url
stringlengths 54
59
| text
stringlengths 0
3.85M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/5901793/
|
—Appeal by the defendant from a judgment of the County Court, Suffolk County (Mallon, J.), rendered October 16, 1985, convicting him of burglary in the third degree, upon a jury verdict, and imposing a sentence of six months’ imprisonment, running concurrently with and as a condition of, a term of five years’ probation, restitution, and a mandatory surcharge of $75.
Ordered that the judgment is modified, on the law, by deleting the provision thereof imposing a mandatory surcharge of $75. As so modified, the judgment is affirmed. The defendant may make an application to the County Court, Suffolk County, for a refund of the $75, and upon proof that payment has been made, his application shall be granted.
We find that the evidence, when viewed in the light most favorable to the People, was legally sufficient to support the defendant’s conviction on the charge of burglary in the third degree (see, People v Haile, 128 AD2d 891; People v Swain, 126 AD2d 763, Iv denied 69 NY2d 886; cf, People v Mackey, 49 NY2d 274, 279-280).
*728However, the sentencing court erred in imposing a mandatory surcharge in addition to restitution (see, Penal Law § 60.35 [6]; People v DeVita, 132 AD2d 616; People v Neff, 110 AD2d 721; but see, People v De Berry, 117 AD2d 1006). Since the defendant has made restitution, he is entitled to a refund of the mandatory surcharge upon proof of payment. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901794/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.), rendered October 25, 1984, convicting him of sexual abuse in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Cohen, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant was tried upon charges arising out of the alleged sexual abuse during March 1984 of a seven-year-old child. The evidence at trial established that the defendant had repeatedly invited the victim and his eight-year-old brother to his home where he would touch their genital areas and then give them money or candy. The testimonies of the two boys demonstrated that these incidents occurred repeatedly over the months of March, April and May 1984 until the boys’ father became suspicious and notified the police.
The in-court identifications of the defendant by the two infant witnesses were not tainted by the photographic identification procedure conducted by the police. The showing of the photograph of the defendant to the children was merely confirmatory in nature, in that it was performed in order to confirm their previous identifications of the defendant (see, People v Laguer, 58 AD2d 610; see also, People v Gissendanner, 48 NY2d 543). In any event, the hearing testimony of the two boys clearly established that their in-court identifications were based upon independent sources of knowledge (see, People v Laguer, supra).
The decision whether the two children were competent to testify under oath rested primarily with the trial court which had the opportunity to view their manner and demeanor (CPL 60.20 [2]; see, People v Nisoff 36 NY2d 560). We find that the trial court’s determination that the two boys were competent to testify under oath was not erroneous. Both children under*729stood the nature of the oath, the difference between telling a lie and telling the truth, and that they would be punished by the Judge, their parents and God if they told a lie (see, People v Nisoff, supra). Furthermore, both children possessed sufficient intelligence to recall the events in question and to relate them in a clear manner.
The evidence adduced at the trial, when viewed in the light most favorable to the prosecution, was legally sufficient to support the guilty verdict (see, People v Contes, 60 NY2d 620). The independent corroborative evidence supplied by the testimony of the eight-year-old child tended to establish that the defendant had committed the crimes for which he was convicted and furnished the necessary connection between the defendant and the crimes (Penal Law § 130.16; see, People v Kohut, 30 NY2d 183). In particular, it is noted that both children, during their direct testimony, pinpointed the time of the criminal acts as having begun in March 1984 before Easter and as having ended in May 1984. During that period of time, both children were sexually abused numerous times in the defendant’s house. Clearly, their testimony established the elements of the crimes as charged in the indictment, and, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
In addition, the defendant’s contention that the crime of sexual abuse in the first degree was not established by the touching of the victim’s genital area outside of his clothing is without merit (see, People v Ditta, 52 NY2d 657). Moreover, his contention that the evidence failed to establish his intent to receive sexual gratification during the abuse is equally meritless. Viewing the evidence as a whole, it is clear that the defendant’s intent to be sexually gratified was established by the fact that he repeatedly invited the children to his house, where he would sit them on his lap and touch their genitalia, and then he would give them candy or money as a reward for their acquiescence and to ensure their secrecy.
The defendant’s remaining contentions are unpreserved for appellate review (CPL 470.05 [2]). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901795/
|
Appeal by the defendant from a judgment of the County Court, Westchester County (Capeci, J.), rendered April 16, 2009, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves for leave to withdraw as counsel for the appellant.
Ordered that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738 [1967]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901797/
|
—Appeal by the defendant from a judgment of the County Court, Orange County (Colabella, J.), *730rendered November 3, 1983, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s contention that the court should have given a charge to the jury on the issue of whether he was represented by counsel on an unrelated crime (see, People v Bartolomeo, 53 NY2d 225; People v Rogers, 48 NY2d 167) has not been preserved for our review as he did not request such a charge at trial (see, People v Thomas, 50 NY2d 467). Further, assuming without deciding that such a charge is necessary in á proper case, here it was clearly unwarranted as the undisputed evidence at trial established that the defendant was in fact not represented by an attorney at the time of police questioning (see, People v Rosa, 65 NY2d 380, on remand 116 AD2d 489, Iv denied 67 NY2d 950; People v Kazmarick, 52 NY2d 322).
The court gave a thorough and proper charge on the issue of the voluntariness of any alleged statements made by the defendant. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901798/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered March 12, 1985, convicting her of kidnapping in the first degree, robbery in the first degree, burglary in the first degree, grand larceny in the first degree, and criminal use of a firearm in the first degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by reversing the defendant’s conviction of criminal use of a firearm in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The Court of Appeals has recently ruled that "[w]hen use of or display of a firearm is an element of a class B felony, the use or display of that same firearm cannot also be the predicate for criminal display of a firearm in the first degree” (People v Brown, 67 NY2d 555, 560, cert denied — US —, 107 S Ct 1307). Therefore, we agree with the defendant herein that her conviction of criminal use of a firearm in the first degree must be reversed. Insofar as the defendant’s convictions of robbery in the first degree and burglary in the first *731degree served as the predicate crimes for her conviction of criminal use of a firearm in the first degree, as conceded by the People, the firearm count should have been dismissed upon the defendant’s conviction of the robbery and burglary counts.
The defendant also argues that her guilt was not proven beyond a reasonable doubt. We find, however, that the evidence adduced at trial, when viewed in a light most favorable to the prosecution, was legally sufficient to support the guilty verdict (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
Finally, we have reviewed the sentence imposed and find that under the circumstances, it was fair and appropriate (see, People v Suitte, 90 AD2d 80) and was not unconstitutional as applied to the defendant (see, People v Jones, 39 NY2d 694; People v Broadie, 37 NY2d 100, cert denied 423 US 950; People v Donovan, 89 AD2d 968, affd 59 NY2d 834). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901799/
|
—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McNab, J.), rendered December 28, 1983, convicting him of burglary in the third degree, criminal mischief in the third degree (two counts), grand larceny in the third degree, and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by (1) vacating the sentence imposed on all counts, and (2) reducing the conviction of criminal mischief in the third degree as charged in the second count of the indictment to criminal mischief in the fourth degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Westchester County, for resentencing in compliance with Penal Law § 70.10.
At about 12:30 a.m. on October 20, 1982, off-duty Mount Vernon Police Officer Frank Schreiber was sitting in his living room talking with his wife and some friends when he heard the sound of breaking glass. He immediately ran onto the porch of his house and from there observed the defendant and an accomplice leaving the Jolly Chef Restaurant. The restau*732rant was located directly across the street from Schreiber’s home and the glass front door thereof had been broken. Schreiber, pursuing the two men on foot, identified himself as a police officer and ordered the two to halt. The defendant then dropped a cash register which he had been carrying and stopped while the other suspect fled. Schreiber held the defendant at gunpoint until a police backup unit arrived.
Prior to trial, the defendant advised the court that he desired to appear pro se. A lengthy pretrial colloquy followed during which the court and the Assistant District Attorney repeatedly pointed out to the defendant the dangers and disadvantages of self-representation. He was repeatedly advised that he would be subject to various evidentiary and other constraints, and that his lay expectations as to the best choice of witnesses and defenses might be very shortsighted. In addition, he was reminded of the possibility of his being adjudicated a persistent felon upon conviction and of the possibility of his being sentenced to a term of imprisonment of from 15 years to life. Nevertheless, the defendant remained adamant in his desire to represent himself and emphatically persisted in urging the court to allow him to do so. The court ultimately relented and the case proceeded to trial, following which the defendant was found guilty of burglary in the third degree, two counts of criminal mischief in the third degree, grand larceny in the third degree and criminal possession of stolen property in the second degree.
Thereafter the court, upon application of the Assistant District Attorney, directed that a hearing be held to determine whether the defendant should be sentenced as a persistent felony offender. At the hearing the defendant still insisted on self-representation despite being advised, once again, that he was entitled to the assistance of an attorney. At the conclusion of the hearing, the court found the defendant to be a persistent felon and sentenced him to a term of imprisonment of from 15 years to life.
On this appeal the defendant contends that the court failed to undertake the thorough inquiry necessary to support a determination that his decision to proceed pro se was based upon an intelligent and voluntary waiver of his right to be represented by counsel (see, People v Sawyer, 57 NY2d 12, rearg dismissed 57 NY2d 776, cert denied 459 US 1178; People v McIntyre, 36 NY2d 10). The record reveals, however, that the defendant’s decision to proceed pro se was made after repeated and extensive questioning by both the court and the *733Assistant District Attorney and despite repeated admonitions and reminders of the inherent dangers of self-representation. Moreover, the defendant had had extensive prior exposure to the criminal justice system and was sufficiently familiar with criminal procedure to have had been able to make numerous applications to the court both prior to and during trial. It is clear on this record that the dangers and disadvantages of the defendant’s waiving his fundamental right to counsel had been impressed upon the defendant, and that his waiver of that right was a knowing and intelligent one (see, People v Vivenzio, 62 NY2d 775; People v Sawyer, supra; People v Knatz, 128 AD2d 896, Iv denied 70 NY2d 713). The defendant’s claim to the contrary is without merit.
We do, however, agree with the defendant that the court committed error in failing to comply with certain statutory requirements governing his being sentenced as a persistent felony offender. The sentencing court failed to set forth on the record the reasons why it was "of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate[d] that extended incarceration and life-time supervision [would] best serve the public interest” (Penal Law § 70.10 [2]). The court’s failure to do so requires that the sentence be vacated. As this court has noted, the procedure for determining whether or not a defendant may be subjected to increased punishment as a persistent felony offender mandates a " 'two-pronged analysis’ ” (People v Montes, 118 AD2d 812, 813, Iv denied 68 NY2d 772; People v Oliver, 96 AD2d 1104, affd 63 NY2d 973). The court must determine initially "whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he previously has been convicted of at least two felonies, and secondly, the court must determine if it 'is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest’ (CPL 400.20, subd 1, par [b])” (People v Oliver, supra, at 1105). The court’s conclusory recitation at sentencing that it had reviewed the defendant’s record was insufficient to fulfill the statute’s mandate. It is impossible to determine what conduct or circumstances the sentencing court relied upon in determining that the second prong of the required persistent felony offender analysis was satisfied.
We also agree with the defendant’s contention that the *734prosecution failed to present sufficient evidence that the damage to the front door of the restaurant exceeded $250. The only evidence presented that the damage to the glass door exceeded that amount was the restaurant owner’s testimony that the "approximate cost” of replacing the glass and fixing the door frame "and everything” was "approximately three hundred to three hundred twenty five dollars, the best I can recall”. This testimony was not supported by any documentation or other proof that said amount represented the reasonable cost of such repairs. Under these circumstances, the evidence was not sufficient for the jury to infer that the damage to the door exceeded the required statutory amount of $250 (see, Penal Law § 145.05; People v Montes, supra; People v James, 111 AD2d 254, affd 67 NY2d 662). Accordingly, the defendant’s conviction for criminal mischief in the third degree as charged in the second count of the indictment cannot stand. However, the evidence adduced at trial is sufficient to establish the crime of criminal mischief in the fourth degree and therefore we reduce the defendant’s conviction of criminal mischief in the third degree as charged in the second count to criminal mischief in the fourth degree (cf, People v Montes, supra).
We have reviewed the defendant’s remaining contentions, including those contained in his pro se supplemental brief, and find them to be without merit. Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129195/
|
Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by
Smith, P. J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822900/
|
Gordon, J.,
delivered the opinion of the court.
*166This is the third of four companion cases decided today, styled Hammer v. Commonwealth.
Hammer was charged in this case with entering a dwelling house on the night of April 22, 1964 with intent to commit rape. He pleaded not guilty and waived a jury upon advice of court-appointed counsel. The trial judge found Hammer guilty and sentenced him to a term of six years, to run concurrently with another sentence. He appeals from his conviction on several grounds.
The more troublesome questions raised on this appeal have been answered in the opinion in the first companion case. Hammer v. Commonwealth (Record No. 6154), 207 Va. 135, 148 S.E.2d 878. Defense counsel and the attorney for the Commonwealth, with the concurrence of the trial judge, stipulated that the evidence, rulings, objections and exceptions relating to those questions, as set forth in the transcript of the first companion case, should be applicable to this case.
Hammer gave an incriminating statement respecting this case to lieutenant F. L. Martin of the Newport News police force at 12:45 p.m. on May 15, 1964. The judge admitted this statement as evidence against him at his trial. We hold, for reasons set forth in the opinion in the first companion case, that the statement was improperly admitted because of the uncontradicted evidence concerning a threat made by chief Peach of the Newport News police force.
We reject the arguments that (1) we should hold Hammer’s incriminating statement inadmissible on other grounds, (2) Hammer was deprived of his constitutional rights because he had no preliminary hearing or because he did not receive copies of warrants issued against him, and (3) the trial court should have dismissed the indictments against Hammer in this case because of material variances between the indictments and the warrants previously issued against him. Again, the reasons are set forth in the opinion in the first companion case.
Only one issue remains, whether the evidence exclusive of the incriminating statement was sufficient to prove guilt beyond a reasonable doubt. Defense counsel argue in their brief that “[t]he evidence linking the defendant . . . [with the assailant on the night of April 22] .is too deficient as a matter of law to sustain a conviction” and, even if the identification of Hammer as the assailant be sufficient, the evidence “is not sufficient to sustain a conviction of *167burglary with intent to commit rape”. They ask us, therefore, to enter final judgment dismissing the charge against Hammer.
The prosecutrix in this case was alone at her home in the Hilton Village section of Newport News on the night of April 22, 1964. The front door was closed, but it was unlocked because the prose-cutrix expected her husband and children to return home shortly.
While in the bathroom, the prosecutrix heard a noise in another room of her home. She opened the bathroom door and saw a man standing in the dinette. She testified “This man had on black pants. He had on blue sweatshirt with a hood and he had a white hankie or white cloth tied around his face. # # * [H]e had a knife in his right hand and he had a gun in his left hand.” The intruder said “ ‘don’t scream, lady, and you won’t be hurt’ and he came straight to the bathroom . . . and he pointed this knife right at me and he touched me right in the ribs. * * # [H]e said, ‘if you don’t scream, if you do what I tell you, you won’t be hurt’ ”. The prosecutrix said “ ‘If you leave me alone, I’ll give you some money’ and he said, ‘I’m not after money’
“[W]ith this knife stuck up against my [the prosecutrix] back”, the assailant directed the prosecutrix to lock the door, then he conducted her into the bedroom. He then told her to “strip”. “[H]e kept telling me strip and I kept standing there and I was scared, shaking and he said, ‘if you don’t strip, you’re going to be hurt’ and so I taken off my shoes and everytime I took off a piece of clothes, I just stand there and shake and he keeps sticking the knife against me”. Repeatedly during the intermittent “stripping”, the prosecutrix told the assailant “you’re going to be caught in this house”.
After the prosecutrix had removed all her clothing, the assailant shoved her onto the bed. She said again “you’re going to be caught in this house ... if you get caught in here you’re going to be hurt”. Then the assailant said “he was fixing to leave”, and he asked the prosecutrix how much money she had. She took money from her pocketbook and handed it to him. “I told him that’s all I had. I want to take my kids to the doctor”. Then the assailant returned her money and departed. As he departed he said, “If you don’t say anything about this, you won’t get hurt”.
Hammer was arrested on the night of May 12, as described in the opinion in the first companion case. At police headquarters in the early morning of May 13, the prosecutrix identified him as her *168assailant on the night of April 22. Hammer was then wearing a blue sweatshirt and black trousers. He was sitting beside another person (apparently a detective) who was wearing a white or light colored sweatshirt and light trousers. Both had white cloths tied around their faces. The prosecutrix said she identified Hammer by his voice, his eyes and his build. When asked whether it would have been more difficult to make an identification “if there had been five people of the same weight, build, color of hair, size and with the same clothing on”, she answered “No sir”.
The prosecutrix testified positively that Hammer was the person who entered her home on the night of April 22 and assailed her. On the witness stand Hammer denied he had ever seen the prose-cutrix before he saw her at police headquarters on the night of May 12 or in the early morning of May 13. He said he was practicing softball with his team on the night of April 22, but he produced no witness to corroborate his alibi.
Defense counsel argue “there was no reasonable basis for an identification of the defendant [by the prosecutrix]”. They say she could have seen only the intruder’s eyes and eyebrows when he was in her home, and she could not give his height or weight to the investigating officer. They brush aside the prosecutrix’ identification of Hammer at police headquarters because of “the marked contrast between what the defendant and the detective who was in the so-called ‘line-up’ on May 13 were wearing and the general disparity in their size and appearance”.
At best, these arguments go to the credibility of the prosecutrix’ positive identification of Hammer as the person who entered her home on the night of April 22. Her testimony, if believed, was obviously sufficient to prove Hammer was that person. The trial judge, sitting without a jury, found her evidence credible. Counsels’ arguments are foreclosed by this verdict.
Lastly, defense counsel would have us hold as a matter of law that the evidence was insufficient to prove Hammer entered the prosecutrix’ home with intent to commit rape. They argue that intent to rape was not shown because the intruder did not demand, threaten, seek, or attempt to have sexual intercourse with the prose-cutrix. They rely upon the prosecutrix’ admissions that the intruder made no advances toward her of any sexual nature and that “[h]e never used the word ‘rape’ ”.
