylaws and Rules
and Regulations dealt primarily with matters required to be in a patient’s record; none addressed
the manner in which the Doctors were to provide the specific medical care and treatment about
which the Perkins complain. For example, the Perkins do not cite to any provision in the Bylaws
–7–
or Rules and Regulations relating to how the Doctors were to determine the proper protocol for
Cody’s follow-up care and treatment, how long a medication regimen should be, or when and
how to scan a patient before discharge.
Additionally, the Bylaws and Rules and Regulations the Perkins refer to are not those of
Children’s, but those of the independently organized Children’s Medical Staff, a distinction
noted in much of the Perkins’ summary judgment evidence.
The Perkins rely most heavily on an August 2, 2013 letter from Regina Montoya, the then
Senior Vice President of External Relations and General Counsel at Children’s, to the state
attorney general in which she made the following statement:
UT Southwestern physicians who practice at Children’s do so as members of the
independently organized Children’s Medical Staff (“Medical Staff”). When
physicians participate in any activities on behalf of Children’s, they do so only on
behalf of and as representatives of Children’s Medical Staff, not as representatives
of UT Southwestern.
The Perkins argue that this statement shows that when the Doctors were providing
medical care to Cody at Children’s, they did so on behalf of Children’s, not UT Southwestern.
We disagree.
The letter again notes the distinction between Children’s and Children’s independently
organized medical staff. The letter did not state the physicians represented Children’s; it stated
they represented Children’s Medical Staff.
Regardless, Montoya testified that she was contacted by UT Southwestern about an open
records request UT Southwestern had received. In preparing to respond to the request, UT
Southwestern discovered that one of its faculty members was in possession of a contract between
Children’s and a guest speaker at Children’s and advised Montoya that it may have to produce
the contract in response to the open records request. Montoya testified that the purpose of the
letter was to explain to the attorney general that Children’s, as a not-for-profit private institution,
was not subject to an open records request, and to assist the attorney general in understanding
–8–
why UT Southwestern should be advised not to disclose the contract that was owned by
Children’s. She testified that the letter did not “deal with any clinical activity of any member of
the medical staff of Children’s Medical Center[.]”
Anne Roberts, the corporate representative of Children’s, also made the distinction
between Children’s and Children’s Medical Staff when she was asked about provisions in the
Bylaws and Rules and Regulations. She explained that only “[t]he medical staff oversees the
clinical practice of medicine.”
The Perkins also contend that the cases upon which the Doctors rely are distinguishable,
and that this case is more like Lenoir v. Marino than any of the cases cited by the Doctors. 469
S.W.3d 669 (Tex. App.—Houston [1st Dist.] 2015, pet. granted). Again, we disagree.
In that case, a woman and her unborn twins died after receiving a progesterone injection
from a two-year medical resident at UT Physicians clinic when her attending physician was not
available. Id. at 672. Her family sued both the resident and the attending physician, and both
doctors moved to dismiss the claims pursuant to section 101.106(f) contending they were
employees of a governmental unit. Id. at 672. The resident argued she was an employee of UT
System Medical Foundation, and the attending physician argued he was an employee of UT
Health Science Center at Houston and was overseeing the work of residents at the UTP clinic as
part of his employment. Id. at 672–73. The trial court granted the doctors’ motions and dismissed
the claims against them. Id. at 672. On appeal, the court affirmed the dismissal as to the
attending physician but reversed the dismissal of the claims against the resident. Id. In doing so,
the court examined the definition of “employee” as to both the resident and the attending
physician. See id. at 675–86. The Perkins focus their arguments on the court’s analysis of the
claims against the resident. But we think this case is more analogous to the court’s analysis of the
claims against the attending physician. For example, the attending physician had worked at the
Health Science Center for 20 years as an associate professor. Id. at 682. His job involved
–9–
educating and training medical students and residents and providing inpatient and outpatient
medical care to patients at assigned hospitals, including the UTP clinic. Id. He was paid by the
Health Science Center, was required to put all professional fees outside of those received from
the Health Science Center into the Center’s trust fund for the benefit of the Center, and testified
by affidavit similarly to the Doctors in this case. See id. at 683–84. The court concluded that the
attending physician was entitled to dismissal under section 101.106(f). Id. at 686.
We conclude that the Perkins’ evidence did not raise a genuine issue of material fact
about UT Southwestern’s control of the Doctors’ tasks at Children’s. Accordingly, we sustain the
Doctors’ sole issue on appeal.
CONCLUSION
We reverse the trial court’s order denying the Doctors’ respective motions for summary
judgment and render judgment granting the motions and dismissing the Perkins’ claims against
the Doctors.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
160796F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEPHEN X. SKAPEK, M.D., On Appeal from the 68th Judicial District
DANIEL BOWERS, M.D., Court, Dallas County, Texas
PAUL DAVID HARKER-MURRAY, M.D., Trial Court Cause No. DC-14-00917.
JEFFREY SCOTT KAHN, M.D., Opinion delivered by Justice Lang-Miers.
LAURA KLESSE, M.D., Justices Myers and Richter participating.
PATRICK LEAVEY, M.D.,
TAMRA SLONE, M.D.,
MARTHA STEGNER, M.D.,
TANYA WATT, M.D. AND
NAOMI WINICK, M.D., Appellants
No. 05-16-00796-CV V.
CRAIG PERKINS AND KIMBERLY
PERKINS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
CODY PERKINS, DECEDENT, Appellees
In accordance with this Court’s opinion of this date, we REVERSE the June 20, 2016
Order Denying Defendants’ Amended Motions for Summary Judgment Seeking Dismissal and
RENDER judgment GRANTING the motions and DISMISSING appellees’ claims against
appellants with prejudice.
It is ORDERED that appellants Stephen X. Skapek, M.D., Daniel Bowers, M.D., Paul
David Harker-Murray, M.D., Jeffrey Scott Kahn, M.D., Laura Klesse, M.D., Patrick Leavey,
M.D., Tamra Slone, M.D., Martha Stegner, M.D., Tanya Watt, M.D. and Naomi Winick, M.D.
recover their costs of this appeal from appellees Craig Perkins and Kimberly Perkins,
Individually and as Representatives of the Estate of Cody Perkins, Decedent.
Judgment entered this 17th day of February, 2017.
–11– | 01-03-2023 | 02-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5903304/ | In an action to recover moneys allegedly due and owing for medical services and room and board provided to the defendant, the plaintiff appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), dated March 23, 1987, which, after a hearing, granted the defendant’s motion to vacate a default judgment.
Ordered that the order is affirmed, with costs.
We agree with the Supreme Court that the mere slipping of the papers between the screen door and the doorjamb was not a proper "affixing” as required by the statute. "The affixing of a summons to the door is to be accomplished by use of a nail, tack, tape, rubber band or some other device which will ensure a genuine adherence” (PacAmor Bearings v Foley, 92 AD2d 959, 960, citing Siegel, NY Prac § 74).
Accordingly, the Supreme Court properly vacated the default judgment on the basis that service was ineffective due to the improper "affixing”. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903305/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Lewis B. Stone, J.), rendered on or about November 17, 2011, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Andrias, J.P., Renwick, Freedman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903414/ | Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered July 18, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment, unanimously affirmed, without costs.
The provision of the parties’ April 25, 2007 letter agreement requiring plaintiff brokerage firm to pay defendant broker draws based on commissions (plural), which is not limited to any stated period of time, is ambiguous since it is subject to different interpretations (see Feldman v National Westminster Bank, 303 AD2d 271 [1st Dept 2003], lv denied 100 NY2d 505 [2003]). Defendant also established the existence of triable issues of fact, including whether plaintiff was the first to repudiate this provision of the parties’ agreement.
We have reviewed plaintiffs remaining claims and find them unavailing. Concur—Tom, J.P, Moskowitz, Richter, ManzanetDaniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903415/ | In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Incorporated Village of Lloyd Harbor (hereinafter the Village), dated May 20, 1985, which denied the petitioners’ application to place a parcel of land within a flood plain district into the residence A-l district of the Village and to compel the Village Building Inspector to process the petitioners’ application for a building and development permit for a single-family dwelling on the parcel, the *698appeal is from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), dated October 14, 1986, which directed the Village Building Inspector (hereinafter Building Inspector) to process the petitioners’ application for the permit.
Ordered that the judgment is reversed, on the law and the facts, the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioners have contracted to purchase a three-acre parcel of land located on the south side of Lloyd Harbor Road in Lloyd Harbor. The contract of sale was conditioned upon the petitioners obtaining a building permit for a single-family dwelling from the Building Inspector. The petitioners sought to obtain such a permit from the Building Inspector. However, the Building Inspector referred the petitioners to the Board of Trustees because the subject parcel is located in a zoning district designated by the Village as "Flood Plain District I” and the zoning ordinance prohibits the construction of dwellings in this district unless the Board of Trustees affirmatively votes to place the parcel in the residence A-l zoning district (Zoning Ordinance of Incorporated Village of Lloyd Harbor §§ 7.03, 7.04). The petitioners maintain that they were not required to seek the approval of the Board of Trustees because the land upon which the residence was to be constructed is entirely within the Village’s flood plain district II. The petitioners sought to ascertain the propriety of the Building Inspector’s interpretation of the ordinance from the attorneys for the Village. Thereafter, without conceding their position, the petitioners sought to obtain the Board of Trustees’ approval to place the subject parcel in the residence A-l district. In order to obtain the approval of the Board of Trustees, the petitioners were required to submit an éngineering plan which showed how the land would be reclaimed in accordance with the provisions of the ordinance so as to render it "as suitable for human habitation as is land in * * * Residence A-l District” (Zoning Ordinance of Incorporated Village of Lloyd Harbor § 7.04 [A] [2] [a]). However, the petitioners did not modify their existing engineering plan which complied with the provisions of the ordinance relative to flood plain district II. As a result, the Board of Trustees passed a resolution denying the petitioners’ application.
The petitioners then commenced the instant proceeding in which they contended that since the premises was located in flood plain district II, the Building Inspector was vested with authority to grant the building permit and that the Board of Trustees prior approval was unnecessary. The premise of *699these contentions is that the two flood plain districts are separate and distinct. The appellants, however, claim that the location of the parcel falls within both flood plain district I and district II and, therefore, the petitioners were required to comply with the provisions of the ordinance applicable to both districts. The Supreme Court failed to address the merits of the parties’ contentions but directed the Building Inspector to process the petitioners’ application for a building permit.
On this appeal the appellants claim that reversal is warranted because the Building Inspector properly referred the matter to the Board of Trustees and that this latter body properly denied the petitioners’ application because their engineering plan did not conform to the provisions of the ordinance which deals with flood plain district I. We find that the appellants’ interpretation of the applicable sections of the ordinance is proper.
It is well established that where the plain language of a statute or ordinance is precise and unambiguous, it is determinative (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565). Moreover, "[i]t is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other” (People v Mobil Oil Corp., 48 NY2d 192, 199; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98, 130). Furthermore, "[mjeaning must be given to each and every word of a statute whenever possible” (Matter of Sharon B., 127 AD2d 761, 763; McKinney’s Cons Laws of NY, Book 1, Statutes § 231).
At bar, it is undisputed that the subject premises falls within the Village’s flood plain district II. The only dispute concerns the Village’s determination that it also falls within flood plain district I. The zoning ordinance states that flood plain district I consists of "all land within the Village subject to flooding by tide water rising to a height of twelve (12) feet above mean sea level” (Zoning Ordinance of Incorporated Village of Lloyd Harbor § 7.03). The survey map which was submitted by the petitioners’ engineer shows that the subject parcel is below elevation 9. As such the land would be subject to flooding by tide water rising above elevation 12 and pursuant to the plain meaning of the statutory definition, would fall within flood plain district I. Since flood plain district II contains areas of special flood hazard which have been identified by the Federal Insurance Administration (Zoning Ordinance of Incorporated Village of Lloyd Harbor §§ 7.03, 7.05), where any of these identified areas are located at or below elevation *70012 the two flood plain districts overlap. Thus, a reading of the ordinance as a whole clearly shows that the ordinance contemplates that the two districts may overlap. In fact, section 7.18 of the ordinance expressly recognizes this possibility. Thus, the petitioners’ contention that the districts are separate and distinct lacks merit. Moreover, during the pendency of this proceeding, the Board of Trustees amended the zoning ordinance to provide that flood plain district I shall "consist of all land, including overlapping areas in flood plain district II, within the village subject to flooding by tide water rising to a height of 12 feet above mean sea level” (Local Laws, 1987, No. 2 of Village of Lloyd Harbor). We find that the appellants may rely on the amendment since the law as it exists at the time a decision is rendered on appeal is controlling (see, Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921; cf., Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Huntington Ready-Mix Concrete v Town of Southampton, 112 AD2d 161), absent bad faith or delay which has not been demonstrated here (see, Matter of Hatcher v Planning Bd., 111 AD2d 812). Thus we find that the petitioners were required to comply with the provisions in the ordinance with respect to both flood plain district I and district II. Since the petitioners did not comply with the provisions relative to flood plain district I, the Building Inspector properly referred the matter to the Board of Trustees (see, Zoning Ordinance of Incorporated Village of Lloyd Harbor § 16.5), and the Board of Trustees properly denied the application to have the parcel placed in the residence A-l district (see, Zoning Ordinance of Incorporated Village of Lloyd Harbor § 7.04 [A]). Accordingly, the determination must be confirmed. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903307/ | In a proceeding pursuant to CPLR article 78 to review an order and determination of the respondent State of New York Division of Housing and Community Renewal, dated July 16, 1984, which ordered a building-wide rent reduction based on a finding of roach and rodent infestation, the appeal is from a judgment of Supreme Court, Westchester County (Coppola, J.), entered October 22, 1986, which dismissed the petition.
Ordered that the judgment is affirmed, with one bill of costs.
The determination that the petitioner’s building was infested with roaches and rodents and that the petitioner failed to make meaningful efforts to control the problem was supported by substantial evidence. Numerous tenants testified that they had heard, seen, and trapped roaches and rodents in their apartments. The tenants produced photographs of rodents that they had taken in their homes and presented exhibits of rodent fecal matter. Some of the tenants had hired exterminators to service their apartments, and others demonstrated an expertise with traps and poison consistent with long-term efforts to rid their homes of unwanted pests. Based on the proof presented we conclude that there was a rational basis for the findings of fact supporting the respondent-respondent’s decision (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179-182). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903308/ | In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Scarsdale (hereinafter the board), dated January 8, 1986, which denied the petitioner’s request for a variance to construct an enclosed swimming pool complex fully attached to the back of the principal residence, the appeal is from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered June 30, 1986, which granted the petition and directed the Building Inspector to issue a building permit "without delay upon the plans submitted to [the] Board provided all other requirements of statute or ordinance are met”.
Ordered that the judgment is affirmed, without costs or disbursements.
The Scarsdale Building Inspector refused to grant the petitioner a permit to construct a structure upon her property, containing a swimming pool, sauna, spa, bathroom dressing area and sitting area, and the board denied her application for a variance. The denial of the permit was on the ground that the addition would cause a violation of Village Code of Village of Scarsdale § 12-10A-3 (Local Laws, 1985, No. 7 of Village of Scarsdale) which prohibits coverage of more than 10% of the petitioner’s property by the principal building. The petitioner’s home now covers less than 5% of the lot. The plans also contemplate an enlargement of an existing bedroom by 80 square feet, which will increase the coverage by the home to *5982,457 square feet, or 5.10% of the lot. If the proposed structure is considered part of the principal building, 10.98% of the lot will be covered, exceeding the permitted coverage under the zoning ordinance by .98%; if it is deemed an accessory structure, its area will be calculated with all structures and impervious surfaces, resulting in a total coverage of 19.2%, although the maximum permitted coverage for all structures and surfaces is 30%. The board, in affirming the Building Inspector’s decision, essentially agreed with his conclusion that the swimming pool complex constituted an addition to the principal building, that the 10% maximum lot coverage was applicable, and that the petitioner demonstrated no "practical difficulty” in reducing the size of the structure to conform to the 10% requirement. It was the petitioner’s position that such a reduction was not necessary because the construction should be considered an accessory building which would fall within the 30% requirement.
The Supreme Court, in granting the petition, found, inter alia, that the appellants’ interpretation of the definition of "accessory structure” was incorrect as a matter of law and directed the Building Inspector to issue a building permit without delay. We agree. Zoning laws must be given a strict construction since they are in derogation of common-law rights (Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298, 301). While specific application of a term of the zoning ordinance to a particular property is generally governed by the board’s interpretation (Matter of Frishman v Schmidt, 61 NY2d 823, 825), its interpretation of what constitutes an accessory structure is "not entitled to unquestioning judicial deference, since the ultimate responsibility of interpreting the law is with the court” (Matter of Exxon Corp. v Board of Stds. & Appeals,, 128 AD2d 289, 296, lv denied 70 NY2d 614). The Village Code of the Village of Scarsdale does not define "principal building”. The term "accessory building” is defined as a "building (such as a private garage, private swimming pool and appurtenant bathhouse, private toolhouse or children’s playhouse or a non-commercial greenhouse) which is subordinate and accessory to a principal building on the same lot and which is used for purposes customarily incidental to those of the principal building” (emphasis added). Also, as the court noted, the New York State Uniform Fire Prevention and Building Code (9 NYCRR 606.3 [a] [1]) defines an "accessory structure” as "[a] structure, the use of which is incidental to that of the main building, and which is attached thereto, or is located on the same premises”. "If a definition is essential, it *599should be tailored to the specific requirements of the ordinance” (1 Anderson, New York Zoning Law and Practice § 17.04, at 748 [3d ed 1984]). The board gave as its reason for denying the application that the structure would be partially attached to the rear of the petitioner’s home and, thus, it would be considered part of the principal building and not an accessory structure. The board did not offer any evidence that the proposed addition to the back of the petitioner’s home frustrates any of the stated purposes of the zoning ordinance; e.g., limiting overcrowding of land, avoiding drainage and flooding problems, preserving the character of the community and promoting neighborhood aesthetics. On the contrary, the record indicates that the structure would not frustrate any of those purposes. The police power of the State and its municipalities furnishes the basis for the imposition of reasonable restrictions by them through zoning ordinances and regulations affecting the use of private property, "but its exercise finds justification only in promotion of public health, public safety, public welfare and good order to the end that public convenience and general prosperity may be attained” (Matter of 440 E. 102nd St. Corp. v. Murdock, supra, at 304). We, therefore, agree with the court that since the Village Code of the Village of Scarsdale lacks any qualifying language confining the concept of accessory building to solely those detached from a principal structure or dwelling, the interpretation of the ordinance provisions was incorrect as a matter of law. Inasmuch as the proposed addition to the petitioner’s house is not prohibited by Scarsdale’s zoning provisions, no special exception permit is required and the court properly directed the Building Inspector to issue a building permit without delay, provided all other requirements of the statute or ordinance are met. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903309/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Motor Vehicles, dated June 26, 1986, which sustained the finding of an Administrative Law Judge that the petitioner had violated Vehicle and Traffic Law § 1180 (b), and which imposed a $100 fine and a 60-day suspension of the petitioner’s driver’s license.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
*600The determination that the petitioner violated Vehicle and Traffic Law § 1180 (b) is supported by substantial evidence on the record and must be confirmed (see, Matter of McKenzie v Fisher, 39 NY2d 103). Opinion evidence of the police officer that the petitioner was driving at a speed nearly twice the legal limit need not be corroborated by mechanical devices and is itself sufficient to sustain a speeding conviction (People v Olsen, 22 NY2d 230). The petitioner’s challenge to the administrative determination rests primarily upon an issue of credibility which was primarily for the fact finder to resolve (see, Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; Matter of Collins v Codd, 38 NY2d 269, 270-271). The testimony of the police officer who issued the summons to the petitioner was not incredible as a matter of law, and was sufficient by itself to sustain the respondent’s burden of proving by clear and convincing evidence (see, Vehicle and Traffic Law § 227 [1]) that the petitioner violated Vehicle and Traffic Law § 1180 (b) by driving at a speed of 95 miles per hour.
The $100 fine and 60-day license suspension was not an excessive penalty. The Administrative Law Judge set this penalty after reviewing the petitioner’s driving record, which contained numerous other moving violations, and after considering the great speed at which the petitioner was driving prior to being stopped by police. A 60-day license suspension was a permissible disposition (see, Vehicle and Traffic Law § 510 [3] [a]). In light of all the circumstances, the punishment handed down is not " ' "so disproportionate to the offense * * * as to be shocking to one’s sense of fairness” ’ ” (Kostika v Cuomo, 41 NY2d 673, 674). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903310/ | In a proceeding pursuant to CPLR article 78 to review a determination of the State of New York, Division of Housing and Community Renewal, dated August 7, 1985, granting a rent rollback, the petitioner Mazel Real Estate appeals from a judgment of the Supreme Court, Kings County (Krausman, J.), dated September 26, 1986, which dismissed the proceeding on the merits.
Ordered that the judgment is affirmed, with costs.
In March 1984 the petitioner, Mazel Real Estate, received a letter from the Division of Housing and Community Renewal (hereinafter DHCR) notifying it that a complaint had been *601filed by a tenant, in an apartment building it owned, alleging that her rent was above the legal limit. The letter informed the petitioner that, after docketing procedures were completed, it would receive a copy of the complaint and the necessary answer forms. In September the petitioner received the complaint and the answer forms which advised it that DHCR regulations required an owner to submit copies of all leases from the base rental date (i.e., the date the apartment became subject to rent stabilization) to the date on which the complaining tenant took occupancy. If the petitioner did not have copies of all applicable leases it could submit rent ledgers or other satisfactory proof of rent collected for the subject apartment.
On August 7, 1985, the District Rent Administrator issued an order rolling back the tenant’s rent from $539.85 to $327.70. In the order the Administrator noted that the petitioner had failed to answer the complaint or submit any of the required proofs. On August 19, 1985, the petitioner filed for administrative review of the order, alleging that he had mailed an answer to the DHCR on September 23, 1984, along with the necessary documentation to establish the legal rent. The petitioner attached a copy of his answer and supporting documents to his petition for administrative review. These documents included leases covering the period November 1975 through August 1979 and from September 1983 on. The petitioner claimed that the leases covering the period September 1979 through August 1983 were lost or stolen during a burglary at the petitioner’s offices. The petitioner failed to explain why no lease was available for June 30, 1974, the "base [rent] date” for the subject apartment.
In an order and opinion dated April 17, 1986, the DHCR affirmed the previous order finding that even if the petitioner’s allegations regarding the missing leases were true it had still failed to submit a lease covering the "base [rent] date” or "copies of the rent roll, or ledger, substantiating the tenancy, lease term, and rental paid for the period in issue”.
The petitioner then commenced this proceeding. Along with its petition it submitted, for the first time, rent rolls for the years 1980 to 1983 and 1985. The Supreme Court dismissed the proceeding finding that the determination was not arbitrary and capricious.
In reviewing the judgment appealed from, this court is limited to a review of the record which was before DHCR and to the question of whether the determination of the agency was arbitrary and capricious and without rational support *602(see, Villas of Forest Hills v Lumberger, 128 AD2d 701, 703; Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51, 55, lv denied 70 NY2d 615; Matter of Plaza Realty Investors & Queens Blvd. Props. Co. v New York City Conciliation & Appeals Bd., 111 AD2d 395, 396). The petitioner never submitted to DHCR "satisfactory proof’ of the rents collected for the subject apartment even though he received notice that such documentation was required from the base rent date through the date that the complaining tenant took occupancy. The leases he submitted to the agency did not cover the entire period in question and were unsupported by any additional evidence. Based on the record before it, the decision of the DHCR to roll back the rent on the subject apartment was supported by a rational basis and was not arbitrary and capricious. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903312/ | Proceeding pursuant to CPLR article 78 to prohibit the enforcement of a determination of the respondent Kohn, a Justice of the Supreme Court, Queens County, dated April 24, 1987, which dismissed indictment No. 349/85 against the respondent Singleton.
Adjudged that the proceeding is dismissed, without costs or disbursements.
*604The respondent Kohn was the Justice presiding at the criminal trial of the defendant Norman Singleton. At the end of the People’s case and again after the defense rested, the defense counsel moved for a trial order of dismissal. The court reserved decision and sent the case to the jury. Four times during its deliberations, the jury sent notes to the Judge advising him that they were deadlocked. After the fourth note, the Judge granted the defendant’s motion to dismiss the indictment stating:
"Pursuant to Criminal Procedure Law Section 290.10, I find that inherent in this case, there is reasonable doubt as to the guilt of this defendant as to identification and other matters including but not limited thereto.
"Accordingly, I find that reasonable people could not find the defendant guilty on the state of this record.
"I, therefore, direct a verdict at this time of not guilty * * * The jury is hereby discharged. The defendant’s bail is exonerated and the indictment is sealed, and the People have an exception to my ruling, if it’s necessary, and I dismiss the jury at this time”.
Thereafter, the People moved to resettle the court’s order on the grounds that (1) the Trial Judge was not empowered to grant the motion while the jury was deliberating and before it was discharged, and (2) the court improperly relied upon a reasonable doubt standard rather than the legal sufficiency standard in dismissing the indictment, thereby rendering the dismissal a nullity. The court denied the motion to resettle stating:
"In the case at bar, this Court is faced with evidence which is insufficient to establish the elements of the crime or crimes charged and the defendant’s commission thereof. Thus the evidence presented does not rise to the standard of proof to make out a prima facie case. That the People contend that the Court’s ruling should otherwise be construed is to suggest that semantics should prevail over substance. The Court’s ruling clearly states that the evidence presented by the People is insufficient to establish the offenses charged or any lesser degrees thereof.
"In the case at bar, the court reserved decision on the defendant’s motion to dismiss and concluded, albeit while the jury was deliberating, that there was not sufficient evidence for the case to proceed to a jury verdict with regard to defendant Singleton.
"In consequence thereof, the Court was constrained to grant *605the defendant’s motion to dismiss all charges upon the ground that the People had not made out a prima facie case”.
CPL 290.10 empowers the court to issue a trial order of dismissal on the ground that the evidence is not legally sufficient to establish the elements of the crimes charged (see, Matter of Holtzman v Bonomo, 93 AD2d 574). The court may not usurp the jury’s function and dismiss an indictment on the ground that a verdict of guilty would be against the weight of the evidence (see, Matter of Holtzman v Bonomo, supra). Here, the trial court clearly invoked the proper legal sufficiency standard, both by referring to CPL 290.10 and in stating that "reasonable people could not find the defendant guilty on the state of this record” (see, People v Contes, 60 NY2d 620, 621; People v Lerner, 128 AD2d 641). The court’s subsequent denial of the People’s motion to resettle clearly supports this interpretation.