Intent is proved by its outward manifestations. Briefly stated, *169these are the manifestations proved by the evidence: A man clandestinely entered a home at night; he was armed and his face was partially hidden by a handkerchief; he announced he was not there for money; he forced a woman to go into the bedroom and to remove all her clothing; then he pushed her onto the bed. Despite this evidence counsel ask us to rule as a matter of law that intent to rape was not shown — that these facts and proper inferences from these facts cannot support a verdict of intent to rape.
In an attempt to avoid stretching naivete to the breaking point, counsel do not ask us to believe this man’s intentions were honorable. They do not suggest this was another Michelangelo sneaking into an abbey by night intent upon furthering his knowledge of anatomy. Counsel do suggest this man intended only (as Hammer said in his incriminating statement) “to . . . scare the hell out of somebody”. Counsel have successfully asked us, however, to ignore Hammer’s incriminating statement. Moreover, even if Hammer’s explanation of intent were properly in evidence, no rule of law would compel the trier of fact to accept it.
We should not belabor this point further. The facts compel the conclusion that entry into a dwelling with intent to commit rape was sufficiently proved. The evidence that rape was not consummated does not negate original intent to rape. This evidence can be properly interpreted as showing only that Hammer’s plan was abandoned.
We hold that the evidence, exclusive of Hammer’s incriminating statement, was sufficient to sustain his conviction.
The judgment is reversed and the case remanded for a new trial because Hammer’s incriminating statement was admitted in evidence despite the uncontradicted evidence concerning a threat made by chief Peach.
Reversed and remanded.
Eggleston, C. J., and I’Anson, J., concur in result.
Spratley, J., concurs in result for reasons set forth in a separate opinion.
Carrico, J., dissents for reasons set forth in a separate opinion.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901800/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered April 11, 1986, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People, as we must, we find that it is legally sufficient to support the defendant’s conviction (see, People v Morgan, 66 NY2d 255, cert denied 476 US 1120; People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The contentions raised by the defendant on appeal concern issues of credibility and the weight to be given the witnesses’ testimony which are issues primarily for the jury to determine *735(see, People v McCrimmon, 131 AD2d 598, Iv dismissed 70 NY2d 714). The jury resolved those issues against the defendant and we perceive no reason upon the record before us to disturb its determination. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901801/
|
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murphy, J.), rendered October 29, 2010, convicting him of vehicular assault in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the court’s plea allocution was inadequate in several respects. He did not, however, move pursuant to CPL 220.60 (3) to withdraw his guilty plea, and nothing on the record either negated an essential element of the crime to which he pleaded guilty or cast significant doubt on his guilt. Inasmuch as the Court of Appeals has held that, in these circumstances, preservation is required, the defendant’s claims do not present questions of law for our review (see CPL 470.05 [2]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Adams, 67 AD3d 819, 819 [2009]; cf. People v Mox, 20 NY3d 936 [2012]).
Under the circumstances of this case, we decline to review the defendant’s claim in the interest of justice, although we of course agree with our dissenting colleague that “plea allocutions should not be taken lightly and should not be performed in a perfunctory manner.” Here, the defendant received a very favorable plea arrangement in the face of strong evidence of his guilt of the various crimes charged in the indictment. There was no question that it was the defendant who caused serious injury to the complainant by the use of his motor vehicle. Moreover, the defendant and his attorney were clearly aware of the strength or weakness of their claim regarding suppression of the breathalyzer results (see People v Adams, 67 AD3d at 819). The defendant was aware that he could proceed to trial and call witnesses on his own behalf, but nevertheless opted to forego exercising that right in exchange for the certainty of a lenient sentence. Dillon, J.P., Balkin, and Leventhal, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901802/
|
Hall, J.,
dissents, and votes to reverse the judgment, as a matter of discretion in the interest of justice, to vacate the plea of guilty, and to remit the matter to the Supreme Court, Kings County, for further proceedings on the indictment: I agree with the majority that the defendant’s contention challenging the court’s plea allocution is unpreserved for appellate review (see CPL 470.05 [2]). However, I must respectfully dissent because,
*985in my view, this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant’s meritorious contention (see CPL 470.15 [6]).
It is well established that “when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; see NY Const, art I, § 6). To this end, a court has the constitutional duty to ensure that a defendant, before pleading guilty, “has a full understanding of what the plea connotes and of its consequence[s]” (Boykin v Alabama, 395 US 238, 244 [1969]; see People v Vickers, 84 AD3d 627 [2011]).
The plea colloquy in this case was virtually nonexistent. The court failed to advise the defendant that he had a right to a trial by jury, that he had a right to confront the witnesses against him, and that he had a right against compulsory self-incrimination. These are fundamental rights that a defendant must be apprised of, on the record, before pleading guilty (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Furthermore, defense counsel’s involvement at the plea proceeding was minimal and there is no basis in the record to conclude that the defendant was actually aware of the rights he was surrendering. Under these circumstances, the record does not show that the plea was entered into knowingly, voluntarily, and intelligently and, thus, the plea is invalid.
While the defendant did not preserve his challenge to the voluntariness of his plea (see People v Lopez, 71 NY2d 662 [1988]), in my view, this issue should be reached in the exercise of this Court’s interest of justice jurisdiction, since the plea allocution was so “ ‘woefully deficient’ ” (People v Vickers, 84 AD3d at 629, quoting People v Colon, 42 AD3d 411, 411 [2007]). Where, as here, a court completely fails in its duty to ensure that a defendant is aware of the important rights he or she is waiving by pleading guilty, it cannot be said that a defendant genuinely had a fair opportunity to raise a challenge to the voluntariness of his or her plea (cf. People v Louree, 8 NY3d 541 [2007]). This consideration provides a further basis for my conclusion that the exercise of this Court’s interest of justice jurisdiction is warranted.
I note that there are nonfrivolous issues to be litigated at trial. The defendant filed a pretrial motion, inter alia, to suppress results from a breathalyzer test on the ground that he had not consented to taking the test. The People asserted that a videotape made at the time of the test proved that the defend*986ant consented to taking the test. The Supreme Court deferred decision on the motion until trial, and noted that the People would have to “lay a proper foundation for the admissibility of the test results prior to the commencement of trial, limited to the issue of the defendant’s consent, outside the presence of the jury.” The results of the breathalyzer test are a critical part of the People’s case, since the top count of the indictment charged the defendant with vehicular assault in the first degree (see Penal Law § 120.04 [1]). Moreover, although the defendant has been released from prison, his conviction is still on his record. Therefore, the defendant still has good reason to challenge the admissibility of the breathalyzer test results and to hold the People to their burden of proof at trial.
By pleading guilty, a defendant is giving up important, fundamental rights. As a result, plea allocutions should not be taken lightly and should not be performed in a perfunctory manner. It is the court’s responsibility to ensure that a defendant is made aware of his or her important, fundamental rights before pleading guilty.
In sum, I believe that this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant’s meritorious contention regarding the voluntariness of his plea. Accordingly, on that basis, I respectfully dissent and vote to reverse the judgment.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901803/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Slavin, J.), rendered April 22, 1986, convicting him of rape in the first degree and sodomy in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues, inter alia, that the prosecution failed to prove forcible compulsion as defined in Penal Law § 130.00 (8) and as required in Penal Law § 130.35 (1) and § 130.50 (1). We disagree. Forcible compulsion can be inferred from the facts leading up to the rape and/or sodomy (see, People v Gomez, 112 AD2d 445, Iv denied 66 NY2d 919). The defendant locked the victim, an acquaintance, in an empty apartment with him and ordered her not to scream because no one would hear her. The defendant ignored the victim’s pleas to be released and proceeded to knock her to the floor and pin her down. The defendant also threatened the victim. From these facts, there was legally sufficient evidence of forcible compulsion, even though the victim showed no physical injury and she did not scream or cry out (see, People v Contes, 60 NY2d 620). Upon the exercise of our factual review power, we are satisfied that the defendant’s guilt was established beyond a reasonable doubt and that the verdict is not against the weight of the evidence (see, CPL 470.15 [5]).
We have examined the defendant’s other claims of error and find them to be either unpreserved for appellate review or without merit. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901805/
|
Hall, J.,
dissents, and votes to reverse the judgment, as a matter of discretion in the interest of justice, to vacate the plea of guilty, and to remit the matter to the Supreme Court, Kings County, for further proceedings on the indictment: I agree with the majority that the defendant’s contention challenging the court’s plea allocution is unpreserved for appellate review (see CPL 470.05 [2]). However, I must respectfully dissent because,
*985in my view, this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant’s meritorious contention (see CPL 470.15 [6]).
It is well established that “when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; see NY Const, art I, § 6). To this end, a court has the constitutional duty to ensure that a defendant, before pleading guilty, “has a full understanding of what the plea connotes and of its consequence[s]” (Boykin v Alabama, 395 US 238, 244 [1969]; see People v Vickers, 84 AD3d 627 [2011]).
The plea colloquy in this case was virtually nonexistent. The court failed to advise the defendant that he had a right to a trial by jury, that he had a right to confront the witnesses against him, and that he had a right against compulsory self-incrimination. These are fundamental rights that a defendant must be apprised of, on the record, before pleading guilty (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Furthermore, defense counsel’s involvement at the plea proceeding was minimal and there is no basis in the record to conclude that the defendant was actually aware of the rights he was surrendering. Under these circumstances, the record does not show that the plea was entered into knowingly, voluntarily, and intelligently and, thus, the plea is invalid.
While the defendant did not preserve his challenge to the voluntariness of his plea (see People v Lopez, 71 NY2d 662 [1988]), in my view, this issue should be reached in the exercise of this Court’s interest of justice jurisdiction, since the plea allocution was so “ ‘woefully deficient’ ” (People v Vickers, 84 AD3d at 629, quoting People v Colon, 42 AD3d 411, 411 [2007]). Where, as here, a court completely fails in its duty to ensure that a defendant is aware of the important rights he or she is waiving by pleading guilty, it cannot be said that a defendant genuinely had a fair opportunity to raise a challenge to the voluntariness of his or her plea (cf. People v Louree, 8 NY3d 541 [2007]). This consideration provides a further basis for my conclusion that the exercise of this Court’s interest of justice jurisdiction is warranted.
I note that there are nonfrivolous issues to be litigated at trial. The defendant filed a pretrial motion, inter alia, to suppress results from a breathalyzer test on the ground that he had not consented to taking the test. The People asserted that a videotape made at the time of the test proved that the defend*986ant consented to taking the test. The Supreme Court deferred decision on the motion until trial, and noted that the People would have to “lay a proper foundation for the admissibility of the test results prior to the commencement of trial, limited to the issue of the defendant’s consent, outside the presence of the jury.” The results of the breathalyzer test are a critical part of the People’s case, since the top count of the indictment charged the defendant with vehicular assault in the first degree (see Penal Law § 120.04 [1]). Moreover, although the defendant has been released from prison, his conviction is still on his record. Therefore, the defendant still has good reason to challenge the admissibility of the breathalyzer test results and to hold the People to their burden of proof at trial.
By pleading guilty, a defendant is giving up important, fundamental rights. As a result, plea allocutions should not be taken lightly and should not be performed in a perfunctory manner. It is the court’s responsibility to ensure that a defendant is made aware of his or her important, fundamental rights before pleading guilty.
In sum, I believe that this is an appropriate case for this Court to exercise its interest of justice jurisdiction to reach the defendant’s meritorious contention regarding the voluntariness of his plea. Accordingly, on that basis, I respectfully dissent and vote to reverse the judgment.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129196/
|
Order reversed, without costs and without prejudice to any subsequent suit.
Macomber, J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129198/
|
Decision of the State board of audit affirmed, without costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129199/
|
Order affirmed, with ten dollars costs and disbursements, on opinion of
Daniels, J.,
at Special Term.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822923/
|
MaRtin, Judge,
concurring.
Even though the merchandise at bar5 is a synthetic compound of tungsten, I believe that it should be classified under paragraph 302 (c) rather than 302(g). I arrive at this conclusion because of the common meaning of certain significant words and because of the distinction between the subject compound and those intended to be covered by 302(g). In this instance, the common meaning of these words can readily be ascertained from lexicons.
“Concentrate” has been defined as follows:
Webster’s “New International Dictionary,” 1924:
Concentrate, n. That which has been concentrated. See concentrate, v.t. 2.
Concentrate. * * * v.t. * * * 2. To increase the strength by diminishing the bulk of, as of a liquid or an ore; to intensify or purify by getting rid of useless material; to condense; as to concentrate acid by evaporation; to concentrate ores by washing * * *.
Hackh’s “Chemical Dictionary,” 1929:
Concentrate. (1) In chemistry: To increase the strength by diminishing the bulk of unwanted material. * * *
According to the record here, the whole process as outlined in the stipulation was used only to increase the content or “strength” of the ore by “diminishing the bulk of unwanted material.” The low *139grade scheelite6 ore containing calcium tungstate equivalent to 2 to 10% W03 and the low grade tungstate concentrates equivalent to approximately 20% W03 were treated both chemically and mechanically to secure a greater percentage of tungsten by removing the unwanted materials. After processing, the tungsten content, expressed as W03, was 75.25%, and the material containing this percentage of tungsten oxide was imported.7 To my mind, according to the dictionary meaning of “concentrate,” this merchandise is a concentrate of tungsten secured by processing the low grade starting materials, and it comes within the purview of paragraph 302 (c).
Although the process was both chemical and mechanical and the calcium in the finished product was a different calcium than in the preprocessed material, the merchandise did contain a much higher percentage of tungsten and this was the only purpose of the processing. The mere fact that the processed imported material contains different calcium than the starting material does not in this instance require that the importations be classified under paragraph 302(g). The entire process of transforming calcium tungstate into sodium tungstate so that the tungstate becomes soluble in water and thus easily separable from the water-insoluble unwanted materials, and then changing sodium tungstate back to insoluble calcium tungstate in order to produce a solid easily separable from the water was done only to increase the percentage of tungsten and not to make a compound per se. I believe “compounds” in paragraph 302 (g) refers to compounds of tungsten which are made purposely as compounds of tungsten or mined in this form, and imported as such to be used for some purpose as compounds rather than as a source of tungsten metal.
Furthermore, tungsten is not found in nature as a free metal.8 This fact was brought to the attention of the Committee on Finance of the United States Senate prior to the passage of both the Tariff Act of 1922 and the Tariff Act of 1930.9 The tungsten in tungsten ores is always present in the form of various tungsten compounds such as calcium *140tungstate, CaW04.10 Certainly paragraph 302(g) was not intended to include such ore compounds of tungsten. Otherwise, paragraph 302(c) would be superfluous. Consequently, Congress must have considered these ore compounds or compounds made from them and intended as sources of tungsten metal to be something different than the “compounds” covered by paragraph 302(g).
Although the Imported merchandise was designated in the consular invoice as “Artificial Tungsten Scheelite Concentrates,” it appears from the testimony that the name “synthetic scheelite” is more commonly used in buying and selling this merchandise.
Haekli’s “Chemical Dictionary,” 1929: "scheelite * * * A native calcium tungstate, CaWOj.”
Webster’s “New International Dictionary,” 1924: “scheelite * * * native calcium tungstate, CaWOi, a tetragonal mineral, white when pure, and also yellow, brownish, etc., occurring in octahedral, tabular, and massive forms. It usually contains some molybdenum. * * * It is a source of tungsten and tungsten compounds.”
A report of the U.S. Customs Laboratory dated October 7, 1953 and part of the entry papers in this case states in part: “The dried commercially prepared sample contains no lead or zinc and 74.70% tungstic oxide. The tungstic oxide is equivalent to 59.24% tungsten and 92.76% calcium tungstate.” These figures are cited here to show that the imported material is not pure calcium tungstate. According to information in the entry papers, the difference between 74.70% and 75.25% tungstic oxide, WOa, is not significant.
See Mellor, “A Comprehensive Treatise on Inorganic and Theoretical Chemistry,” Vol. 11, p. 675 (1931) wherein it is stated: “Tungsten does not occur in the elemental form in nature.” See also Li et al., “Tungsten,” p. 4 (1955)..
“Hearings before the Senate Finance Committee on H.R. 7456, 67th Cong., 2d Sess., Vol. 3 at 1705 (1922) ; Hearings before the Senate Finance Committee on H.R. 2667, 71st Cong., 1st Sess., Vol. 3 at 233 (1929).
See Li et al., op. cit. supra note 4, at 113, where it is stated: “Each type of tungsten deposit is a problem by itself in tbe matter of selection of tbe proper method of concentration, depending on the tungsten mineral, its allied valuable minerals, and its gangue constituents.”
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822926/
|
Bich, Judge,
delivered the opinion of the court:
This appeal is from the judgment of the United States Customs Court, First Division, C.D. 2187, sustaining the importer’s protest to the classification of certain spools for “Mitchell 300” spinning reels used by sport fishermen. The importations consisted of unit packages each containing one reel mechanism, on which was mounted one *141interchangeable spool, and a second but different interchangeable spool enclosed in a plastic box.
This case is a retrial of the protest which was before us in Charles Garcia & Co., Inc. v. United States, No. 4906, 45 CCPA 1, C.A.D. 663, wherein we affirmed the judgment of the Customs Court, 37 Cust. Ct. 117, C.D. 1808, overruling the protest. As appears from our former opinion, to which we refer to avoid repetition, the sole question is as to the classification of the second spool. The reel and one spool were classified under paragraph 1535, Tariff Act of 1930, as modified by GATT, T.D. 51802, as “Fishing reels” and the second spool was classified under the same paragraph, as modified by said TJD. 51802, with imposition of an additional duty of 40% ad valorem, as “Parts of fishing * * * reels.”
The claim of the importer is that the entire unit package, the reel and two spools, is dutiable as an entirety under the provision for “Fishing reels.” On the retrial the Customs Court, in a carefully reasoned opinion, has so held, thus reversing the position it took, and which we affirmed, in the prior case.
The cases principally relied on here, as in the former case, to establish the applicable principles of law, are Norma Company of America v. United States, 6 Ct. Cust. Appls. 89, T.D. 35338, and George Scherr Co., Inc. v. United States, 40 CCPA 6, C.A.D. 489.
In our former opinion we distinguished these cases from the case at bar on the basis of the facts. Eeferring to the Norma case, we said:
The Norma case involved metal working machines, each of which was imported with a number of grinding spindles and grinding spindle extensions adapted to be used alternatively in accordance with the particular type of work being done by the machines. It was held that each machine and “one set of such alternate parts thereof as are necessary to enable it to perform its manifold functions” were dutiable as an entirety, but that such articles as were “duplicate, extra, or spare parts” were separately dutiable. [Emphasis added.]
We then referred to the spools in question as “extra spools,” said they were not indispensable to “the principal use” of the reels, and approved the refusal to include them with the reels as entireties, saying that the Norma case was distinguishable. It should be apparent that it was then our view that the second spool was an “extra” spool within the meaning of the statement in the Norma case that extra parts were separately dutiable.
The Scherr case involved “Speed Indicators Jacquet,” for measuring the rotational speed of shafts, and sets of “accessory tips” therefor. The collector classified the indicators and the tips as entireties. The importer protested that they were not and that the tips were separately dutiable. This court merely applied the principles set forth in the Norma case and said:
The evidence submitted definitely establishes that the involved accessory tips are not merely surplus or extraneous parts which have an occasional, casual, or *142optional use, but are detachable or adjustable constituent parts of the respective speed indicators which are indispensable to the performance of the manifold operations for which the imported indicators were designed. Under such circumstances, * * * the imported indicators and accessory sets of tips therefor must be regarded as entireties * * *. [Emphasis added.]
In our prior opinion on the fishing reel spools at bar we quoted that passage with emphasis on the statement that the evidence had definitely-established that the tips were indispensable to the performance of the manifold functions for which the indicators were designed. We then pointed out that the second spools for the “Mitchell 300” reels were “not indispensable to the principal use of the reels.”
In the retrial which has now come to us for review the importer took the deposition of the inventor-designer of the “Mitchell 300” reel and the testimony of four new witnesses and one of the former witnesses for the purpose of showing, as the lower court has now found it did successfully, that both of the spools imported with the spinning reel were necessary to enable the reel to perform the manifold operations for the performance of which the “Mitchell 300” reel was expressly designed, with the objective of eradicating the factual basis on which we, as well as the lower court, had previously distinguished this case from the Norma and Scherr cases. This new evidence is substantial and occupies nearly 100 printed pages.
Additionally the parties stipulated certain important facts which may be summarized as follows: The Mitchell 300 spinning reel can be and is used in both light and heavy fishing; it has two spools of different construction material, and line capacity; the small capacity spool is used in light fishing and the large capacity spool in heavy fishing; it is imported, bought and sold as a reel having two spools; it is always sold with two spools and is so sold throughout the United States.
For clarity it might be well to state that, in the words of a witness who is an expert in fishing, light fishing is fishing for small fish, using a light line of the order of 6-pound test and heavy fishing is fishing for larger fish with a 12-pound test line. Further, the record shows that one of the desiderata for heavy fishing is that the reel spool have a capacity of at least 200 yards of heavy line and that the spool be subject to greater drag than in light fishing.
In the prior Garcia case the Customs Court said, with respect to the facts there established:
It seems quite clear * * * that, except for very heavy or very light spinning reels, which are by their very nature each used for only one type of fishing, all spinning reels of the size of the imported reels may be used for more than one purpose and that there is nothing particularly or peculiarly characteristic of the imported reel which sets it apart from other spinning reels with respect to susceptibility of use for more than one type of fishing-
*143The record shows, also, that the majority of such reels are sold as a complete commercial entity with only one spool, and that purchasers may, and often do, purchase additional spools, some of identical capacity, so as to have a spare, and some of different capacity from that furnished with the mechanism, so as to secure the benefit of being able to use the reel for more than one type of fishing.
We are of the opinion that, on the record facts, the extra spool furnished with the reels at bar is not part of a commercial and tariff entity known as a fishing reel. [Emphasis ours.]
In affirming that decision we said (45 CCPA at p. 2):
While some of the testimony consists of opinions rather than statements of fact, and is in some respects inconsistent, we think it is ample to support the conclusion of the Customs Court that the extra spools enclosed in the import and sale packages are not entireties with the reel mechanisms and spools also contained therein.
Now, after a retrial, the Customs Court on a new record 'has come to a different conclusion as to what the facts are with respect to the “Mitchell 300” reel with its two spools and its relation to other spinning reels. On the basis of its new fact findings the lower court has concluded that the instant imports fall within the principles set forth in the Norma and Soherr cases so as to be correctly classifiable only as entireties. Again we are faced with the problem whether the record is “ample to support the conclusion of the Customs Court,” for, as we said in United States v. F.W. Meyers & Co., Inc., 45 CCPA 48, 52, C.A.D. 671,
It is well established that this court will not reverse the lower court on a question of fact except where the findings are without evidence to support them, or are clearly contrary to the weight of the evidence. Carey & Skinner, Inc. v. United States, 42 C.C.P.A. (Customs) 86, 90, C.A.D. 576.
And it is to be observed that there was no issue as to the law in our prior opinion, the authorities having been distinguished from the case before us on the basis of differences in facts.
In the added light of the new evidence, the lower court abandoned its former finding that there was nothing about the Mitchell 300 to set it apart from other spinning reels and concluded that “the reels and spools at bar are unique and differ from all other fishing reels.” We think, from our own review of the record, that this conclusion, redundant though it may be, is fully justified. In essence, the reasons for it are that the “Mitchell 300” was deliberately designed as a dual purpose reel which would be of light weight but have the capacity for heavy as well as light fishing. To this end the spool reciprocating mechanism was changed from the usual crank type, producing a sinusoidal movement, to a double-rack type producing straight-line reciprocation which would lay the line level on a spool with widely spaced flanges. The spools were made with flanges thus *144widely spaced in order to give adequate line capacity to the spool for the heavy line, which was made of metal for strength. The light fishing spool was made with a thick hub and of plastic to suit its particular function. The drag mechanism was placed in the spools instead of in the reel body so that each spool has its own appropriate drag. The Customs Court concluded:
On the basis of the facts now established by the entire record, we are satisfied that the “ordinary and proper functions” of the reel at bar are for use in light or heavy fishing; that it was designed, made, and sold for both such functions; and that the reel is incapable of performing those functions without both spools. We, therefore, hold that the two spools are constituent or integral parts of the reels at bar and that the reel and two spools are entitled to classification as an entirety. [Emphasis ours.]
The Customs Court explained how the newly found facts bring the imports at bar within the principles of the Norma and Scherr cases in such full, clear, and concise fashion that we can do no better than to quote from its opinion.
Examining the complete record before us, in the light of the Norma and Scherr decisions, we are of the opinion that the facts in the case at bar are so analogous in all material respects to those in the two cited cases as to require the application of the principle of law set forth in those cases. The article before us is a fishing reel, designed, made, and sold as a multi-purpose fishing reel, that is to say, one having a wider range of use than can be accomplished by any single-purpose fishing reel, even when the spools of the latter may be altered or adapted. That wide range of use is achieved by the use of a specially designed mechanism and specially designed, detachable spools.
Such an article, in its tariff aspect, is analogous to the machine tool involved in the Norma ease which, with its detachable parts, could perform a wide range of grinding operations, and to the machine tool designed to drill metal, referred to in the opinion of our appellate court in the Norma case to illustrate the point, which could drill “all the different sized holes for which it was designed.”
In the present case, the reel mechanism, with the two spools furnished therewith. can be used for all the different types of fishing for which it was designed, which cannot be achieved by other, single-purpose reels, even when altered or adapted. The reel mechanism in the case at bar combined with only one spool— to borrow phraseology and reasoning from the opinion in the Norma case— “could perform only a part of its functions, while its availability, desirability, and practical use and value” depend upon its ability to be used for a wider range of fishing than can be provided by any one spool.
Similarly, with respect to the speed indicators involved in the Scherr case, if one wished to measure the speeds of rotating shafts, he would be limited to measuring the speed of only one type of shaft if he did not have the detachable tips. Yet the instrument was designed, made, and sold as a device for measure-ing speeds of more than one type of shaft. So too, without both of the spools supplied with the reel mechanism, the article would have a limited function and one not in accordance with the purposes for which it was designed, made, and sold.
Defendant argues that “It cannot be denied that the spinning reel with one spool is a complete fishing reel.” Of course, the statement can be denied. The *145fact is that some spinning reels are complete fishing reels with only one spool, but this is not to say that all spinning reels are complete fishing reels with only one spool. * * *
It seems to us, in harmony with the reasoning of the appellate court in the 'Norma case, that if a spinning reel was designed, made, and sold for more than one type of fishing, it would not be a complete spinning reel without all of the parts that are essential to use it for any of the types of fishing for which it was designed, made, and sold. Such a reel would not be a complete fishing reel when it has only such parts as permit limited, rather than full, use of it.
Defendant states in the brief filed in its behalf that “It also cannot be denied that two spools cannot be used at the same time with only one reel.” No one seeks to deny such a statement, but the real question is whether it is a sine qua non of a tariff entirety that all of its parts must be used or be capable of being used at the same time. Certainly, the decisions in the Norma and Scherr cases, relating to articles which are used with alternate parts depending upon the function of the article desired to be performed, and the logic upon which those decisions are based, are directly contrary to any such proposition.
We have carefully considered the arguments of the Government urging us to reverse the Customs Court but are unable to find error in its opinion or judgment. The Government’s first point is that the reel mechanism with one spool is “a complete fishing reel.” This cannot be disputed in the sense that one can fish with it, but as we view the matter, that does not determine the issue whether for tariff purposes and under the law the imported merchandise is entitled to classification as an entirety. The facts in the Norma and Scherr cases answer this point.
The case of Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232, cited, we find neither analagous nor in point.
The Government’s second and final point is that the rule of stare decisis requires reversal. It should be apparent from what we have already said that the rule is not applicable by reason of the new evidence and the new factual basis on which we must proceed. We are aware, as has been pointed out to us, that the law has not changed. But the facts have. And in the light of the factual situation as found below on more than ample evidence, we conclude that the law, previously found to be inapplicable, is now applicable.
The judgment of the Customs Court sustaining the protest is affirmed.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822927/
|
Smith, Judge,
delivered tbe opinion of tbe court:
This is an appeal from tbe decision of tbe United States Customs Court, Second Division, (C.D. 2201) sustaining the importer’s protest and bolding that his personal exemption as a returning resident under paragraph 1798(c) of the Tariff Act of 1930 should have been applied against the value of a Volkswagen automobile imported by him. The circumstances under which the automobile was acquired and imported are set forth in a stipulation by the parties as follows:
1. That the protest herein is directed against the assessment of duty of $75.25, by the Collector of Customs, New York, N.Y. on the automobile imported by plaintiff into the United States upon his return from Europe, December 5, 1957, ex SS AUGUSTUS:
2. That the automobile in question was purchased from Transol Car Sales, 22 Hollanderstraat, The Hague, Holland on September 6,1957 and transferred to plaintiff by the vendor on that date in the city of The Hague, Holland, as indicated in the Bill of Sale, attached hereto;
3. That said Bill of Sale, dated September 6, 1957, is hereby offered in evidence without objection from either party litigant;
4. That in assessing duty on the aforesaid automobile the Collector of Customs allowed the sum of $275.00, or approximately 25 per cent of the purchase price, for depreciation, the car having been used abroad by plaintiff.
5. That the full purchase price of the automobile in question was paid by plaintiff to Transol Motors, 1818 El Dorado Avenue, San Jose, California, as agent for the aforesaid seller in Holland, prior to plaintiff’s departure from the United States on the trip abroad referred to in paragraph “1” herein, * * *.
In addition to the facts set forth in the stipulation, the Customs Court accepted as a fact the statement in the protest that the automobile had been driven abroad over 4,000 miles prior to its importation, and the Government does not assign error in the court’s action in that respect.
Whether the importer is permitted to apply his personal exemption as a returning resident of the United States to an automobile *147acquired under these circumstances depends first, on whether the importer “acquired” the automobile abroad, and second, on whether it was acquired as an “incident of the journey” as these terms are used in the applicable statute.3 The Customs Court answered both questions in the affirmative.
It is the position of the Government (1) that the automobile was not “.acquired abroad” and (2) that it was not acquired as an “incident of the journey.”
It is clear from the stipulated facts that the payment of the purchase price to the agent of the seller in the United States did not serve to transfer title to any particular automobile to the importer but merely gave him a claim against the seller. In fact, so far as appears from the record, the particular automobile which was eventually delivered to the importer may not even have been in existence when the purchase price was paid. Under these circumstances we agree with the Customs Court that the automobile was “acquired” in Holland within the meaning of paragraph 1798 (c) of the 1930 Tariff Act.
The cases to the contrary relied on by the Government are decisions of the Customs Court hence not binding on us. Moreover, we find nothing in them which would justify us in reaching a conclusion differing from that of the Customs Court herein. Our decision is dictated by the plain meaning of the statute.
The evidence of record establishes that appellee acquired in the United States, neither title to, interest in, nor possession of the Volkswagen automobile which he brought back with him from Europe. Yet the Government would have us construe the statute to hold that he “acquired” the Volkswagen automobile, within the meaning of the statute, in the United States before he left for Europe. To do so, we would be required to give the word “acquired” a meaning other than its common meaning which we think would violate the intent of Congress.
We also agree with the Customs Court that appellee acquired the imported automobile as an incident of his journey abroad. The Government argues that the stipulated facts lead inevitably to the conclusion that appellee journeyed to Europe for the primary purpose of acquiring the automobile and touring Europe with it. There is nothing of record, however, to indicate that he went abroad primarily to acquire the automobile, and the fact that it was driven four thousand miles over a period of several months before being brought to the *148United States is very persuasive of tbe conclusion that acquisition of the automobile was subordinate to the primary purpose of the journey.
In our opinion, the arguments urged by appellant are not supported by the statutory language in issue.
We are satisfied on this record that appellee “acquired” his Volkswagen automobile abroad “as an incident of his journey” as these terms are used in the statute.
The judgment of the United States Customs Court is affirmed.
“The applicable stautute bearing on these issues in Paragraph 1798(c)i(2) of the Tariff Act of 1930 (19 U.S.C. § 1201, par. 1798(c)(2)), as amended by the Customs Simplification Act of 1953 (67 Stat. 507) which roads in pertinent part:
(c) In the case of any person arriving in the United States who is a returning resident thereof — •
(2) articles * * * acquired abroad as an incident of the Journey from which he is returning, for his personal or household use, but not imported for the account of any other person nor intended for sale, * * *
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901806/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Corriero, J.), rendered January 6, 1986, convicting him of robbery in the second degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s sole contention, raised for the first time on *736appeal, is that locking the courtroom while the court instructed the jury constituted a closure in violation of his right (see, US Const 6th, 14th Amends; Judiciary Law §4) to an open and public trial. His claim is unpreserved for appellate review and, in any event, is without merit. We recently expressed our view that the procedure 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 for a trial” (People v Zenger, 134 AD2d 640, 641). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901807/
|
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered April 27, 1984, convicting him of robbery in the first degree, upon a jury verdict and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620) we find that it was legally sufficient to establish that the defendant, acting in concert with another, was guilty of robbery in the first degree. The complaining witness identified the defendant as a participant in the robbery and his testimony concerning the incident established that the defendant was not a mere bystander. Contrary to the defendant’s contention, Penal Law § 160.15 (4) does not require the People to introduce into evidence the gun used in the robbery or to present evidence that it was loaded (see, People v Saez, 69 NY2d 802; People v Baskerville, 60 NY2d 374; People v Brown, 108 AD2d 922).
The credibility of the testimony of the complaining witness vis-á-vis that of the defense witnesses, was primarily a matter for resolution by the jury. Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
Finally, the record as a whole establishes that the defendant was provided meaningful representation (see, e.g., People v Baldi, 54 NY2d 137; People v Vega, 126 AD2d 686, Iv denied 69 NY2d 887; People v Morris, 100 AD2d 630, affd 64 NY2d 803). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/4534494/
|
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0272n.06
Case No. 19-1437
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT May 14, 2020
DEBORAH S. HUNT, Clerk
JOHN OLIVER WOOTEN, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
PATRICK WARREN, Warden, )
) OPINION
Respondent-Appellee. )
BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. On August 5, 2011, John Wooten shot two people outside
a gentlemen’s club in Detroit, killing one of them. He claims he shot them in self-defense. Wooten
was charged with murder and assault with intent to commit murder. He was tried twice on those
charges. His first trial ended in a mistrial after the prosecution asked a police officer a question
that the court deemed improper. But the court did not bar reprosecution. Wooten was then
convicted at the second trial.
After the state appellate courts affirmed his convictions, Wooten petitioned for a writ of
habeas corpus. He argued that (a) having a second trial violated his Double Jeopardy rights, and
(b) there was constitutionally insufficient evidence at his second trial. The district court denied
Wooten’s petition. We AFFIRM.
Case No. 19-1437, Wooten v. Warren
I. BACKGROUND
On August 5, 2011, a little before 2:00 AM, John Wooten shot and killed Alfonso Thomas
outside the Pretty Woman Lounge in Detroit, Michigan. He also shot Omar Madison in the back,
although Madison lived to tell about it. Wooten fled the scene and threw his weapon—a .357
revolver—into the bushes. Although a warrant for his arrest was issued in August, Wooten was
not arrested until December 2011, four months after the shooting. The prosecution and Wooten
offered different versions of what exactly happened on August 5. According to the prosecution,
Wooten was making threatening statements in the bar that night and tried to bring a gun inside;
after the bar manager threw him out, Wooten turned around and shot two people. According to
Wooten, he was acting in self-defense—returning fire after Thomas shot at him. Wooten was tried
twice. The first trial ended with a mistrial, the second with a conviction.