Further, the trial court was authorized to dismiss the indictment while the jury was deliberating. CPL 290.10 was recently amended to permit a trial court to reserve decision on a motion for dismissal until the jury renders a verdict. The Legislature’s stated purpose in so amending the statute was to preserve the People’s right to appeal since, upon reversal, an appellate court may reinstate the indictment and avoid the attachment of the defendant’s constitutional privilege against double jeopardy (Judicial Conference Report on CPL, 1983 McKinney’s Session Laws of NY, at 2939; see, People v Marin, 102 AD2d 14, affd 65 NY2d 741). Thus, while it may be the better practice for the trial court to reserve decision on the motion until after the verdict to avoid a double jeopardy problem, the court is not precluded from dismissing the indictment prior to that time. Here, however, when the court properly dismissed the indictment on legal sufficiency grounds while the jury was deliberating, double jeopardy attached and the People are precluded from appealing that determination since a trial order of dismissal is "tantamount to an acquittal” (People v Zagarino, 74 AD2d 115, 120; People v Lerner, supra). Brown, J. P., Rubin and Kooper, JJ., concur.
Weinstein, J., dissents and votes to grant the petition and reinstate the indictment, with the following memorandum in which Fiber, J., concurs. Unlike my learned colleagues of the majority, I am of the opinion that Criminal Term erred in dismissing the indictment. CPL 290.10 (1) specifically provides that a court may, upon motion of the defendant, "(a) issue a Trial order of dismissal,’ dismissing any count of an indictment upon the ground that the trial evidence is not legally *606sufficient to establish the offense charged therein or any lesser included offense, or (b) reserve decision on the motion until after the verdict has been rendered and accepted by the court”. It is apparent to me that the instant case does not fit precisely into either of those situations with the result that the action of Criminal Term in dismissing the indictment exceeded the scope of its authorized powers.
By way of pertinent factual background it bears noting that defense counsel initially moved for a trial order of dismissal at the end of the People’s case and again at the end of the entire case. The trial court reserved decision thereon and sent the case to the jury. In the course of its deliberations, the jury sent four separate notes to the trial court indicating its deadlocked status. Before the jury was discharged and while it was still deliberating, the court rendered the following decision:
"Pursuant to Criminal Procedure Law Section 290.10, I find that inherent in this case, there is reasonable doubt as to the guilt of this defendant as to identification and other matters including but not limited thereto.
"Accordingly, I find that reasonable people could not find the defendant guilty on the state of this record.
"I, therefore, direct a verdict at this time of not guilty * * * The jury is hereby discharged. The defendant’s bail is exonerated and the indictment is sealed, and the People have an exception to my ruling, if it’s necessary, and I dismiss the jury at this time”.
From the language employed by the trial court, it is evident that an improper standard was invoked. It is well settled that no power or authority is granted to trial courts to dismiss any count of an indictment on the ground that guilt has not been established beyond a reasonable doubt or for any reason other than legal insufficiency (People v Lynch, 116 AD2d 56, 62; Matter of Holtzman v Bonomo, 93 AD2d 574, 575). While it cannot be gainsaid that prohibition constitutes an extraordinary remedy which does not lie to remedy a mere error of law (Matter of State of New York v King, 36 NY2d 59), the error involved here goes beyond a mere error of law. The facts reveal that the trial court exceeded its authorized powers in a way which substantially affects the entire action and from which the People have no right of appeal. More specifically, "[b]y attempting to dismiss counts of the indictments upon the ground that guilt had not been established beyond a reasonable doubt, the respondent usurped the function of the jury *607and acted in excess of his authorized powers” (Matter of Holtzman v Bonomo, supra, at 576). Inasmuch as the court, in applying a reasonable doubt as opposed to a legal sufficiency standard, acted beyond its authorized power, its dismissal of the indictment was, in effect, a nullity, which, being a nullity, was not tantamount to an acquittal on the merits (see, People ex rel. Leventhal v Warden, 102 AD2d 317, 322). To reiterate a distinction cogently drawn by former Chief Judge Breitel in his dissent in People v Brown (40 NY2d 381, 396, cert denied 433 US 913, rearg denied 42 NY2d 1015), the termination of the action, which resulted from defense counsel’s motion for a trial order of the dismissal, was the "fault” of the defendant rather than of the prosecution. Under the peculiar circumstances of this case, I conclude that the defendant was not entitled to claim the protection of the Double Jeopardy Clause (see, United States v Kehoe, 516 F2d 78, 86, cert denied 424 US 909, reh denied 425 US 945).
The instant situation is patently distinguishable from that which prevailed in People v Lerner (128 AD2d 641, 642), where the court, in addition to stating that the People failed to prove the defendant’s guilt beyond a reasonable doubt, made it clear that the People had failed to prove the case as a matter of law. In contrast, there is no language in the court’s determination dated April 24, 1987, which could reasonably be interpreted to mean that the trial order of dismissal was based on legal insufficiency of the evidence. Any argument that the court believed that it was dismissing the indictment on legal sufficiency grounds as evidenced by the language used in its order denying the People’s motion for resettlement is entirely speculative, given its prior clear and unequivocal reference to the reasonable doubt standard.
Moreover, CPL 290.10 (1) does not, on its face, provide the trial court with authority to issue a trial order of dismissal, once decision on the motion was reserved, while the jury was still deliberating and before it was discharged. As per the precise wording of the statute, the court had the following available options: (1) to dismiss the indictment or any count thereof at the conclusion of the People’s case or at the conclusion of all the evidence, or (2) to reserve decision on the motion until after the jury had rendered the verdict. There is thus no statutory authority for a trial court to grant a trial order of dismissal where the jury is still deliberating.
Under the circumstances, the trial court erred in dismissing the indictment and the respondent should be prohibited from dismissing any counts of the subject indictment upon the *608ground that the defendant’s guilt has not been proven beyond a reasonable doubt. Brown, J. P., Weinstein, Rubin, Eiber and Kooper, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903313/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Babylon Union Free School District, dated September 9, 1986, which, after a hearing, found the petitioner guilty of misconduct in that she intentionally harassed and annoyed the Assistant to the Superintendent of Schools, and dismissed her from her employment as a clerk typist.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
The petitioner was employed by the respondent Babylon Union Free School District from 1972 to 1986 as a clerk typist in both the grade school and junior-senior high school. On or about April 3, 1986, the petitioner was served with four specific charges by the respondent, alleging misconduct and incompetence on her part in connection with her employment. The Hearing Officer recommended a finding of guilty with regard to the second charge, which finding was adopted by the respondent.
In the second charge, it was contended that the petitioner had "intentionally harassed and annoyed the Assistant to the Superintendent of Schools, Lawrence S. Light, both in a civil and possible criminal manner through the use of the telephone in an improper and illegal fashion”. It was specifically alleged, inter alia, that the petitioner had made numerous annoyance telephone calls to Light’s home between January 24 and March 28, 1986, during the early hours of the morning, without a legitimate communication purpose. The Hearing Officer determined that while there was no direct evidence that the petitioner had made the calls herself, the calls did emanate from her household, and he concluded that "[ejither as perpetrator or instigator [the petitioner] must logically be assumed to bear responsibility for the actions which resulted in this charge”.
In this proceeding, the only issue raised by the petitioner is the sufficiency of the evidence supporting the guilty determination with regard to the second charge.
In evaluating whether there is substantial evidence to support the administrative body’s determination, this court has said that "[although it is permissible * * * to draw inferences *609from [the Hearing Officer’s] findings of fact, the inferences must be based upon facts already proved” (Matter of Francis v New York City Tr. Auth., 112 AD2d 994, 995). Further, "[a] finding is supported by the evidence only when the evidence is so substantial that from it an inference of the existence of the fact found may be drawn reasonably” (Matter of Stork Rest, v Boland, 282 NY 256, 273; see also, Matter of Furey v County of Suffolk, 105 AD2d 41, 43). Finally, "it is for the officer or the board to pass on the credibility of the witnesses and to base the resulting inferences on what such officer or board accepts as the truth” (Matter of Wiener v Gabel, 18 AD2d 1025, 1026; see also, Matter of David v Christian, 134 AD2d 349; Matter of Donnelly v Carmel Cent. School Dist., 109 AD2d 796).
We find that there was substantial evidence in the record to support the Hearing Officer’s finding of fact that the calls emanated from the petitioner’s household, and he could reasonably infer that the petitioner had made the calls herself or that she had instigated, conspired with or consented to another member of her household making these harassment calls. We therefore find no basis for disturbing the respondent’s determination that the petitioner’s guilt of the second charge was established. Lawrence, J. P., Fiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
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Content-Type: application/pdf | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903314/ | Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 22, 2012, which, insofar as appealed from as limited by the briefs, denied third-party defendants-appellants’ motion for summary judgment dismissing the third-party complaint and all cross claims as against them, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this case Travelers Property Casualty Company of America, as subrogee of Sherle Wagner International, LLC (SWI), seeks recovery for losses sustained when SWI’s Manhattan showroom, located in the sub-basement of 60 E. 57th Street, became flooded after the sump pump in an adjacent Con Edison vault failed to work. The vault, which was located outside of the premises, housed an electrical transformer and supplied power to the premises through electrical wires. The wires were run through conduits, between the vault and a “network compartment” room,-which shared a wall with the vault, but was located within 450 Park LLC’s premises.
450 Park LLC and Taconic Management Company, LLC, the owner and property manager of the premises, respectively, made *509a prima facie showing of entitlement to dismissal of the claims asserted against them. The motion papers established that 450 Park LLC and Taconic Management Company, LLC lacked control or responsibility for the space within the conduits, through which, according to their two experts, the water entered the premises, and established lack of prior notice of an insufficient waterproofing condition. Although the network compartment was located on the premises, it housed Con Edison’s equipment and Con Edison had exclusive access to the locked room, via use of a standardized key used for other network compartments throughout Manhattan. Further, a long-time Con Edison employee testified that, in order to prevent water from traveling through the conduits between the vault and the network compartment, the ducts were packed with a fibrous substance and then sealed with a sealant, which materials he carried on his truck and applied when necessary.
In opposition, Con Edison failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Con Edison did not dispute that the water entered the premises through the conduits, which carried its wires from the vault to Con Edison’s equipment in the network compartment. As such, responsibility for sealing the space between the conduits and the exterior wall of the premises, on which point the opposition papers were focused, is not at issue. Given Con Edison’s admitted responsibility for the “electrified components” in the network compartment (see 16 NYCRR 98.4), there is no logical basis upon which to exclude its responsibility for the sealing of the subject conduits. Concur—Andrias J.P., Renwick, Freedman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903315/ | In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Rosato, J.), dated February 18, 1987, which converted the proceeding into a proceeding pursuant to CPLR article 78, to review a Superintendent’s hearing disposition, dated March 3, 1986, and dismissed the proceeding on the merits.
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the proceeding pursuant to CPLR article 78 is remitted to the Supreme Court, Dutchess County, for further proceedings in accordance herewith.
While the court properly converted the petitioner’s application for a writ of habeas corpus to a proceeding pursuant to CPLR article 78 (see, People ex rel. Dawson v Smith, 69 NY2d 689), it erred in relying solely on the papers submitted in the habeas corpus proceeding. Thus, it did not have before it a complete and proper record upon which to resolve the issues pursuant to CPLR article 78 (see, CPLR 7804 [e]).
On remittal, the Supreme Court, Dutchess County, should *610order the production of the entire record in the Superintendent’s proceeding, including the hearing transcripts, and it must determine, inter alia, whether the respondent complied with the time limits of 7 NYCRR 251-5.1 (compare, General Construction Law § 20, with Edmonson v State of New York, 132 Misc 2d 452, 453). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903416/ | In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Motor Vehicles, dated December 17, 1985, as amended April 16, 1987, which found the petitioners had violated various provisions of the Vehicle and Traffic Law and regulations promulgated thereunder, and imposed a penalty of an $850 fine and a 20-day suspension of the petitioners’ repair shop license, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered June 16, 1987, which dismissed the proceeding.
Ordered that the appeal is dismissed, without costs or *701disbursements, and the judgment entered June 16, 1987 is vacated; and it is further,
Adjudged that so much of the determination as found the petitioners guilty of charge No. 2, insofar as the petitioners failed to include the vehicle’s mileage on the repair invoice, and found the petitioners guilty of charge No. 3, is confirmed, so much of the determination as found the petitioners guilty of charge No. 1, and charge No. 2 insofar as the petitioners failed to include a breakdown of the labor charges, is disaffirmed, the penalty imposed is vacated, and the matter is remitted to the respondent for the imposition of an appropriate new penalty, without costs or disbursements.
Since questions of substantial evidence are involved, this proceeding should have been transferred to this court pursuant to CPLR 7804 (g). However, this court will treat the matter as one initially transferred here and will review the administrative determination de novo (see, Matter of Old Country Toyota Corp. v Adduci, 136 AD2d 706; People ex rel. McClatchie v Reid, 105 AD2d 721; CPLR 7804 [g]).
The petitioners herein, County Auto Spring, Inc., and Frank Christy (its president and 50% shareholder), were cited by the respondent for the alleged violations of Vehicle and Traffic Law § 398-e and 15 NYCRR 82.5 (b), (c) and (g).
After obtaining an adjournment to prepare to defend against the allegations, the petitioners were notified that the hearing had been rescheduled for November 18, 1985. Additionally, the notice of hearing stated that a fourth charge, alleging the violation of Vehicle and Traffic Law § 398-e (1) (h), was being brought against the petitioners. On the scheduled hearing date, a hearing was held before Administrative Law Judge James Mulligan (hereinafter the ALJ), of the New York State Department of Motor Vehicles Safety Hearing Bureau. Following the hearing, the ALJ found that the evidence presented had sustained the alleged violation of 15 NYCRR 82.5 (b), (c) and (g), but was insufficient to support the charge brought pursuant to Vehicle and Traffic Law § 398-e (1) (h). Based upon the foregoing violations, the ALJ imposed a civil penalty of $1,050 and a 180-day suspension of the petitioners’ motor vehicle repair shop license. The ALT conducted the hearing in the absence of the complainant, who had left the United States, and the petitioners, who, according to the ALJ, had not communicated with the Safety Hearing Bureau regarding their nonappearance and therefore had waived their right to appear in the matter.
*702The petitioners appealed the findings of the ALJ to the Repair Shop Review Board, claiming that on the morning of the hearing, their attorney had telephoned the Safety Hearing Bureau and requested an adjournment due to the petitioner Frank Christy’s illness. According to the petitioners, the ALJ’s secretary informed their attorney that although the hearing would not be adjourned, they would be given an opportunity to present evidence with regard to the charges that had been brought against them. The petitioners further argued that the fine and suspension imposed by the AU were excessive and unreasonable. The Repair Shop Review Board recommended that the ALJ’s finding be affirmed, but the penalty be modified to a more reasonable length, so as to conform with similar cases. The Board recommended a civil penalty of $850 and a 20-day suspension of the petitioners’ repair shop license. On April 6, 1987, the Commissioner of Motor Vehicles ordered that a civil penalty of $850 and a 20-day repair shop license suspension, as recommended by the Repair Shop Review Board, be imposed upon the petitioners. Thereafter the petitioners commenced the instant proceeding seeking to set aside the determination.
We find that the determination was supported by substantial evidence in the record except with regard to charge No. 1 and charge No. 2 insofar as it was determined that the petitioners failed to include the labor charges on the repair invoice (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222). As to those charges we find that the ALJ’s findings that the petitioner violated 15 NYCRR 82.5 (b) and (c), by failing to note the complainant’s oral authorization for the services to be done on his vehicle and the labor costs involved in the repair of the vehicle on the invoice, were not supported by substantial evidence.
A closer reading of the invoice indicates that the petitioners duly noted the complainant’s wishes with regard to the repair of the vehicle. Furthermore, the invoice evinces a breakdown of the per hour and total labor charges in accordance with 15 NYCRR 82.5 (b). However, it is evident that the petitioners violated 15 NYCRR 82.5 (c) by failing to properly note the vehicle’s mileage on the invoice. There is also substantial evidence in the record to support the finding that the petitioners had failed to provide quality repairs, thereby causing the vehicle to be unroadworthy (see, 15 NYCRR 82.5 [g]).
Since the petitioners were fined $850 and their license suspended for 20 days based upon the 3 violations, and this *703court is vacating the guilty finding as to 1 violation and part of another, the matter must be remitted to the respondent for the imposition of a new penalty. Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823547/ | Water soluble derivatives of P-Amino-Salicylic acid. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903317/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Office of Mental Retardation and Developmental Disabilities, dated May 2, 1986, which, after a hearing, found that the establishment of a community residential facility at a contested location would be appropriate.
Adjudged that the determination is confirmed and proceeding is dismissed on the merits, with costs.
It is well settled that the party contesting the establishment of a community residential facility for the disabled must show that it will result in a concentration of the same or similar facilities such that the nature and character of the area will be altered (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Town of Hempstead v Commissioner of State of N Y. Off. of Mental Retardation & Developmental Disabilities, 121 ÁD2d 388; Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 119 AD2d 582; see generally, Crane Neck Assn. v New York City/ Long Is. County Servs. Group, 61 NY2d 154, appeal dismissed and cert denied 469 US 804). Such challenges may only be sustained when the evidence offered in opposition is of a concrete and convincing nature (see, Grasmere Homeowners’ Assn. v Introne, 84 AD2d 778). The record reveals that the petitioner failed to offer evidence of that nature and that the respondent Webb’s determination was supported by substantial evidence (see, Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176).
We note that, contrary to the respondents’ contention, the petitioner did have standing to commence the instant proceeding (see, Grasmere Homeowners’ Assn. v Introne, supra). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903318/ | In a proceeding for leave to amend, nunc pro tunc, a notice *611of lien filed against real property pursuant to Lien Law § 12-a, the appeal is from an order of the Supreme Court, Westchester County (Nastasi, J.), entered July 21, 1987, which granted the application to amend the notice of lien.
Ordered that the order is reversed, with costs, and the petition is denied.
The petitioner furnished labor and materials in the amount of $44,194 for the improvement of real property known as the Chappaqua Mews, located in Westchester County. On April 1, 1987, the petitioner filed a notice of mechanic’s lien for that amount in the Westchester County Clerk’s office. The lien named Central Federal Savings & Loan, F.S.B. (hereinafter CFSL) as owner, based on the petitioner’s belief at the time of filing that CFSL was owner in fee simple of the property. This belief was apparently based on the fact that one Alec W. Ornstein, senior vice-president of CFSL and the alleged president of the respondent Chappastream Corporation (hereinafter Chappastream) assertedly told the petitioner’s president that CFSL was the owner of the real property. In the course of instituting an action to foreclose on the lien, a title search revealed that the true owner in fee simple is Chappastream.
On or about June 8, 1987, the petitioner sought, inter alia, to amend the notice nunc pro tunc, to substitute Chappastream as owner, asserting on information and belief that Chappastream is a wholly owned subsidiary of CFSL. The source of this belief is stated to be the telephone conversation with Ornstein. No affidavit from Ornstein appears in this record.
By order entered July 21, 1987, the Supreme Court, Westchester County, granted the petitioner’s application and amended the notice to substitute Chappastream in the stead of CFSL as owner (it also amended the docket and record of lien in the Westchester County Clerk’s office).
The notice of lien did not misdescribe the true owner of the real property as the petitioner contends; rather, it totally misidentified the true owner and as such was jurisdictionally defective and void. While a failure to state the true owner or contractor or a misdescription of the true owner will not affect the validity of a notice of lien (Lien Law § 9 [7]), a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc (see, Di Paolo v H.B.M. Enters., 95 AD2d 794, 795; Contelmo’s Sand & Gravel v J & J Milano, 96 AD2d 1090). Similarly, naming an officer and stockholder actively connected with manage*612ment but with no personal interest in the real property of the corporate owner has been held juriSdictionally insufficient to support the lien (see, Gates & Co. v National Fair & Exposition Assn., 225 NY 142, 156; Cohn v Gersh Realty Corp., 137 Misc 245, 246-248, affd 233 App Div 795). Thus, even were there a proper basis for the assertion that CFSL owns all of the stock of Chappastream, it would avail the petitioner nothing.
Furthermore, there is little basis in the record to support the petitioner’s contention that jurisdiction might be founded on an agency theory. Other than the verified petition, which on information and belief asserts that Chappastream is wholly owned by CFSL, the record lacks any affidavit from anyone to support the petitioner’s allegations. The hearsay allegations based on information and belief are insufficient (see, Swiss Bank Corp. v Eatessami, 26 AD2d 287, 290; Golub v Baruchin, 203 App Div 620). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903319/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered May 22, 1986, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements and physical evidence.
Ordered that the judgment is affirmed.
After receiving from an eyewitness an account of an attempted burglary of a nearby residence and his description of the two male perpetrators, the police apprehended the defendant and his companion. On-the-scene identifications were made by the eyewitness. It is well settled that information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest (People v Selasar, 91 AD2d 616, 617; People v Sanders, 79 AD2d 688, 689). Inasmuch as the police, in the instant case, were in possession of specific and articulable facts which would reasonably lead a prudent person to conclude that the defendant and his companion had committed a crime, the arrest was properly based on probable cause.
The mere fact that approximately two hours may have elapsed between the point at which the defendant was advised of and waived his rights and his admission that he had acted *613as a lookout does not render the interrogation inherently coercive. "It is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous” (People v Glinsman, 107 AD2d 710, lv denied 64 NY2d 889, cert denied 472 US 1021).
Inasmuch as the record unequivocally indicates that the defendant had a clear understanding of what a guilty plea connotes and the consequences thereof (see, People v Harris, 61 NY2d 9), the court did not err in accepting his plea.
We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903320/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered November 5, 1986, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
Responding to a radio transmission, a number of uniformed police officers arrived at a certain address and knocked on the door of a second-floor apartment. They heard no answer, but heard someone "rushing around” and. a window open. Instantly, two of the officers ran to a third-floor apartment and entered the fire escape. One of the two, Officer Hyer, testified that he ran down the fire escape. He saw the defendant place a dark object which looked like a gun under an Astroturf carpet, located in the backyard of a neighboring house. Officer Hyer testified that he retrieved a gun from that spot as he and Officer Johnson chased the defendant. Officer Johnson testified that although she saw the defendant run through the backyard, she did not see him with a gun.
The testimony by Officer Hyer and Officer Gieschen that they responded to a radio transmission about a dispute with a gun constituted inadmissible hearsay (see generally, Richardson, Evidence § 200, at 176-177 [Prince 10th ed]), as did Officer Gieschen’s testimony that a Lola Santos told him she lived in the defendant’s apartment. The prosecutor also improperly asked the defendant on cross-examination at least twice *614whether he knew that he was arrested because he threatened Lola Santos with a gun (see, Richardson, Evidence § 490, at 476 [Prince 10th ed]). These utterances impermissibly bolstered the testimony of the People’s witnesses (see, e.g., People v Downing, 112 AD2d 24; People v Tufano, 69 AD2d 826).
The error was compounded by numerous prosecutorial improprieties. During cross-examination of the defendant, who asserted that he had been framed, the prosecutor persistently asked whether the People’s witnesses lied (see, People v Webb, 68 AD2d 331). The prosecutor also improperly engaged in sarcastic questioning of the defendant, asking him twice whether the police chose "you out of the millions”, thus, showing an "ill-concealed contempt for the defendant” (People v Hicks, 102 AD2d 173, 183). He also improperly engaged in persistent questioning of the defendant on collateral matters regarding the defendant’s marital status, which tended to "impugn [the defendant’s] character without being probative of the crime charged” (People v Hicks, supra, at 182). Further, the prosecutor’s comments during summation were clearly improper. He said that he did not wish to insult the jury’s intelligence as the defense counsel had done (see, People v Fernandez, 82 AD2d 922), that to believe the defendant was to believe that all the People’s witnesses, the Judge and the District Attorney’s office conspired against the defendant (see, People v Stewart, 92 AD2d 226), that the defendant’s testimony "couldn’t possibly be true” and was "beyond belief’ (cf., People v Bailey, 58 NY2d 272), and that the police would not put their jobs on the line in trying to frame the defendant (see, People v Hernandez, 128 AD2d 637, lv denied 70 NY2d 648). Although objection was not made to most of these utterances, we hold that in the interest of justice the cumulative effect of the errors deprived the defendant of a fair trial, since the evidence of guilt was not overwhelming (see, People v Bailey, supra, at 278).
The defendant’s remaining contentions have been considered and have been found to be without merit (see, People v Buford, 69 NY2d 290; People v Gonzalez, 68 NY2d 424; People v Walker, 105 AD2d 720; People v Marcelin, 23 AD2d 368). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903321/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered April 29, 1986, convicting him of robbery in the second degree and assault in the second degree, upon a jury *615verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant argues that evidence of the lineup identification should have been suppressed because there was a 2- to 3-inch variation in the height of the lineup participants. While it is well established that the participants in a lineup should have the same general physical characteristics (see, Foster v California, 394 US 440), there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see, People v Rodriguez, 124 AD2d 611). In view of the fact that all of the lineup participants were of similar age, skin tone, build, weight, hairstyle and dress as the defendant, the slight variation in their height did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification (see, Stovall v Denno, 388 US 293; People v Brown, 121 AD2d 460, lv denied 68 NY2d 767). Therefore, suppression of evidence of the lineup identification was properly denied.
In addition, we find no basis in the record for finding that the trial court abused its discretion with respect to the maximum sentence imposed or that this court should exercise its discretion by reducing the sentence (see, People v Farrar, 52 NY2d 302; People v Suitte, 90 AD2d 80).
We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903322/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Balbach, J.), rendered April 10, 1985, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of marihuana in the fifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the People failed to prove his intent to sell the cocaine found in his possession, which is an element of criminal possession of a controlled substance in the third degree. Viewing the evidence adduced at trial in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the *616conviction. The mere fact that the evidence is subject to an interpretation different from that found by the jury does not mean the People failed to prove their case beyond a reasonable doubt (see, People v Gerard, 50 NY2d 392). Upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
The defendant also contends that he was deprived of a fair trial when the prosecutor was permitted to cross-examine him about his use of aliases. Although it was improper for the trial court to have permitted such questioning (see, People v Malphurs, 111 AD2d 266, lv denied 66 NY2d 616, 920; People v Sandoval, 34 NY2d 371), in light of the limited reference made to the defendant’s aliases, the absence of any implication of criminal conduct in the manner in which the questions were posed and answered and the lack of any additional claimed errors, the error does not constitute ground for reversal (see, United States v Grayson, 166 F2d 863; People v Jimenez, 79 AD2d 1012; cf., People v Bannerman, 110 AD2d 706).
In addition, we find no basis in the record for finding that the trial court abused its discretion with respect to the sentence imposed or that this court should exercise its discretion by reducing the sentence (see, People v Farrar, 52 NY2d 302; People v Suitte, 90 AD2d 80). Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4262975/ | STATE ex rel. OKLAHOMA BAR ASSOCIATION v. BOUNDS
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. BOUNDS2018 OK 19Case Number: SCBD-6597Decided: 03/06/2018THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2018 OK 19, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,
v.
JOHN KNOX BOUNDS, Respondent.
ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE
PURSUANT TO RULES 7.1 AND 7.2 RULES
GOVERNING DISCIPLINARY PROCEEDINGS
¶0 The Oklahoma Bar Association initiated this disciplinary proceeding against Respondent for misconduct arising out of his convictions for one felony and one misdemeanor. Respondent did not request a hearing before the Professional Responsibility Tribunal. The Bar recommended suspension for two years and one day. After de novo review, this Court finds that Respondent is guilty of misconduct and the appropriate discipline is suspension for two years and one day.
RESPONDENT SUSPENDED FROM THE PRACTICE OF
LAW FOR TWO YEARS AND ONE DAY.
Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant,
Hack Welch, Hugo, Oklahoma, for Respondent.
OPINION
EDMONDSON, J.
¶1 This case is a summary disciplinary proceeding against Respondent, John Knox Bounds, pursuant to Rule 7.1, 5 Ohio St. 2011, Ch. 1, App. 1-A. Respondent was convicted in Choctaw County of felony unlawful possession of a controlled substance, methamphetamine, and a misdemeanor of unlawful possession of drug paraphernalia. On November 21, 2017, Respondent received a two-year deferred sentence with probation on the felony conviction; and he was sentenced to imprisonment for 30 days on the misdemeanor conviction.
¶2 On December 11, 2017, we issued an Order of Interim Suspension directing Respondent to file a response no later than December 22, 2017 to show cause, if any, why this interim suspension should be set aside. Respondent did not file a timely response and he did not request a hearing. He thus waived his right to contest the interim suspension. There was no hearing before the Professional Responsibility Tribunal.
¶3 The Bar Association requested this Court to impose an order suspending Respondent for a period of two years and one day. Respondent sought leave to file a response out of time. He apologized to this Court for his untimely failure to respond and advised this Court that after his release from jail in early December, 2017, he was acutely ill for six weeks. Respondent agreed to a suspension that would continue until after the expiration of his deferred criminal sentence in November, 2019.
¶4 The regulation of licensure, ethics, and discipline of attorneys is a nondelegable constitutional responsibility solely vested in this Court. State ex rel. Oklahoma Bar Ass'n v. Passmore, 2011 OK 90, 264 P.3d 1238, State ex rel. Oklahoma Bar Ass'n. v. Whitebook, 2010 OK 72, 242 P.3d 517. Protection of the public and purification of the Bar are the primary purposes of disciplinary proceedings rather than to punish the accused lawyer. State ex rel. Oklahoma Bar Ass'n v. Givens, 2014 OK 103, 343 P.3d 214. This Court will conduct a de novo review of the record to determine if misconduct has occurred and what discipline is appropriate. State ex rel. Oklahoma Bar Ass'n v. Garrett, 2005 OK 91, 127 P.3d 600.
¶5 To impose appropriate discipline, the record must be sufficient for this Court to conduct a thorough inquiry into essential facts. Oklahoma Bar Ass'n. v. Donnelly, 1992 OK 164, 848 P.2d 543. The record in this case includes the conviction of Respondent for the possession of methamphetamine with deferred sentencing and the misdemeanor conviction with a 30 day jail term. Respondent asserts in his response that he is in compliance with all terms of his probation and has fulfilled the terms of his 30 day jail sentence. Respondent states that he has followed all guidelines for assessment, treatment and follow-up for drug and alcohol abuse. He provided this Court with letters from three different attorneys attesting to his character and long years of service to the bar as a prosecutor and defense attorney, as well as his involvement in his community. Respondent became a licensed Oklahoma attorney in 1975 and has practiced without any prior incidents.
¶6 Respondent does not dispute the Bar Association's recommendation for a suspension period of two years and one day. Although Respondent has not had any prior incidents before this Court, we find his criminal convictions for possession of methamphetamine and possession of drug paraphernalia of considerable concern. We adopt the recommendation of the Bar Association for a suspension of a period of two years and one day from the date this opinion becomes final. State ex rel. Oklahoma Bar Ass'n. v. Soderstrom, 2013 OK 101, ¶ 8, 321 P.3d 159, 160.
¶7 In the event Respondent seeks reinstatement, it will be conditioned upon his continued sobriety, as it is essential to his rehabilitation1 and to the successful completion of his probation.
RESPONDENT SUSPENDED FROM THE PRACTICE
OF LAW FOR TWO YEARS AND ONE DAY.
COMBS, C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, and WYRICK, JJ., concur;
GURICH, V.C.J., dissents;
Gurich, V.C.J., dissenting
"I would suspend the Respondent for two years from the date of his interim suspension."
REIF, J., not participating.
FOOTNOTES
1 State ex rel. Oklahoma Bar Ass'n v. Briery, 1996 OK 45, ¶ 14, 914 P.2d 1046, 1050; see also State ex rel. Oklahoma Bar Ass'n v. Rogers, 2006 OK 54, ¶ 21, 142 P.3d 428, 436.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Supreme Court Cases
CiteNameLevel
1992 OK 164, 848 P.2d 543, State, ex rel. Oklahoma Bar Ass'n v. DonnellyDiscussed
2005 OK 91, 127 P.3d 600, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GARRETTDiscussed
1996 OK 45, 914 P.2d 1046, 68 OBJ 921, State ex rel. Oklahoma Bar Assn. v. BrieryDiscussed
2006 OK 54, 142 P.3d 428, STATE ex rel.OKLAHOMA BAR ASSOCIATION v. ROGERSDiscussed
2010 OK 72, 242 P.3d 517, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WHITEBOOKDiscussed
2011 OK 90, 264 P.3d 1238, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. PASSMOREDiscussed
2013 OK 101, 321 P.3d 159, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SODERSTROMDiscussed
2014 OK 103, 343 P.3d 214, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GIVENSDiscussed
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Accessibility ADA | 01-03-2023 | 04-11-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4156694/ | <partyblock>
<br><br><div align="center"><b><font size="+1">Front Street Restaurant Corp. etc., Respondent, v
<br><br>against<br><br>Frank Ciolli etc., Appellant, et al., Undertenants. Appellate Term Docket No. 2015-469 K C Lower Court # 098209/13 Peter J. Pruzan, Esq., for appellant. The Shell Law Firm, PLLC, Martin Shell, Esq., for respondent.</font></b></div><br><br>
<p>Appeal from an amended decision of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), dated February 26, 2015, deemed from a final judgment of the same court entered February 26, 2015 (see CPLR 5512 [a]). The final judgment, entered pursuant to an amended decision which, upon a motion by tenant to be permitted to deduct certain expenses from the use and occupancy that he was required to pay pursuant to a stipulation dated February 20, 2014 and orders of the same court dated April 29, 2014 (Steven Z. Mostofsky, J.) and December 1, 2014 (Robin Kelly Sheares, J.), or for alternative relief, and upon a cross motion by landlord to compel tenant to pay arrears of $24,000 in use and occupancy, sua sponte awarded landlord possession and the sum of $160,478.87 in a holdover summary proceeding.</p>
<p>ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the determination of tenant's pending motion and landlord's pending cross motion and for all further proceedings.</p>
<p>Before answering the petition in this commercial holdover proceeding, tenant moved to dismiss, and landlord cross-moved for summary judgment. On February 20, 2014, it was stipulated that the proceeding would be adjourned for argument of the motions (which were both subsequently denied). The stipulation also provided that tenant would pay use and occupancy at the rate of $900 per day during the pendency of the proceeding. The stipulation did not provide for any sanction in the event tenant failed to make the payments. In an order dated April 29, 2014, the Civil Court (Steven Z. Mostofsky, J.) granted landlord's motion to enforce the stipulation and directed tenant to pay landlord "$900 per day, each day without offset." In a sua sponte order dated December 1, 2014, the Civil Court (Robin Kelly Sheares, J.), among other things, again required tenant to pay $900 per day, each day. </p>
<p>Tenant subsequently moved to be permitted to deduct certain expenses from the use and occupancy that he was required to pay, or for alternative relief, and landlord cross-moved to compel tenant to pay $24,000 in arrears in use and occupancy. At oral argument of the motion and cross motion, landlord's attorney alleged, in response to an inquiry from the court, that tenant had not paid the $900 due the day before, and that tenant had regularly missed his daily deadline <font color="FF0000">[*2]</font>by one to three days. Tenant's attorney alleged that tenant was up to date on his payments and that he had substantially complied with the stipulation and court orders. After oral argument, but without taking sworn testimony or admitting documentary evidence, the court determined that tenant had defaulted in complying with the stipulation and court orders, and issued a sua sponte decision awarding landlord a final judgment of possession and the sum of $160,478.87. Tenant's appeal from the court's amended decision is deemed to be from a final judgment entered on the same date, February 26, 2015, which awarded landlord possession and the sum of $160,478.87 (<i>see</i> CPLR 5512 [a]).</p>
<p>While the Civil Court did not cite to any authority for its award of a final judgment in favor of landlord, as the stipulation did not provide landlord a remedy for a default, the legal basis for the relief the court granted landlord must be sought in RPAPL 745 (2) (<a href="../2005/2005_25154.htm" target="_blank"><i>see Quality & Ruskin Assoc. v London</i>, 8 Misc 3d 102</a> [App Term, 2d Dept, 2d & 11th Jud Dists 2005]). RPAPL 745 (2) (a) allows a court, "upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner," upon an application by the landlord, to direct that a tenant deposit use and occupancy with the court or pay it to landlord. If the tenant fails to make the initial deposit or payment, the court, upon application by the landlord, is required to dismiss the defenses and counterclaims and grant judgment for the landlord (<i>see</i> RPAPL 745 [2] [c] [i]). If the tenant fails to make a subsequent deposit or payment, the court, upon application by the landlord, is required to order an immediate trial of the issues raised in the tenant's answer (<i>see</i> RPAPL 745 [2] [c] [ii]).</p>
<p>The record before us does not establish that there were two adjournments at tenant's request, or that 30 days chargeable to tenant had elapsed, and therefore RPAPL 745 (2) (a) cannot be found to be applicable (<a href="../2015/2015_25151.htm" target="_blank"><i>see Myrtle Venture Five, LLC v Eye Care Opt. of NY, Inc.</i>, 48 Misc 3d 4</a> [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Moreover, even if the direction that tenant pay $900 per day during the pendency of the proceeding had been made pursuant to RPAPL 745 (2) (a), the kind of default alleged herein
could have resulted only in an immediate trial, and not in a final judgment for landlord (<i>see</i> RPAPL 745 [2] [c] [ii]; <i>49 Terrace Corp. v Richardson</i>, 40 Misc 3d 135[A], 2013 NY Slip Op 51306[U] [App Term, 1st Dept 2013]; <a href="../2007/2007_51335.htm" target="_blank"><i>La Fabrique Owners Corp. v La Fabrique LLC</i>, 16 Misc 3d 130</a>[A], 2007 NY Slip Op 51335[U] [App Term, 1st Dept 2007]). We note that it was also improper for the court to have determined that tenant had defaulted, an allegation disputed by tenant's attorney, or to have awarded a money judgment, without a hearing.</p>
<p>Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the determination of tenant's pending motion and landlord's pending cross motion and for all further proceedings.</p>
<p>Solomon, J.P., Pesce and Elliot, JJ., concur.</p>
<br>
<br>ENTER:
<p>Paul Kenny</p>
<br>Chief Clerk
<br>Decision Date: March 29, 2017
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https://www.courtlistener.com/api/rest/v3/opinions/4415156/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00415-CV
In re Benjamin Washington
ORIGINAL PROCEEDING FROM COOKE COUNTY
MEMORANDUM OPINION
Relator Benjamin Washington has filed a document with the Court, which we
have construed as a petition for writ of habeas corpus. See Surgitek, Bristol-Myers Corp. v. Abel,
997 S.W.2d 598, 601 (Tex. 1999) (courts look to substance of pleading rather than its caption or
form to determine its nature); see also Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.1.
In his petition, Washington indicates that he seeks release from his confinement on pending
charges, but he does not complain of any specific trial-court order. The intermediate courts of
appeals have no original habeas corpus jurisdiction in criminal matters; our habeas corpus
jurisdiction in criminal matters is appellate only. See Tex. Gov’t Code § 22.221(d) (limiting
jurisdiction to issue writs of habeas corpus to cases in which person is being restrained in our
court of appeals district based on violation of order or judgment issued in civil case); In re
Gonzalez, No. 03-17-00287-CV, 2017 WL 1832504, at *1 (Tex. App.—Austin May 5, 2017,
orig. proceeding) (citing In re Ayers, 515 S.W.3d 356, 356 (Tex. App.—Houston [14th Dist.]
Apr. 14, 2016, orig. proceeding)). Original jurisdiction to grant a writ of habeas corpus in a
criminal case is vested in the Texas Court of Criminal Appeals, the district courts, the county
courts, or a judge of those courts. Tex. Code Crim. Proc. art. 11.05; In re Ayers, 515 S.W.3d at
356; Ex Parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).
In addition, we note that Washington states that he is incarcerated in the Cooke
County jail in Gainesville, Texas, and he raises various complaints against the judge of the 235th
District Court. To the extent Washington seeks mandamus relief, we lack jurisdiction to
consider these complaints. By statute, this Court has the authority to issue a writ of mandamus
against “a judge of a district, statutory county, statutory probate county, or county court in the
court of appeals district.” See Tex. Gov’t Code § 22.221(b) (emphasis added). This Court does
not have mandamus jurisdiction over any court officials of Cooke County, which lies outside of
our appellate district. See id. § 22.201(d) (listing counties that compose the Third Court of
Appeals District).
Accordingly, we dismiss the petition for lack of jurisdiction.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Baker, and Triana
Filed: July 9, 2019
2 | 01-03-2023 | 07-10-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/5903323/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered March 18, 1985, convicting him of reckless endangerment in the first degree, unauthorized use of a vehicle and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested after a high-speed, police chase which ended after the car the defendant was driving went through a red light and a stop sign and collided with another car and a police vehicle.
The defendant contends that he was deprived of a fair trial because the trial court replaced a seated juror with the first alternate. In the presence of counsel, the trial court conducted an in camera inquiry of the seated juror and a member of the jury pool, The inquiry established that the sworn juror had discussed her views of police brutality and police conduct in stopping motorists with unsworn members of the jury pool *617after she had withheld those views from the court and the lawyers on voir dire, despite the trial court’s instruction that she not discuss the case with anyone. In addition, the inquiry established that the juror had said that she would not apprise the trial court of her views, but would withhold her views until she needed them. Although the sworn juror stated that she believed she could be impartial and she denied that she was withholding the information, the court found that the juror’s conduct and evasive demeanor indicated otherwise and found that she had "engaged in misconduct of a substantial nature” (see, CPL 270.35).
We conclude that the trial court did not abuse its discretion in replacing the seated juror with the first alternate. We agree that the juror "engaged in substantial misconduct”. The juror’s conduct makes it obvious that she would have been unable to make a fair and impartial assessment of the police testimony which was pivotal in this case (see, People v Buford, 69 NY2d 290; People v Sellers, 73 AD2d 697; People v Phillips, 87 Misc 2d 613, affd 52 AD2d 758, lv denied 39 NY2d 949). Moreover, the court was not bound by the seated juror’s denial that she had said she would withhold the information until she needed it, in view of conflicting evidence that she had made the statement (see, People v Russell, 112 AD2d 451, 452-453). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903324/ | Order, Supreme Court, Bronx County (Larry S. Schachner, *510J.), entered October 19, 2011, which denied defendant MTA Bus Company’s (MTA) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when she tripped and fell on an allegedly defective roadway condition in the vicinity of a bus stop. Plaintiff asserts that MTA created the condition by its operation of buses on the subject roadway. MTA established its entitlement to judgment as a matter of law by showing that it was not responsible for maintenance of the public roadways and that its use of the roadways does not constitute a “special use” (see Cabrera v City of New York, 45 AD3d 455, 456 [1st Dept 2007]; Towbin v City of New York, 309 AD2d 505 [1st Dept 2003]).
No triable issue of fact was raised in opposition as to whether MTA owed plaintiff any duty with regard to the roadway. Nor was the motion premature as plaintiff and defendant Riverbay Corporation failed to identify any outstanding discovery that was needed to oppose the motion (see e.g. Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164 [1980]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903325/ | Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Dowd, J.), rendered March 6, 1981, convicting him of murder in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence, and (2) by permission, from (a) an order of the same court, dated October 15, 1985, which, after a hearing, denied his motion to vacate the judgment pursuant to CPL 440.10, (b) an order of the same court, dated May 30, 1986, which denied that branch of his second motion to vacate the judgment pursuant to CPL 440.10 which was premised upon the alleged withholding of Brady material and (c) an order of the same court dated February 13, 1987, which, after a hearing, denied that branch of his second motion to vacate the judgment pursuant to CPL 440.10, which was premised upon the alleged withholding of Rosario material.
Ordered that the order dated February 13, 1987 is reversed, on the law and the facts, the defendant’s motion to vacate the judgment is granted, and a new trial is ordered. The appeals *618from the judgment and from the orders dated October 15, 1985 and May 30, 1986 are dismissed as academic.
We find that based upon the evidence adduced at trial, amplified by that presented at the hearing held in connection with the defendant’s second postjudgment motion (see, CPL 440.10), the prosecution violated the defendant’s statutory right to be provided with prior written or recorded statements made by prosecution witnesses (see, People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866, rearg denied 14 NY2d 876, rearg denied 15 NY2d 765; CPL 240.45). The statement at issue contained descriptions of the perpetrators, neither of which was consistent with the defendant’s appearance, provided by the People’s key witness to the investigating officer, which was recorded in the officer’s notebook and signed by the witness. The officer failed to transcribe these descriptions in the subsequent police report.
At the September 1986 hearing held upon the defendant’s second motion to vacate the judgment of conviction pursuant to CPL 440.10, the defendant’s trial counsel testified unequivocally that the notebook had never been disclosed to him, either before or during the trial, and that had he been cognizant of the statement, he would have employed it, inter alia, as a means of impeaching the witness, as he had vigorously attempted to do with those of the witness’ pretrial statements which had been disclosed. In short, there was no conceivable reason that trial counsel would not have used the statement.
At the codefendant’s postjudgment hearing three years earlier, the Assistant District Attorney who tried the matter testified that she was "not sure”, but had a vague recollection of having shown the notebook to both defense counsel during the trial. By contrast, at the September 1986 hearing, the Assistant District Attorney’s testimony was marked by a greater sense of certainty as she explained that she specifically recalled having afforded defense counsel an opportunity to read the 50-page notebook prior to their cross-examination of the key prosecution witness.
The court denied the defendant’s CPL 440.10 motion, finding the testimony of both defense counsel and the Assistant District Attorney to be credible, reasoning that inasmuch "[a]s defendant bears the burden of proving by a preponderance of the evidence each and every fact in support of his motion, he has failed to meet his burden [of proving] that he did not receive the memobook”, and concluding that the belated dis*619closure (see, CPL 240.45 [1]) did not substantially prejudice the defendant (see, People v Perez, 65 NY2d 154, 159).
The court’s factual determination that the notebook was ultimately disclosed during the trial cannot, in light of the record before us, be sustained. At the trial, as a result of disagreement among counsel as to what materials had actually been disclosed, a lengthy colloquy ensued, during which the Assistant District Attorney made the representation, in response to the court’s inquiry, that "for the record, Your Honor, I would like to indicate that * * * Defense counsel has had the use of the Grand Jury minutes as well as a statement taken by the Assistant District Attorney. They had the police reports prior—at a much earlier time”. Thereafter, a similar representation was made regarding a DD-5 statement. At no point during the trial was mention made of the notebook at issue.
The record made at trial, from which the absence of any mention of the memo book is conspicuous, in light of the Assistant District Attorney’s specification of every statement turned over to the defense and defense counsel’s vigorous cross-examination of both the prosecution’s principal witness regarding prior statements and the investigating officers, makes it evident that the statement, which is clearly Rosario material, was not disclosed at trial (see, People v Ranghelle, 69 NY2d 56, 65). Inasmuch as a Rosario violation may not be considered harmless (see, People v Jones, 70 NY2d 547, 551; People v Ranghelle, supra, at 63), reversal is mandated.
We find no merit in the defendant’s remaining contentions. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1943080/ | 174 B.R. 524 (1994)
In re George M. CROFT, Debtor.
W-V ENTERPRISES, INC., and E. Michael Wayland, assignees of North Kansas Savings Association, Plaintiffs,
v.
George M. CROFT, Defendant.
Bankruptcy No. 88-40097-172. Adv. No. 88-4127-172.
United States Bankruptcy Court, E.D. Missouri, Eastern Division.
October 24, 1994.
*525 Charles D. McAtee, Schroer, Rice, P.A., Topeka, KS, Scott A. Greenberg, Clayton, MO, for plaintiffs.
Norman W. Pressman, St. Louis, MO, for Otto and Marlene Gestring, Sr.
Rexford H. Caruthers, St. Louis, MO, for George M. Croft.
Richard J. Scheffler, St. Louis, MO, for Milton Guse.
Stuart J. Radloff, Trustee, Case No. 88-40097-172 (Croft), Clayton, MO.
Robert J. Blackwell, Trustee, Case No. 88-40824-172 (Guse), St. Louis, MO.
Emil Kromat, Asst. Secretary Treasurer, c/o New Athens Savings and Loan Ass'n, Freeburg, IL.
William T. Weidle, Jr., St. Louis, MO, for Imendia Investors, S.A.
David R. Human, Clayton, MO, for Community Federal.
ORDER
JAMES J. BARTA, Bankruptcy Judge.
The matter being considered here is the Defendant/Debtor's motion for an extension of time to file a notice of appeal. This Order is entered after consideration of the record as a whole.
On October 7, 1994, the Court entered an Order that, in part, granted a money judgment against the Defendant/Debtor. Pursuant to Rule 8002(a), the last day to file a notice of appeal was October 17, 1994.
The Attorney for the Defendant/Debtor did not receive a copy of the Order because of a change of his mailing address. The Defendant/Debtor did not contact his attorney concerning the Order until one day after the expiration of the time to file a notice of appeal. This Motion and the Notice of Appeal were filed three days after the expiration of the ten-day period to file a notice of appeal. If the Defendant/Debtor's request for an extension of time is denied, there is a danger that he will be prejudiced in that he may otherwise be unable to request a review of the trial proceedings. The delay requested here is not lengthy, and no undue prejudice will result to any other parties. The Court's review of the record has not suggested any damaging or improper impact on any judicial proceedings if the motion is granted. Furthermore, there is no suggestion that the Movant has not acted in good faith. Therefore, the Court finds and concludes that the Defendant/Debtor's failure to timely file a notice of appeal with respect to the Order entered on October 7, 1994 was based upon excusable neglect. Pioneer Investment Services Co. v. Brunswick Associated Limited Partnership, ___ U.S. ___, ___, 113 S. Ct. 1489, 1498, 123 L. Ed. 2d 74 (1993).
IT IS ORDERED that the Motion of the Defendant/Debtor for an extension of time for filing a notice of appeal with respect to the Order entered on October 7, 1994 is granted, 1994 WL 570889; and that such time is extended to October 20, 1994; and that the Notice of Appeal filed by the Defendant/Debtor on such date is deemed to have been timely filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903326/ | Order, Supreme Court, Bronx County (Larry S. Schachner, *510J.), entered October 19, 2011, which denied defendant MTA Bus Company’s (MTA) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when she tripped and fell on an allegedly defective roadway condition in the vicinity of a bus stop. Plaintiff asserts that MTA created the condition by its operation of buses on the subject roadway. MTA established its entitlement to judgment as a matter of law by showing that it was not responsible for maintenance of the public roadways and that its use of the roadways does not constitute a “special use” (see Cabrera v City of New York, 45 AD3d 455, 456 [1st Dept 2007]; Towbin v City of New York, 309 AD2d 505 [1st Dept 2003]).
No triable issue of fact was raised in opposition as to whether MTA owed plaintiff any duty with regard to the roadway. Nor was the motion premature as plaintiff and defendant Riverbay Corporation failed to identify any outstanding discovery that was needed to oppose the motion (see e.g. Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164 [1980]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903328/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered April 1, 1985, convicting her of robbery in the second degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s challenge to the adequacy of the plea allocution is not preserved for appellate review and, in any event, is without merit. Additionally, the imposed sentence which was specifically negotiated for by the defendant (see, People v Kazepis, 101 AD2d 816), was neither harsh nor excessive under the circumstances of this case. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903329/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered July 17, 1984, convicting him of murder in the second degree and burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At approximately 9:00 p.m. on October 8, 1982, the defen*621dant burglarized the apartment of 86-year-old Lena Graffeo at 1440 DeKalb Avenue, Brooklyn. When she awoke, he fled, taking her keys and some coins, and leaving behind his sneakers. On October 16, 1982, the defendant returned to burglarize Mrs. Graffeo’s apartment a second time. When she awoke, on this occasion, he covered her mouth with a cloth, suffocating her. The defendant took more money and some jewelry, but left behind one of his gloves.
When initially apprehended at approximately 10:00 p.m. on October 17, 1982, the defendant made an exculpatory statement. Some 3lá hours later, however, he made a full confession, which was repeated on videotape later on October 18th.
At trial, the Trial Judge ruled that the defendant’s initial exculpatory statement was hearsay, and that defense counsel could not cross-examine police witnesses about it. The Trial Judge also locked the courtroom during the charge to the jury, summarily overruling defense counsel’s objection.
On appeal, the defendant argues that he was deprived of his constitutional right to a public trial when the Trial Judge locked the courtroom during the charge. The defendant’s claim is without merit. We recently expressed our view that the procedure that the defendant challenges is "simply the exercise by the trial court of its power to impose a reasonable limitation on access to the courtroom so as to maintain a quiet and orderly atmosphere” during the charge (People v Zenger, 134 AD2d 640, 641).
The defendant next contends that the court erroneously restricted cross-examination of the interrogating officers about his initial exculpatory statement, effectively denying him his constitutional right to present a defense and to confront the witnesses against him. The defendant’s allegation that he wished to introduce this exculpatory statement not for its truth, but to show that his subsequent confession was involuntary, is not persuasive. Had the jury believed that the police abused the defendant, they would have understood that the purpose of such abuse would have been to make the defendant confess. However, the jury was persuaded by the evidence, which included photographs and videotapes of the defendant, that the defendant had not been abused, rendering academic the issue of "why” coercion might have been employed. Since the evidence established that the defendant’s confession was voluntary, the defendant was endeavoring to introduce his prior exculpatory statement for its truth. This is impermissible under the general rule that a party’s self-serving statements are inadmissible when offered in his favor (Richardson, *622Evidence § 357 [Prince 10th ed]); nor may they be introduced by a third party (People v Squire, 54 AD2d 833). In any event, "[i]n light of the overwhelming proof of defendant’s guilt, any error due to the exclusion of the testimony was harmless” (People v Sease-Bey, 111 AD2d 195, 196, lv denied 66 NY2d 618).