A. First Trial
Wooten was originally charged with first- and second-degree murder, assault with intent
to commit murder, and two firearms charges. His first trial was in July 2012. It ended in a mistrial
before the prosecution could rest its case. Before the mistrial motion, the prosecution had relied in
large part on two eyewitnesses. The first was Omar Madison, the Pretty Woman bar manager
Wooten had shot in the back. The second was Anthony Gary, the bar promoter whose gun the other
victim, Alfonso Thomas, had grabbed shortly before the shooting. Both testified that Wooten was
the one who shot Thomas. Both also testified that nobody else fired a shot that night.
The prosecution’s case suffered two major blows. First, the prosecution was prohibited
from asking Madison about a prior incident involving Wooten that could have helped prove
premeditation or intent.
-2-
Case No. 19-1437, Wooten v. Warren
Second, the prosecution was prohibited from going into a different line of questioning on
Fifth Amendment grounds. The prosecution had called the homicide investigator in charge of the
case. By this point, Wooten’s lawyer had been asking questions about the gun that Thomas was
holding when the shooting occurred—presumably to help build Wooten’s self-defense argument.
So the prosecutor asked the investigator whether Wooten had ever come forward to explain to the
police that he had acted in self-defense. Wooten’s lawyer objected, on grounds that the question
violated his client’s Fifth Amendment rights, and the court sustained the objection. The parties
then convened for a sidebar discussion, which does not appear in the trial record.
Later, a similar question from the prosecutor led to a mistrial. On redirect examination of
the homicide investigator, after extensive discussion of the second gun, the prosecutor asked the
following question: “In this case would you have enjoyed talking to the defendant?” Wooten’s
lawyer objected, the court sustained, and the parties held a sidebar conference.
The judge scolded the prosecutor for discussing Wooten’s failure to come forward to the
police. The judge had told the prosecutor at the earlier sidebar conference that he could not go into
this line of inquiry. The prosecution claimed that the question was in response to the questions
about the second gun.
Wooten moved for a mistrial. Defense counsel argued that the case should be dismissed
with prejudice, which would bar a retrial. He contended that the prosecutor’s question was an
intentional act of prosecutorial misconduct, citing Oregon v. Kennedy, 456 U.S. 667 (1982). The
prosecutor argued in opposition.
The judge granted the mistrial. In doing so, the judge talked at length on several topics.
First, the judge flatly rejected the prosecution’s substantive arguments that the question was
proper. Next, the judge went on to discuss the state of the prosecution’s case. The case against
-3-
Case No. 19-1437, Wooten v. Warren
Wooten was going poorly, in his opinion, particularly on the first-degree murder charge. In fact,
the judge said, if Wooten had moved for a directed verdict on the first-degree murder charge, that
motion would have been granted.
However, the judge did not find that the prosecutor intended to provoke a mistrial. The
judge stated:
Sometimes when we wind up getting involved in the give and take of a trial, the
heat of combat overwhelms our rational decision making processes, and I think that
may very well have been the situation today.
The judge acknowledged that his ruling benefited the prosecution. But he “hope[d] and
pray[ed] that that’s not what the reasoning was of the prosecution to have done what it did. I’m
giving him the benefit of the doubt.” The parties then scheduled the new trial.
B. Second Trial
The second trial was held in November 2012. At the beginning of the trial, Wooten’s
lawyer moved to reconsider the issue of whether the retrial should be barred, specifically
mentioning that he was seeking to preserve his rights for appeal. But the court denied the motion
and continued with the trial.
The prosecution’s key witness was Omar Madison, the bar manager and shooting victim.
He testified to two incidents: the shooting and an earlier incident involving Wooten at the Pretty
Woman. In the earlier incident, according to Madison, a few weeks before the shooting, Wooten
threw something in the bar. It hit Madison, although Madison acknowledged that Wooten said he
had not intended to hit him. Still, Madison told Wooten he had to go, and he had the bouncer escort
Wooten out. As soon as Wooten got outside the door, he started shooting up in the air. (Madison
was inside when this happened and the door was closed, so he didn’t actually see Wooten shoot.)
-4-
Case No. 19-1437, Wooten v. Warren
Later that night, Wooten pulled up in front of Madison in the parking lot. He confronted
Madison and asked if they had a problem. According to Madison, he could see that Wooten was
holding a revolver. The two talked their issues over and then went their separate ways. Madison
did not report the incident to the police.
On August 5, 2011, the night of the shooting, Madison testified that he had heard Wooten
and his friend “C” inside the bar making what Madison perceived as threatening comments—
things like “We run this bar. I stick this bar up.”
Madison said that Wooten and C left the bar for a little while, and when they came back,
they refused to be searched, even though it was bar policy to search everyone for weapons before
entry. Madison approached them, reached for Wooten, and felt Wooten’s gun in his front
waistband (a revolver). Madison told Wooten that he could not bring the gun into the bar, at which
point Wooten became obnoxious. Wooten then seemed to reach for his gun, so Madison grabbed
him and held the gun. C then grabbed Madison to try to pull him off Wooten, and Anthony Gary
(the promoter) in turn grabbed C.
Madison testified that the four of them eventually made their way outside the bar. After a
little while, Madison said to Alfonso Thomas: “Boo [Thomas’s nickname], you got him. I’ll be
letting him go. I’m about to let him go.” Thomas had with him a .380 semiautomatic handgun,
which Madison later learned was Anthony Gary’s gun. Madison wanted to make sure that Thomas
could deter Wooten from firing the revolver and hurting somebody.
According to Madison, he let Wooten go, and Wooten started to take a couple of steps
away. Madison turned to go back in the bar. Then Wooten started shooting, and he hit Madison
from behind. Madison was able to turn and see Wooten shoot Thomas. He never saw Thomas
shoot at Wooten.
-5-
Case No. 19-1437, Wooten v. Warren
The prosecution offered several other eyewitnesses, who testified to Wooten’s shooting at
Madison and Thomas. The prosecution also offered evidence to rebut the claim that a second gun
was fired that night—that is, that Thomas fired at Wooten, prompting him to return fire in self-
defense. Investigating officers testified that they found no evidence that a second gun was fired.
Anthony Gary, who owned the gun in question, testified that he examined the gun later that night
and found that it was still fully loaded.
Wooten also testified in his own defense. He started with the incident a few weeks before
the shooting. Apparently, he had thrown his hands up in the air and a drink had slipped out,
accidentally hitting Madison. Madison approached him, and Wooten explained that he had not
meant to hit him. Not wanting an altercation, Wooten claimed he left of his own accord. Once he
walked outside the bar, Wooten heard gunshots go off—but they weren’t fired by him, because at
that time he didn’t have his gun.
Next, the night of the shooting. Wooten testified that he had his gun with him that night—
a .357 revolver—because it was a rough neighborhood. But when he first entered the bar, the
bouncer let him in with his gun. Later in the night, Wooten left the bar to go smoke weed and
returned after about half an hour. When he went to go back in the bar, the bouncer gestured at
Madison, who was right behind them counting the proceeds from that night. Wooten took this
gesture to mean that the bouncer could not let him into the bar with the gun while the boss was
watching, so the two made some small talk to wait until Madison was not paying attention.
Wooten said he was already heading out the door when Madison grabbed him from behind,
lifting him up. Wooten heard Madison say “Pull your gun. Pull your gun. Get ready. Are you
ready?” Wooten testified that he heard the safety of a gun click and, after Madison released him,
saw Thomas with a gun pointed at him. And then, according to Wooten, Thomas fired at him. So
-6-
Case No. 19-1437, Wooten v. Warren
Wooten pulled out his gun and returned fire. He realized he hit Thomas, so he got scared and took
off running. Wooten hid in an alley and threw his gun in the bushes. He did not talk to the police,
because he had contacted some lawyers who had told him not to say anything to the police until
he had retained a lawyer.
C. Verdict, Direct Appeal, and Proceedings in the District Court
The jury convicted Wooten of second-degree murder, assault with intent to commit murder,
and two firearms offenses. On direct appeal, Wooten argued that (1) the court should have barred
the second trial on Double Jeopardy grounds, (2) there was insufficient evidence at the second
trial, and (3) the prosecutor committed misconduct at closing argument. The Michigan Court of
Appeals affirmed on all grounds. The Michigan Supreme Court denied leave to appeal, after
hearing oral argument.
In January 2017, Wooten filed a pro se petition for a writ of habeas corpus in the Eastern
District of Michigan. He raised the same three issues as he did in his direct appeal. The district
court then appointed counsel, and counsel filed a supplemental brief addressing the claims. The
district court denied the petition and issued a certificate of appealability only on the Double
Jeopardy claim. This court then expanded the COA to include Wooten’s sufficiency argument.
II. ANALYSIS
A. Standard of Review
This court reviews the district court’s legal conclusions de novo and its factual findings for
clear error. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en banc). The district court applies
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a district
court can grant a petition for a writ of habeas corpus only if the state-court adjudication resulted
in a decision that was “contrary to, or involved an unreasonable application of, clearly established
-7-
Case No. 19-1437, Wooten v. Warren
Federal law, as determined by the Supreme Court of the United States” or if the decision “was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). Before analyzing the merits, we first address Wooten’s
arguments that AEDPA deference does not apply in his case.
B. Does AEDPA Deference Apply?
1. Plain-Error Review and AEDPA Deference
Wooten first argues that the state court should not receive AEDPA deference because it
erroneously analyzed the Double Jeopardy issue under a plain-error standard of review. AEDPA
deference applies only when the state court decided the issue “on the merits.” 28 U.S.C. § 2254(d).
Under Sixth Circuit precedent, AEDPA deference “applies to a state court’s plain-error analysis if
it ‘conducts any reasoned elaboration of an issue under federal law.’” Stewart v. Trierweiler, 867
F.3d 633, 638 (6th Cir. 2017) (quoting Fleming v. Metrish, 556 F.3d 520, 531 (6th Cir. 2009)).
But Wooten argues that this rule applies only to cases where the state court properly applied plain-
error review. And here, Wooten claims, the court applied plain-error review only because it
incorrectly held that Wooten had failed to preserve the Double Jeopardy issue in the trial court.
We conclude that AEDPA deference applies. Under Fleming, we apply deference to the
state court’s plain-error merits analysis even if the court’s underlying procedural reasoning is
incorrect. 556 F.3d at 532. In Fleming, the state court applied plain-error review because it found
that the claim had been procedurally defaulted. See id. We disagreed with the state court’s
procedural-default reasoning, but we applied AEDPA deference anyway. Id. Citing principles of
comity, finality, and federalism, we explained that “[t]he state court’s substantive reasoning does
not simply vanish along with its erroneous procedural-default determination. Nor does AEDPA.”
Id.
-8-
Case No. 19-1437, Wooten v. Warren
Here, the state court held that Wooten had not preserved his Double Jeopardy argument.
The district court concluded that this preservation ruling was incorrect, and on appeal the state is
no longer arguing that Wooten failed to preserve his claim. But the state appellate court examined
the merits anyway, and it even determined that there was no constitutional error—“[t]his is not a
case where the state court simply assumed, without deciding, that there was a constitutional error
and then proceeded to determine that the error was not plain.” Id. Under Fleming, AEDPA
deference applies to this adjudication.
2. Did the State Court Adjudicate the Double-Jeopardy Issue “On the Merits”?
Second, Wooten contends that the state court’s adjudication of the Double Jeopardy issue
was unreasonable because it did not mention every basis for finding that the prosecutor intended
to provoke a mistrial. Here, the Michigan Court of Appeals dismissed Wooten’s Double Jeopardy
argument based on its conclusion that the prosecutor’s question was constitutionally permissible.
But it did not address the secondary argument that, even if the question was proper in isolation, it
still showed the prosecutor’s intent to provoke a mistrial because the question violated a clear order
from the trial court. However, we find that it did not need to do so in order to receive AEDPA
deference.
Again, for AEDPA deference to apply, the state court must have adjudicated the federal
claim “on the merits.” 28 U.S.C. § 2254(d). When a federal claim has been presented to a state
court, there is a rebuttable presumption that the state court adjudicated the claim on the merits.
Johnson v. Williams, 568 U.S. 289, 292–93 (2013); Harrington v. Richter, 562 U.S. 86, 99 (2011).
The presumption applies “when a state-court opinion addresses some but not all of a defendant’s
claims.” Williams, 568 U.S. at 298. The presumption can be rebutted only “when there is reason
-9-
Case No. 19-1437, Wooten v. Warren
to think some other explanation for the state court’s decision is more likely.” Richter, 562 U.S. at
99–100.
The Richter/Williams presumption applies to a state court’s opinion that decides a federal
claim but does not explicitly address every relevant fact or argument. See Lee v. Comm’r, Ala.
Dep’t of Corr., 726 F.3d 1172, 1210–12 (11th Cir. 2013). “It makes no sense to say that a state
court decision is entitled to AEDPA deference if the opinion fails to contain discussion at all of a
claim but is entitled to no deference if it contains some but less than complete discussion.” Id. at
1212.
Here, AEDPA deference applies. Under Williams and Richter, we presume that the state
court adjudicated the federal claim on the merits. And here, the state court explicitly resolved
Wooten’s Double Jeopardy argument. The Kennedy goaded-mistrial rule involves examining all
the relevant circumstances, but that doesn’t mean the court must explicitly mention every relevant
circumstance in its opinion. See id. And Wooten has not pointed us to anything to rebut the
Richter/Williams presumption. Accordingly, AEDPA deference applies to the state court’s
decision here.
C. Was the State Court’s Determination Contrary to or an Unreasonable Application of
Oregon v. Kennedy?
Under AEDPA, the court cannot grant habeas relief unless the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). That means
Wooten must point to the holdings—not dicta—of Supreme Court precedents in making his claim
for relief. See Ross v. Petro, 515 F.3d 653, 660 (6th Cir. 2008).
- 10 -
Case No. 19-1437, Wooten v. Warren
Wooten argues that the facts of his case establish that the prosecutor intended to provoke a
mistrial. Therefore, according to Wooten, the Michigan Court of Appeals issued a decision that
was an unreasonable application of Oregon v. Kennedy, 456 U.S. 667 (1982).1 Under Kennedy,
when a mistrial is granted on the defendant’s motion, reprosecution will be barred if the prosecutor
“intended to ‘goad’ the defendant into moving for a mistrial.” Id. at 676. The intent standard “calls
for the [trial] court to make a finding of fact.” Id. at 675. The prosecutor’s intent is inferred “from
objective facts and circumstances” of the trial. Id.
Here, Wooten’s Kennedy-based argument turns on one question from the prosecutor to the
officer in charge of the investigation: “Would you have enjoyed talking to the defendant?” Two
issues follow from that: (1) Was the substance of the question constitutionally improper? (2) Did
the context in which the question was asked demonstrate that the prosecutor intended to provoke
a mistrial?
With regard to the substance of the question, a key issue on direct appeal was whether
using Wooten’s prearrest silence violated his constitutional right against self-incrimination. In this
appeal, Wooten does not make any argument that, under current law, asking about Wooten’s
prearrest silence was unconstitutional. See Salinas v. Texas, 570 U.S. 178, 181 (2013) (plurality);
Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014). Instead, he argues that the question probed
further than prearrest silence, implicating both his postarrest silence and his failure to testify at the
first trial.
1
Wooten also argues that the “manifest necessity” standard should apply, rather than Kennedy, because he did not
consent to the mistrial. See Tinsley v. Million, 399 F.3d 796, 812 (6th Cir. 2005). But he framed his argument to the
Michigan Court of Appeals solely in terms of the standard set forth in Kennedy, arguing only that the trial court erred
in finding that the prosecutor did not intend to provoke a mistrial. Indeed, he appeared to concede that trial counsel
should have done more if he wanted to withdraw his motion for mistrial and continue with the trial: “The Defendant
should have retracted his motion for a mistrial upon hearing that [the court would have granted a motion for directed
verdict], but in good faith did not.” At oral argument, Wooten also pointed us to United States v. Dinitz, 424 U.S. 600
(1976). But that pre-Kennedy case did not even involve prosecutorial misconduct, see id. at 601–05, which is the entire
basis for Wooten’s Double Jeopardy argument here.
- 11 -
Case No. 19-1437, Wooten v. Warren
But the Michigan Court of Appeals reasonably found that the context reveals that the
prosecutor’s question dealt only with prearrest silence. Regarding postarrest silence, the first time
the prosecutor brought up Wooten’s failure to come forward to claim self-defense, he explicitly
said, “I’m not concerned with anything after he was arrested[.]” And later, when the prosecutor
asked, “Would you have enjoyed talking to the defendant?” it was in the context of the
investigation of whether a second gun had been fired—nobody had ever mentioned anything about
what happened to Wooten after he was arrested. Regarding Wooten’s failure to testify, asking a
police officer whether she would have “enjoyed talking to the defendant” does not necessarily
implicate the defendant’s failure to testify in his defense. If Wooten were to testify in the first trial,
then the attorneys would have been the ones asking him questions—so he would not have been
“talking to” the police officer at all.
We also consider the context of the question. Wooten argues that the prosecutor’s question
demonstrated his intent to provoke a mistrial based on the context in which it was asked—
particularly (a) the poor state of the prosecution’s case and (b) the trial court order not to go into
that line of inquiry.
Whether a prosecutor intended to provoke a mistrial motion is a question of fact. Kennedy,
456 U.S. at 675. Even on direct appeal, these factual findings are reviewed for clear error. United
States v. Foster, 945 F.3d 470, 474 (6th Cir. 2019). The standard is even higher in the habeas
context. State court findings of fact are “presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also
Wei v. Burt, No. 18-2438, 2019 WL 1531516, at *2 (6th Cir. Mar. 26, 2019) (applying Section
2254(e) presumption to a state court finding that the prosecutor did not intend to provoke a
mistrial). The petitioner can rebut that presumption, but only upon a showing of error by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). And a habeas court will not overturn a state-court
- 12 -
Case No. 19-1437, Wooten v. Warren
adjudication unless it “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
“[A] state-court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010). And special deference is given to the trial court’s credibility determinations, particularly
when made on the basis of oral (as opposed to documentary) evidence. See Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984).
Here, the state trial court credited the prosecutor and believed that he did not intend to
provoke a mistrial. The court made that ruling based on its observation of a live court proceeding,
and the ruling was made very shortly after the events themselves happened. There are other factors
supporting the state court’s finding. The prosecutor argued against Wooten’s mistrial motion. See
United States v. White, 914 F.2d 747, 752 (6th Cir. 1990) (noting that the prosecutor “resisted and
apparently was surprised by the granting of the motion for a mistrial”). The mistrial motion was
based on a single improper question. See Foster, 945 F.3d at 474–75 (affirming a finding that the
prosecutor lacked intent to provoke a mistrial despite a “litany” of constitutional violations). And
the improper question came well after the original Fifth Amendment ruling. See State v. Yetman,
516 S.W.3d 33, 43 (Tex. Ct. App. 2016) (in a case where the court affirmed a finding of
prosecutorial intent to provoke a mistrial, the improper question came immediately after the court
ruled that the prosecutor’s line of argument was off-limits).
The trial judge was the one who observed the demeanor of the lawyers and was in a much
better position to determine what the prosecutor intended in that moment. The Kennedy standard
is an “exacting” one in general. Phillips v. Court of Common Pleas, 668 F.3d 804, 811 (6th Cir.
2012). Combine that with AEDPA deference and you have an incredibly high hurdle, especially
- 13 -
Case No. 19-1437, Wooten v. Warren
when it comes to credibility determinations. Wooten has not cleared that hurdle. We find that
Wooten has not established that the state court’s ruling in his case was contrary to or an
unreasonable application of Oregon v. Kennedy.
D. Sufficiency of the Evidence
Wooten also argues that there was constitutionally insufficient evidence to convict him.
This claim can be analyzed in two parts. First, Wooten argues that the prosecution did not meet its
burden in disproving his self-defense theory. Second, he argues that there was insufficient evidence
of his mental state to convict him of second-degree murder and assault with intent to commit
murder.
It is difficult to prevail on sufficiency claims on habeas review. This is because there are
two layers of deference. First, there is the deferential standard articulated in Jackson v. Virginia,
443 U.S. 307 (1979). Under Jackson, we defer to the trier-of-fact’s verdict by reviewing the
evidence in the light most favorable to the prosecution and asking whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. Next,
“deference should be given to the Michigan Court of Appeals’ consideration of the trier-of-fact’s
verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). In other
words, “a federal habeas court must ask whether the state court decision reflected an unreasonable
application of the Jackson standard to the facts of the case.” Brian R. Means, Postconviction
Remedies § 31.2 (July 2019).
Wooten’s sufficiency argument goes to his convictions for second-degree murder and
assault with intent to commit murder. Under Michigan law, the elements of second-degree murder
are: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse.” People v. Roper, 777 N.W.2d 483, 490 (Mich. Ct. App. 2009) (per curiam) (internal
- 14 -
Case No. 19-1437, Wooten v. Warren
quotation marks and citation omitted). “The elements of assault with intent to commit murder are:
(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing
murder.” People v. Brown, 703 N.W.2d 230, 236 (Mich. Ct. App. 2005) (internal quotation marks,
citations, and footnote omitted). As a defense to those crimes, a defendant can claim self-defense—
that is, that he “honestly and reasonably believe[d] that the use of deadly force [was] necessary to
prevent the imminent death of or imminent great bodily harm to himself or herself[.]” Mich. Comp.
Laws § 780.972(1)(a). Once a defendant presents a prima facie case of self-defense, then the
burden of proof shifts to the prosecution to disprove the self-defense claim beyond a reasonable
doubt. See People v. Denson, 902 N.W.2d 306, 315 (Mich. 2017).
The government argues (and the district court found) that Wooten’s self-defense argument
was not cognizable in habeas because it was based on an affirmative defense, not a substantive
element of Michigan criminal law. See People v. Reese, 815 N.W.2d 85, 101 n.76 (Mich. 2012)
(“An affirmative defense, like self-defense, ‘admits the crime but seeks to excuse or justify its
commission. It does not negate specific elements of the crime.’” (quoting People v. Dupree, 788
N.W.2d 399, 405 n.11 (Mich. 2010))). Wooten counters that, because of Michigan’s burden-
shifting framework, the prosecution must disprove self-defense as part of proving the elements of
the substantive offense. But in any event, we need not decide whether the claim is cognizable,
because we conclude that there was constitutionally sufficient evidence to find that (a) Wooten did
not act in self-defense, and (b) Wooten acted with a mental state sufficient to satisfy the elements
of both second-degree murder and assault with intent to commit murder.
1. Self-Defense
Wooten claims there was not enough evidence to conclude that he did not act in self-
defense. He points to evidence that the Michigan Court of Appeals allegedly “ignored.” He
- 15 -
Case No. 19-1437, Wooten v. Warren
contends that the court ignored the witness admissions that Thomas had grabbed Gary’s gun off
Gary’s hip. And he contends that the court ignored evidence that Madison told Thomas to grab a
gun. Wooten also points us to evidence indicating that Gary “surreptitiously” took his gun away
from the crime scene and then didn’t tell the police about it. Finally, Wooten points us to the
bouncer’s testimony that Wooten wasn’t making any threatening gestures and that, during the
tussle, other bar patrons were yelling “We got him. We got him. We got him.” All this shows,
according to Wooten, that he fired at Thomas and Madison only because he feared for his life.
But this was not the only possible interpretation of the events. The jury could have given
more credit to the account offered by one of the victims, Omar Madison. See O’Hara v. Brigano,
499 F.3d 492, 499–500 (6th Cir. 2007). According to Madison, Wooten and his friend were making
threatening comments while Wooten was inside the bar. Further, Madison testified that Wooten
was refusing to be searched and became obnoxious once Madison called him out for trying to bring
a gun into the bar. According to Madison, Wooten seemed to be reaching for his gun—that’s when
Madison grabbed him. And Madison said he yelled for Thomas simply so he could make sure
Wooten didn’t hurt anybody. Finally, there was testimony that Thomas was not pointing the gun
at Wooten, and Wooten took a few steps away from everyone at the bar before turning around and
shooting. Drawing on this, the jury could well have concluded that Madison was simply doing his
job as bar manager in securing an unruly customer and that Wooten did not have a reasonable fear
of imminent death or great bodily harm. Thus, there was enough evidence for a rational trier of
fact to infer that Wooten did not act in self-defense.
2. Mental State
Wooten also argues that he did not have a sufficient mental state to be convicted of murder
or assault with intent to commit murder. For mental state, Michigan second-degree murder requires
- 16 -
Case No. 19-1437, Wooten v. Warren
a finding of malice. Roper, 777 N.W.2d at 490. “Malice is defined as the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and wilful [sic] disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Id.
(internal quotation marks and citation omitted). In contrast, assault with intent to commit murder
requires an “actual intent to kill.” Brown, 703 N.W.2d at 236–37. On the question of actual intent
to kill, the jury
may, and should take into consideration the nature of the defendant’s acts
constituting the assault; the temper or disposition of mind with which they were
apparently performed, whether the instrument and means used were naturally
adapted to produce death, his conduct and declarations prior to, at the time, and
after the assault, and all other circumstances calculated to throw light upon the
intention with which the assault was made.
People v. Taylor, 375 N.W.2d 1, 8 (Mich. 1985) (per curiam) (internal quotation mark and citation
omitted).
Here, there is enough evidence to infer both malice and an actual intent to kill. On the
malice question, Michigan juries can infer malice from the defendant’s use of a deadly weapon.
See Stewart v. Wolfenbarger, 595 F.3d 647, 658 (6th Cir. 2010) (collecting cases). Wooten
admitted he fired the gun, and he does not claim it discharged accidentally.
On the actual intent to kill question, the jury could find that Wooten was the aggressor and
that he bore a grudge against Madison. There is testimony supporting each of the following facts:
(1) Wooten reacted angrily to being thrown out of the bar after the drink-throwing incident and
even threatened Madison with a gun; (2) Wooten and his friend were making threatening
comments on the night of the shooting even before the altercation; (3) Wooten initiated the conflict
by refusing to be searched and then reaching for his weapon; and (4) Wooten did not shoot
immediately, but instead took a few steps away from the building and then turned to shoot. In light
- 17 -
Case No. 19-1437, Wooten v. Warren
of this evidence, we conclude that Wooten has not met his heavy burden in establishing his right
to habeas relief on the grounds of insufficiency of the evidence.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
- 18 -
|
01-03-2023
|
05-14-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/5901808/
|
—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered December 17, 1985, convicting him of arson in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
.The defendant’s claim as to the adequacy of the plea allocution has not been preserved for review as a matter of law (see, People v Hoke, 62 NY2d 1022; People v Pellegrino, 60 NY2d 636). In any event, the record demonstrates that the defendant acknowledged facts sufficient to establish the commission of the crime and that the plea was knowingly and voluntarily entered (see, People v Harris, 61 NY2d 9).
We have also examined those additional points which the defendant has requested counsel to raise and find them to be without merit. Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901809/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lane, J.), rendered May 30, 1985, convicting him of criminal possession of a weapon in the third degree (two counts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the trial court acted properly in denying his motion to dismiss the indictment on speedy trial grounds. The defendant was arrested on the instant charges on October 30, 1980, and an indictment was filed against him on December 3, 1980. The defendant was thereafter notified that he was to appear for arraignment on December 15, 1980. The defendant failed to appear on the scheduled date for arraignment and as a result a warrant was then issued for his arrest. Despite repeated attempts by police, the defendant could not be located. In July 1983, however, the defendant was arrested on an unrelated case and the warrant in the present case was executed.
On August 29, 1983, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of the indictment. On November 22, 1983, the defendant was permitted to withdraw his guilty plea. About a week later, the defendant moved to dismiss the indictment on speedy trial grounds since a 2Vi-year period of postindictment delay had transpired after the issuance of the *738bench warrant. At the hearing, the defendant maintained that the People’s efforts to locate him during that period did not rise to the level of due diligence and thus that time was chargeable to the People. The trial court denied the defendant’s motion. We affirm.
In the first instance, we note that for purposes of the defendant’s speedy trial motion, the instant criminal action is deemed to have commenced on November 22, 1983, the date upon which the defendant’s motion to withdraw his guilty plea was granted (see, CPL 30.30 [5] [a]). The defendant’s previous plea of guilty operated as a waiver of his statutory right to any dismissal based on the 21A-year delay occasioned by the defendant’s absence (see, People v Thill, 52 NY2d 1020, cert denied 454 US 829; People v Friscia, 51 NY2d 845; People v Brothers, 50 NY2d 413). In any event, even if we were to assume that the instant action was deemed to have commenced with the filing of the indictment as the defendant argues, the defendant’s speedy trial motion would still be denied. The 2Vi-year period between December 15, 1980 to July 25, 1983 was excludable under CPL 30.30 (4) (c) since the People established that during that time the defendant’s location was unknown and could not be determined with due diligence. During this time period, the efforts made by the warrant squad officer assigned to locate the defendant included four visits to the defendant’s last known home address where his mother still resided, two visits to the home of the defendant’s aunt, and visits to several locations which the defendant had been known to frequent in the past. Additionally, the officer sought to locate the defendant by contacting the defendant’s last known place of employment, as well as instituting checks on the defendant’s driver’s license and registration, and whether he was receiving welfare benefits. Clearly, these efforts by police to locate the defendant met the due diligence standard (see, People v Taylor, 127 AD2d 714).
The defendant next contends that his guilt was not proven beyond a reasonable doubt. We disagree. The evidence adduced at the trial established that the police officers recovered an operable gun from under the driver’s seat of the car which the defendant had been driving. The police also recovered a second operable gun from the back of the police car where a short time earlier, the defendant and his codefendant had been seated. No one else had been in the back seat of the police vehicle prior to the defendant and the codefendant. The defendant failed to produce sufficient evidence at trial to rebut *739the statutory presumption of possession as to the first gun (see, Penal Law § 265.15 [3]) or to create a reasonable doubt as to his possession of the second gun. On this point we note that the fact that the codefendant, during her allocution on her plea of guilty concerning the instant charges in which she admitted to possessing one or both of the recovered handguns, did not necessarily demonstrate that she exclusively possessed either or both of the guns, particularly in view of the fact that neither gun was found on her person. In viewing the evidence in the light most favorable to the prosecution, we find it is legally sufficient to support the defendant’s conviction of the charged crimes. Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
Finally, we find that in view of the circumstances of this case, the imposed concurrent sentences of 2 to 6 years which were to run consecutively to the sentence imposed under another indictment, were not unduly harsh or excessive. Mollen, P. J., Rubin, Kooper and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901810/
|
Appeal by the defendant from a judgment of Supreme Court, Queens County (Buchter, J.), rendered April 6, 2010, convicting him of attempted murder in the second degree, assault in the first degree, unlawful imprisonment in the second degree, and criminal possession of a weapon in the third 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 videotaped statement made by him to law enforcement authorities.
Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress a videotaped statement made by him to law enforcement authorities is granted, and a new trial is ordered.
The defendant moved to suppress a videotaped statement made by him to an assistant district attorney during the course of an interview conducted prior to the defendant’s arraignment, *987pursuant to a program instituted by the Queens County District Attorney’s office. In accordance with that program, a script formulated by the Queens County District Attorney’s office was read to the defendant prior to administering Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and obtaining a waiver of the defendant’s rights. Because this procedure was not effective to secure the defendant’s fundamental constitutional privilege against self-incrimination and right to counsel, the defendant’s videotaped statement should have been suppressed (see People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]).
Further, this error was not harmless beyond a reasonable doubt. Other than the improperly admitted inculpatory statements of the defendant, the People’s evidence that the defendant committed the acts of which he was accused was limited to the testimony of the complainant, the defendant’s ex-girlfriend. The defendant’s confession provided highly probative and damaging evidence against him, and served to corroborate the complainant’s testimony. Under these circumstances, the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Schaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912 [2012]). Accordingly, we reverse the conviction, grant that branch of the defendant’s omnibus motion which was to suppress a videotaped statement made by him to law enforcement authorities, and order a new trial.
In light of our determination, we need not reach the defendant’s remaining contentions. Skelos, J.P., Balkin, Leventhal and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129202/
|
Order affirmed, with ten dollars costs and disbursements.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129203/
|
Judgment affirmed on the opinion of the late
Judge Gardner as referee.
Dwight, J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129204/
|
Judgment affirmed. Opinion by
Barker, J.;
Dwight, J., not sitting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129205/
|
Order affirmed, with ten dollars costs and disbursements.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901812/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered July 18, 1986, convicting him of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues that the prosecutrix’s summation, including comments made therein about the defendant being represented by two attorneys, deprived him of a fair trial. The record reveals however, that the issue of the propriety of the comments was not preserved for appellate review since either the defendant did not ask for a curative instruction or the court instructed the jury as to the comments. In any event, the court, at the conclusion of both summations and prior to the charge, instructed the jury regarding the summations and emphasized that the number of attorneys a defendant has does not bear on his guilt or innocence. Furthermore, even if some of the remarks were improper, they were harmless in view of the overwhelming evidence of the defendant’s guilt (People v Perez, 132 AD2d 579). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901813/
|
—Appeal by the defendant from a judgment of the County Court, Nassau County (Thorp, J.), rendered November 16, 1981, convicting him of rape in the first degree, sexual abuse 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 certain statements made by him to the police.
Ordered that the judgment is affirmed.
The defendant’s contention that he was not advised of his Miranda warnings is without merit. The record clearly supports the hearing court’s specific findings that the defendant was read his constitutional Miranda warnings from a standard Police Department card, that the defendant said he understood and waived those rights and that the defendant signed and dated the rights card. Accordingly, there is no reason to disturb the court’s denial of the defendant’s motion to suppress his statements (see, People v Valencia, 126 AD2d 764, Iv denied 69 NY2d 956; People v Armstead, 98 AD2d 726).
Neither did the court’s Sandoval ruling allowing questioning as to the underlying facts of a 1975 disorderly conduct conviction and permitting the prosecutor to adduce that the defendant had been convicted of a felony in 1976, without revealing the underlying crime, deprive the defendant of a fair trial. It was also proper for the trial court to admit into evidence for impeachment purposes a concededly falsified employment application in which the defendant stated that he had never been convicted of a crime. This application was relevant to and could significantly bear upon the question of the defendant’s credibility (see, People v Smith, 103 AD2d 859). Furthermore, the defendant did not request an advance ruling to preclude cross-examination concerning the false employment application. He therefore failed to carry his burden to * inform the court of the prior convictions and misconduct which might unfairly affect him as a witness in his own behalf’ (People v Sandoval, 34 NY2d 371, 378; accord, People v Carter, 113 AD2d 949).
The defendant further contends that the elements required to prove the crime of rape in the first degree, a class B felony (see, Penal Law § 130.35), are virtually identical to the elements required to prove the crime of sexual misconduct, a class A misdemeanor (see, Penal Law § 130.20), and therefore that he is entitled to receive the benefit of the lesser penalty *741(i.e., a maximum sentence of one year for a class A misdemeanor pursuant to Penal Law § 70.15). This contention was not raised in the trial court and thus has not been preserved for appellate review. In any event, it is without merit. The definitional overlap between these two crimes is well recognized by the courts in this State, and it has repeatedly been held that there is no impropriety in a prosecutor’s proceeding under a theory of rape in the first degree rather than sexual misconduct (see, People v Gillis, 67 AD2d 1008; People v Vicaretti, 54 AD2d 236).
Also without merit is the defendant’s contention that the trial court improperly refused to allow him to introduce into evidence an allegedly prior inconsistent statement made by one of the People’s witnesses immediately following the incident. While it is true that a witness’s prior inconsistent statement may be used to impeach his trial testimony even if it does not directly contradict the witness’s testimony (see, People v Bornholdt, 33 NY2d 75, cert denied sub nom. Victory v New York, 416 US 905; People v Stavris, 75 AD2d 507), and that the courts of this State are liberal as to the degree of inconsistency required for admissibility of a prior statement (see, Fisch, New York Evidence § 474 [2d ed]), it is likewise true that a witness may not be impeached simply by showing that he omitted to state a fact or to state it more fully at a prior time (see, People v Bornholdt, supra). In this regard, it must be shown that "at the prior time the witness’ attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial” (People v Bornholdt, supra, at 88). In the instant case, the statement given to the police by the witness was not inconsistent with his trial testimony but, rather, it was less specific and contained fewer details than the trial testimony. Insofar as the defendant failed to show that, in fact, at the time of the witness’s original statement he had been specifically asked about the facts embraced in the questions propounded at trial, the defendant failed to lay a proper foundation, and, for this reason alone, the statement was properly excluded (see, People v Duncan, 46 NY2d 74). Moreover, we note that the court permitted defense counsel to adduce, on cross-examination of the witness and the police officer to whom the statement was given, that the prior statement contained no mention of rape.