The defendant’s final contention, that the sentence imposed was excessive, is without merit (see, People v Suitte, 90 AD2d 80, 85-86). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903330/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Boklan, J.), rendered August 14, 1985, convicting him of sodomy in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to the police.
Ordered that the judgment is affirmed.
The defendant first contends that the court erred in denying that branch of his omnibus motion which was to suppress certain statements given by him to the police. He maintains that the hearing court’s findings were erroneous as a matter of law and that his statements should have been suppressed because he was not advised of his Miranda rights and because he did not make a knowing and intelligent waiver of those rights. We disagree.
It is well settled that great weight must be accorded to the determination of the hearing court with its particular advantages of having seen and heard the witnesses (People v Prochilo, 41 NY2d 759, 761) and its determination should not be disturbed where it is supported by the record (People v Gee, 104 AD2d 561; People v Boyce, 89 AD2d 623, 624; see also, People v Armstead, 98 AD2d 726). Here, the suppression court specifically rejected the defendant’s claim that he had not been advised of his Miranda rights and also rejected his claim that he was unaware of what he was signing when he ac*623knowledged on the notification of rights card that he understood and waived his rights. The court further rejected his claim that he did not know what he was signing when he signed a typewritten copy of his statement. There is no basis in the record for reversing these findings.
The defendant’s further contention that his statements should have been suppressed because they were the product of an illegal arrest is also without merit. As the hearing court correctly noted, the police had probable cause to arrest the defendant based upon the statement given to Detective Daniel Walsh by the 11-year-old complainant (see, CPL 140.10). Moreover, the defendant’s claim the complainant’s reliability had to be established before a warrantless arrest could be made is unfounded. Unlike a paid or anonymous informant, an eyewitness-victim of a crime can provide probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated (see, People v Crespo, 70 AD2d 661). In fact, an accusation against a specific individual from an identified citizen is presumed reliable (see, People v Smith, 124 AD2d 756, lv denied 69 NY2d 834; People v Marin, 91 AD2d 616). Probable cause is established absent materially impeaching circumstances, where, as here, the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator (see, People v Walker, 129 AD2d 751; People v Crespo, supra). Contrary to the defendant’s contentions, the fact that the complainant was 11 years old at the time of his complaint does not mean that his statement could not serve as a basis for establishing probable cause. Thus, the police had probable cause to arrest the defendant and his statements were not the tainted product of an unlawful arrest.
Additionally, we find no reason to disturb the sentence imposed (see, People v Suitte, 90 AD2d 80).
We have examined the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903417/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated February 19, 1986, which, after a hearing, confirmed a determination of the local agency discontinuing medical assistance to the petitioners’ decedent Thomas Davis.
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the determination of the respondent State Commissioner is modified by deleting therefrom the finding that the petitioners’ decedent Thomas Davis had available resources of $48,900.30; as so modified, the determination is confirmed and the proceeding is otherwise dismissed, and the matter is remitted to the respondent State Commissioner for redetermination of the amount of the petitioners’ decedent Thomas Davis’s available resources upon which a new application for medical assistance may be made, if appropriate.
The petitioners’ decedents, Frank and Julia Davis, were husband and wife when Mr. Davis was hospitalized and then transferred to a nursing home, where he later died. At or about the time he was hospitalized, Mrs. Davis, who is now also deceased, applied for medical assistance on her husband’s behalf. Shortly after the application was granted, the local agency determined that medical assistance should be discontinued because of a transfer of property in order to qualify for it.
The record before us establishes, and petitioners effectively concede, that, within 24 months prior to the date of the application for medical assistance, Mrs. Davis transferred approximately $48,000 from bank accounts held jointly with her husband to accounts in her name alone. At the statutory fair hearing conducted in December 1985, Mrs. Davis testified that funds deposited in the joint accounts since 1966 were derived solely from her earnings. She also testified that the money was transferred to her name alone at or around the time of Mr. Davis’s hospitalization because "I thought it was mine, and I could just take it out”.
We cannot agree with the petitioners that this evidence *704successfully rebuts the presumption that funds in the joint accounts constituted an available resource out of which Mr. Davis’s medical expenses could be paid (see, Banking Law § 675 [a], [b]; Matter of Hernandez v D’Elia, 99 AD2d 777, lv denied 65 NY2d 606). Nor can we agree that such evidence was sufficient to rebut the presumption that the transfer of funds was made for the purpose of establishing Mr. Davis’s eligibility for medical assistance (see, Social Services Law § 366 [5]; 18 NYCRR 360.8). We therefore conclude that the determination that one half of the funds in the joint accounts belonged to Mr. Davis is supported by substantial evidence. However, the record reveals, and the respondents concede, that $16,000 withdrawn from one account on April 3, 1984, and deposited in another account was determined to be two transfers and was erroneously counted twice in computing the amount of funds available to Mr. Davis. We, therefore, direct that the respondent State Commissioner recompute the amount of available resources.
We have considered the petitioners’ remaining contentions and find them to be without merit. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903332/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered July 8, 1986, convicting him of criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.
*624Ordered that the judgment is affirmed.
A verdict on a multiple-count indictment is repugnant when a defendant is acquitted on one count which contains an essential element of another count on which he is convicted, thus negating a necessary element of the latter count (see, People v Hampton, 61 NY2d 963; People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039). Inconsistencies in a verdict, whether rendered by a Judge or a jury, do not constitute grounds for reversal if the verdict is not repugnant as a matter of law (see, People v Montgomery, 116 AD2d 669, 670).
In this case, the court’s finding that the defendant, while acting in concert, did not cause physical injury to the complainant while possessing a dangerous instrumentality and intending to use it unlawfully is neither repugnant nor inconsistent (see, People v Hampton, supra; People v Tucker, supra). The charge of criminal possession of a weapon merely required possession and unlawful intent and did not require that the intended crime be carried out. The fact that the trial court found that the People did not prove the assault charge beyond a reasonable doubt did not negate any element of the weapons possession charge. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903333/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Lewis Bart Stone, J.), rendered on or about December 2, 2010, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903334/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J.), rendered July 31, 1986.
Ordered that the judgment is affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903335/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Lewis Bart Stone, J.), rendered on or about December 2, 2010, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903337/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered November 22, 1983, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress statements made by him while in police custody and physical evidence.
Ordered that the judgment is affirmed.
The defendant’s arguments on appeal turn on issues of credibility. It is well settled that issues of credibility are primarily to be determined by the hearing court, whose determination is entitled to great weight on appeal (see, People v Garafolo, 44 AD2d 86, 88). The hearing court, in denying suppression of the defendant’s inculpatory statements, resolved the credibility issues in favor of the People. Its finding that the defendant made a knowing, intelligent and voluntary waiver of his rights pursuant to Miranda v Arizona (384 US 436) is supported by the evidence, which includes the defendant’s own videotaped statement. Furthermore, a review of the totality of the circumstances (see, People v Anderson, 42 NY2d 35, 38) demonstrates that the defendant’s statements were given to the police voluntarily. As the record supports the hearing court’s determinations, there is no basis to disturb them on appeal (see, People v Gagne, 129 AD2d 808, 810, lv denied 70 NY2d 704).
The defendant’s contention that his confession was not adequately corroborated is without merit (see, CPL 60.50; People v Lipsky, 57 NY2d 560, rearg denied 58 NY2d 824). The defendant’s argument that the verdict was repugnant is similarly unavailing (see, People v Stahl, 53 NY2d 1048; People v Bruckman, 46 NY2d 1020, rearg dismissed 56 NY2d 710, 805; People v Crimmins, 99 AD2d 439, affd 64 NY2d 1072; see also, People v Davis, 46 NY2d 780). While the trial court may have committed error in permitting the cross-examination of the defendant during which the prosecutor alleged the commission of uncharged crimes, given the overwhelming evidence of guilt there is no reasonable possibility that such error might have contributed to the defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237; People v Evans, 131 AD2d 502; People v Scott, 118 AD2d 881, lv denied 67 NY2d 1056; People v McKay, 101 AD2d 960, 961).
*626The defendant’s remaining contentions are unpreserved for appellate review (see, CPL 470.05 [2]), or without merit (see, People v Paperno, 54 NY2d 294; People v Lopez, 123 AD2d 360, Iv denied 68 NY2d 915; see also, People v Crimmins, 36 NY2d 230, supra). Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903338/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered July 25, 1986, convicting him of attempted manslaughter in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the evidence at trial does not support the jury’s rejection of his defense of mental disease or defect (see, Penal Law former § 30.05). We disagree. Dr. John B. Train, the People’s expert psychiatric witness, testified that he had examined the defendant on November 22, 1985. Prior to his examination, he had reviewed a number of psychiatric reports prepared with respect to the defendant, including reports of examinations conducted in 1984 pursuant to CPL article 730 by two psychiatrists who concluded that the defendant was delusional and psychotic, and, hence, unfit to stand trial, and a subsequent report prepared at the Mid-Hudson Psychiatric Center indicating that the defendant was competent to stand trial. Dr. Train concluded as a result of his examination that although the defendant suffered from a "personality disorder with depression” at the time of the incident, he did not have a mental disease or defect which would have caused him to lack a substantial capacity to know or appreciate either the nature or consequences of his conduct or that such conduct was wrong. Dr. Train noted in support of his conclusion that although the defendant was under a great deal of stress at the time of the incident and apparently had no recollection of his conduct, he was neither delusional, psychotic, nor subject to hallucinations at this time, and the "CAT” scan and electroencephalogram performed on him at the Mid-Hudson Psychiatric Center indicated no abnormalities of the brain.
This conclusion was further supported by the testimony of two lay witnesses, Venus and Alfred Harris, who observed the defendant during the incident and testified that he was able to communicate normally at this time and appeared to be in control of his mental faculties. On the basis of this evidence, *627the People sustained their burden of disproving the defense of mental disease or defect beyond a reasonable doubt (see, Penal Law § 25.00 [1]). Dr. Train’s conclusion, in fact, was uncontroverted by the testimony of the defendant’s expert psychiatric witnesses, both of whom were unable to offer a definitive opinion on the defendant’s mental state as it related to the issue of criminal responsibility.
Accordingly, upon the exercise of our factual review power, we find that the jury’s verdict was not against the weight of the evidence (see, CPL 470.15 [5]). The record clearly demonstrates that the jury considered the mental condition of the defendant before arriving at its verdict, and, indeed, accepted the defendant’s claim of extreme emotional disturbance, convicting the defendant of the reduced charge of attempted manslaughter in the first degree.
We have examined the remainder of the defendant’s contentions and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903339/ | Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Rockland County (Nelson, J.), imposed November 20, 1986.
Ordered that the sentence is affirmed and the case is remitted to the County Court, Rockland County, for further proceedings pursuant to CPL 460.50 (5). No opinion. Mollen, P. J., Mangano, Thompson and Bracken, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903340/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hutcherson, J.), rendered April 5, 1984, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury vérdict, and imposing sentence.
Ordered that the judgment is affirmed.
On April 28, 1983, two detectives from the Brooklyn South Narcotics Office set up an observation post on the top floor of an abandoned building located on the corner of 42nd Street and 15th Avenue in Brooklyn. At about 12:00 noon they observed the defendant sitting on an abandoned car. Periodically, people would approach him and after a brief conversation, the defendant would go around to the rear of the car and *628remove something from the gas cap area. At 12:40 p.m. the detectives observed a woman approach a man and give him some money which the man in turn gave to the defendant. The defendant then went to the rear of the car, removed a black pouch from the area of the gas cap, and took out a red object. He gave the red object to the woman and replaced the pouch. The woman put the red object into her right pants pocket and she left the area with the man who gave the defendant the money. Minutes later, pursuant to a radio communication sent by the observing detectives, the woman and man were arrested by the apprehension team and the red packet, which was later found to contain heroin, was recovered from the woman’s right pants pocket. The defendant was arrested shortly thereafter and the black pouch which was recovered from the gas cap area of the automobile was found to contain four red packets. These red packets were later all found to contain heroin. The black pouch and four red packets which were recovered from the automobile were admitted into evidence at trial; however, the red packet which was recovered from the woman was not, as it had been destroyed upon the discontinuance of the case against her.
Viewing this evidence in the light most favorable to the People (People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the conviction. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).
We reject the defendant’s contention that the trial court’s evidentiary rulings were erroneous and deprived him of a fair trial. Testimony regarding the narcotics which were seized from the female purchaser was properly admitted into evidence despite the pretrial destruction of the narcotics. The testimony at trial demonstrated that the destruction of this evidence was clearly inadvertent; thus the imposition of sanctions was not warranted (see, People v Caple, 106 AD2d 511; cf., People v Wagstaff, 107 AD2d 877). We additionally note that the defendant never sought the production of this evidence prior to trial; rather, it was only when it came to his attention that the evidence had been destroyed that he expressed an interest in examining it. Under these circumstances, the "defendant forfeited whatever right he had to demand production of the [evidence] and, consequently, he cannot now complain about the People’s failure to preserve it” (People v Allgood, 70 NY2d 812, 813, citing People v Reed, 44 NY2d 799). Testimony regarding the defendant’s numerous *629trips to the gas cap area of the car, though arguably indicative of the commission of uncharged crimes, was also properly admitted since it demonstrated the defendant’s control over the area and thus his possession of the narcotics found therein (see, People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264).
We have reviewed the defendant’s remaining contention and have found it to be unpreserved, and, in any event, without merit. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907453/ | Motion to change venue of trial of indictment from Chautauqua County denied. Memorandum: We conclude that defendant has not on this application met his burden of demonstrating that there is "reasonable cause to believe that a fair and impartial trial cannot be had” in Chautauqua County (CPL 230.20 [2]). If it develops during the voir dire that a fair and impartial jury cannot be drawn, an appropriate application may then be made. The relief requested in the application before us now is premature. (See, People v DiPiazza, 14 NY2d 342; People v Simmons, 132 AD2d 1009; People v Oakes, 130 AD2d 980; *543People v Rivera, 130 AD2d 980.) Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903342/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered April 11, 1986, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, we do not find that he was denied a fair trial due to the Trial Judge’s limitation on the scope of the cross-examination of the People’s witnesses. "It is well settled that the scope of cross-examination rests largely in the sound discretion of the court (see, People v Mandel, 48 NY2d 952, cert denied and appeal dismissed 446 US 949, reh denied 448 US 908)” (People v Kelly, 124 AD2d 825, lv denied 69 NY2d 829). In the instant case the Trial Judge properly exercised his discretion in not permitting cross-examination as to an alleged police security arrangement.
We have examined the defendant’s remaining contention and find it to be without merit. Rubin, J. P., Kooper, Sullivan and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903343/ | Order, Supreme Court, New York County (Alice Schlesinger, J.), entered February 15, 2012, which, in this medical malpractice action seeking damages for wrongful birth, denied defendants’ motion to dismiss the complaint on forum non conveniens grounds and declared that Colorado law should be applied at trial, unanimously affirmed, without costs.
Defendants failed to meet their burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). The court indicated that it had considered the relevant factors (id. at 479), and there is no basis for disturbing its determination (id.).
The court correctly applied an interest analysis to the choice-of-law issue, correctly determined that the conflicting wrongful birth laws at issue are loss-allocating rules, and correctly concluded that Colorado law applies (see Cooney v Osgood Mach., 81 NY2d 66, 72 [1993]). Indeed, under the second rule set forth *511in Neumeier v Kuehner (31 NY2d 121, 128 [1972]), which applies in this case, the “place of injury” governs and is understood to be where the injury, or the last event necessary to make the defendant liable, occurred, even if the defendant did not actually engage in any actual tortious conduct in that location (see Glunt v ABC Paving Co., 247 AD2d 871, 871 [4th Dept 1998]; see also Schultz v Boy Scouts of Am., 65 NY2d 189, 195 [1985]). Here, the last events necessary to make defendants liable, namely the birth and treatment of the subject child, occurred in Colorado. Concur—Tom, J.P., Moskowitz, Richter, ManzanetDaniels and Clark, JJ. [Prior Case History: 2012 NY Slip Op 30361(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/196520/ | 73 F.3d 450
UNITED STATES of America, Plaintiff, Appellee,v.David P. PRATT, Defendant, Appellant.
No. 95-1666.
United States Court of Appeals,First Circuit.
Heard Dec. 7, 1995.Decided Jan. 18, 1996.
M. Kristin Spath, Assistant Federal Defender, for appellant.
Peter E. Papps, First Assistant U.S. Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.
BAILEY ALDRICH, Senior Circuit Judge.
1
Defendant David P. Pratt, having been allowed to withdraw a plea of guilty, was tried to a jury for violation of United States Code, Title 18, Section 876 (Mailing a Threatening Communication) and found guilty. He now appeals, with new counsel, claiming violation of Fed.R.Evid. 404(b) by the admission of prejudicial testimony of another threat, and from a sentence that included a two level upward departure. We remand for further consideration of sentence.
2
In August, 1991, defendant's automobile was repossessed for nonpayment of an installment, and discovered to contain a substantial number of automatic and semi-automatic firearms and explosive devices. These were turned over to the Goffstown, New Hampshire, Police Department but eventually found to be defendant's lawful property. In spite of this finding, Police Chief Stephen Monier refused to return them, absent a court order. Defendant, greatly angered by the delay, complained a number of times. He phoned the police station on the morning of July 20, 1992, and was told to call back that afternoon. An hour later he telephoned Chief Monier's home and spoke to a young friend of Monier's ten year old daughter, who said that he was not there. The man stated that he was David Pratt and to tell her father, "I know where he lives." When informed of the call, Monier took it to be a serious threat. On September 14, 1992, a New Hampshire court ordered that defendant's weapons and devices be returned to him, and the Goffstown police complied.
3
On October 1, 1992, Monier received through the mail, postage prepaid, a carton which was found to contain a dead and badly mutilated pig of some 29 pounds. There were no tell-tale writings on, or in, the package, but fingerprints, identified to be defendant's, were found on the outside. At trial defendant testified that the pig was his; that he had shot it, following an accident, and that one Jennifer Gagnon stole it from his refrigerator and mailed it to Monier without his suggestion or knowledge. By the time of trial, Gagnon was deceased.
4
Although there was other supporting evidence, including defendant's boasting to a friend that he had sought to scare Monier by sending the mutilated pig, the government chose to tighten its case by eliciting evidence of the threatening telephone call. Defendant objected at the outset to the admission of any evidence of the call, and to "this whole line of testimony." The court disagreed, but did caution the jury to consider any evidence, if a prior threat, as distinct from the pending charge, and as relevant "only to show things like the identity of the defendant or his possible motive or his possible intent or the absence of mistake or accident with respect to the charge that's on trial here".
5
On appeal defendant argues that the telephone threat was very different from the one with which he was charged, and that its introduction was simply to blacken his character as forbidden by Rule 404(b). See, United States v. Tuesta-Toro, 29 F.3d 771, 775 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 947, 130 L.Ed.2d 890 (1995). He contends, first, that it was inadmissible altogether under Fed.R.Evid. 404(b),1 or that its prejudice would in any event substantially exceed its probative value, rendering it excludable under Fed.R.Evid. 403.2 The government says, inter alia, that the threat displayed defendant's grudge against Chief Monier, an intent to act upon it, and knowledge of his victim's residence (to which the packaged pig was addressed), as well as being a self-identification against his own interest. We quite agree that the disputed evidence had "special relevance" to material issues, Tuesta-Toro, 29 F.3d at 775--even defendant concedes the purpose for introducing it included showing the identity of the person who mailed the pig--but the prosecution's use of it progressed well beyond the necessary. Its admission provided the basis for subsequent dramatization of the call's emotional effect upon Monier and his family, particularly on his young daughter. This was not relevant, and magnified the very prejudice that the Rules of Evidence were designed to minimize.3 Fed.R.Evid. 403, 404(b). Tuesta-Toro, 29 F.3d at 775; United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.1995).
6
However, defendant's failure to call the court's attention to prosecutorial excess as it occurred,4 and to request consideration of the probative value of proffers concerning, for example, the anxiety of the Chief's family, his keeping a firearm beside his bed, and the inability of his little girl to sleep alone following the telephone threat, in light of their likely prejudicial effect, deprived the court of an opportunity to make particularized rulings which we could now review. It is counsel's duty not to sit idly by while his case is conspicuously suffering, see Clemente v. Carnicon-Puerto Rico Mgmt. Assoc., 52 F.3d 383, 387 (1st Cir.1995), and it was his responsibility to object when testimony strays outside the court's prior limiting instruction. Courts may be reluctant to interfere and may have difficulty deciding whether to exclude testimony on their own. We review for plain error alone. Fed.R.Evid. 103. Tuesta-Toro, 29 F.3d at 775 (absent contemporaneous objection, court will reverse only if error "seriously affected the fundamental fairness and basic integrity of the proceedings") (citation omitted).
7
While testimony as to the threat's effect upon Monier and his family must have been detrimental to defendant--though not so pervasive as defendant claims--the government's case on the merits was too strong, in our opinion, to have made this harm to defendant a factor of consequence in the result. Defendant's own statements, his fingerprints on the package, his established anger over the unlawful retention of his firearms, his ownership of the pig carcass, and, notably, the absence of any visible motive to have caused the conveniently deceased Gagnon to have mailed it, were overwhelming. While we might order a new trial simply to teach government counsel that his primary duty is to obtain justice, not to win cases, see Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), we hope we have said enough without such draconian action.
8
As to the sentence, application of Sec. 4A1.1 of the Sentencing Guidelines yielded criminal history category (CHC) I, based on one point assigned for defendant's only countable prior conviction. However, the court found CHC I clearly under-represented the seriousness of defendant's criminal history and his recidivism. Impressed by a "string of zeros" in defendant's pre-sentence report (PSR) indicating a series of past convictions--for disorderly conduct, attendance violations while in the military, criminal liability for conduct of another, criminal threatening, assault, and driving while intoxicated--for which no "points" could be assigned under Sec. 4A1.1, the court added 1 point for each of the last four and bumped defendant into CHC III. Notably with respect to recidivism, each of these were misdemeanors that occurred a minimum of 13 years prior to the instant offense.
9
Section 4A1.3 allows a sentencing court to consider uncounted prior convictions and other criminal behavior in increasing the CHC5 if "reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. Sec. 4A1.3. Its decision to depart, as well as the degree of departure, is entitled to respect, given its "special competence," experience, and "superior feel" for the case. United States v. Rivera, 994 F.2d 942, at 950, 951 (1st Cir.1993) (citing Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992)); United States v. Shrader, 56 F.3d 288, 292 (1st Cir.1995). Once we determine the court acted within its discretion, our only question is whether its decision was reasonable and adequately explained. Id.
10
We first note that defendant is incorrect to suggest that the Guidelines forbid or discourage consideration of old convictions in a decision to depart. Cf. Rivera, 994 F.2d at 948-49 (detailing forbidden and discouraged departures). Likelihood of recidivism is an alternative justification to under-representation of the seriousness of defendant's criminal history for a decision to depart upward. U.S.S.G. Sec. 4A1.3; Schrader, 56 F.3d at 292. The court here made the latter finding, based on prior sentences for similar conduct (1979 assault and 1977 criminal threatening), and serious dissimilar conduct (1980 DWI and 1977 criminal liability for conduct of another and theft6). Where these considerations are appropriate to the decision whether to depart, and defendant's PSR provides an adequate basis, we cannot substitute our judgment. United States v. Quinones, 26 F.3d 213, 219 (1st Cir.1994); Rivera, 994 F.2d at 952. See also Williams, 503 U.S. at 205, 112 S.Ct. at 1121. However, once the court believes a properly calculated CHC significantly under-represents a defendant's criminal history, the Guidelines direct the court's departure quite specifically: the court must find that "defendant's criminal history most closely resembles that of most defendants with [the] Criminal History Category [the court seeks to impose]." U.S.S.G. Sec. 4A1.3 (emphasis added). If it were sufficient simply to add points for conduct excluded from the initial CHC calculation to arrive at a higher category, the Sec. 4A1.1 parameters for guiding CHC determination would be nullified. The court's mere conclusion that a CHC III "adequately reflects defendant's criminal history" fails to shed light on this question.
11
Although we accord "substantial leeway" to a sentencing court's determination of the appropriate degree of departure,
12
this freedom does not relieve [it] from explaining its ultimate decision of how far to depart. Merely explaining why a departure was made does not fulfill the separate requirement of stating the reasons for imposing the particular sentence.
13
Quinones, 26 F.3d at 219 (emphasis added) (quoting United States v. Rosales, 19 F.3d 763, 770 (1st Cir.1994)). See also Rivera, 994 F.2d at 946, 949-50. Because we are unable to evaluate responsibly the reasonableness of the extent of the court's departure absent explication, which we observe might include at least an indication of why a one category increase is inadequate, we will follow our past practice of ordering a limited remand for clarification while retaining appellate jurisdiction. See Quinones, 26 F.3d at 219-20.
14
We affirm defendant's conviction and remand for further proceedings with respect to sentence.
1
Rule 404(b) provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
2
Rule 403 states, in relevant part:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...
3
The government's brief is totally silent in spite of defendant's detailed complaint. At oral argument its sole response to our questioning was that its purpose was to make sure the jury realized there had been a call, and that the "cold record" may look worse to us. Counsel's thermometer needs adjustment
4
Defendant's objection at the time of its initial introduction "to this line of testimony" related to admissibility of the fact of the phone call, correctly overruled by the court, not to the subsequent dramatization of the family's fears, which elicited not a single protest from defense counsel
5
The relevant provisions include:
(a) prior sentence(s) not used in computing the criminal history category ...
(e) prior similar adult criminal conduct not resulting in a criminal conviction.
U.S.S.G. Sec. 4A1.3.
6
The court indicated this was robbery. Although robbery was the original indictment, defendant ultimately pled guilty to theft | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1362823/ | 122 Ariz. 563 (1979)
596 P.2d 701
FRATERNAL ORDER OF POLICE, LODGE 2, an Arizona non-profit corporation, Petitioner,
v.
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and Gerald J. Strick, a Judge thereof, and the Phoenix Employee Relations Board, William H. Gooding, Carl A. Lind, and Raymond Wells, as members of the Phoenix Employee Relations Board, and the Phoenix Law Enforcement Association, an Arizona non-profit corporation, Respondents.
No. 14358.
Supreme Court of Arizona, In Banc.
June 13, 1979.
*564 Marvin Johnson, P.C. by John P. Otto, Phoenix, for petitioner.
Robert C. Whitten, Phoenix, for Phoenix Employee Relations Bd.
Napier & Jones by Michael Napier, Phoenix, for Phoenix Law Enforcement Ass'n.
HOLOHAN, Justice.
The petitioner, Fraternal Order of Police, Lodge 2, brought this special action to vacate and set aside the order of the respondent judge which enjoined the respondent employee relations board from conducting an election to determine the authorized representative of the employees of the Phoenix Police Department. We accepted jurisdiction to resolve the conflict between the order of the respondent judge and a prior order issued by Judge Paul W. LaPrade directing the same employee relations board to hold an election to determine the proper representative for the employees of the Phoenix Police Department.