We have reviewed the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or *742without merit. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901814/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered February 23, 1984, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. By order of this court dated December 31, 1986, the matter was remitted to the Supreme Court, Kings County, for a hearing to settle the transcript, and the appeal was held in abeyance in the interim (see, People v Laracuente, 125 AD2d 705). Criminal Term has now filed its report, and the transcript is settled.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v Beslanovics, 57 NY2d 726); and it is further,
Ordered that upon service upon him of a copy of this decision and order, with notice of entry, the official having custody of the defendant’s person is directed to produce him, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on his own recognizance, or fixing bail, or committing him to the custody of the New York City Department of Correctional Services pending resubmission of the case to the Grand Jury and the Grand Jury’s disposition thereof (cf, CPL 210.45 [9]); the securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People reasonable opportunity to resubmit the case to a Grand Jury.
This matter returns to this court after having been remitted, by an order dated December 31, 1986 (People v Lara*743cuente, supra), for a hearing to settle the transcript, the appeal having been held in abeyance in the interim. The circumstances underlying this appeal may be briefly stated. The defendant’s challenge to his conviction was predicated, inter alia, upon the sufficiency of the court’s charge to the jury. Having concluded that the charge contained "very glaring errors”, a finding particularly troublesome in light of the absence of any objections by the defense counsel, and after having considered an affidavit executed by the court reporter and submitted by the People attesting to numerous discrepancies between the transcript as filed and her stenographic notes, we concluded that the transcript was "obviously incorrect” and thus inadequate inasmuch as a fair resolution of the appeal could not be had thereon (People v Laracuente, supra, at 705, 706). A majority of this court determined that remittitur to the Supreme Court, Kings County, was the appropriate vehicle for resolution of this difficulty.
A settlement hearing was held before the Trial Justice, at which time the court reporter testified as to the events leading to her execution of the affidavit submitted to this court and admitted into evidence at the hearing. As directed by the appellate prosecutor, she compared certain lines of the transcript with her stenographic notes, transcribed by one other than herself, whereupon she discovered several inconsistencies of which she apprised the prosecutor. He, in turn, prepared an affidavit for her signature, noting the substantive changes to be made in the transcript. She further explained that after having signed the affidavit, she had returned her notes to their storage place, only to discover, when attempting to retrieve them for both examination by defense counsel and use at the hearing, that they were missing. She had no independent recollection of what had actually transpired at the trial three years earlier.
The Trial Justice thereafter proceeded to settle the transcript, acknowledging that while he "retained] memory of the nature of the case”, he had no independent recollection of the trial, having tried in excess of 200 cases since.
The court subsequently effectuated extensive revisions of the charge, derived from the stenographer’s affidavit, the court’s typewritten charge and handwritten notes, the verdict sheet and other unspecified sources. For the most part, the court did not specify the derivation of the changes. Moreover, it selectively incorporated the corrections delineated in the stenographer’s affidavit, accepting some and rejecting others. *744Furthermore, a second hearing was necessitated in order to clarify certain changes indicated at the first hearing.
What ultimately resulted was a nearly flawless charge, the product of a multitude of revisions, including the correction of various phrases and words and spelling and grammatical errors.
Under these circumstances, where the subject revisions were made despite the absence of any recollections of the trial and, in certain instances, the absence of notes, and the charge was otherwise tailored to conform to the trial court’s pattern charge, we are compelled to question whether the transcript accurately reflects what transpired at trial.
While the absence of stenographic notes does not, in and of itself, foreclose the achievement of resettlement objectives (see, People v Glass, 43 NY2d 283; People v Rivera, 39 NY2d 519), the unavailability of the notes in this case takes on greater significance inasmuch as the settlement efforts have yielded a transcript markedly different from that originally filed. Moreover, the Trial Justice’s admitted inability " 'to settle the case according to his own recollection of what occurred’ ” (Ditmas v McKane, 87 App Div 54, 56, quoting Grossman v Supreme Lodge, 22 NY St Rep 522), particularly significant in the resettlement context since "the existence of harmful error in a charge may at times turn on words of art or the exact phrasing in which it occurred” (People v Glass, supra, at 287), was not and, in this unique situation, could not be rectified by reference to the Judge’s pattern charge or notes in light of the serious issues raised by the parties. The defendant’s position is not that the trial court’s knowledge of the law, and, thus, its prepared instructions for the jury, were deficient, but that the Judge may have inadvertently misspoken in issuing the charge. The People, however, maintain that the errors contained within the charge as originally transcribed were not attributable to the trial court, but to the erroneous transcription of the stenographic notes by one other than the court stenographer.
We are presented with a settled transcript, the accuracy of which is dubious, and which is incapable of satisfactorily establishing the instructions actually heard by the jury. Consequently, we must decide the appeal upon the record as originally filed and reverse.
In light of our determination, we do not address the remainder of the defendant’s contentions. Mollen, P. J., Bracken, Weinstein and Kooper, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901816/
|
Appeal by the defendant from a judgment of the County Court, Westchester County (Colangelo, J.), rendered November 4, 2010, convicting him of criminal possession of stolen property in the fourth degree and unauthorized use of a motor vehicle in the third degree, upon his plea of guilty, and imposing sentence, including a direction that the defendant pay restitution in the sum of $798.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the *988provision of the sentence directing the defendant to pay restitution in the sum of $798 and substituting therefor a provision directing the defendant to pay restitution in the sum of $780; as so modified, the judgment is affirmed.
At the plea proceeding, the defendant was advised that the promised sentence included a direction that he pay restitution in the sum of $780. At sentencing, over defense counsel’s objection, the court imposed a sentence which included a direction that the defendant pay restitution in the sum of $798. Under the circumstances of this case, we deem it appropriate to modify the sentence by reducing the amount of restitution so as to conform with the terms of the plea agreement (see People v Murdock, 99 AD3d 732 [2012]; People v McKenzie, 98 AD3d 749, 750-751 [2012], lv denied 20 NY3d 987 [2012]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129206/
|
Reargument ordered.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129207/
|
Order affirmed, with ten dollars costs and disbursements., Opinion by
Dwight, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129208/
|
Judgment reversed and new trial ordered before another referee, with costs to abide event. Opinion by
Dwight, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129209/
|
Order reversed, with ten dollars costs' and disbursements. Opinion by
Hardin, J.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8076597/
|
No opinion. Application granted;
|
01-03-2023
|
09-09-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8076598/
|
No opinion. Judgment affirmed, with costs.
|
01-03-2023
|
09-09-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901817/
|
Appeal by the defendant from a judgment of the County Court, Westchester County (Colangelo, J.), rendered November 4, 2010, convicting him of criminal possession of stolen property in the fourth degree and unauthorized use of a motor vehicle in the third degree, upon his plea of guilty, and imposing sentence, including a direction that the defendant pay restitution in the sum of $798.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the *988provision of the sentence directing the defendant to pay restitution in the sum of $798 and substituting therefor a provision directing the defendant to pay restitution in the sum of $780; as so modified, the judgment is affirmed.
At the plea proceeding, the defendant was advised that the promised sentence included a direction that he pay restitution in the sum of $780. At sentencing, over defense counsel’s objection, the court imposed a sentence which included a direction that the defendant pay restitution in the sum of $798. Under the circumstances of this case, we deem it appropriate to modify the sentence by reducing the amount of restitution so as to conform with the terms of the plea agreement (see People v Murdock, 99 AD3d 732 [2012]; People v McKenzie, 98 AD3d 749, 750-751 [2012], lv denied 20 NY3d 987 [2012]). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901818/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered January 4, 1983, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues that the People violated the rule set forth in People v Rosario (9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866) and committed reversible error when they failed to turn over to the defense a UF-61 complaint report prepared by the police.
The People concede that the complaint report constitutes Rosario material (see, People v Ranghelle, 69 NY2d 56; People v Gilligan, 39 NY2d 769) but note that the report was merely the "duplicative equivalent” of material previously given to the defendant (People v Consolazio, 40 NY2d 446, 454, cert denied 433 US 914). Under those circumstances, the People argue that it was not error to fail to turn over the report which would have been cumulative only (see, People v Consolazio, supra).
We agree with the People. A review of the complaint report in question reveals that the statement contained therein is an exact word-for-word transcription of a statement contained in another document which the People did turn over to the defense. It is therefore clear that the complaint report was the "duplicative equivalent” of the material previously produced by the People and no error occurred (see, People v Ranghelle, supra; People v Consolazio, supra).
We have reviewed the defendant’s remaining arguments and find them to be without merit. Mangano, J. P., Bracken, Fiber and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901819/
|
—Appeal by the People from an order of the County Court, Orange County (Byrne, J.), dated April 21, 1986, which granted that branch of the defendant’s omnibus motion which was to suppress a statement allegedly made by the defendant to law enforcement authorities. ,
Ordered that the order is reversed, on the law, the branch of the defendant’s omnibus motion which was to suppress a statement made by the defendant to law enforcement authorities is denied, and the matter is remitted to the County Court, Orange County, for further proceedings.
The defendant’s car was stopped by police after it was *747observed being driven erratically. The arresting officer asked for the defendant’s license, registration and insurance card. The defendant initially protested but then complied. During this verbal exchange the officer detected alcohol on the defendant’s breath. He asked the defendant to exit and walk to the back of the vehicle. The officer asked the defendant where he was going, whether he had been out that night and whether he had been drinking. To this last question the defendant replied that he had had 1 or 2 drinks. The officer thereafter placed the defendant under arrest and advised him of his Miranda rights and those rights given to suspected intoxicated drivers. The defendant declined to submit to a breathalyzer test. The arrest was observed by another officer parked across the street and by the defendant’s companions who remained inside the detained auto. The officer testified at the Huntley hearing that under the above circumstances, from the moment of the initial inquiry, the defendant was not free to leave.
The County Court granted that branch of the defendant’s omnibus motion which sought suppression of his inculpatory statement made at the scene to the arresting officer. The determination that the defendant was in custody when he was asked if he had been drinking was erroneous. A temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda v Arizona (384 US 436; see, Berkemer v McCarty, 468 US 420). Although traffic stops do significantly curtail the freedom of action of the driver and any passengers within the detained vehicle, and have been held to be seizures within the meaning of the Fourth Amendment (see, Delaware v Prouse, 440 US 648), a driver need not be immediately advised of his constitutional rights. Two features of an ordinary traffic stop combine to mitigate the dangers that a person will be forced to speak in a self-incriminating manner. First, the detention is presumptively brief and after a short period of questioning and possibly the issuance of a citation, the motorist will be allowed to continue on his way. Second, the traffic stop occurs in public and usually only 1 or 2 police officers are present, thus diminishing the surrounding aura of police domination which is present in a custodial detention. Indeed, the less intrusive nature of roadside detentions has persuaded the United States Supreme Court to find them to be more closely analogous to a Terry stop (see, Terry v Ohio, 392 US 1), i.e., a brief investigatory detention based upon a finding of reasonable suspicion *748which requires no preinterrogation Miranda warnings (see, Berkemer v McCarty, supra). The applicable standard for determining whether interrogation is or is not custodial is what "a reasonable man, innocent of any crime would have thought had he been in the defendant’s position” (People v Yukl, 25 NY2d 585, 589, mot to amend remittitur denied 26 NY2d 845, 883, cert denied 400 US 851). Roadside detentions have been held to be noncustodial and reasonable initial interrogation attendant thereto has been held to be merely investigatory (see, People v Brown, 104 AD2d 696).
Further, given the State’s vital interest in promoting safety on its public highways (see, People v Ingle, 36 NY2d 413, 419), the defendant’s final contention, that this court should afford him greater constitutional protections under the State Constitution than those afforded to the defendant in Berkemer v McCarty (supra) by the United States Supreme Court under the Federal Constitution is without merit. Since the finding that the defendant was in custody was erroneous as a matter of law, the order granting suppression must be reversed (see, People v Newson, 68 AD2d 377). Bracken, J. P., Fiber, Kunzeman and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901820/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered December 17, 1985, convicting him of attempted murder in the second degree, robbery in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to bring the issue of the propriety of an accomplice charge to the attention of the Trial Judge in a manner that pinpointed the legal question (see, People v Cobos, 57 NY2d 798). Having failed to specifically request an accomplice instruction or to object to the court’s failure to give such a charge, the defendant failed to preserve this claim for appellate review (see, CPL 470.05 [2]; see, e.g., People v Shade, 127 AD2d 862, Iv denied 69 NY2d 1009; People v Digugliemo, 124 AD2d 743, Iv denied 69 NY2d 826).
In any event, although we agree with the defendant that the question of the key prosecution witness’s complicity in the crimes charged was a question of fact which should have been submitted to the jury for its determination in view of the different inferences which may reasonably have been drawn *749from the evidence adduced at trial (see, People v Vataj, 69 NY2d 985, 987; People v Basch, 36 NY2d 154, 157), we conclude the error is harmless since the record contains ample corroborating evidence connecting the defendant to the crime so as to reasonably satisfy the jury that the accomplice was telling the truth (see, People v Crimmins, 36 NY2d 230; People v Glasper, 52 NY2d 970, 971; People v Pyne, 125 AD2d 720).
We have examined the defendant’s remaining contentions, including his claim that the sentence imposed was excessive, and find them to be without merit. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901822/
|
Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 29, 1993 (People v Nunez, 198 AD2d 527 [1993]), affirming a judgment of the Supreme Court, Kings County, rendered September 19, 1990.
Ordered that the application is denied.
The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). Skelos, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129210/
|
—Judgment reversed and a new trial ordered before another referee, with costs to abide event. Opinion by
Hardin, J.,
Barker, J., not voting.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129211/
|
Order affirmed, with costs. Opinion
Per Curiam.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/1964948/
|
136 F. Supp. 345 (1955)
UNITED STATES of America, Plaintiff,
v.
STANDARD OIL COMPANY (New Jersey) and Esso Export Corporation, Defendants.
United States District Court S. D. New York.
December 14, 1955.
*346 *347 *348 John D. Roeder, Executive Assistant to the U. S. Atty., New York City, Richard B. O'Donnell, Dept. of Justice, New York City, Milo V. Olson, Sp. Asst. to the Atty. Gen., for plaintiff.
Sullivan & Cromwell, New York City, for defendant Esso Export Corp. Bruce Bromley, New York City, of counsel.
Association of the Bar of the City of New York, amicus curiae. Paxton Blair, New York City, of counsel.
New York County Lawyers' Association, amicus curiae. George Trosk, New York City, sp. counsel, W. Randolph Montgomery, William M. Kaplan, Frederick F. Rehberger, New York City, of counsel.
Bethuel M. Webster, New York City, amicus curiae.
IRVING R. KAUFMAN, District Judge.
In a civil suit by the United States Government to recover refunds from Standard Oil Company (New Jersey) and its subsidiary, Esso Export Corporation, for alleged overcharges in ECA financed transactions, defendant Esso Export moved for an order decreeing that the law firm of Sullivan & Cromwell, its counsel, may properly represent Esso Export in this action, and the government cross-moved for an order disqualifying Sullivan & Cromwell from acting as attorneys for defendant in this suit. The basis for the motion and cross-motion was a request made by the Department of Justice on June 2, 1955 that Sullivan & Cromwell withdraw as attorneys because one of their partners, Mr. Garfield Horn, who is actively working on the case, was a government counsel for a Paris office of the Economic Cooperation Administration (ECA) during the period in question. The government contends that Mr. Horn and his firm are barred from participation in this suit by Canons 6, 36 and 37 of the Canons of Legal Ethics adopted as Rules of this Court.[1] Succinctly stated, these Canons forbid an attorney to accept employment in matters adversely affecting any interest of a former client with respect to which confidence has been reposed. They forbid his revealing or using such confidences to the disadvantage of the former client even though there are other available sources of this information. Further, they forbid a former government attorney to accept employment "in connection with any matter which he has investigated or passed upon while in such office or employ." Canon 36. In order to intelligently decide whether Mr. Horn and his firm have in fact violated these Canons, a thorough understanding of the factual and legal questions posed by the main controversy is necessary.
*349 The Main Action
In the main action, the United States seeks recovery of $35,862,288.08 claiming that Esso Export charged excessive prices in sales of Arabian crude oil to private importers in European countries participating in the Marshall Plan. Under this plan, authorized by the Economic Cooperation Act of 1948, 22 U.S.C.A. § 1501, et seq., the ECA allocated funds in United States currency to various European nations participating in the program through the issuance of "procurement authorizations" setting forth the conditions for procurement of commodities. Firms in participating countries which desired crude oil, for example, after obtaining the approval of their respective governments, contracted to purchase such crude oil from various suppliers (including Esso Export). Such purchasers made payment to their local governments in local currencies and the money so paid was placed in "counterpart fund" accounts for use locally in connection with foreign aid programs. The suppliers were paid in the United States currency allocated by ECA, payment being made either through the participating countries or through designated banks in accordance with the type of procurement authorization which had been issued. Thus although the money was not paid directly by ECA to the suppliers, suppliers were paid in money provided by the United States; the local moneys paid out by the importers were retained in their respective countries for ECA approved projects aimed at the economic rehabilitation of Europe.
With regard to the specific transactions which are the subject matter of this suit, the United States claims that the prices charged by Esso Export for Arabian crude oil were higher than the maximum prices permitted by the Act and by the ECA Regulations which were promulgated [purportedly] pursuant to the Act. The government claims that these price maximums were the allegedly lower prices charged by Esso Export and other companies in comparable sales not financed by ECA and in shipments of Arabian crude oil to Western Hemisphere destinations.[2] The period in question dates from April 3, 1948, effective date of the Economic Cooperation Act of 1948, until August 1952, the month of the commencement of this law suit and of the last shipment of Arabian oil in any ECA transactions.
Defendant, Esso Export, in its answer, denied any violation either of the price provisions of the Act or of the ECA regulations promulgated under them, assuming these to be valid. Defendant further contended that these Regulations are invalid.[3] For an affirmative defense, the defendant alleged that the United States continued to reimburse participating countries with respect to these purchases of Arabian crude oil although it had full knowledge of all data material to applying the price maximums of the Act and Regulations to the prices Esso Export charged for such crude oil. It alleged further that by the government's failure to notify defendant that the prices charged were considered excessive, it represented to the defendant that the prices charged were not in excess of maximum prices, and that the government knew or should have known that the defendant would rely on this representation by continuing to sell crude oil at those *350 prices. In good faith, defendant alleged, it did rely on such representation, and it pleaded estoppel against the government. Another defense averred that under the Marshall Plan, for each dollar of assistance provided by the United States to a participating country, that country deposited an amount of its local currency commensurate to the United States dollar cost in counterpart funds. Defendant asserted that since these funds were expended for various economic rehabilitation projects consistent with the purposes of the Act, and therefore with the purposes of the United States, the government has had full benefit of the moneys it expended and has sustained no damages.
It is against this background of the case that we must examine the government service and private employment record of Mr. Garfield Horn, the partner in Sullivan & Cromwell whose former employment by ECA is the cause of these motions.[4]
Mr. Horn's Employment Record
Mr. Horn joined the staff of Sullivan & Cromwell as a salaried associate upon his graduation from Harvard Law School in 1946. A major part of his work for the firm was in the area of foreign legal and economic problems, an area of work for which he had specially prepared during his undergraduate training. In April 1949, Mr. Horn completely terminated his relationship with Sullivan & Cromwell, and on May 31, 1949, he entered the employ of ECA. At the time he left the employ of Sullivan & Cromwell there was no understanding with respect to his being re-employed by the firm; rather he was clearly told that any application for re-employment would have to be considered anew on the basis of the situation at the time such application was made. Mr. Horn served with the ECA until October 11, 1951, and in November 1951, he again entered the employ of Sullivan & Cromwell, pursuant to arrangements made during the summer of 1951, and he became a partner of the firm on January 1, 1953. Since his return to the firm, he has continued to concentrate on problems with foreign aspects. In the spring of 1952, Sullivan & Cromwell was retained to represent Esso Export in this case; the retainer came personally to Arthur H. Dean, senior partner of the firm, who is also quite familiar with aspects of the Marshall Plan and related problems. Since Mr. Horn had often worked under Mr. Dean in such matters before, Mr. Dean chose Mr. Horn to act as his assistant in this case. Mr. Horn assured Mr. Dean at that time that while in ECA he had never worked on the subject of the present controversy, that he had never investigated or passed upon it, and that in all respects the matter was completely new to him, and he had never heard of it while he was with ECA.
The government has been aware of Mr. Horn's active participation in the case since the fall of 1952, but not until June 2, 1955 did it make a request for Mr. Horn's and his firm's withdrawal.[5]*351 The government contends that it was not until Mr. Horn displayed "peculiar knowledge" of the inner workings of ECA during a conference in March of 1955 that it considered whether there might be any impropriety in his serving as attorney for defendant and that an investigation then of Mr. Horn's government service record convinced it that a request for withdrawal was necessary.[6]
During the entire two and a half years Mr. Horn served with the ECA he was in the General Counsel's Office of the Office of the Special Representative in Paris (OSR/Paris). The only periods during which he was in Washington were ten days of personnel processing and indoctrination at the time of his initial assignment to Paris, approximately two days personnel processing at the termination of his duties, and two trips to Washington on OSR/Paris business. He was initially hired as an Attorney and served in that capacity until February, 1950 when he was promoted to Assistant General Counsel, a position he held for eight months.[7] On October 15, 1950 he was appointed Deputy General Counsel, having served during one or two periods in the interim as Acting General Counsel of OSR. He continued to be Acting General Counsel of OSR from October 15, 1950 until January 21, 1951, when he was appointed General Counsel of OSR/Paris, a position he retained until his resignation in October 1951. I reiterate; all these positions were held in Paris. The General Counsel of OSR/Paris was chief legal representative and adviser of the United States Special Representative in Europe. The Special Representative, holding the rank of Ambassador, was the representative in Europe of the Administrator of the Economic Cooperation Act.[8]
Respective Interpretations of Mr. Horn's Government Service Record
Mr. Horn's period of service with ECA from May 1949 to October 1951 falls entirely within the period of time during which the contested transactions occurred, i. e., April 1948 to August 1952. His position in the OSR/Paris hierarchy was an important one. Nevertheless, defendant contends that due to a division in functions between ECA/Washington and OSR/Paris, Mr. Horn's office in OSR/Paris knew nothing of the subject *352 matter of these transactions, and none of his work for OSR/Paris was related to the subject of this case.
Defendant contends that OSR/Paris was concerned with implementing the operating phases of the ECA program, that its function in chief was to work closely with the various European countries and the ECA Missions in them on problems such as eliminating trade restrictions between the participating countries, clearing European payments and working out foreign currency problems, the allocation of scarce materials, and problems of man-power supply. It claims that the General Counsel's Office furnished legal advice on such problems, its chief job being the determination of whether various activities could be undertaken under the terms of the Act or financed with counterpart funds. Defendant further asserts that the only petroleum problems considered by OSR/Paris were those that dealt with the compiling of data estimating the oil requirements of the various countries, and recommending where and how much additional refinery capacity should be built in Europe. It is defendant's contention that ECA/Washington had exclusive responsibility for the drafting, promulgation and enforcement of the ECA policies relating to procurement and prices set forth in ECA Regulation 1, the Regulation which implemented the Marshall Plan procurement program. Defendant further says that this sharp division in functions between ECA/Washington and OSR/Paris also applied to the two separate General Counsel's Offices; that while the General Counsel's Office in Washington played an active part in the drafting, promulgation and enforcement of the procurement and price provisions of Regulation 1, the General Counsel's Office in Paris played no role in these matters, and that as to the very controversy on which the lawsuit is based, the General Counsel in Washington was continuously involved in the controversy while the Paris office played no part in it. The defendant urges, therefore, that Mr. Horn never received any confidences of the government with regard to the subject matter of this case; that he cannot be considered as having represented the government in matters relating to this case; that he never investigated or passed upon the matters involved in this controversy; and that he is, therefore, free to act as attorney for defendant, Esso Export.
The government's reply to defendant's contentions is largely based on the key legal position Mr. Horn held during the time of the transactions in question. It urges that his duties in Paris included proposing legislation necessary to implement the operating phases of the program, solving legal problems arising under the Act, interpreting legislative provisions under the Act and drafting new legislative provisions. The government contends, therefore, that while Mr. Horn was employed by the government, he should have pointed out any invalidity in Regulation 1 which defendant now asserts. It is the government's position that whether or not Mr. Horn ever actually considered the validity of Regulation 1, he is disqualified because he should have done so.[9] Further, it claims that he actually did pass on Regulation 1 and pricing problems under it, more specifically, petroleum pricing problems.
It is urged further by the government that Mr. Horn had access to confidential data relating to the present controversy, and that in connection with the broad estoppel defense urged by defendant, many of the matters which must necessarily have come to Mr. Horn's attention while he was counsel and General *353 Counsel in Paris, and because of his official position, are closely related to and interwoven with the question of the government's knowledge of the purported overcharges. It points out that many of his duties related to the counterpart funds mentioned in defendant's answer as having been expended for the benefit of the United States thus nullifying the government's claim of damages, and asserts that this fact also disqualifies him. The government summarizes its position by asserting that Mr. Horn is disqualified from acting in this case by Canons 6 and 37 because he had access to and obtained confidential information from the plaintiff and because he owed a duty of fidelity to plaintiff; and that he is further disqualified by Canon 36 because he passed upon or should have passed upon matters relating to the present controversy.
It is obvious, therefore, that the extent, if any, of Mr. Horn's involvement in matters related to the present case is in sharp conflict. The legal consequences of any relationship found will depend, of course, on the pertinent Canons of Ethics as interpreted by the courts and various bar association committees on professional ethics which have dealt with these Canons.
The Canons of Ethics Involved
The pertinent provisions of these Canons follow:
Canon 6. Adverse Influences and Conflicting Interests
"* * * *
The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."
Canon 37. Confidences of a Client
"It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.
* * * *"
Canon 36. Retirement from Judicial Position or Public Employment
"* * * *
A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."
Inferences Arising Under the Canons
Decisions interpreting these Canons have created three inferences operating against the attorney in question which the government contends are operative here. These must be examined to determine if they are applicable in the present case.
I. Inference of Access to Confidential Information
Insofar as these canons relate to the question of preservation of a former client's confidences, they disqualify an attorney who has received confidences which might possibly be relevant to the controversy at hand as they seek to avoid unconscious as well as conscious betrayal.[10]
*354 As to who must carry the burden of showing that relevant confidences were reposed, an inference favorable to complainant has been reaffirmed recently in this Circuit. In T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., D.C.S.D. N.Y.1953, 113 F. Supp. 265, 268, Judge Weinfeld said:
"A lawyer's duty of absolute loyalty to his client's interests does not end with his retainer. He is enjoined for all time, except as he may be released by law, from disclosing matters revealed to him by reason of the confidential relationship. Related to this principle is the rule that where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited."
The court disagreed with the contention of the attorney whose conduct was questioned in the T. C. Theatre case. The attorney urged that the former client was required to show that it had disclosed to the attorney confidential matters related to the instant case. The court stated:
"[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation." (Italics supplied.) at page 268.
In Consolidated Theatres, Inc., v. Warner Bros. Circuit Management Corporation, 2 Cir., 1954, 216 F.2d 920, the Court of Appeals for the Second Circuit adopted Judge Weinfeld's reasoning as related to the issue of burden of proof of disqualification under the Canons of Ethics. In that case there were no findings and perhaps no evidenceof specific information given by the former client to the attorney, the use of which would adversely affect the former client in the instant suit. The Court said:
"[T]here is no suggestion in the Canons that to invoke an obligation defined therein the proof thereof must be by direct evidence. We think that the professional obligation therein defined, like any legal relationship, may be established by reasonable inference." (Second emphasis supplied.) at page 924.
The rule is clear, therefore, that complainant's burden extends only to showing the existence of a substantial relationship between the subject matter of the lawsuit and the matters in which the attorney represented his former client. This substantial relationship creates an inference that confidential information was reposed. Further, complainant need only show access to such substantially related material and the inference that defendant received these confidences will follow.[11]
*355 The rationale behind this rule is as sound as it is elementary. The confidences communicated by a client to his attorney must remain inviolate for all time if the public is to have reverence for the law and confidence in its guardians. It is traditional in the legal profession that the fidelity of a lawyer to his client can be depended upon. The client must be secure in his belief that the lawyer will be forever barred from disclosing confidences reposed in him. It follows that if, in order to protect his secret utterances to counsel, the client or former client is required to reveal these utterances, the very purpose of the rule of secrecy will be destroyed, and the free flow of information from client to attorney, so vital to our system of justice, will be irreparably damaged. Therefore, to guarantee that these confidences remain inviolate, the courts will assume that when a client entrusts an attorney with the handling of a particular matter, the client will reveal to that counsel all the information at his disposal, including confidential matter. It is upon this assumption that the courts will bar an attorney from taking a position adverse to a former client in regard to any matters substantially related to those in which the attorney represented that client. This assumption, however, is reasonable only so long as there is a substantial relationship between those former matters and the lawsuit in which the confidence question is raised.
A. Substantial Relationship of Subject Matter
Unfortunately, the cases furnish no applicable guide as to what creates a "substantial" relationship. In both of the cited cases, the attorney in question had served as defense counsel for motion picture producers in anti-trust actions brought by the United States government charging defendants with a nationwide conspiracy in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2. They were later retained by independent exhibitors as counsel for plaintiffs in treble damage actions against these producers alleging the same type of conspiracy in violation of the Sherman Act. The evidence disclosed that the attorneys in question had had access to the files of their former clients which showed in detail their clients' modus operandi, and that they had made extensive use of these files in preparing a defense against the government. The relationship between the first anti-trust litigation and the second case was in each instance patently clear; indeed, the finding of a nation-wide conspiracy in the government's case was prima facie proof of a conspiracy in the later private actions.[12] No such glaringly obvious relationship exists in this case.
Guidance on this point cannot be found either in those other decisions by courts or Ethics Committees which have dealt with the problem of representing adverse interests and the question of confidence betrayal raised thereby. In the majority of the cases decided by both bench and bar committees on the question of representing interests adverse to a former client, the offending attorney had either accepted a retainer from the other side in a retrial of the same case in which he *356 had formerly represented complainant, or he had taken a position adverse to the former client in a matter in which he had specifically represented him.[13] In most of these cases, the link between the subject matter of the first litigation or first representation by offending counsel, and the second, adverse litigation was comparatively simple to detectthe same accident,[14] the same documents,[15] the same litigation,[16] etc.[17]
There appears to be no case where the question of whether a substantial relationship existed between the former representation and the second suit presented serious factual problems. But, clearly, the word "substantial" must be given some restrictive content.[18]
B. Defendant's Contention: No Substantial Relationship
In the present case, Mr. Horn was formerly employed in a Paris office of the *357 very agency which is making a claim against his client. His job was concerned with legal questions arising during the implementation in Europe of the operating phases of the ECA program, the program under which the contested transactions occurred. However, ECA was a vast agency with a network of offices throughout Europe and in Washington, D. C. It administered a billion dollar foreign aid program which dealt with almost every sort of problem that could arise in financing a project aimed at helping Europe recover from the devastations of World War II. It is easy to visualize a situation where an official in one office of that agency would be unaware of some of the functions of other branches of the agency. Indeed, this is the very contention that defendant makes here. It claims that the job of implementing the operating phases of the program in no way involved consideration of any pricing, procurement or refund problems of the type involved in the present controversy. Defendant supports its assertion that Mr. Horn's former duties had nothing to do with any matters relating to the present controversy by the affidavits of 13 men who held key positions in ECA in Paris and in Washington during the period in question. Typical of their recollections is the affidavit of Isaac N. P. Stokes, who served as Acting General Counsel, General Counsel and Acting Special Representative in OSR/Paris from February 1949 through September 1952, at which time he became General Counsel in Washington, a position in which he served until March 1953. In his affidavit of September 26, 1955, he states:
"In connection with the preparation of this affidavit, I have carefully searched my recollection as to all aspects of this case of which I had any knowledge and as to the functions, responsibilities, and activities of GC/Paris. I am unable to recall any instance in which there was referred to or considered by GC/Paris any question relating to the promulgation, interpretation, operation, or validity of any of the pricing or refund provisions of ECA Regulation 1, either in connection with Arabian crude oil or any other commodity; any question involving the consideration of whether prices charged in ECA-financed sales of Arabian crude oil complied or failed to comply with the provisions of ECA Regulation 1; any question concerning prices charged for Arabian crude oil, whether in ECA-financed sales or non-ECA-financed sales; any question involving comparisons between prices of Arabian crude oil shipped to European destinations and prices of Arabian crude oil shipped to Western Hemisphere or other destinations; or any question concerning refunds to be obtained in respect of ECA-financed shipments of Arabian crude oil. Nor can I recall any other instance in which GC/Paris would have had any occasion to acquire any information regarding any of the above-mentioned questions, or any instance when or any reason why any member of the staff of GC/Paris would have had any occasion, on his own initiative, to inquire into the subject matter of this case.
"Any reference of any such questions to GC/Paris or to any other part of OSR/Paris would have been inconsistent with the recognized division of responsibilities and functions as between Washington and Paris."[19]
I find that these affidavits establish that there was no such substantial relationship between Mr. Horn's former work and his present position as would disqualify him in this suit. Any other ruling would delete all meaning from the word "substantial."[20] These affidavits *358 deprive of any significance the fact that Horn had access to the file rooms of OSR/Paris by their assertion that the functions of that office were such that it would not maintain relevant files.[21]
C. Rebutting Defendant's Affidavits Re: No Substantial Relationship
The government had two alternative methods of rebutting the import of these affidavits:
(1) It could show that no such functional division actually existed, and that substantially related affairs were handled by Paris, thereby raising the inference of access to substantially related material.
(2) If it could not disprove the existence of the functional split, it could show that despite this division, Mr. Horn did actually work on matters substantially related to the present controversy.
The government has attempted to pursue both courses by submitting a series of documents with which Mr. Horn had some contact while working for OSR and which, it claims, show that he actually did work on or have access to documents on matters substantially related to the present controversy, and that he received confidences relevant to the present case. By choosing to rest its case on specific documents, however, the government has withdrawn itself in part from the sphere of the access-substantial relationship-confidence inference. If any of these documents tends to show that Mr. Horn's job did actually bring him into contact with relevant confidences or substantially related affairs generally, the government will have carried its pointnot by inference but by direct proof.[22] If none of the documents is itself indicative of such a connection between *359 his former job and the present lawsuit, the government will not have sustained its burden of showing substantial relationship in light of the affidavit evidence of a division in functions, and the inference flowing from such a relationship will not be applicable. Only if these documents fail to show action by Mr. Horn, but do disprove the asserted division in functions will the question of an inference arising from access be presented.[23]
II. Inferences Arising From the Appearance of Evil
Interpretations of the Canons of Ethics have held that it is the duty of an attorney to avoid not only the actuality but the appearance of evil. In discussing Canon 36, H. S. Drinker in his Legal Ethics, p. 130, points out that one of the reasons for the rule forbidding the former public attorney to act in relation to any matter he passed upon while in government service is to prevent the appearance of evili. e. to prevent even the appearance that the government servant may take a certain stand in the hope of later being privately employed to uphold or upset what he had done.[24] This rule finds application here in the government's contention that Mr. Horn should be disqualified if he passed upon or should have passed upon the validity of the pricing regulations in question in this controversy. Of course, if Mr. Horn did actually pass on the validity of these regulations, he is barred from participating in this case by the language of Canon 36. However, if he did not actually consider the question of whether these regulations were valid, I find that there is no appearance of evil arising from his now questioning their validity unless it is proven that he was specifically ordered to consider that question while in government employ. If he was so ordered, he cannot now be heard to urge that he shirked his duty in the past and is, therefore, free to raise the question presently. This exception to the necessity of proving actual investigation of the matter in question will be applied, however, only when the attorney's duty to pass upon that particular matter, was very clear.[25] The factual questions raised by this rule *360 as applied to this case will be discussed after consideration of one more inference arising under these Canons.