The petitioner and respondent Phoenix Law Enforcement Association are opponents in an effort to be designated the authorized representative of the employees of the Phoenix Police Department. Currently the respondent association is the designated representative, but the petitioner has sought an election to replace the association as the authorized employee representative.
Finding itself thwarted in its efforts to persuade the respondent employee relations board to call an election, the petitioner sought relief in the superior court (Maricopa County Superior Court No. 377834). The petitioner was successful in obtaining a judgment on February 20, 1979 signed by Judge LaPrade which ordered the Phoenix Employee Relations Board, one of the named respondents in this cause, to hold an election forthwith to determine the proper authorized representative for the employees of the Phoenix Police Department. The employee relations board and law enforcement association filed an appeal. Although no stay has been issued, there has never been compliance with the judgment. The respondents sought relief by special action in this court which was declined. Finally the respondent association filed an action in the superior court seeking to have the petitioner disqualified as a bargaining representative for the employees of the police *565 department and to enjoin the respondent employee relations board from holding an election to determine the bargaining representative for the employees of the police department (Maricopa County Superior Court No. 384053).
The petitioner contends that the respondent judge had no jurisdiction to issue an injunction forbidding the holding of an election for determination of an employee bargaining representative. Any action taken by the respondent judge would be in conflict with the previous rulings of Judge LaPrade. We agree.
The respondent judge, in effect, was acting as a reviewing court of a judge on the same court. He had no jurisdiction to review or change the judgment of a judge with identical jurisdiction. See Stuart v. Winslow Elementary School District No. 1, 100 Ariz. 375, 414 P.2d 976 (1966). What resulted is two judges with identical general jurisdiction granting conflicting judgments in separate cases involving the same subject matter.
The respondents argue that the second action filed before the respondent judge did not involve the same subject. They argue that the issue of the petitioner's eligibility to be an employee representative was not litigated in the first action heard by Judge LaPrade. The record does not support respondents.
The pleadings filed in the action heard by Judge LaPrade show that the petitioner alleged that it was eligible to become the authorized representative of the police department employees. This allegation was denied by the respondents. The respondent association specifically set forth in its answer the reasons why the petitioner was not qualified to be an employee representative. The ruling and judgment by Judge LaPrade resolved this issue contrary to the position of respondents. It became res judicata.
Subsequent to Judge LaPrade's judgment, the respondent board conducted an administrative hearing on the question of the eligibility of petitioner to be an employee representative. The respondent board maintains that it had a charge pending since October 30, 1978, prior to the filing of the action heard by Judge LaPrade. The charge was filed by respondent association contesting the eligibility of petitioner to be an employee representative. The respondent board did not hold a hearing on the issue until March 1, 1979. The respondent board contends that it has the authority under the city ordinance covering labor relations (Ordinance No. G-1532) to review and determine whether an organization meets the legal requirements of an employee representative. The respondent board points out that it has the jurisdiction under the ordinance to make the determination of the qualifications possessed by a prospective employee representative. Once this determination is made it is subject to judicial review. Since the determination was not made by the board until after the entry of judgment by Judge LaPrade, the respondent board contends that the issue of petitioner's eligibility could not have been considered by Judge LaPrade. The respondent board argues that the issues before Judge LaPrade were not concerned with eligibility but with entirely other unrelated matters.
The respondent board overlooks the longstanding rule that when the court has jurisdiction over the subject matter, a judgment is not only res judicata as to every issue decided, but it is also res judicata as to any issue raised by the record. Taylor v. Betts, 59 Ariz. 172, 124 P.2d 764 (1942); State ex rel. Lassen v. Self-Realization Fellowship Church, 21 Ariz. App. 233, 517 P.2d 1280 (1974). The fact that the issue may have been determined incorrectly does not affect the principle of res judicata. Shattuck v. Shattuck, 67 Ariz. 122, 192 P.2d 229 (1948); Secrist v. State, 2 Ariz. App. 240, 407 P.2d 781 (1965).
Judge LaPrade had jurisdiction of the subject matter of the first action; the issue of eligibility of petitioner to be an employee representative was raised in the action; the judgment granted the relief sought by petitioner. The issue of petitioner's eligibility to become an employee representative was resolved implicitly in the judgment. Even *566 if wrongly determined, and we express no opinion on the merits, the issue was res judicata. Respondents' remedy was by appeal.
The second action heard by the respondent judge was nothing more than a collateral attack on the judgment entered by Judge LaPrade. The second action should have been dismissed because there was no jurisdiction in the respondent judge to review, alter, or change the judgments of a judge with the same jurisdiction.
The order and judgment of the respondent judge is vacated, and the action is remanded to the respondent judge with directions to dismiss the action (Maricopa County Superior Court No. 384053).
Relief granted.
CAMERON, C.J., STRUCKMEYER, V.C.J., and HAYS and GORDON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5907454/ | Motion for poor person relief denied. Memorandum: The order is not appealable as of right (see, Family Ct Act § 1112 [b]). Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823551/ | Electromagnetic miniature relay. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903346/ | Order, Supreme Court, New York County (Alice Schlesinger, J.), entered February 15, 2012, which, in this medical malpractice action seeking damages for wrongful birth, denied defendants’ motion to dismiss the complaint on forum non conveniens grounds and declared that Colorado law should be applied at trial, unanimously affirmed, without costs.
Defendants failed to meet their burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). The court indicated that it had considered the relevant factors (id. at 479), and there is no basis for disturbing its determination (id.).
The court correctly applied an interest analysis to the choice-of-law issue, correctly determined that the conflicting wrongful birth laws at issue are loss-allocating rules, and correctly concluded that Colorado law applies (see Cooney v Osgood Mach., 81 NY2d 66, 72 [1993]). Indeed, under the second rule set forth *511in Neumeier v Kuehner (31 NY2d 121, 128 [1972]), which applies in this case, the “place of injury” governs and is understood to be where the injury, or the last event necessary to make the defendant liable, occurred, even if the defendant did not actually engage in any actual tortious conduct in that location (see Glunt v ABC Paving Co., 247 AD2d 871, 871 [4th Dept 1998]; see also Schultz v Boy Scouts of Am., 65 NY2d 189, 195 [1985]). Here, the last events necessary to make defendants liable, namely the birth and treatment of the subject child, occurred in Colorado. Concur—Tom, J.P., Moskowitz, Richter, ManzanetDaniels and Clark, JJ. [Prior Case History: 2012 NY Slip Op 30361(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/555352/ | 924 F.2d 1059
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Timothy O'BRIEN, Plaintiff-Appellant,v.Robert BROWN, Warden, Michigan Department of Corrections;Ted Koehler, Warden, Marquette Branch Prison; DonaldHouseworth; Herbert B. Grinage; Frank Elo; Moats,Inspector; Tom Osier, Defendants-Appellees.
No. 90-1476.
United States Court of Appeals, Sixth Circuit.
Feb. 6, 1991.
Before BOYCE F. MARTIN, Jr. and KRUPANSKY, Circuit Judges; and JOHN W. PECK, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Timothy O'Brien, a Michigan inmate, filed a civil rights action under 42 U.S.C. Sec. 1983 against seven prison officials in connection with a change in his security classification and place of incarceration. The matter was referred to a magistrate who recommended that summary judgment be entered for the defendants. The district court ultimately adopted this recommendation, over O'Brien's objections, and the instant appeal followed. The parties have briefed the issues.
3
Upon consideration, we find the district court correctly concluded that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988).
4
We agree that defendants Brown and Koehler could not be held responsible on the basis of supervisory liability. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir.1989). We also find that O'Brien has failed to demonstrate the denial of a federally cognizable right in any of the actions of which he complains. Olim v. Wakinekona, 461 U.S. 238, 245-50 (1983); Montanye v. Haymes, 427 U.S. 236, 242 (1976).
5
Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5903347/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered October 23, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by the defendant.
Ordered that the judgment is affirmed.
The People sustained their burden of proving beyond a reasonable doubt that the confession made by the defendant subsequent to his having been taken into police custody was voluntarily made (People v Huntley, 15 NY2d 72, 78). The hearing court properly credited the testimony of the interrogating police officer that the Miranda warnings were administered to the defendant and that the defendant indicated a willingness to give a statement after acknowledging that he understood those rights. The determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses, should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Prochilo, 41 NY2d 759, 761; People v Armstead, 98 AD2d 726).
In addition, we note that the defendant did not object at trial to those portions of the charge concerning the voluntariness of his confession upon which he now requests reversal. Accordingly, the defendant’s claims are unpreserved for appellate review as a matter of law (see, CPL 470.05 [2]) and we find that reversal is not warranted as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).
In imposing sentence, the court properly applied the appropriate sentencing principles, including deterrence, rehabilitation, retribution, and isolation (People v Suitte, 90 AD2d 80).
We have examined the defendant’s remaining contentions, *633including those raised in his pro se supplemental brief, and find them to be without merit. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903348/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered March 14, 1986, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the case is remitted to the Supreme Court, Queens County, to hear and report on the defendant’s speedy trial motion, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, shall file its report with all convenient speed.
The defendant seeks a reversal of his conviction upon the ground, inter alia, that the People violated his right to a speedy trial as provided for in CPL 30.30 and that the Supreme Court erred in denying his motion to dismiss the indictment on that basis. The parties agree that a felony complaint was filed on or about May 27, 1982, and that the first trial of this indictment began on or about January 24, 1985. Reviewing the record before us, we can determine that the People had not exceeded their 180-day statutory limitation for trial readiness during the period prior to the defendant’s CPL 30.30 motion decided July 1, 1983. However, the record before us is insufficient to enable us to determine which side requested the adjournments subsequent to that date and thus requires us to remit the matter for a hearing on that issue (see, People v Brown, 114 AD2d 418; People v Homey, 99 AD2d 886; People v Klaus, 94 AD2d 748). Documentation is obviously necessary for this court to properly review the merits of the Supreme Court’s decision of a subsequent CPL 30.30 motion decided April 16, 1984.
The People’s contention that their readiness for trial on January 3, 1983 tolled their limitation period pursuant to CPL 30.30 is without merit. CPL 30.30 (3) (b) recognizes the right of the defendant to move for dismissal after the People have answered ready. In computing the time under CPL 30.30 (3) (b) for a postreadiness motion, such portion of the readiness period established by the section as remained available when the readiness was originally declared is preserved for the People (People v Anderson, 66 NY2d 529, 534). Hence, the People’s postreadiness delays may be counted by the court in deciding whether to dismiss the indictment. Lawrence, J. P., Fiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903349/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered June 19, 1985, convicting him of murder in the second degree (two counts) and attempted robbery in the first degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement authorities.
Ordered that the judgment is affirmed.
At approximately 1:00 a.m. on September 30, 1984, three men attempted to rob a young man and woman who were seated in a parked car in Brookville Park in Rosedale, Queens. During the course of the attempted robbery, one of the assailants shot and killed the woman. As a result of an investigation of the circumstances surrounding the shooting, Detective Stanley Berber of the 105th Precinct obtained information to the effect that the defendant and his codefendant Henry Smith, with whom he was jointly tried, were involved in the robbery and shooting. Subsequently, on October 11, 1984, the male victim identified both the defendant and Smith as two of the perpetrators from photographic arrays examined at the 105th Precinct. With that information, Detective Berber and two other detectives proceeded to Smith’s home and parked their car outside. Sometime between 10:00 p.m. and 11:00 p.m. that evening, the defendant was spotted approaching the Smith household. Detective Berber stopped the defendant and asked his name. After the defendant identified himself, Berber asked him to enter the police car to talk about the Brookville *635Park shooting. Ferber testified that the defendant voluntarily agreed to enter the police car; the defendant said that he was ordered to get into the car.
At approximately 12:00 a.m., the officers transported the defendant to the 105th Precinct. While in the car, the defendant allegedly told the officers that someone named Eric Pasmour had told him that Smith and two others had committed the crime. Moreover, the defendant said that he had been told that Smith had pulled the trigger. According to Ferber, the defendant was not in handcuffs and was free to leave at any time.
The defendant was questioned in the police station throughout the night. He continuously maintained that Smith and two others had been involved in the crime. The defendant spoke to his mother on the telephone at about 1:30 a.m. Detective Ferber said that he told Mrs. McIntyre that her son was being questioned about the Brookville Park shooting but that he was. not under arrest. Mrs. McIntyre testified that Ferber also told her that her son would be home within two hours. There is no indication that either the defendant or his mother requested that he be permitted to leave. Detective Ferber, however, conceded that the defendant was not told that he could go home.
At approximately 8:00 a.m., Detective Ferber arrested Smith. At this point, Detective Ferber confronted the defendant and told him that Smith had been arrested and that he had spoken to Eric Pasmour. Ferber then told the defendant that "now is the time to tell the real story”. Thereafter, the defendant relented, and for the first time, acknowledged that he, Smith and a third person had attempted to rob the couple in the car, but he still maintained that it was Smith who had actually shot the woman.
Immediately following the oral statement, Detective Ferber for the first time advised the defendant as to the four preinterrogation Miranda warnings. After acknowledging his understanding of those rights, the defendant, according to Ferber’s testimony, repeated the story and Ferber reduced it to writing. The defendant read the statement and signed it at approximately 12:00 p.m. Assistant District Attorney Locketti arrived at the precinct sometime around 3:20 p.m., and, after again advising the defendant of his Miranda rights, took a videotaped statement from him. The videotaped statement was substantially similar to the two earlier statements.
The defendant moved to suppress all three statements. *636Primarily, he argued that the initial oral statement was the product of a custodial interrogation and that the failure to advise him of his Miranda rights prior thereto rendered the statement inadmissible. Moreover, he claimed that the subsequent statements were also inadmissible because there was not a pronounced break between them and the tainted one. Criminal Term, however, found that the defendant was not in custody at the time that he first spoke to the officers.
Determination of the issue as to whether a particular individual is in custody prior to receiving the preinterrogation warnings turns on "not what the [accused] thought, but rather what a reasonable [person], innocent of any crime, would have thought had he been in the [accused’s] position” (People v Yukl, 25 NY2d 585, 589, mot to amend remittitur denied 26 NY2d 883, cert denied 400 US 851; see, Matter of Kwok T., 43 NY2d 213, 220). The question of whether a particular interrogation is custodial is largely a question of fact and the hearing court’s findings should not be disturbed unless they are against the weight of the evidence (see, People v Oates, 104 AD2d 907; People v Lopez, 95 AD2d 241).
We find that, contrary to the conclusion reached by Criminal Term, the defendant was in custody from the time that Detective Ferber asked that he accompany the police officers in the police car. The situation confronting the defendant was overwhelmingly dominated by the police (see, People v Hall, 125 AD2d 698; People v Pabon, 120 AD2d 685, Iv denied 68 NY2d 1003; People v Garcia, 103 AD2d 753, cert denied 469 US 1075). Moreover, the officers did not merely suspect that the defendant was involved in the crime. Rather, they had sufficient information as a result of the photographic identifications to effect the defendant’s arrest. Under the circumstances, we conclude that the entire confrontation was designed to deliberately subjugate the defendant to the authority of the police and to extract a confession without the benefit of the preinterrogation warnings (see, Matter of Kwok T., supra, at 218; People v Rodney P., 21 NY2d 1, 5-6). Thus, the initial oral confession must be suppressed inasmuch as it was the product of a custodial interrogation in which the defendant was not apprised of his constitutional rights.
The next issue that we must address is whether the initial, unlawfully obtained confession necessarily tainted the two subsequent statements given after the proper administration of the Miranda rights. The Court of Appeals has held, as a matter of State constitutional law, that unless there is "a definite, pronounced break in the interrogation * * * the *637defendant may [not] be said to have returned, in effect, to the status of one who is not under the influence of questioning” (People v Chapple, 38 NY2d 112, 115; People v Bethea, 67 NY2d 364). Immediately following the tainted oral statement, Detective Ferber took a written statement from the defendant. Clearly, this statement is inadmissible because of the absence of any break in the interrogation (see, People v Bethea, supra; People v Chapple, supra; People v Pabon, supra). However, thereafter, there was an approximately 3 Vi-hour hiatus between the written statement and the videotaped confession which, under the circumstances of this case, we conclude, constituted such a definite, pronounced break sufficient to remove the taint of the initial confessions (see, People v Steed, 133 AD2d 433; People v Mahoney, 122 AD2d 815, lv denied 68 NY2d 1002; cf., People v Robertson, 133 AD2d 355). Moreover, there is no evidence in the record to support the defendant’s contention that he felt so committed by his prior oral and written statements that he believed it futile to invoke his right to remain silent prior to the videotape statement, i.e., the "cat-out-of-the-bag” theory (see, People v Tanner, 30 NY2d 102, 105-106; People v Marino, 135 AD2d 573; People v Pagan, 130 AD2d 687, lv denied 70 NY2d 753). Thus, the hearing court correctly denied suppression of the videotape. Inasmuch as the videotape contained the same information as the two prior statements, we find that the admission of those statements was harmless error (see, People v Crimmins, 36 NY2d 230; People v Pabon, supra).
Finally, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]), and we conclude that the sentence imposed was not excessive (People v Suitte, 90 AD2d 80). Brown, J. P., Rubin, Fiber and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903350/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered September 17, 1984, convicting her of attempted burglary in the second degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903356/ | Order, Supreme Court, New York County (Louis B. York, J.), entered August 16, 2011, which dismissed the action pursuant to CPLR 3126, unanimously affirmed, without costs.
It is quite clear that the court dismissed this action due to plaintiffs repeated failures to adhere to the court’s discovery orders. Thus, we reject plaintiff’s argument that the court meant to dismiss this action pursuant to CPLR 3216 instead of 3126. It is also clear that the order was not entered until August 16, 2011. Therefore, we reject plaintiff’s argument that the court dismissed the action before the August 5, 2011 deadline to file the note of issue.
Plaintiff contends that the action should not have been dismissed because its behavior was neither willful nor contumacious. However, plaintiff engaged in a “long continued pattern of noncompliance with court orders and discovery demands” (Jones v Green, 34 AD3d 260, 261 [1st Dept 2006]). Moreover, the July 2011 status conference order was a conditional dismissal order, which “relieve[d] [the court] of the unrewarding inquiry into whether [plaintiffs] resistance was wilful” (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 82 [2010] [internal quotation marks omitted]).
Plaintiff failed to offer any excuse for ignoring the court’s disclosure orders (see Milton v 305/72 Owners Corp., 19 AD3d 133 [1st Dept 2005], lv dismissed in part and denied in part 7 NY3d 778 [2006]; see also Jones, 34 AD3d at 261).
In view of the foregoing, it does not avail plaintiff that, one day before the deadline to file the note of issue, it moved to *512extend that deadline (see Abouzeid v Cadogan, 291 AD2d 423 [2d Dept 2002]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4641130/ | People v Llaca (2020 NY Slip Op 07396)
People v Llaca
2020 NY Slip Op 07396
Decided on December 9, 2020
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 9, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
FRANCESCA E. CONNOLLY, JJ.
2019-02331
(Ind. No. 1559/93)
[*1]The People of the State of New York, respondent,
vJose Llaca, appellant; Norma Rosello, etc., nonparty.
Jose Llaca, Ossining, NY, appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Gregory P. Mitchel and Diana Villanueva of counsel), for respondent.
DECISION & ORDER
Appeal from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered December 17, 2018. The order denied the appellant's motion to recover interest on previously remitted bail.
ORDERED that the order is affirmed, without costs or disbursements.
CPL 540.30 provides that "[a]fter the forfeiture of . . . cash bail, . . . an application for remission of such forfeiture may be made" (CPL 540.30[1]), and "[t]he court may grant the application and remit the forfeiture or any part thereof, upon such terms as are just" (CPL 540.30[2]). Under the circumstances presented herein, we agree with the Supreme Court's denial of the application to recover interest on the cash bail which had been properly forfeited and then remitted upon the appellant's motion (see CPL 540.10, 540.20, 540.30; Judiciary Law § 798).
MASTRO, J.P., ROMAN, HINDS-RADIX and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 12-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903351/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered November 21, 1985, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
As the complainant was being robbed at knifepoint, a witness approached to help him. Although they did not know the defendant, the complainant and the witness provided detailed descriptions which matched the defendant’s appearance at the time of his arrest. Another witness, who was standing nearby, informed the complainant and the first witness that he knew *638the perpetrator and that his name was Benny. This second witness, who was incarcerated on another charge at the time of trial of this matter, was not called to testify by the prosecution, prompting a request from the defense counsel for a missing witness charge.
We agree with the trial court that the second witness was not under the control of the prosecution since it cannot be said that "the [second] witness, by nature of his status or otherwise, would * * * be expected to testify favorably to one party and adversely to the other” (People v Gonzalez, 68 NY2d 424, 429). Although the defendant testified to his hostile relationship with the second witness, the record fails to reveal any predilection on the part of that witness to testify favorably to the prosecution. In Gonzalez (supra, at 429), the Court of Appeals defined control as not concerning "physical availability but rather the relationship between the witness and the parties * * * [I]f a witness, although theoretically 'available’ to both sides, is favorable to or under the influence of one party and hostile to the other, the witness is said to be in the 'control’ of the party to whom he is favorably disposed, and an unfavorable inference may be drawn from the failure to call the witness” (People v Brown, 34 NY2d 658). There is no indication that the witness in question, although "available” to both sides, was favorable to or under the influence of one party and hostile to the other.
While it would have been appropriate to allow defense counsel to comment in his summation upon the prosecution’s failure to produce the second witness at trial (see, Seligson, Morris & Neuburger v Fairbanks Whitney Corp., 22 AD2d 625, 630), in view of the overwhelming nature of the evidence, any error in precluding such comment was harmless.
Nor was the defendant denied a fair trial by the trial court’s refusal to allow him to approach the jury box to display his tattooed hands to the jury. The defendant took the witness stand in full view of the jury. Moreover, the defense counsel was permitted to describe the defendant’s hands in detail for the jury (cf., People v Shields, 81 AD2d 870). Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903353/ | Order, Supreme Court, New York County (Louis B. York, J.), entered August 16, 2011, which dismissed the action pursuant to CPLR 3126, unanimously affirmed, without costs.
It is quite clear that the court dismissed this action due to plaintiffs repeated failures to adhere to the court’s discovery orders. Thus, we reject plaintiff’s argument that the court meant to dismiss this action pursuant to CPLR 3216 instead of 3126. It is also clear that the order was not entered until August 16, 2011. Therefore, we reject plaintiff’s argument that the court dismissed the action before the August 5, 2011 deadline to file the note of issue.
Plaintiff contends that the action should not have been dismissed because its behavior was neither willful nor contumacious. However, plaintiff engaged in a “long continued pattern of noncompliance with court orders and discovery demands” (Jones v Green, 34 AD3d 260, 261 [1st Dept 2006]). Moreover, the July 2011 status conference order was a conditional dismissal order, which “relieve[d] [the court] of the unrewarding inquiry into whether [plaintiffs] resistance was wilful” (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 82 [2010] [internal quotation marks omitted]).
Plaintiff failed to offer any excuse for ignoring the court’s disclosure orders (see Milton v 305/72 Owners Corp., 19 AD3d 133 [1st Dept 2005], lv dismissed in part and denied in part 7 NY3d 778 [2006]; see also Jones, 34 AD3d at 261).
In view of the foregoing, it does not avail plaintiff that, one day before the deadline to file the note of issue, it moved to *512extend that deadline (see Abouzeid v Cadogan, 291 AD2d 423 [2d Dept 2002]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903354/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Namm, J.), rendered January 18, 1984, convicting him of murder in *640the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.
The record reveals that the defendant was charged with one count of intentional murder and one count of depraved mind murder arising out of a single homicide. Prior to the trial court’s charge to the jury, the defendant expressly requested that the two second degree murder counts be submitted in the alternative. The court denied this request, and the jury returned a verdict finding the defendant guilty of both intentional and depraved mind murder. The defendant contends that the court’s refusal to charge the counts in the alternative and the resulting double conviction mandate reversal and a new trial. We agree.
In the recent case of People v Gallagher (69 NY2d 525, 529-530), under factual circumstances virtually identical to those at bar, the Court of Appeals made the following salient observations:
"[T]he two second degree murder counts in the present indictment—intentional murder and depraved mind murder— are inconsistent counts as defined in CPL 300.30 (5), because guilt of one necessarily negates guilt of the other. A finding that defendant committed intentional murder by killing his victim with the conscious objective of causing his death precludes the inconsistent finding that defendant at the same time committed depraved mind murder by recklessly and thus unintentionally killing the same victim under circumstances evincing a depraved indifference to human life. By no rational theory could the jury have found defendant guilty of both crimes.
"CPL 300.40 (5) provides that '[i]f an indictment contains two inconsistent counts, the court must submit at least one thereof and that if 'a verdict of guilty upon either would be supported by legally sufficient trial evidence, the court may submit both counts in the alternative and authorize the jury to convict upon one or the other depending upon its findings of fact. In such case, the court must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other.’ Thus, if the court elects to charge the two inconsistent counts, it must do so in the alternative; it may not permit the jury to find the defendant guilty of both. Here the Trial Judge properly charged *641both counts but improperly refused to submit them in the alternative. This error permitted the jury to sidestep its responsibility of deciding which (if either) mental state defendant possessed at the time of the shooting. Because the jury found defendant guilty of both intentional and reckless homicide, it is impossible to determine what if anything the jury decided on the issue of defendant’s mental state at the time of the offense. A new trial is therefore required”.
In view of the foregoing, a new trial is necessary, as the instant defendant’s conviction of both intentional murder and depraved mind murder arising out of a single homicide is internally inconsistent and cannot stand.
We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903355/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered May 10, 1985, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to controvert a search warrant.
Ordered that the judgment is affirmed.
This appeal arises out of a search, with a warrant, of a Flushing, Queens, apartment occupied by the defendant and his wife. A registered confidential informant of the United States Customs Service told an agent of the United States Customs Service that he had seen a large amount of drugs on a plexiglass table in the apartment. The informant also described the appearance of the defendant in detail, including his black eye; supplied the telephone number of the apartment which was unlisted; and described the physical layout of the apartment in detail. The agent was contacted by a New York City police officer who was investigating a related drug arrest. Together the two officers investigated the information which had been received from the confidential informant. After a confirmatory investigation, a search warrant was obtained. Upon execution of the warrant over one pound of cocaine was seized and the defendant and three others were arrested. Also seized was a triple-beam balance scale, carrying case and over $2,000 in cash.
During the search the officers found an amount of cocaine *642in a jacket which had been lying on a couch in the living room in the apartment. When the defendant was to be taken into custody and was ready to leave for the precinct, he asked if he could wear his jacket and selected the same one in which the cocaine had been found. The officers had done nothing to suggest to the defendant to take that particular jacket. It was a spontaneous and voluntary act.
The defendant claims error, inter alia, in the affidavits in support of the warrant. The defendant has, however, failed to show that there were any inaccuracies in the affidavits submitted by the law enforcement agents or that they were false or intentionally misleading. It is clear that the affidavits set forth information given by the informant and specifically described the subsequent investigation by the officers and the results of that investigation (see, People v Bartolomeo, 53 NY2d 225; People v Maddalena, 49 AD2d 952).
Error is also claimed by the defendant in a late CPL 710.30 notice offered by the prosecution, notifying him of the planned use of his statement in which he had asked for his jacket which had contained cocaine. The defendant relies on two recent cases, People v O’Doherty (70 NY2d 479) and People v Boughton (70 NY2d 854) in which the Court of Appeals strictly construed the 15-day notice requirement pursuant to CPL 710.30. Compliance with this strict requirement is not necessary, however, where a statement was clearly spontaneous (see, People v Greer, 42 NY2d 170) as it was here. The defendant’s claim of error in this regard is without merit.
We find that the trial court’s decision not to hold a Darden hearing to confirm the informant’s existence a proper exercise of discretion (see, People v Darden, 34 NY2d 177, rearg denied 34 NY2d 995). The defendant’s other claims of error are unpreserved for appellate review, or without merit. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907455/ | Motion to dismiss appeal denied. Memorandum: Respondent has not shown that he has served appellant with a notice of entry of the judgment appealed from (see, CPLR 5513 [a]). Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907456/ | Motion for permission to appeal to Appellate Division denied. (See, CPLR 5703; Ellingsworth v City of Watertown, 113 AD2d 1013.) Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903357/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered November 17, 1982, convicting him of attempted murder in the second degree, assault in the second degree (two counts), robbery in the first degree (three counts) and unlawful imprisonment in the first degree (four counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
*643Ordered that the judgment is affirmed.
The defendant’s challenge to the hearing court’s Wade ruling is without merit. The record contains insufficient evidence that one of the complaining witnesses, prior to viewing the lineup, had been informed by the investigating officer that one of the alleged perpetrators had been placed therein. Under the totality of the circumstances the lineup identification procedure possessed sufficient indicia of reliability to warrant the admission of testimony concerning it into evidence (see, Manson v Brathwaite, 432 US 98, 106; People v Rodriguez, 64 NY2d 738; People v Scott, 124 AD2d 684, lv denied 69 NY2d 833).
We note that the defendant’s pro se argument that the trial court failed to give an adequate identification charge is unpreserved for appellate review (see, CPL 470.05 [2]; People v McKenzie, 67 NY2d 695, 697; People v Cadorette, 56 NY2d 1007; People v Reyes, 127 AD2d 617, lv denied 69 NY2d 954). In any event, the identification charge given to the jury properly conveyed the People’s burden to prove identification beyond a reasonable doubt and sufficiently detailed the general factors relevant to an evaluation of the accuracy and credibility of the witnesses (see, People v Whalen, 59 NY2d 273, 279; People v Robertson, 128 AD2d 815, lv denied 70 NY2d 754; People v Daniels, 88 AD2d 392, 400-401).
We have considered the defendant’s remaining contentions, including those raised in his pro se supplemental brief, and find them to be either unpreserved for appellate review or without merit. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903358/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered April 23, 1984, convicting him of murder in the second degree (two counts), kidnapping in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The charges against the defendant and his codefendant Freddie Salcedo stemmed from the discovery of the body of Victor Ramirez, who was found dead several hours after he entered the defendant’s grocery store. The People’s evidence-in-chief consisted of a statement allegedly made by the defen*644dant to a civilian witness, Henry Bueno, and tape-recorded statements made by the codefendant to police informant Edward Atwell. A pretrial motion for severance was denied prior to the decision of the United States Supreme Court in Cruz v New York (481 US —, 107 S Ct 1714). We conclude that the holding in Cruz mandates reversal in the case at bar.
At trial neither the defendant nor the codefendant testified. However, in their statements which were introduced into evidence, the defendant and the codefendant implicated both themselves and each other. For the most part, the statements were to the effect that the defendant and codefendant had forced the decedent into the back of the grocery store and into a car waiting at the back. They drove him around for several hours whereupon the defendant attempted to choke the decedent with his bare hands. The decedent was able to break loose from the car at which time the codefendant shot him. At trial, the Medical Examiner testified that the decedent had died from asphyxiation from manual strangulation and internal hemorrhaging from gunshot wounds. There were no witnesses to the actual murder. At trial, the defense for the most part attempted to discredit the testimony of Bueno, alleging that he had a motive to lie because he received favorable treatment on a prior arson case in which he was implicated with the defendant. It was further established that Bueno did not come forward with the alleged statement made by the defendant until he was charged with the arson, approximately one year after the murder had occurred.
While the People concede that the defendant’s rights were violated, they argue that any error was harmless because of the overwhelming evidence against the defendant (see, Cruz v New York, supra). We cannot agree. While Bueno’s statements were corroborated by both direct and circumstantial evidence at trial, the only evidence admissible against him which directly linked him to the crime was Bueno’s testimony. However, " 'the precise content and even the existence of the [defendant’s] own [admission] were open to question, since they depended upon acceptance of [Bueno’s] testimony’ ” People v Latif, 135 AD2d 736, 738, quoting from Cruz v New York, supra, 481 US, at —, 107 S Ct, at 1718).
Moreover, while the court gave lengthy instructions to the jury several times during the course of the trial that Salcedo’s taped admission was not to be used against the defendant, it failed to so instruct during the final charge to the jury. Under these circumstances, the failure to give the charge again added to the error. The defendant also complains that several *645times during summation, the prosecutor implied that Salcedo’s statements were evidence against the defendant as well. While these alleged errors are not preserved for review, we note that such statements could only serve to further deny the defendant the protection afforded him under the Confrontation Clause.
Based upon all of the foregoing we cannot deem harmless the admission into evidence of the statements of the codefendant since there is a reasonable possibility that the error might have contributed to the conviction (see, People v Crimmins, 36 NY2d 230, 241; People v Latif, supra).
In light of our disposition of this issue, we decline to address the defendant’s remaining contentions. Brown, J. P., Weinstein, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903359/ | Appeals by the defendants from two judgments (one as to each of them) of the Supreme Court, Kings County (Moskowitz, J.), both rendered May 20, 1986, convicting them of manslaughter in the first degree, upon jury verdicts, and imposing sentences.
Ordered that the judgments are affirmed.
On the instant appeals, both defendants argue that (1) they were denied effective assistance of trial counsel, (2) the court committed reversible error in refusing to give a circumstantial evidence charge to the jury, and (3) the court committed reversible error when it admitted into evidence, as excited utterances, the deceased’s statements to his family shortly after the crime. We disagree.
A review of the record indicates that both counsel, inter alia, thoroughly cross-examined the People’s witnesses, made appropriate objections, and presented serious alibi defenses. Under the circumstances, it is clear that both defendants were "afforded meaningful representation” (People v Satterfield, 66 NY2d 796, 800) and that the defendants have confused "true ineffectiveness with mere losing tactics” (People v Baldi, 54 NY2d 137, 146).
Nor did the trial court err in failing to give a circumstantial evidence charge to the jury. A circumstantial evidence charge is required only when the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused (People v Schermerhorn, 125 AD2d 729, 731, lv denied 69 NY2d 955). Where both direct and circumstantial evidence are used to establish the defendants’ guilt, as occurred in the case *646at bar, a circumstantial evidence charge need not be given (People v Barnes, 50 NY2d 375).
Finally, the deceased’s statements to his family, shortly after the crime, were properly admitted into evidence as excited utterances, pursuant to the standard set forth by the Court of Appeals in People v Edwards (47 NY2d 493).
We have reviewed the remaining arguments raised solely by the defendant Rosario and find them to be without merit (see, People v Contes, 60 NY2d 620; People v Shapiro, 117 AD2d 688, lv denied 67 NY2d 950; People v Marks, 6 NY2d 67; People v Roopchand, 107 AD2d 35, affd 65 NY2d 837; People v Suitte, 90 AD2d 80). Mangano, J. P., Bracken, Hooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903360/ | Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (D’Amaro, J.), rendered November 16, 1984, convicting him of robbery in the third degree, assault in the second degree, unauthorized use of a motor vehicle in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by the defendant to the police.
Ordered that the judgment is affirmed.
The arresting officer was justified in relying on the information related to him by other officers through radio transmissions and that information was sufficient to constitute probable cause to arrest defendant (see, People v Lypka, 36 NY2d 210). Since the defendant failed to challenge the reliability of those radio communications, any "question regarding the basis of the sending officer’s information has not been preserved for review” (People v Reddick, 107 AD2d 721, affd 65 NY2d 835; People v Ward, 95 AD2d 233, 240).
Furthermore, although the defendant’s brief initial statement regarding his whereabouts on the day of the crime was properly suppressed since that statement was made before the defendant was advised of his Miranda rights, the remainder of his statements, which were all given after he was advised repeatedly of his Miranda rights, were properly admitted at trial since there was no showing that the subsequent warnings were insufficient to protect the defendant’s rights (see, People v Smith, 124 AD2d 1003). The defendant was not subjected to such continuous interrogation as to render the subsequent *647warnings ineffectual (cf., People v Bastidas, 67 NY2d 1006, rearg denied 68 NY2d 907; People v Winchell, 64 NY2d 826; People v Williams, 63 NY2d 882).
Finally, we note that the defendant’s statements were not obtained in violation of his right to counsel despite his representation by an attorney on an unrelated pending charge. When asked about that charge, the defendant replied that it was "all taken care of’, he stated that he had no further court dates, and he denied being represented by an attorney with respect to that charge at that time. Despite their subsequent good-faith efforts to ascertain further information about that charge and whether the defendant had legal representation thereon, the police found nothing to indicate that the defendant was not telling them the truth and they were justified in relying on the defendant’s representations (People v Lucarano, 61 NY2d 138; People v Bertolo, 65 NY2d 111).
We have reviewed the defendant’s remaining contentions and find them either to be unpreserved for appellate review or without merit. Lawrence, J. P., Rubin, Fiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903361/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Coffinas, J.), rendered March 8, 1984, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Lawrence, Fiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903362/ | Appeal by the defendants from two judgments (one as to each of them) of the Supreme Court, Queens County (Shea, J.), both rendered August 13, 1986, convicting them of bribe receiving in the second degree and official misconduct (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgments are affirmed, and the matters are remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
*648Contrary to the defendants’ contentions we conclude that the evidence was legally sufficient to support their convictions of bribe receiving in the second degree. While there was no direct evidence that the defendants and the witness Wiggins entered into an agreement whereby Wiggins agreed to extend sexual favors to them in return for not arresting her for certain violations of the Vehicle and Traffic Law and drug possession charges, we conclude that such evidence is not necessary. In order to support a verdict of guilty of bribe receiving in the second degree, the People must prove that the public official solicited or accepted or agreed to accept a benefit upon the understanding or agreement that his actions would thereby be influenced (see, Penal Law former § 200.10; People v Charles, 61 NY2d 321). In determining whether there was such an agreement or understanding, it is the defendant’s state of mind which is controlling (see, People v Holmes, 72 AD2d 1, 7). The evidence establishes that the vehicle in which Wiggins and her female friend Robinson and a male friend Gregory were driving was stopped after Wiggins went through a stop sign. Wiggins was not licensed to drive and was unable to produce any documentation for the vehicle. In addition, cocaine was found on Wiggins’ person by the officers during a search in which she was fondled by the defendant Teitelbaum. Rather than making an arrest, the officers told Wiggins that if she went with them "everything would be all right”. They also instructed her to drop Gregory off somewhere. After dropping Gregory off, Wiggins and her friend Robinson got into the officers’ car and were taken to the defendant StarrofFs apartment where Wiggins claimed that the defendants asked her for sex. She testified that she orally sodomized both the defendants. This evidence sufficiently indicates that the defendants solicited sex in exchange for their failure to arrest Wiggins. While there is no evidence that Wiggins knew why the officers were taking her to the apartment, there can be no doubt that they took her there to solicit sex.
Because of Wiggins’ involvement in the incident, the court agreed to the defense requests that the jury be charged that she was an accomplice as a matter of law on the count of bribe receiving. Over objection, however, it refused to charge that either Gregory or Robinson were accomplices or that Wiggins was an accomplice on the official misconduct counts as well. CPL 60.22 defines accomplice as a witness in a criminal action who, according to the evidence adduced, may reasonably be considered to have participated in (1) the offense charged or (2) an offense based upon the same or some of *649the same facts or conduct which constitute the offense charged. The test, therefore, is whether the witness theoretically could have been convicted of any crime based on at least some of the same facts that must be proven in order to convict the defendant (see, People v Berger, 52 NY2d 214, 219; People v Vataj, 121 AD2d 756, 760 [Brown, J., dissenting], read 69 NY2d 985). The defendants’ arguments with respect to Gregory and Robinson represent sheer speculation. There is no evidence that Gregory knew where the two women went or why they were going with the officers. Although Robinson went willingly with Wiggins, she did not participate in giving any benefit to the officers, nor is it clear that she knew the reason for getting into the officers’ car. It was, therefore, proper to deny the defense request that the question be submitted to the jury to determine whether they were accomplices as a question of fact.
On this record, it was error for the court to fail to charge that Wiggins was also an accomplice as a matter of law concerning the official misconduct counts since they arose out of the same transaction and facts. However, the error was harmless in light of the corroborating testimony given by Robinson and the court’s charge on corroborating testimony.
Further, the claimed error with respect to the court’s charge on corroboration was not preserved for review. The defendants now urge that the court erroneously told the jury that it could consider a certain recording to be corroborating, since the tape in and of itself was not sufficient and did not even tend to prove a material fact connecting the defendants to the crime. However, the defendants’ sole objection to the charge was on the ground that it was improper for the court to list possible corroborating evidence for the jury. The exact issue sought to be raised on appeal was never presented to the trial court.
We have reviewed the defendants’ remaining contentions and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. [See, 133 Mise 2d 392.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903363/ | Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about October 13, 2011, which denied the petition and dismissed the proceeding brought pursuant to Business Corporation Law § 624, unanimously affirmed, with costs.
The court properly denied the petition, finding that petitioner was not entitled to inspect respondent’s corporate documents since he was no longer a shareholder (see Matter of Rosenberg v Steinberg-Kass, 6 AD2d 685 [1st Dept 1958]). Petitioner waived his right to challenge the propriety of the termination of his shareholder interest in respondent by signing an agreement to that effect, and by failing to assert a right to inspect documents until more than six years after the termination (see Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]). Petitioner’s argument that he has a right to inspect the records even though he ceased to be a shareholder in 2002 is improperly raised for the first time in his reply brief. In any event, Business Corporation Law § 624 provides this right only to current shareholders (see Matter of Benishai v Ilan Props., 303 AD2d 226 [1st Dept 2003]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826256/ | ORDER
BRUGGINK, Judge.
This is an action for back pay brought by several hundred present or former federal employees. The employees allege they were unlawfully exempted from entitlement to overtime compensation under section 7(a) of the Fair Labor Standards Act, 29 U.S.C. § 207(a) (1982). The alleged denial of overtime pay resulted from plaintiffs’ employing agencies’ adherence to regulations promulgated by the Office of Personnel Management (“OPM”), the Government agency charged with administering the FLSA with respect to federal employees. See id. § 204(f).
Pending is defendant’s motion to strike from plaintiffs’ motion for partial summary judgment and related papers any reference to the Stipulation of. Settlement and Dismissal filed in Owen D. Beatty v. Constance Horner, Civ. No. 86-7980 HLH (C.D.Cal. May 10,1988). Defendant argues that the references are an attempt to support the merits of plaintiffs’ claims and are therefore prohibited by Rule 408 of the Federal Rules of Evidence. That rule provides, in relevant part:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
Defendant points to the strong public policy favoring out-of-court settlement and the general non-relevance of compromises as reasons to apply Rule 408 in this case. See United States v. Contra Costa County Center Dist., 678 F.2d 90, 92 (9th Cir.1982); LaDolce v. Bank Adm. Institute, 585 F.Supp. 975 (D.Ill.1984); Fed.R.Evid. 408 advisory committee’s note; 23 C. Wright & K. Graham, Federal Practice and Procedure § 5302 (1980); see also Fed.R.Evid. 402 (relevance).
Plaintiffs are attempting to introduce evidence of a settlement involving the Government and parties in a different lawsuit. On that basis, they attempt to distinguish Rule 408. While they are correct that a literal reading of the rule suggests an application solely to negotiations or compromises involving the claim being litigated, courts have not read the rule that narrowly. Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir.1987); Hawthorne v. Eckerson Co., 77 F.2d 844, 847 (2d Cir.1935); Scarmuzzo v. Glenmore Distilleries, Co., 501 F.Supp. 727 (N.D.Ill. 1980); 2 J. Weinstein & M. Berger, Wein-stein’s Evidence, ¶ 408[04], at 408-25 (1988). We agree. The rationale behind the rule, as explained in the advisory committee’s note, applies full weight in circum*621stances in which a plaintiff attempts to introduce evidence of settlement involving the same defendant but a different plaintiff. If such evidence were routinely allowed in subsequent lawsuits, it would give any litigant pause before settling. Moreover, circumstances can vary between cases in ways that would make the settlement evidence irrelevant or confusing. See also Fed.R.Evid. 402.
There is an exception to application of Rule 408, however, when the evidence of settlement is not offered to prove liability or damages, but for some other purpose, such as to show a defendant’s intent to commit fraud, or to demonstrate a continuous course of reckless conduct. See Bradbury, 815 F.2d 1356, 1363 (10th Cir. 1987). Plaintiffs argue that such an exception exists here. They contend that the district court approved the stipulation of the parties because it was fair and appropriate, and therefore that the identically-situated plaintiffs here deserve the same treatment. Plaintiffs’ proffered reasons for use of the Beatty stipulation, however characterized, relate directly to liability and to remedy. Given the fact that the OPM regulations in question have already been vacated by the court in American Fed’n of Gov’t Employees v. Office of Personnel Management, 821 F.2d 761 (D.C.Cir.1987), one of the primary questions remaining is whether OPM can retroactively reclassify positions as exempt. Plaintiffs’ argument that a settlement in another case demonstrates that back pay is “fair and appropriate” obviously relates to liability. This is demonstrated clearly by plaintiffs’ attempted use of the Beatty settlement as a reason to award plaintiffs partial summary judgment on the liability portion of their back pay claim here. No exception to Rule 408 applies.
Plaintiffs’ final argument against application of Rule 408 is that since the Beatty settlement was memorialized in a court order which appears as a public record, the rationale behind the rule does not apply. They argue that no precedent exists for applying Rule 408 in this context. Given the fact that the rule does not make the distinction drawn by plaintiffs, the more appropriate inquiry would be, is there any precedent supporting plaintiffs’ position? Plaintiffs offer none, and the court is not aware of any. Analytically, the fact that the settlement appears of record would not seem to satisfy any of the concerns embodied in Rules 402 or 408.
For the above reasons defendant’s motion to strike is granted. Plaintiffs may not offer or rely on evidence of the Beatty settlement. The Clerk will remove the declaration of Thomas W. Woodley, along with attachments, from plaintiffs’ proposed findings of uncontroverted fact, and the court will not consider other references to the Beatty settlement.
It is so ORDERED. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903366/ | Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about October 13, 2011, which denied the petition and dismissed the proceeding brought pursuant to Business Corporation Law § 624, unanimously affirmed, with costs.
The court properly denied the petition, finding that petitioner was not entitled to inspect respondent’s corporate documents since he was no longer a shareholder (see Matter of Rosenberg v Steinberg-Kass, 6 AD2d 685 [1st Dept 1958]). Petitioner waived his right to challenge the propriety of the termination of his shareholder interest in respondent by signing an agreement to that effect, and by failing to assert a right to inspect documents until more than six years after the termination (see Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]). Petitioner’s argument that he has a right to inspect the records even though he ceased to be a shareholder in 2002 is improperly raised for the first time in his reply brief. In any event, Business Corporation Law § 624 provides this right only to current shareholders (see Matter of Benishai v Ilan Props., 303 AD2d 226 [1st Dept 2003]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903367/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered August 19, 1986, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903368/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered December 16, 1983, convicting him of murder in the second degree (two counts), burglary in the first degree, assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement authorities.
*652Ordered that the judgment is affirmed.
The defendant’s sole contention on appeal is that his arrest was not justified by probable cause; he asserts that the informants whose hearsay statements constituted the basis for his arrest were not established to be reliable. We disagree. Probable cause may be supplied by hearsay information as long as it is shown that the informant is reliable and has demonstrated a basis for his knowledge (see, People v Johnson, 66 NY2d 398, 402-403), and a finding of reliability may be based upon corroboration of the informant’s statement with information independently gleaned in the course of a police investigation (see, People v Johnson, supra; People v Elwell, 50 NY2d 231, 237).
It was called to this court’s attention by the People at oral argument that the factual basis propounded in their brief that the informant was reliable was in error: they informed the court that the informant’s knowledge may have been from published accounts of the crime rather than from the defendant’s confession. However, we conclude that the informant’s statement to the police was shown to be reliable when subsequent police investigative work led to another informant who similarly told the police that the defendant had confessed to committing the crime along with two other individuals.
Since the basis of the informant’s knowledge was established, in that his reported information was derived directly from the defendant (see, People v Nelson, 125 AD2d 339, lv denied 69 NY2d 831; People v Garcia, 103 AD2d 753, 754, cert denied 469 US 1075), his information supplied the police with probable cause to arrest the defendant. Bracken, J. P., Kunzeman, Eiber and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903369/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Beerman, J.), rendered July 7, 1986, convicting him of assault in the first degree, criminal possession of a weapon in the fourth degree (two counts) and menacing, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Giaccio, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant was charged with having stabbed Venus Torres in the abdomen, causing serious injury which required emergency surgery and a colostomy. Additionally, he was *653alleged to have menaced the victim’s companion, a 14-year-old boy, with a gun and grabbed another boy by the shirt while threatening him with a knife. Eight days after the attack, three eyewitnesses independently chose the defendant’s photograph from among hundreds of photographs matching the defendant’s general description. At a lineup the same evening, the three again independently identified the defendant as the assailant. At trial, the three witnesses and the victim herself identified the defendant.
The defendant’s contention that the pretrial lineup identification should be suppressed as impermissibly suggestive is without merit. The fact that the witnesses had knowledge prior to the lineup that the man whose photograph they had selected would be included in the lineup did not, in and of itself, render the lineup impermissibly suggestive (see, People v Rodriguez, 64 NY2d 738; People v Hammond, 131 AD2d 876, lv denied 70 NY2d 800). Moreover, the photographic array from which the witnesses chose the defendant’s photograph could in no way be termed suggestive. Each witness independently viewed hundreds of photographs without consulting the others and each chose the defendant (see, People v Jerome, 111 AD2d 874, lv denied 66 NY2d 764). In any event, the evidence at the hearing clearly establishes that each of the three eyewitnesses and the victim had an independent basis for an in-court identification of the defendant (see, e.g., People v Adams, 53 NY2d 241, 252).
Upon our examination of the record herein, we conclude that the conduct of the prosecution in this case did not deprive the defendant of a fair trial. No trial is completely error free (see, People v Crimmins, 36 NY2d 230). The test for determining whether prosecutorial misconduct deprived a defendant of a fair trial "focuses on the quantum and nature of the proof, and the likelihood that, if the error had not been committed, the outcome would have been different” (People v Wood, 66 NY2d 374, 380). In the case at bar, the alleged misconduct, when balanced against the strong showing of the defendant’s guilt, leads us to conclude that any error was harmless.
The defendant’s contention that the third and fourth counts of the indictment duplicated each other and omitted the victims’ names, mandating dismissal of one of the counts, is without merit. In modern practice, failure to meet all the requirements of an indictment is not fatal. Missing information may be furnished by voluntary disclosure or requested in a bill of particulars (see, People v Morris, 61 NY2d 290, 293; *654People v Iannone, 45 NY2d 589; People v Fitzgerald, 45 NY2d 574, rearg denied 46 NY2d 837). In this case, the voluntary disclosure form supplied information as to the facts underlying the third and fourth counts of the indictment, including the names of the victims. If the defendant did not avail himself of the opportunity to move for a bill of particulars requesting more specificity in the third and fourth counts of the indictment, he may not be heard to complain at this juncture (see, People v Davis, 127 AD2d 782, 783, lv granted 69 NY2d 957, 1003).
Finally, the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80, 84). Thompson, J. P., Brown, Eiber and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903372/ | In an action to set aside certain conveyances of real property, the defendants Diane Khoudary and Frank Canterino appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated April 3, 1987, which denied their motion for summary judgment.
Ordered that the order is affirmed, without costs or disbursements.
The allegations set forth by the plaintiffs president are sufficient to raise triable issues of fact so as to warrant the denial of the appellants’ motion for summary judgment. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903373/ | Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered July 14, 2011, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without cost.
Contrary to plaintiffs contention, the November 19, 2008 letter agreement setting forth the terms of his assignment in Hong Kong (the HK contract) did not expressly modify the at-will provision of the August 6, 2007 letter offering him employment (the offer letter), which explicitly provided that all terms and conditions of his employment were set forth in the offer letter *513and could only be modified by a written agreement or by a change in defendants’ personnel policies. The HK contract contained no provision that expressly promised plaintiff a fixed two-year position in Hong Kong or elsewhere. Indeed, paragraph 7 of the HK contract provided that defendants could terminate plaintiffs Hong Kong assignment at any time and reassign him. Plaintiff has not identified, in either the offer letter or the HK contract, an express limitation on defendants’ right to discharge him (see Novinger v Eden Park Health Servs., 167 AD2d 590, 591 [3d Dept 1990], lv denied 77 NY2d 810 [1991]). Accordingly, the fourth cause of action, which alleges that plaintiff was terminated at the end of the first year of the HK contract without cause and is entitled to his unpaid base salary for the second year, fails to state a cause of action (see Cron v Hargro Fabrics, 91 NY2d 362, 367 [1998]). Plaintiffs at-will employment also renders unviable his fifth cause of action, which alleges breach of the implied covenant of good faith and fair dealing. The terms of the HK contract were plain and clear, leaving plaintiff no room to argue mistaken intent or bad faith (compare Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 302 [1st Dept 2003]; see also Nikitovich v O’Neal, 40 AD3d 300 [1st Dept 2007]).
The first three causes of action are based on an alleged oral promise that plaintiff would be paid a non-discretionary bonus in 2009 if he took the assignment in Hong Kong. It is clear that plaintiffs alleged conduct—uprooting his financial business and disrupting his fiancee’s successful career in New York to go to Hong Kong, where plaintiff had no business contacts or acquaintances—if proved, would constitute partial performance of this oral promise and obviate the no-oral-modification clause in the offer letter (see General Obligations Law § 15-301; Rose v Spa Realty Assoc., 42 NY2d 338, 343-344 [1977]). Moreover, defendants could be equitably estopped to rely upon that clause by their alleged inducement of plaintiff’s “significant and substantial reliance” on the alleged oral promise (see id. at 344). And, in view of plaintiffs at-will employment, the alleged oral promise would not be barred by the Statute of Frauds (see Cron, 91 NY2d at 367).
Nonetheless, the first cause of action, alleging breach of the alleged oral promise, fails to state a cause of action, because the alleged promise was superseded by the HK contract, which provided that any incentive compensation would be awarded at defendants’ sole discretion (see Case v Phoenix Bridge Co., 134 NY 78, 81 [1892]; College Auxiliary Servs. of State Univ. Coll, at Plattsburgh v Slater Corp., 90 AD2d 893 [3d Dept 1982]). The *514HK contract also renders unviable the second cause of action, which alleges breach of the implied covenant of good faith and fair dealing.
The third cause of action alleges that defendants’ failure to pay the orally promised bonus violated Labor Law § 193, which prohibits employers from making deductions from the wages of employees (with certain exceptions). Plaintiff contends that the promised bonus, which was withheld by defendants, fits within the definition of “wages” in Labor Law § 190 (1). Even assuming an enforceable oral promise of a bonus, this cause of action would fail. We do not find that the bonus would constitute wages, since it was discretionary (pursuant to the offer letter) and based at least in part on factors other than plaintiffs own performance, including, according to the complaint, “what would be commensurate with the average of what other Managing Directors of the Natural Resources Group in New York received for 2009” (see Truelove v Northeast Capital & Advisory, 95 NY2d 220, 223-224 [2000]).
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 32 Misc 3d 1239(A), 2011 NY Slip Op 51642(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/235988/ | 220 F.2d 63
ESTATE of Arthur A. SCHMIDT, Deceased, Marjorie Mosher Schmidt, Executrix, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 13760.
United States Court of Appeals, Ninth Circuit.
February 17, 1955.
Dana Latham, A. R. Kimbrough, Henry C. Diehl, Los Angeles, Cal., for appellants.
H. Brian Holland, Asst. Atty. Gen., Harry Marselli, Carolyn R. Just, Ellis N. Slack, Sp. Assts. to Atty. Gen., Charles W. Davis, Chief Counsel, I. R. S. Washington, D. C., for respondent.
Before STEPHENS and FEE, Circuit Judges, and LING, District Judge.
STEPHENS, Circuit Judge.
1
We are here reviewing a decision of The Tax Court, 19 T.C. 54, by which the petitioner lost her claim for a redetermination of the estate tax. By agreement of the parties, there will be no dispute as to the sum of the correct tax, once it is decided whether a gift tax has been paid on certain gifts made to the decedent in 1946, thereby qualifying the gifts as property previously taxed and therefore deductible from decedent's taxable estate under the provisions of § 812(c) of the Internal Revenue Code, Title 26 U.S.C.A. § 812(c).1 All citations of applicable statutory law by section number refer to the Internal Revenue Code, Title 26 U.S.C.A.
2
A gift of stock was made to decedent in 1946 and the donor2 asserted her $3,000 annual exclusion (under § 1003(b) (3)) and part of her $30,000 specific exemption (under § 1004(a) (1)) with the result that there was no gift tax on the transaction. The donor made another gift of stock to the same donee in 1947.
3
The donee died within a few weeks after the second gift and during the same year it was given. The stock of both gifts was intact at the time of the donee's death and became a part of his estate. In due time, the executrix of decedent's will made the required estate tax return, and in it she deducted the value of the 1946 gifts from the gross value of the estate, deeming the application of the $3,000 exclusion and the required part of the specific exemption of a part of the $30,000 as payment of what she deemed a due gift tax. (See § 810, 811, 812, and 813 of the Internal Revenue Code, which latter section refers to credits against gift tax. See, also, § 1000 et seq. as to gift tax.)
4
The Commissioner and The Tax Court decided that the value of the 1946 gift was not deductible from the gross estate value for the reason that the assertion of the exemptions, while satisfying the donor's gift tax problem, did not satisfy the estate's tax liability under § 812(c). The provision therein as to such liability is that the deduction of the value of the gift from the total value of the gross estate,
5
"shall be allowed only where a gift tax * * * was finally determined and paid * * *."3
6
There do not appear to be decided cases on the issue raised. However, Treasury Regulation 105, Sec. 81.41(a) (4) is in accord with the Commissioner's and The Tax Court's view and we hold the same way.
7
It will be noticed, in reading § 810,4 the basis for the tax on a decedent's estate, that it is essentially a transfer tax on certain gratuities, as all of the property owned by a person passes into an estate and eventually by will or by descent to another owner without the exchange of value therefor. The tax relative to the transfer of the property to the estate is called an inheritance tax, and is deemed by some students of taxation as the fairest of all taxation, since it takes from the gratuity only. The whole estate, less costs and taxes, moves to the beneficiaries and heirs free of cost. So it is with gifts.
8
It is apparent that when the government decided to tax property passing into a decedent's estate, the transfer of property as gifts inter vivos might be taxed under the same sanction. Indeed, if gifts were not so taxed, the advantages of large gifts, inter vivos, could result in greatly reduced revenue derived from the estate tax. But since reasonable inter vivos generosity is acknowledged as a virtue and therefore should not be discouraged by a tax upon the donor, the donor was by statute relieved of the tax in value up to the annual sum per individual gift allowance and up to the deduction and the specific exemption heretofore mentioned. The government gives up none of its tax on the free transfer of the decedent's fortune into the estate, for it allows deduction only as to property in the estate upon which the free tranfer tax has already been paid in the form of a gift tax.
9
When the donor took her exemptions, she was benefited, but since the taking of the exemptions left, untaxed, the free transfer of property equal to the exemptions taken, such property is included in the estate report as to property subject to the estate tax. There is nothing in the gift exemption law to support a theory that Congress intended to leave any part of the free transfer property free from a transfer tax. The statutes plainly provide that a tax applies to all of the property that goes into the estate. Of course, what we have said is without reference in any manner to property which is exempted by statute from taxation.
10
The wording and phrasing of § 812(c) synchronizes with the underlying purpose of the law as expressed herein. And our analysis and conclusions are borne out by the fact that § 812(c) not only applies to gift tax "finally determined and paid" but to estate tax which was "finally determined and paid" upon property forming a part of the gross estate of one who died within five years prior to the death of the instant decedent. The five-year limitation applies as well to the transfer by gift.
11
It is true that the Commissioner did not apply to the 1947 gift the same treatment as he applied to the 1946 gift. Had he done so, the 1947 gift would, we suppose, have been subject to the balance of the donor's exemptions which were not applied on the 1946 gift. Petitioner urges that this apparent inconsistency in the Commissioner's actions helps establish her construction of the statute, as it indicates a long-standing construction by the Internal Revenue Department. Whether it does or not, we think the petitioner's view cannot be justified as the correct one.
12
The Tax Court decision is affirmed.
Notes:
1
Title 26 U.S.C.A. § 812(c). Net Estate. "For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate —
* * * * *
"(c) Property previously taxed. An amount equal to the value of any property (1) forming a part of the gross estate situated in the United States of any person who died within five years prior to the death of the decedent, or (2) transferred to the decedent by gift within five years prior to his death, where such property can be identified as having been received by the decedent from the donor by gift, or from such prior decedent by gift, bequest, devise, or inheritance, or which can be identified as having been acquired in exchange for property so received. Property includible in the gross estate of the prior decedent under section 811(f) and property included in total gifts of the donor under section 1000(c) received by the decedent described in this subsection shall, for the purposes of this subsection, be considered a bequest of such prior decedent or gift of such donor. This deduction shall be allowed only where a gift tax imposed under Chapter 4, or under Title III of the Revenue Act of 1932, 47 Stat. 245, or an estate tax imposed under this chapter or any prior Act of Congress, was finally determined and paid by or on behalf of such donor, or the estate of such prior decedent, as the case may be, and only in the amount finally determined as the value of such property in determining the value of the gift, or the gross estate of such prior decedent, and only to the extent that the value of such property is included in the decedent's gross estate, and only if in determining the value of the net estate of the prior decedent no deduction was allowable under this subsection, section 861(a) (2), or the corresponding provisions of any prior Act of Congress, in respect of the property or property given in exchange therefor. * * *"
The omitted portions of § 812(c) would be applicable here only if other issues were present in the instant case.
2
The donor was the wife of the donee at the time the gifts were made, but the relationship has no effect upon the point at issue in the case
3
We have quoted in the text of the opinion, and commented on, only the parts of the statute affecting the limited issue of this case. There are other limitations in § 812(c) which would modify the quoted parts if other issues were in the case
4
Title 26 U.S.C.A. § 810. Rate of Tax. "A tax equal to the sum of the following percentages of the value of the net estate (determined as provided in section 812) shall be imposed upon the transfer of the net estate of every decedent, citizen or resident of the United States, dying after the date of the enactment of this title
"1 per centum of the amount of the net estate not in excess of $50,000; * * *."
The percentage increases gradually to:
"20 per centum of the amount by which the net estate exceeds $10,000,000." 53 Stat. 120. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/6823553/ | —Drawing semi-conductor rods from a melt. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903374/ | In a matrimonial action in which the parties were divorced by a judgment dated June 7, 1987, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Zelman, J.), dated March 7, 1988, as granted that branch of the defendant wife’s motion which was to disqualify the plaintiff’s counsel with respect to a postjudgment application.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a determination of the postjudgment application before a different Justice.
Based on the circumstances of this case, we conclude that the Supreme Court did not abuse its discretion in granting the branch of the defendant’s motion which was for disqualification of the plaintiff’s counsel. The facts demonstrate that, at the very least, an "Appearance of Professional Impropriety” (Code of Professional Responsibility Canon 9) exists in counsel’s representation of the plaintiff, and, therefore, counsel’s disqualification was not improper.
Further, having reviewed the record before this court, we deem it appropriate that this matter be reassigned to another Justice in the Supreme Court, Queens County, who should proceed to resolve the postjudgment application as expeditiously as possible. Mollen, P. J., Mangano, Thompson and Brown, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903376/ | Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered July 14, 2011, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without cost.
Contrary to plaintiffs contention, the November 19, 2008 letter agreement setting forth the terms of his assignment in Hong Kong (the HK contract) did not expressly modify the at-will provision of the August 6, 2007 letter offering him employment (the offer letter), which explicitly provided that all terms and conditions of his employment were set forth in the offer letter *513and could only be modified by a written agreement or by a change in defendants’ personnel policies. The HK contract contained no provision that expressly promised plaintiff a fixed two-year position in Hong Kong or elsewhere. Indeed, paragraph 7 of the HK contract provided that defendants could terminate plaintiffs Hong Kong assignment at any time and reassign him. Plaintiff has not identified, in either the offer letter or the HK contract, an express limitation on defendants’ right to discharge him (see Novinger v Eden Park Health Servs., 167 AD2d 590, 591 [3d Dept 1990], lv denied 77 NY2d 810 [1991]). Accordingly, the fourth cause of action, which alleges that plaintiff was terminated at the end of the first year of the HK contract without cause and is entitled to his unpaid base salary for the second year, fails to state a cause of action (see Cron v Hargro Fabrics, 91 NY2d 362, 367 [1998]). Plaintiffs at-will employment also renders unviable his fifth cause of action, which alleges breach of the implied covenant of good faith and fair dealing. The terms of the HK contract were plain and clear, leaving plaintiff no room to argue mistaken intent or bad faith (compare Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 302 [1st Dept 2003]; see also Nikitovich v O’Neal, 40 AD3d 300 [1st Dept 2007]).
The first three causes of action are based on an alleged oral promise that plaintiff would be paid a non-discretionary bonus in 2009 if he took the assignment in Hong Kong. It is clear that plaintiffs alleged conduct—uprooting his financial business and disrupting his fiancee’s successful career in New York to go to Hong Kong, where plaintiff had no business contacts or acquaintances—if proved, would constitute partial performance of this oral promise and obviate the no-oral-modification clause in the offer letter (see General Obligations Law § 15-301; Rose v Spa Realty Assoc., 42 NY2d 338, 343-344 [1977]). Moreover, defendants could be equitably estopped to rely upon that clause by their alleged inducement of plaintiff’s “significant and substantial reliance” on the alleged oral promise (see id. at 344). And, in view of plaintiffs at-will employment, the alleged oral promise would not be barred by the Statute of Frauds (see Cron, 91 NY2d at 367).
Nonetheless, the first cause of action, alleging breach of the alleged oral promise, fails to state a cause of action, because the alleged promise was superseded by the HK contract, which provided that any incentive compensation would be awarded at defendants’ sole discretion (see Case v Phoenix Bridge Co., 134 NY 78, 81 [1892]; College Auxiliary Servs. of State Univ. Coll, at Plattsburgh v Slater Corp., 90 AD2d 893 [3d Dept 1982]). The *514HK contract also renders unviable the second cause of action, which alleges breach of the implied covenant of good faith and fair dealing.
The third cause of action alleges that defendants’ failure to pay the orally promised bonus violated Labor Law § 193, which prohibits employers from making deductions from the wages of employees (with certain exceptions). Plaintiff contends that the promised bonus, which was withheld by defendants, fits within the definition of “wages” in Labor Law § 190 (1). Even assuming an enforceable oral promise of a bonus, this cause of action would fail. We do not find that the bonus would constitute wages, since it was discretionary (pursuant to the offer letter) and based at least in part on factors other than plaintiffs own performance, including, according to the complaint, “what would be commensurate with the average of what other Managing Directors of the Natural Resources Group in New York received for 2009” (see Truelove v Northeast Capital & Advisory, 95 NY2d 220, 223-224 [2000]).
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 32 Misc 3d 1239(A), 2011 NY Slip Op 51642(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903377/ | In a negligence action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Queens County (Joy, J.), dated March 23, 1987, as, upon reargument, adhered to the original determination dated December 3, 1986, granting the plaintiff’s motion for leave to amend the complaint by increasing the ad damnum clause and for removal of the action from the Civil Court to the Supreme Court.
Ordered that the order is reversed insofar as appealed from, with costs, and upon reargument the order dated December 3, 1986 is vacated, the motion is denied, and the matter is remitted to the Civil Court of the City of New York, Queens County, for further proceedings.
We find that the Supreme Court abused its discretion in granting the plaintiff’s motion to, inter alia, amend the complaint by increasing the ad damnum clause from $10,000 to $1,250,000. The plaintiff sought leave to amend her complaint approximately 20 years after the accrual of the cause of action. The affidavits submitted in support of the motion, however, failed to satisfy the standards enunciated by this court in Dolan v Garden City Union Free School Dist. (113 AD2d 781). Specifically, the plaintiff failed to provide a reasonable explanation to justify the inordinate delay in submitting *658the motion to amend and she did not submit sufficient medical proof attesting to the causal connection between the injuries delineated in the original complaint and the medical treatment which was subsequently rendered. Moreover, the medical affidavit submitted by the plaintiff failed to specify the change in her condition, the injuries which had not been considered previously or the extent to which the condition had become aggravated (see, Matter of Schwartz v New York City Tr. Auth., 104 AD2d 370, appeal dismissed 63 NY2d 914; Brennan v City of New York, 99 AD2d 445).
In addition to the foregoing, the defendants amply demonstrated that they would suffer undue prejudice as a result of the amendment and as a consequence of the approximately 17 years which had elapsed between the commencement of the lawsuit and the motion to amend. Accordingly, the order dated December 3, 1986, is vacated and the matter is remitted to the Civil Court of the City of New York, Queens County, for further proceedings. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903381/ | In an action to recover damages for breach of a partnership agreement and an accounting, specific performance of that agreement, and a quantum meruit award for services rendered, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Walsh, J.), entered April 23, 1986, as dismissed portions of the plaintiff’s complaint.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In 1979 the parties were involved in the production of the show "Lewis J. Stadlen as Groucho!” The defendants were the coauthors of the play. The defendant Stadlen was its producer and star, and the defendant Flinn was its director and choreographer. The plaintiff, an attorney who teaches entertainment law, performed legal work, conducted negotiations and acted as general manager for the production. The plaintiff claims that the production company which produced the play was a partnership between the three men. The defendants deny this allegation.
*663There is no written partnership agreement as such between the parties. Therefore, we must determine whether a partnership in fact existed from the conduct, intention, and relationship between the parties. The Supreme Court found that there was not a partnership, but rather an employer-employee relationship between the defendant Stadlen and the plaintiff. We agree.
No one characteristic of a business relationship is determinative in finding the existence of a partnership in fact (see, Partnership Law § 11; Reuschlein & Gregory, Agency and Partnership § 262). Case law reveals a series of factors to be considered in determining whether or not there is a partnership: (1) sharing of profits, (2) sharing of losses, (3) ownership of partnership assets, (4) joint management and control, (5) joint liability to creditors, (6) intention of the parties, (7) compensation, (8) contribution of capital, and (9) loans to the organization (see generally, 43 NY Jur, Partnership, §§ 30-40).
The credible evidence in this case shows that the plaintiff was an employee who was entitled to 2% of gross profits as well as a fixed salary every week the show was performed during his employment. He performed legal services, ran the office, and acted as general manager. There is no indication he was liable for the losses of the enterprise. He did, however, advance money which was repaid by the defendant Stadlen. It has been noted that such loans of cash by one person to another for the purposes of business during the existence of the claimed relationship usually negates the notion of partnership (Smith v Maine, 145 Misc 521). So too, the failure of a party to contribute capital is strongly indicative that no partnership exists (Smith v Maine, supra).
The plaintiff relies heavily on certain documents which refer to the production company, known as Diana Enterprises, as a partnership. It should be noted that calling an organization a partnership does not make it one. Indeed, the defendants indicated no intention to enter into a partnership arrangement with its concomitant joint management and control with the plaintiff. In fact the defendant Flinn made no management decisions and little or no contribution beyond directing the play prior to its first performance. We do not find that these documents establish a partnership.
As to plaintiff’s claim that he is entitled to the quantum meruit value of his services as general manager and attorney, we disagree. The plaintiff agreed to perform legal services for out-of-pocket expenses. He in fact did so. Since the plaintiff *664and the defendant Stadlen agreed to this arrangement and it has been complied with, the plaintiff is not entitled to further compensation for legal services. As the play’s general manager, we find that the plaintiff was an at-will employee and is not entitled to payments after his employment was terminated (see, Mackie v La Salle Indus., 92 AD2d 821, appeal dismissed in part 59 NY2d 750). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903382/ | Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 7, 2011, which, to the extent appealed from, after a hearing, found that respondent father neglected his children by committing acts of domestic violence in their presence, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed as against respondent.
Petitioner failed to demonstrate by a preponderance of the evidence that respondent neglected his children by committing an act of domestic violence in their presence (see Family Ct Act § 1046 [b] [i]). The record is not clear that the children were in the room when the alleged domestic violence occurred. Concur— Tom, J.P, Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903393/ | In an action to recover damages for alleged fraud and misrepresentation, and an action to recover damages for alleged legal malpractice, the defendant in action No. 1, Dan’s Supreme Supermarket, Inc., appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated April 29, 1987, which denied its application to consolidate the actions.
Ordered that the order is affirmed, with costs.
While there are some common issues of law and fact shared by these two actions, under all of the circumstances, including the disparity between the stages of litigation to which each *676case has progressed and the fact that principal claims in the two actions are based upon widely disparate legal theories, we conclude that it was not an abuse of discretion to deny the motion to consolidate (CPLR 602; see, Brown v Brooklyn Union Gas Co., 137 AD2d 479; Aluminum Mill Supply Corp. v Skyview Metals, 117 AD2d 765, 767). We recommend that for reasons of judicial economy the trial of the fraud action precede the trial of the legal malpractice action (see, Brown v Brooklyn Union Gas Co., supra). Thompson, J. P., Bracken, Brown and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495532/ | NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190684-U
Order filed June 27, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0684
v. ) Circuit No. 19-CF-93
)
STEVEN REIS CAMPEN, ) Honorable
) Kevin W. Lyons,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court.
Justices Hauptman and Schmidt concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err in denying defendant’s motion for new trial or, in the
alternative, judgment notwithstanding the verdict.
¶2 Defendant, Steven Reis Campen, appeals from his conviction for home invasion.
Defendant contends that the Peoria County circuit court erred in denying his motion for new trial,
or in the alternative, judgment notwithstanding the verdict (JNOV) where the State failed to present
evidence sufficient to support a finding of guilt and the State’s improper and prejudicial assertion
in opening statements deprived defendant of a fair trial. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with two counts of home invasion. (720 ILCS 5/19-6(a)(2)
(West 2018)). The charges stem from a February 13, 2019, incident where defendant was alleged
to have entered the home of Amanda Boucher through a broken window and injured both Boucher
and her son, Blaine Reichard. Defendant’s case proceeded to a jury trial.
¶5 During opening statements, the State queried: “What is he going in there for? He’s telling
them he is acting as collection man. One of Tony Soprano’s guys.” Defendant did not object to
this statement. After the State finished its opening statement, defendant moved for a mistrial on
other grounds. The circuit court denied defendant’s motion.
¶6 Boucher testified that she lived on Wiswall Street in Peoria on February 13, 2019, with her
son Reichard, which she rented from Donnie Gibbs, Sr. At approximately 9:30 p.m., she was at
home, asleep in her bedroom upstairs. She awoke to the sound of Reichard screaming. She heard
him yell “why are you hitting me?” Boucher came downstairs and saw defendant standing in her
living room striking Reichard. She began yelling at defendant and tried to intervene. Defendant
followed Boucher into the kitchen and began striking and kicking her. He struck her head against
the countertop. During that time, defendant was yelling “give me my uncle’s fuckin’ money.
Tammy sent me to get my uncle’s fuckin’ money. Give me all the fuckin’ money right now.”
Reichard pulled defendant off Boucher and defendant began to attack him again. Boucher called
the police. She informed defendant “[t]he cops are on their way. You need to get the hell out.”
Defendant “shook” a door off its hinges and fled the residence. Boucher indicated that she was
bleeding and described injuries to Reichard that she had observed. She observed the broken
window and indicated that there were glass shards both inside and outside the residence, with the
majority being inside. Boucher denied inviting defendant into her home.
2
¶7 Reichard testified substantially to the same events as Boucher. He added that while he was
asleep in his bedroom, downstairs, he heard a window breaking. He observed defendant come
through the window and take a metal object and break more glass out of the window. Reichard
saw glass shards outside the residence the next morning.
¶8 Charles Walls testified that he lived next door to Boucher. On the night of the incident, he
heard glass break. He attempted to look out his window but could not see anything. He stepped
out his back door and looked across the privacy fence that separated the houses. The area was
illuminated by a streetlight. He observed a figure’s legs crawl into a window at the Boucher
residence. Walls called the homeowner’s son, Donnie Gibbs Jr. He did not call the police.
¶9 Officer Drew Flynn of the Peoria Police Department testified that he responded to the
Boucher residence to investigate the incident. He photographed the scene and recorded damage to
the door with his body camera. These photographs and body camera footage were admitted into
evidence and included an image of the broken window which had glass shards on the windowsill
and curtains out of place. Flynn testified that some broken glass had landed inside but the majority
was outside.
¶ 10 At the close of the State’s case, defendant made a motion for directed verdict which was
denied. Defendant then testified that, on February 13, 2019, at approximately 9 p.m., he went to
the residence on Wiswall Street because he had been told by Tammy Benner, his longtime friend
and the girlfriend of homeowner, Gibbs, Sr., that there were issues around the house that needed
to be repaired. He knocked on the door of Boucher’s residence. Boucher answered and defendant
followed her into the house. As he entered, defendant complained about visible garbage and the
poor condition of the house and Boucher began screaming profanities at him. At this point,
Reichard came out of the first-floor bedroom and struck defendant in the eye, causing bruising.
3
Defendant fought back after being struck and exchanged angry words with Boucher. The entire
exchange lasted several minutes. Defendant exited through the front door. Defendant indicated
that the window was intact when he entered the residence and that Reichard broke the window by
either punching it or throwing something at it.
¶ 11 On cross-examination, defendant testified that he had one alcoholic beverage before going
to Boucher’s residence and was mostly sober at that point. Defendant admitted to abusing the
medication, Klonopin. He indicated that after the incident, he took a large quantity of the
medication. Defendant did not recall much of what happened after the incident, including the
things he said and did during his transport to the jail that night, stating “I don’t know nothing from
there to the jail for the next two days. I don’t remember.”
¶ 12 Benner testified that she was in a relationship with Gibbs Sr. She had been friends with
defendant for more than a decade. Benner indicated that she spoke with defendant on the night of
the incident. He had inquired as to whether Gibbs Sr. had work for him to do at Boucher’s
residence. Benner did not know if any work was needed as Boucher had been avoiding their calls.
Benner told defendant that Boucher owed money to Gibbs Sr. She went to repair the window the
day after the incident. She observed glass on the window and outside the residence. She did not
enter the residence.
¶ 13 On cross-examination, Benner explained that she only relayed that information to
defendant because he was a friend, and she was conversing with him. She did not send defendant
to Boucher’s residence at 9:30 p.m. to do maintenance work, only to see if any maintenance work
needed to be done.
4
¶ 14 Gibbs Sr. testified that he was the owner of the residence on Wiswall Street. Boucher rented
it from him. He learned of the incident when Boucher called him that evening, shortly after the
altercation. Gibbs Sr. indicated that his son, Gibbs Jr. would be fixing the window.
¶ 15 Gibbs Jr. testified that he received a call from Walls the evening of the incident regarding
the breaking glass noise. Walls wanted to call the police, but Gibbs Jr. did not feel that was
necessary as he “thought it would be handled.” Gibbs Jr. went to the residence the day after the
incident to inspect the damage to the window.
¶ 16 Officer Megan Rosenak testified for the State as a rebuttal witness. She transported
defendant to the county jail in the early morning hours of February 14, 2019, approximately 5½
hours after the incident occurred. Defendant made several statements to Rosenak, stating that:
(1) he had never been on Wiswall Street, (2) he did not know anyone on that street, and (3) he
asked Rosenak to take him to Wiswall Street where he broke the window. Video and audio clips
of those statements were admitted and published to the jury. Rosenak testified that defendant was
intoxicated.
¶ 17 The jury returned a verdict of guilty on both counts of home invasion. Defendant filed a
motion for a new trial, or in the alternative, JNOV. At the hearing, defendant argued that the facts
did not support the State’s evidence, specifically citing the location of the broken glass and lack
of evidence to substantiate that defendant crawled through the broken window to enter the
residence. Defendant made no argument regarding comments made during opening statements.
When asked by the court how he accounted for the testimony of Walls, defendant replied that
Walls’s testimony about seeing legs crawling through the broken window was “the only thing that
supports the victims in this case because the officer does not support that position at all”. When
rendering its decision on the motion, the court stated:
5
“I think the evidence is entirely the opposite. There was lots of questions
asked about the glass and the window, but there wasn’t a single answer that I recall
that was favorable to the defendant other than there might have been some shards
or something on the outside, but a lot of glass was on the inside.
It just seems so immaterial and irrelevant because the next-door neighbor
said I heard a noise, a breaking of some type. *** and he sees two legs sticking out
of a window that was on his side of the house and scurrying themselves into the
place.”
The court discussed the other evidence presented during the trial and found “no evidence
of reliability that the defendant had been let into the door, or allowed in through the door, or even
knocked at the door.” The court further opined that defendant’s fleeing from the scene was
indicative of his guilt. Defendant’s motion was denied. Defendant was sentenced to 26 years’
imprisonment. Defendant appeals.
¶ 18 II. ANALYSIS
¶ 19 First, defendant argues that the circuit court erred in denying his motion for a new trial or,
in the alternative, JNOV because the evidence was insufficient to support a guilty verdict.
Specifically, defendant argues that the evidence showed that the broken glass was primarily
outside the residence which refutes Boucher’s testimony, and the court failed to consider evidence
that defendant was let into the residence.
¶ 20 The circuit court’s decision to grant a new trial is an exercise of discretion which should
not be disturbed absent a clear abuse of that discretion. People v. Abdullah, 336 Ill. App. 3d 940,
949 (2002). An abuse of discretion occurs where the court’s decision is arbitrary, fanciful, or
unreasonable. People v. Becker, 239 Ill. 2d 215, 234 (2010). “In determining whether the trial court
6
abused its discretion, the reviewing court should consider whether the jury’s verdict was supported
by the evidence and whether the [defendant] was denied a fair trial.” Maple v. Gustafson, 151 Ill.
2d 445, 455 (1992).
¶ 21 Defendant was charged with two counts of home invasion. Both counts required the State
to prove that defendant knowingly and without authority entered Boucher’s residence with the
intent to cause injury to another individual. 720 ILCS 5/19-6(a)(2) (West 2018).
¶ 22 Here, the jury’s verdict is clearly supported by the evidence. The evidence showed that
Boucher, Reichard, and Walls heard a window break. Reichard witnessed defendant enter the
Boucher’s residence through the broken window. Boucher testified that she did not let defendant
into her home. Walls witnessed legs crawling through the broken window. Glass was both inside
and outside the residence. Defendant attacked and injured both Reichard and Boucher once inside
the residence, damaging a door to escape when Boucher called the police. Defendant asked
Rosenak to bring him to the house on Wiswall Street where he broke the window. This evidence
is sufficient to establish defendant’s guilt.
¶ 23 Further, the court clearly considered the placement of the broken glass and defendant’s
claims when it rendered its decision. The court mentions the glass specifically, finding that the
glass outside the residence was immaterial considering the neighbor witnessed legs crawling in
through the window. It further discussed the evidence presented at trial and indicated that it found
no reliable evidence that defendant was let in or otherwise authorized to be in the residence.
Accordingly, the court’s decision to deny defendant’s motion was reasonable and, therefore, not
an abuse of discretion.
¶ 24 Next, defendant contends that the court erred in denying his motion for new trial, or in the
alternative, a JNOV due to an improper comment made by the prosecutor during opening
7
statements. Defendant specifically challenges the prosecutor’s statement that defendant went to
the residence “acting as a collection man. One of Tony Soprano’s guys.”
¶ 25 Defendant failed to make a contemporaneous objection to this comment and did not raise
the issue in his written posttrial motion. “Both a trial objection and a written post-trial motion
raising the issue are required for alleged errors that could have been raised during trial.” (Emphases
in original.) People v. Enoch, 122 Ill. 2d 176, 186 (1988). A reviewing court may remedy plain
errors affecting substantial rights, even if those errors were not objected to during trial or raised in
the posttrial motion. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain error rule may be invoked
in two limited circumstances, where: (1) “the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error,” or (2) “that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People
v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Under both prongs of the plain error doctrine, the
defendant has the burden of persuasion. People v. Hillier, 237 Ill. 2d 539, 545 (2010). If the
defendant fails to meet his burden, the procedural default will be honored. Id.
¶ 26 Defendant does not ask for plain error review of this issue, nor does he argue how either
prong of the plain error doctrine is satisfied. Where a defendant fails to argue that the evidence
was closely balanced or explain why the error is so severe that it must be remedied to preserve the
integrity of the judicial process, he forfeits plain error review. People v. Nieves, 192 Ill. 2d 487,
502-03 (2000). As defendant has made no argument for plain error review under either prong, we
must honor his forfeiture.
¶ 27 III. CONCLUSION
¶ 28 The judgment of the circuit court of Peoria County is affirmed.
8
¶ 29 Affirmed.
9 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903383/ | In a negligence action to recover damages for personal injuries, the defendants Nevio and Slavica Germin appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Morton, J.), dated March 23, 1987, as denied their cross motion for summary judgment and granted those branches of the motion of the defendant Blima Homes Corp. which were for summary judgment dismissing the complaint and their cross claim as against it.
Ordered that the appeal is dismissed insofar as it seeks review of the grant of the branches of the defendant-respondent’s motion which were for summary judgment dismissing the complaint and the appellants’ cross claim as against it, on the ground that the appellants are not aggrieved by those portions of the order (see, CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provision denying the cross motion of the appellants for summary judgment and substituting therefor a provision granting the cross motion and dismissing the action as against the appellants; as so modified, the order is affirmed insofar as appealed from and reviewed, with costs.
The plaintiff fell on a public sidewalk in front of premises owned by the appellants. The plaintiff testified at her deposition that when she looked down immediately after her fall, she observed "little stones [or] pebbles”, which she described as "like gravel” under her shoes. It is her theory that these stones constituted a dangerous condition which was created by the appellants when they constructed a low brick wall in front of their home. However, the plaintiff has come forward with no facts potentially linking these otherwise undescribed bits of stone or gravel to the construction which apparently took place some four months before the accident. There is thus no basis upon which a trier of fact could properly conclude that the appellants created the condition of which the plaintiff complains (cf., Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203).
*665The appellants are not aggrieved by that portion of the order which grants summary judgment to the defendant-respondent dismissing the plaintiffs complaint as against it (see, Schultz v Alfred, 11 AD2d 266, 268) and they are not aggrieved by the portion of the order which grants summary judgment to the defendant-respondent dismissing their cross claim as against it, as they did not oppose that branch of the defendant-respondent’s motion (see, Cohen, Goldman & Co. v Ellmann, 202 App Div 787). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903384/ | In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Division of Housing and Community Renewal (hereinafter DHCR), dated January 15, 1987, which found that the petitioner’s rent was not above the legal limit, the petitioner appeals from a judgment of the Supreme Court, Kings County (Williams, J.), dated June 16, 1987, which confirmed the determination and dismissed the proceeding on the merits.
Ordered that the judgment is affirmed, without costs or disbursements.
In February 1983 the petitioner filed a complaint with the respondent’s predecessor, the New York City Conciliation and Appeals Board (hereinafter CAB), alleging a possible rent overcharge. The CAB sent the landlord a copy of the complaint and an answer form which advised the landlord to provide complete copies of all leases for the subject apartment since the applicable base rent date, which was May 31, 1968, for apartments which had been continuously subject to the Rent Stabilization Law, and June 30, 1974, for apartments which became stabilized as a result of the Emergency Tenant Protection Act of 1974. However, the form also advised the landlord that his answer would be deemed incomplete only if he failed to provide rent records without any gap since at least June 30, 1974. The landlord submitted rent records covering the years 1974 through the date of the complaint, alleging that it had purchased the building in 1973 and did not have records prior to 1974. On February 27, 1986, the District Rent Administrator issued an order in which he found that no rent overcharge existed based on the rent records submitted by the landlord.
In March the petitioner filed for administrative review *666claiming that the base rent date for his apartment was May 31, 1968, and therefore the landlord should have been required to provide rent records back to that date. In response the landlord submitted additional leases for the subject apartment beginning in November 1970 which were located after a further search of the building’s records. In a decision dated January 15, 1987, the Commissioner affirmed the order of the Rent Administrator. Although the base rent date for the subject apartment was May 31, 1968, the owner by supplying rent records going back to June 1974 had met his burden under the law. Pursuant to procedures adopted in August 1982 the CAB had "modified what documents were necessary to satisfy an owner’s obligation to produce prior rent records. The procedures provided that every owner was obligated to produce rent records going back to at least June 30, 1974 or the apartment’s entry into stabilization, whichever was later”.
The petitioner claims that the procedures adopted by the CAB in 1982 are invalid since they allow DHCR to substitute June 30, 1974, as a base rent date where a landlord is not able to provide a full rental history back to the actual base rent date of May 31, 1968. He argues that these procedures are irrational since they conflict with the provisions of Code of the Rent Stabilization Association of New York City, Inc. § 42 (A) which requires landlords to retain leases back to May 1968 if that is the applicable base rent date. The DHCR argues that it selected June 30, 1974, as an alternate base rent date because that was the date on which the provisions of the Emergency Tenant Protection Act of 1974 (see, L 1974, ch 576) first became applicable to most housing units.
Where a landlord was unable to provide rent records from at least June 30, 1974, the procedures empowered the Board to use a three-pronged test to determine an apartment’s legal rent. This test has been specifically upheld by the courts (see, Matter of 61 Jane St. Assocs. v New York City Conciliation & Appeals Bd., NYLJ, May 9, 1984, at 11, col 4 [Sup Ct, NY County], affd 108 AD2d 636, affd 65 NY2d 898). It should also be noted that under Laws of 1974 (ch 576, § 6 [a], [e] [10]) the CAB was empowered to do "all things necessary or convenient to carry out the purposes [of the act] and exercise its powers”. The court in Matter of 61 Jane St. Assocs. v New York City Conciliation & Appeals Bd. (supra) recognized that prior to the adoption of the 1982 procedures the CAB had been forced to expel many buildings and apartments from rent stabilization because of the failure of owners to comply with the exact requirements of the Code of the Rent Stabilization Association *667of New York City, Inc. § 42 (A). The new procedures furthered the general purpose of rent stabilization to provide safeguards against unreasonably high rent increases and in general to protect tenants and the public interest (Code of Rent Stabilization Association of NY City, Inc. § 35; Matter of 61 Jane St. Assocs. v New York City Conciliation & Appeals Bd., supra). We cannot say that the procedures in question are " 'so lacking in reason * * * that [they are] essentially arbitrary’ ” (Matter of Bernstein v Toia, 43 NY2d 437, 448, rearg denied 43 NY2d 950). Therefore the decision of the Commissioner was properly confirmed. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903385/ | Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 7, 2011, which, to the extent appealed from, after a hearing, found that respondent father neglected his children by committing acts of domestic violence in their presence, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed as against respondent.
Petitioner failed to demonstrate by a preponderance of the evidence that respondent neglected his children by committing an act of domestic violence in their presence (see Family Ct Act § 1046 [b] [i]). The record is not clear that the children were in the room when the alleged domestic violence occurred. Concur— Tom, J.P, Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903386/ | In an action to foreclose a mortgage on real property, the defendant Stephen Kavanaugh appeals from (1) a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered February 11, 1987, which, inter alia, upon granting the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against him in the principal sum of $170,816.23; and (2) an order of the same court, entered March 5, 1987, which denied his motion for reargument and renewal.
Ordered that the appeals are dismissed, with costs.
On December 4, 1987, upon the consent of the appellant and the plaintiff, an order was issued by the Supreme Court, Suffolk County (Gowan, J.), inter alia, discontinuing this action. Accordingly, the appeals have been rendered academic. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903388/ | In an action to recover damages for personal injuries, etc., arising from a dog bite, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Balletta, J.), dated May 5, 1987, which is in favor of the defendant and against them, upon a jury verdict.
Ordered that the judgment is affirmed, with costs.
The plaintiffs seek to recover a money judgment against the defendant based upon allegations that the defendant harbored a German shepherd dog of known ferocity, and that this dog bit the plaintiff Lance DeVaul on July 31, 1984, causing emotional as well as physical injuries. In order to succeed, the plaintiffs were obliged to prove among other things, that the defendant’s dog did in fact possess vicious propensities, and also that the defendant knew or should have known of the dog’s vicious propensities (see, Quilty v Battie, 135 NY 201, 208; Fontecchio v Esposito, 108 AD2d 780, 781; Lagoda v Dorr, 28 AD2d 208, 209). "The rule is that one who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he does not keep the animal secure from injuring others” (Lovell v Haas, 262 App Div 49, 50). In the present case, the defendant produced evidence sufficient to permit the jury to infer that the defendant’s dog was not vicious, or, even if the dog were vicious, that the defendant had no reason to know of the dog’s dangerousness prior to the incident. Although the evidence presented by the plaintiffs would tend to lead to the opposite conclusion, we *670must defer to the jury’s assessment of the witnesses’ credibility, and we therefore decline to grant a new trial on the ground that their verdict was against the weight of the evidence (cf., Nicastro v Park, 113 AD2d 129).
We also reject the plaintiffs’ argument that the trial court erred in refusing to take judicial notice of the supposed fact that German shepherd dogs are, as a breed, vicious. While some courts have suggested, in dicta, that the vicious propensities of certain animals are so well known as to almost be a subject of judicial notice (see, e.g., Carlisle v Cassasa, 234 App Div 112, 115; Ford v Steindon, 35 Misc 2d 339; Machacado v City of New York, 80 Misc 2d 889, 891), there is no authority for the proposition that judicial notice should in fact be taken as to the ferocity of any particular type of domestic animal. We therefore agree with those courts which have concluded that the viciousness of German shepherds is not an appropriate subject of judicial notice (see, e.g., Lundy v California Realty, 216 Cal Rptr 575, 170 Cal App 3d 813).
The plaintiffs also contend that a new trial should be ordered because the arguments made by the defense counsel during his summation were improper. The plaintiffs’ attorney made 3 objections during the course of the defense counsel’s summation, 2 of which related to counsel’s reference to a party who, the jury could infer, would have been in a position to confirm the plaintiffs’ evidence as to the dog’s viciousness, but who did not testify at trial. We do not think that these remarks by the defense counsel constituted misconduct. "The rule is well established that counsel may comment on the failure of the adverse party to call a witness who is under his control and whose testimony he could be expected to produce if it were favorable to him” (Seligson, Morris & Neuburger v Fairbanks Whitney Corp., 22 AD2d 625, 630). Such comments are allowed even though a missing witness charge might not be warranted (Seligson, Morris & Neuburger v Fairbanks Whitney Corp., supra). The third objection made by the plaintiffs’ attorney was sustained, and there is no likelihood that the remark to which the objection was directed had any affect on the jury’s verdict.
We need not address the remaining allegations of attorney misconduct, since these contentions were not objected to at the time and therefore have not been preserved for appellate review. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4415159/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00015-CR
Jedediah James Watson, Appellant
v.
The State of Texas, Appellee
FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY
NO. C-17-0492-SB, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jedediah James Watson guilty of driving while
intoxicated, third or more, and the trial court sentenced him to ten years’ imprisonment. In two
points of error, Watson contends that the trial court improperly commented on the weight of the
evidence when it instructed the jury on reasonable doubt and on drawing inferences from the
evidence. We will affirm the trial court’s judgment of conviction.
STANDARD OF REVIEW
We review alleged jury-charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)); DeLeon v. State, No. 03-18-
00268-CR, 2018 WL 6837742, at *1 (Tex. App.—Austin Dec. 28, 2018, pet. ref’d). Here,
Watson did not object to the jury instructions, so any error “will not result in reversal of the
conviction without a showing of egregious harm.” Price, 457 S.W.3d at 440. “In examining the
record for egregious harm, we consider the entire jury charge, the state of the evidence, the
closing arguments of the parties, and any other relevant information in the record.” Arteaga v.
State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). “Egregious harm is harm that deprives a
defendant of a fair and impartial trial.” Price, 457 S.W.3d at 440 (internal quotation marks
omitted). Stated differently, “[j]ury charge error is egregiously harmful if it affects the very
basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”
Arteaga, 521 S.W.3d at 338.
DISCUSSION
Instruction on Reasonable Doubt
In his first point of error, Watson contends that the trial court erred in providing
the following instruction to the jury:
The state must prove, beyond a reasonable doubt, the accusation of enhanced
Driving While Intoxicated. It is not required that the prosecution prove guilt
beyond all possible doubt; it is required that the prosecution’s proof excludes
all “reasonable doubt” concerning the defendant’s guilt. Therefore, in the
event you have a reasonable doubt as to the defendant’s guilt after considering all
the evidence before you, and these instructions, you will acquit the defendant and
say by your verdict “Not Guilty.”
(Emphasis added.) Watson argues that the emphasized portion “was a comment on the weight of
the evidence in violation of C.C.P. Art. 36.14.” See Tex. Code Crim. Proc. art. 36.14 (providing
that the trial judge shall “deliver to the jury . . . a written charge distinctly setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not summing
up the testimony, discussing the facts or using any argument in his charge calculated to arouse
the sympathy or excite the passions of the jury”); see also Rodriguez v. State, 96 S.W.3d 398,
2
405 (Tex. App.—Austin 2002, pet. ref’d) (“[A]ttempts to define reasonable doubt do not usually
make it clearer in the minds of the jurors, often they tend to impermissively increase or lessen the
burden of proof or utilize additional terms which themselves require definition.”).
For the purposes of our analysis, we will assume, without deciding, that the
trial court erred in including the quoted language in the jury instruction. Nevertheless, we will
reverse the trial court’s judgment only if we conclude that the court’s error caused Watson
egregious harm. See Price, 457 S.W.3d at 440.
The complained of language was embedded in a paragraph that correctly
explained that the State bore the burden of proving the offense beyond a reasonable doubt. The
instruction also required the jury to acquit Watson if it had a reasonable doubt as to his guilt.
Moreover, this Court has held that the complained of language, even if it should not have been
included, “does not appear to be too intrusive upon the ‘better practice’” of not defining
reasonable doubt. See Rodriguez, 96 S.W.3d at 405. In Rodriguez, where identical language
was submitted to the jury, we concluded that the defendant did not suffer even “some harm.”
Id. at 406.
Here, given the overall instruction concerning the burden of proof, any harm
caused by the complained of language would have been slight and far from egregious. In
addition, the State presented considerable evidence of Watson’s guilt, including the results of
a blood draw indicating that Watson’s blood alcohol concentration was 0.165 grams per
100 milliliters of blood. See Tex. Penal Code § 49.01(1)(B), (2)(B) (defining “intoxicated” as
having 0.08 or more grams of alcohol per 100 milliliters of blood). Finally, we are not aware of
anything in the record suggesting that the State exploited the complained of language or created
any confusion about its burden of proof. Indeed, in his closing argument, defense counsel
3
explained to the jury that there is “[n]o definition” of “reasonable doubt” and that the jury “get[s]
to decide what a reasonable doubt is,” and the State did not contradict that explanation.
In light of the entire record before us, including the jury charge, the evidence, and
the arguments of counsel, we cannot conclude that Watson suffered egregious harm as a result of
the complained of language concerning reasonable doubt. Accordingly, we overrule his first
point of error.
Instruction on Drawing Reasonable Inferences from the Evidence
In his second point of error, Watson contends that the trial court erred in
providing the following instruction to the jury:
While you should consider only the evidence, you are permitted to draw
reasonable inferences from the testimony and exhibits that are justified in the light
of common experience. In other words, you may make deductions and reach
conclusions that reason and common sense lead you to draw from the facts that
have been established by the evidence.
As with the instruction on reasonable doubt, Watson argues that this instruction commented on
the weight of the evidence in violation of article 36.14.
Once again, we will assume, without deciding, that the trial court erred in
including the quoted language, and we will consider whether Watson suffered egregious harm as
a result. The State argues that the quoted language did not harm Watson because the trial court
“submitted identical language from the Texas Criminal Pattern Jury Charges, as developed and
accepted by the State Bar of Texas.” Watson does not explain how he suffered harm.
Even assuming it was error to include the complained of language, the instruction
is a correct statement of law. See Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018)
4
(noting that it is “the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts”) (internal quotation marks
omitted); Boston v. State, 373 S.W.3d 832, 836 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321
(Tex. Crim. App. 2013) (“The jury, as the exclusive judge of the facts, is entitled to weigh and
resolve conflicts in the evidence and draw reasonable inferences therefrom.”). In addition, we
are not aware of anything in the record that would exacerbate any harm the instruction may have
caused, and, as discussed above, there was considerable evidence of Watson’s guilt.
In light of the entire record before us, we cannot conclude that Watson suffered
egregious harm as a result of the complained of language concerning drawing inferences from
evidence. Accordingly, we overrule his second point of error.
CONCLUSION
We affirm the trial court’s judgment of conviction.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Rose, Justices Kelly and Smith
Affirmed
Filed: July 9, 2019
Do Not Publish
5 | 01-03-2023 | 07-10-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/5903390/ | In an action, inter alia, for a permanent injunction to enjoin the defendants from interfering with the plaintiff’s use and occupancy of his property for motor vehicle repairs, including automobile body repairs, the defendants appeal from an order of the Supreme Court, Nassau County (McCabe, J.), dated December 3, 1986, which granted the plaintiff’s motion for a preliminary injunction.
Ordered that the order is affirmed, with costs.
The plaintiff is the owner of an automobile repair and gasoline sale business which is located in the industrial zoning district of the appellant village. There is undisputed evidence that since 1948, automobile body repair work has been an integral part of the business. However, in 1977 the village amended the ordinance to prohibit automobile body repair work in the industrial district (see, Incorporated Village of Lynbrook Code § 252-43). In September 1985 and thereafter, the defendants sought to enforce the prohibitory provision against the plaintiff.
The plaintiff brought the instant action seeking, inter alia, to enjoin the defendants from enforcing the prohibitory provision. The plaintiff claims that he is exempt from the provision because automobile body repair work is a legal nonconforming use.
It is well established that in order to obtain a preliminary injunction, a party must show (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that the equities are balanced in his favor (see, Kurzban & Son v Board of Educ., 129 AD2d 756; McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 172, lv denied 67 NY2d 606).
We find that the plaintiff has met his burden of establishing his entitlement to a preliminary injunction. The plaintiff has *673made a prima facie showing that there is a likelihood of success on the merits (see, Incorporated Vil. of Lynbrook v Pellegrino, 84 AD2d 779).
We further find that, since the enforcement of the provision would prohibit the plaintiff from continuing an integral part of the business which had been built up over the years, he has met his burden of demonstrating irreparable injury (see, McLaughlin, Piven, Vogel v Nolan & Co., supra).
Finally, given the fact that the defendants have not sought to enforce the prohibitory provision from the time of its enactment until September 1985 we find that the balance of the equities is in the plaintiffs favor (see, McLaughlin, Piven, Vogel v Nolan & Co., supra, at 174; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021, 1022, appeal dismissed 48 NY2d 654). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903391/ | In an action to recover a down payment on a contract for the purchase of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (DiPaola, J.), dated June 8, 1987, as denied that branch of their motion which was for summary judgment dismissing the first cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The instant action was commenced by the plaintiffs, inter alia, to recover a down payment of $52,000 that they had given to the defendant Arutt in connection with a contract for the purchase of realty owned by Arutt. The purchase was to be financed by a $350,000 mortgage. The contract of sale, which was signed by the plaintiffs on September 12, 1986, and by the defendant Arutt about 10 days later, provided, in the first paragraph of clause 33 thereof, as follows: "Purchasers hereby agree to immediately make a diligent, truthful and proper application for [a] mortgage and to furnish all information and records that may be required by the lending institution to whom the application is made. The Purchasers shall have forty-five days from the date hereof to obtain a firm commitment for such mortgage. If the Purchasers are unable to obtain a mortgage as provided for hereinabove by the aforementioned date, then either party shall have the right to cancel this contract by giving notice to the attorney for the other party, in writing, by certified mail, return receipt requested, and upon giving such notice this contract shall be*674come null and void and all sums paid on account thereof, by Purchasers to Seller, shall be refunded to Purchasers”.
With respect to the first cause of action in the complaint, it was the plaintiffs’ theory, which has some support in the record, that immediately after the parties signed the contract, they made a "diligent, truthful and proper application” for a mortgage commitment, as required by clause 33 of the contract, from Intercounty Mortgage Corporation (hereinafter Intercounty), and that, despite this effort, they were unable to obtain a mortgage commitment from Intercounty within the required 45-day period, i.e., by November 7, 1986. The plaintiffs further alleged that, on November 5, 1986, they requested an extension of seven days from the defendant Arutt to obtain a mortgage commitment and, upon Arutt’s denial of that request, they timely and properly exercised their right to cancel the contract, and were therefore entitled to a refund of their down payment.
The record indicates that in July 1986 the plaintiffs applied for a mortgage commitment in the amount of $350,000 from J.L.B. Funding Corporation (hereinafter JLB), in connection with the proposed purchase of other realty in the immediate vicinity of the Arutt property. When that deal fell through, both JLB and the plaintiffs agreed to put the plaintiffs’ application on hold and apply the plaintiffs’ $375 application fee to another house if one became available. The defendants’ theory was that (1) the plaintiffs represented, at the time they signed the contract with defendant Arutt, that they had a pending mortgage application with JLB, and (2) as a result of their subsequent cancellation of that application, the plaintiffs were unable to obtain a timely mortgage commitment. In this regard, the defendants relied on the second paragraph of clause 33 of the contract which provides as follows: "The Purchasers represent that they have contacted J.L.D. [sic] Funding Corp., a mortgage company, and have been informed by the said corporation that they qualify for a mortgage of $350,000.00 based upon the financial information furnished by Purchasers to J.L.D. [sic] Funding Corp”.
In support of their motion for summary judgment, the defendants submitted affidavits from two officials of JLB who alleged, inter alia, that (1) the plaintiffs directed JLB to cancel their application for a mortgage commitment after September 12, 1986, and (2) but for this cancellation, the plaintiffs would have obtained a firm mortgage commitment by November 7, 1986.
These allegations were directly challenged by the plaintiff *675Brian Fuchs who alleged in his opposing affidavit that (1) he canceled the mortgage application with JLB before he and his wife signed the contract for the purchase of the Arutt property on September 12, 1986, and (2) he therefore acted properly in applying to Intercounty for a mortgage commitment.
With respect to the second paragraph of clause 33 of the contract, both the plaintiffs and their counsel argued, inter alia, that this language makes no reference to any pending application for a mortgage commitment from JLB. Rather, the plaintiffs and their counsel alleged that this language (1) referred solely to plaintiffs’ earlier application for a mortgage commitment on the nearby property which had been canceled prior to September 12, 1986, and (2) was meant to assuage defendant Arutt’s fears that the plaintiffs might not have sufficient financial means to obtain a mortgage commitment of $350,000.
In view of the issues of fact which exist on this record, the Supreme Court, Nassau County, correctly denied that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
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