III. Inference of Imputed Knowledge Within a Partnership
It has been repeatedly held by courts and ethics committees which have considered these canons, that the knowledge of one member of a law firm will be imputed by inference to all members of that firm. In Laskey Bros. of West Virginia v. Warner Bros. Pictures, Inc., 2 Cir., 1955, 224 F.2d 824, 826-827, the Court said:
"[A]ll authorities agree that all members of a partnership are barred from participating in a case from which one partner is disqualified. * * * *
"Within the framework of the original partnership the fact of access to confidential information through the person of the partner with such specialized knowledge is sufficient to bar the other partners, whether or not they actually profit from such access. Such a result, although an extension of the literal wording of Canons 6 and 37 of the Canons of Professional Ethics of the American Bar Association, is necessary to facilitate maximum disclosure of relevant facts on the part of clients."[26]
This chain of imputed knowledge has been held to extend, not only to the partners in a law firm, but to salaried law clerks in a firm.[27] Applied to the instant case, treating the entire OSR/Paris office as a partnership, the government argues that if anyone in the OSR/Paris office would have been barred from taking part in this controversy, then Horn is barred. It then urges that there was such a close association between the Counsel's Office in Washington and the Counsel's Office in Paris, that the chain of disqualification must necessarily extend from one office to another, and the Washington Counsel's Office was clearly involved in the present controversy from its inception.
The major premise on which the partnership disqualification theory is based, however, is that there was in the partnership office confidential information pertinent to the pending law suit to which all the partners had access. In this case, that basic premise is challenged by affidavits denying this alleged closeness between Washington and Paris, and the government has attempted to meet that challenge by producing documents from its files. If none of the documents the government has introduced rebut the import of those affidavits, the basic premise of knowledge within the office fails, the inference fails also, and the government is again left with the burden of proving actual knowledge.
Applying Doctrine of Imputed Knowledge to Government Attorney
Applying this doctrine of imputed knowledge within a partnership to the present case, however, presents a difficulty not found when dealing with private law firms. As stated, the doctrine's basic premise is that there is a free flow of information within a partnership office so that the knowledge of one member is the knowledge of all. When dealing with a government attorney, the question remains, within what office is that free flow of information assumed to exist. In this case, for example, is the office the overall ECA agency itself, OSR/Paris, or the General Counsel's Office of OSR/Paris.
*361 This question arises in analogous form with relation to the inference set forth in the T. C. Theatre case that if an attorney had access to materials of the former client which are substantially related to the present controversy, it will be presumed that he came into contact with confidential information relating to the controversy, and he will be disqualified. Who is the client which the former government attorney represented and to whose files will access be presumed? Through what divisions and sub-divisions of a large government office will an attorney, who actually can go to any file, be presumed to have gone to such files regardless of his personal job assignments? At this point, when dealing with the government attorney, the client he represented and the partnership of which he was a member become merged. This is so because the basic problem is not merely to identify the former client here, which is in a larger sense the United States Government in toto, but rather to identify the interests with respect to which the attorney represented the client, for it is only as to these interests that he is disqualified. In identifying these interests one is confronted by the question of whether this attorney is to be considered as having represented the government in matters pending within his immediate office, or within a broader agency to which that office is attached, or solely in matters which he himself handled. In other words, the full circle has been swung and a decision must be made as to whether the theory of imputed knowledge as applied to members of a law partnership applies to attorneys working for the government; if it does, what office marks the boundary of imputation?
Guidance on this point can be taken from the language of Canon 36 which was enacted in 1928, twenty years after the American Bar Association originally adopted the first 32 Canons, and which deals specifically with lawyers retiring from public positions.[28] This Canon forbids a former government attorney to accept employment "in connection with any matter which he has investigated or passed upon while in such office or employ." (Italics supplied.) The main purpose of this Canon was to clarify the duties in Canon 6 as related to government attorneys chiefly, it avoids the "client" language of Canon 6 which presents serious difficulties in this sphere. Although it cannot be considered as completely superseding Canon 6 in dealing with a lawyer's duty to a former client, Canon 36 undoubtedly serves as a guide to the chief purpose of the ethical principle involved and the words "investigated" or "passed upon" imply a test of actual personal knowledge or action.[29] However, it is also undoubtedly the purpose of the Canons generally to avoid the appearance that an attorney has taken a position contradictory to his former client's interests although, in fact, he may not have done so. This second purpose makes it impossible to hold that Canon 36 permits of none of the previously discussed inferences *362 where a former government attorney is involved. The language of that Canon, however, must be held to require that a practical test be employed in determining when an appearance of evil exists: i. e. in each instance the fact finder must determine whether it was likely that the particular government attorney would have attained knowledge of or taken a stand on the subject matter of the particular controversy. If there is no practical likelihood, there is no appearance of evil.
Vertical and Horizontal Imputation of Knowledge to Government Attorneys
Where an attorney is head of his office or a subdivision of it, as was Mr. Horn during part of his tenure, there is, of course, imputed to him knowledge of the proceedings taken by his juniors. This is a vertical theory of imputed knowledge well founded in rules of ultimate responsibility.[30] However, for such an official there is still the problem of horizontal imputation of the knowledge of another division head of coordinate rank within the same larger agency. Again, there may sometimes be a rebuttable presumption of imputed knowledge, but this is the kind of question which must be decided on an ad hoc basis depending on the particular factual relationship between the two divisions or the two personalities involved and the likelihood that knowledge passed freely between them. In the instant case, the decision as to imputed knowledge, if any, must await closer examination of these facts.[31]
In view of the importance of the determination being made in the instant case in a virgin area of the law, further discussion is in order of those unique problems which arise when these Canons are applied to government attorneys.
Unique Problems Presented in Cases of Public Employment
Support for applying this practical, factual test in cases involving the disqualification of former government attorneys can be found in recognition of the serious problems which would otherwise ariseproblems particularly acute where the employment was with the United *363 States Government as opposed to some smaller public body.[32] The government itself does not expect to bar a former government servant from participating in any case against the government involving in any way the agency in which he was employed.[33] The size and diversity of function of many government agencies prohibit any such broad conclusion. The fact that the government is a client difficult to identify, and that the "firm" of which the government attorney is a part is difficult to limit in scope, were factors in the establishment of the more specific "investigated" or "passed upon" language of Canon 36. Although the confidence and adverse interests rules of Canons 6 and 37 still bind the former government attorney with a duty of fidelity, that duty must be given a practical scope. This is important for the benefit of the government which must constantly recruit attorneys from private practice. If service with the government will tend to sterilize an attorney in too large an area of law for too long a time, or will prevent him from engaging in practice of the very specialty for which the government sought his serviceand if that sterilization will spread to the firm with which he becomes associatedthe sacrifices of entering government service will be too great for most men to make. As for those men willing to make these sacrifices, not only will they and their firms suffer a restricted practice thereafter, but clients will find it difficult to obtain counsel, particularly in those specialties and suits dealing with the government.[34]
Ethical Problems Cannot Be Viewed in a Vacuum
These practical problems undoubtedly were factors leading to the formulation of Canon 36; they have been given recent consideration by the Court of Appeals for the Second Circuit, and have been recently discussed by both the Yale Law Journal and the Harvard Law Review.[35]
In Laskey Bros. of West Virginia v. Warner Bros. Pictures, Inc., 2 Cir., 1955, 224 F.2d 824, in a disqualification proceeding, the Second Circuit was confronted with a former partner in a private *364 law firm, who would have been barred from taking the case in question if he had remained a member of that firm because of the theory of imputed knowledge. The Court held that although the presumption of imputed knowledge is irrebuttable while a partnership exists, after its dissolution or after an attorney leaves the firm, a former partner barred only by imputed knowledge may rebut the inference that he received confidential information from the attorney with actual knowledge.[36] It held further that the testimony of the former partner was itself sufficient rebuttal. Discussing the practical problems which would be raised by any stricter application of the partnership-imputed knowledge rule, the Court said:
"Since the degree of association to effect disqualification need not necessarily be that of a partner, young lawyers might seriously jeopardize their careers by temporary affiliation with large law firms. But even more important is the effect on litigants who may seriously feel they have claims worthy of judicial testing, but are prejudiced in securing proper representation. For the net effect of an overharsh rule of disqualification must be to hinder adequate protection of clients' interests in view of the difficulty in discovering technically trained attorneys in specialized areas who were not disqualified, due to their peripheral or temporally remote connections with attorneys for the other side. See Note, 64 Yale L.J. 917, 928. The necessity of judicial recognition of the contingent fee is an appropriate analogy."[37]
Aside from these practical problems, it is doubtful if the Canons of Ethics are intended to disqualify an attorney who did not actually come into contact with materials substantially related to the controversy at hand when he was acting as attorney for a former client now adverse to his position.[38] I agree, that where there is a close question as to whether particular confidences of the former client will be pertinent to the instant case, an attorney should be disqualified to avoid the appearance if not the actuality of evil. But, where an attorney has worked for a vast agency of the United States government, as in the instant case, it is hardly reasonable to hold that an appearance of evil can be found in his undertaking a case against the government where there is not some closer factual relationship between his former job and the case at hand other than that the same vast agency is involved.
*365 Application of Principles to Instant Case
Recapitulating the positions, defendant rests its case on the alleged fact that there was a clearcut division in functions between the Washington and Paris offices, and that the former office had sole responsibility for and actually solely handled all problems relating to pricing, procurement and refunds, including the drafting, promulgation and enforcement of the various regulations which are the subject matter of this controversy. It supports this contention chiefly with two lengthy affidavits by Mr. Horn: the first sets forth in detail the specific nature of all the duties of the personnel of the OSR/Paris General Counsel's Office while he was a member of its staff;[39] the second is a document-by-document explanation of the papers on which the government rests its case. Mr. Horn's affidavits are supported by the affidavits of 13 key officials of OSR/Paris and/or ECA/Washington who attest to that same functional division,[40] and by the affidavits of Arthur H. Dean as to the background of the present controversy. These affidavits establish that the work of the Paris office was unrelated to the instant controversy and refute any actuality or appearance of evil.
The government, complainant herein, had the burden of coming forward with evidence to dispel the effect of these affidavits. Specifically, to show grounds for disqualifying Mr. Horn in the present controversy, the government had the burden of either showing that he actually received relevant confidences or passed on the subject of the controversy, or that, although such personal active participation cannot be proved, his former duties were so substantially related to the present controversy that an appearance of evil arises from his taking part in this suit.
To support its contention that Mr. Horn's duties did bring him into contact with the subject matter of the present controversy in such a way as to disqualify him from proceeding as attorney for defendant in this action, the government has submitted some 25 assorted documents from its files, and two explanatory affidavits by Judge Stanley N. Barnes, Assistant Attorney General in charge of the Anti-trust Division, United States Department of Justice. Unlike the affidavits submitted by defendant, Judge Barnes' affidavits are based, not upon personal knowledge of ECA and OSR operations during the time in question, but upon interpretations which he has given the submitted documents without such personal knowledge.[41]
Conclusion
After careful study of these documents, the government's interpretation of their significance as set forth in the Barnes affidavits and government oral argument,[42] Mr. Horn's explanation of their significance in his affidavits of August 3 and September 26, 1955, and the supporting affidavits submitted by Sullivan & Cromwellit is my considered opinion that the government has failed to present grounds for ordering the disqualification of Mr. Horn and his firm as defense attorneys in this case, and that the division in functions between OSR/Paris and ECA/Washington has been clearly established.
Specifically, the government has failed to prove:
(1) that Mr. Horn had access to documents substantially related to the subject matter of the instant case;
*366 (2) that he ever had access to and/or actually saw or worked on any relevant confidential materials;
(3) that he ever investigated or passed upon the subject matter of the instant case;
(4) that he ever rendered any legal advice or opinion in relation to the regulations which are the subject matter of the instant case; and
(5) that despite these conclusions, Mr. Horn's present position creates an appearance of evil requiring disqualification.[43]
These conclusions have been reached after a thorough document-by-document analysis of the papers upon which the government bases its motion.[44] Many of these documents fail on their face to show any conceivable disqualifying relationship between their content and the subject matter of the present controversy. Others bear a surface relationship, but can be and are satisfactorily explained as unrelated owing to the functional division between ECA/Washington and OSR/Paris, a division which the government does not either disprove or place in substantial doubt. For example, the government placed great reliance on Civil Service Job Description Sheets which imposed upon the General Counsel and his staff the duty of drafting and interpreting legislation on the operating phases of the program, but it made no attempt to show why the word "operating" should not be read as limiting that office's duties to the problems encountered in European operationsoperations in no way concerned with pricing and procurement policies. The latter interpretation is supported by thirteen knowledgeable affiants and contradicted only by the speculations of Judge Barnes and Mr. Olson, the Special Assistant who presented the government's argument on the instant application. Neither of these proponents has any personal knowledge as to the operations of either ECA or OSR during the period in question.
Similarly, another series of documents upon which the government placed considerable stress consisted of three missives dealing with a publicized change in price policya change which ultimately took effect as Amendment 5 to Regulation 1. In presenting these documents, the government did not consider it relevant that the Amendment in question dealt with petroleum products and not crude oil; that the missives did not in any way discuss whether defendant had been charging over ECA maximum prices for such products; that two of the three missives in question were copies of letters sent direct to defendant and other oil companies; that Paris was clearly being told what Washington had done, not being asked its opinion on whether the new policy was sound; and that the last missive was a request for information sent from Paris to Washington which clearly reflected complete ignorance of that price policy on the part of the Paris office.
Most of the other government exhibits go even further afield. Examination of *367 them leads me to the conclusion that, in preparing its case, the mere mention of the word "petroleum" in a document caused the government to assume its relevancy to the instant case and its pertinence to the instant motion. But, it must be borne in mind that a word appearing in empty space, with no history, expresses nothing. To be expressive of any meaning, the word must be considered in its context and background.
When dealing with ethical principles, it is apparent that we cannot paint with broad strokes. The lines are fine and must be so marked. Guide-posts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent.[45] After full consideration of all applicable principles, I hold that the motion of the government to disqualify Mr. Horn and his firm as defense attorneys is denied, and the motion of Sullivan & Cromwell for an order decreeing them to be qualified as attorneys herein is granted. So ordered.
NOTES
[1] Rules of the United States District Court for the Southern District of New York, General Rule 5(c).
[2] The maximum prices were not set prices, but had to be calculated from certain economic data; basically, the prices were not to exceed the prices charged in comparable non-ECA sales. The statutory maximum is set forth in 22 U.S.C.A. § 1510(l); the applicable maximums set by Regulation can be found in 14 Fed. Reg. 2166, Regulation 1, Sec. 201.22(e) (2), and were inserted therein by the Administrator by amendment to Regulation 1 dated May 3, 1949.
[3] Defendant questions whether the rule-making authority given to the Administrator by Section 104(f) of the ECA Act, 22 U.S.C.A. § 1503(f), extended to setting such price maximums. Barnes affidavit, September 8, 1955, p. 82. (All page references for affidavits and arguments refer to the printed record submitted, not the original typewritten documents.)
[4] It is conceded by Sullivan & Cromwell that if Mr. Horn is disqualified, the entire firm is disqualified. The reasons for this will be discussed infra in relation to the theory of imputed knowledge within a partnership. Even without this theory, if he is disqualified so is his work product which would be difficult to distinguish from that of the rest of the firm.
[5] Mr. Isaac N. P. Stokes, who was an official of ECA from January 24, 1949 through July 25, 1953, was General Counsel of ECA when this suit was brought. He had served with the Office of the Special Representative of ECA in Paris both in the General Counsel's Office where Mr. Horn was employed and as Special Assistant to the Deputy Special Representative from the start of his ECA career until July, 1952, When he became ECA General Counsel, he learned of Mr. Horn's connection with this case, considered whether he should raise any question about this and decided it was unnecessary to do so. He avers:
"This conclusion was based on the fact that, based on my familiarity with the operations of GC/Paris * * * I had no reason to believe that Mr. Horn could have had anything to do with the subject matter of the case during his employment by ECA and, in addition, on my complete confidence in Mr. Horn's integrity and good judgment." Stokes affidavit, September 26, 1955, pp. 256-7.
[6] Attorney for the defense has raised the question of laches here because of this two and a half year interval during which the government maintained silence though it knew of Mr. Horn's former employment and present connection with this case. Since a court may disqualify an attorney on its own motion for violation of the Canons of Ethics, see Porter v. Huber, D.C.W.D.Wash.1946, 68 F. Supp. 132, the government's laches, if any, cannot prevent an adjudication of this question once a possible violation of the Canons has been called to the court's attention. Here a former key legal official of ECA in Paris is representing defendant against ECA in a suit based on transactions occurring during his tenure in office. To state the case is to raise the ethical question. Those cases which have barred the raising of the ethical question for the first time on appeal, after complainant with full knowledge has kept silent during the trial, are not applicable here. Moreover, such holdings are analogous to the doctrine of waiver of complainant's privilege, and there can be no such waiver where the public interest is involved.
[7] The difference between these two positions during Mr. Horn's tenure was largely one of salary. The Assistants received a higher salary and were generally assigned to work of greater importance than were the Attorneys. As an Assistant, Mr. Horn had no supervisory functions. Horn affidavit, November 22, 1955.
[8] The Special Representative was also the chief representative of the United States Government to the Organization for European Economic Cooperation (OEEC), and was coordinator of the activities of the Chiefs of the special ECA Missions established in each of the European countries participating in the European Recovery Program in accordance with the Economic Cooperation Act. Katz affidavit, September 24, 1955, p. 248.
[9] The language of Canon 36 bars a former government attorney from accepting employment in connection with any matter "which he has investigated or passed upon while in such office or employ." The government contends that this includes matters which "he should have passed upon." This is a novel contention and the government cites no case to support it. The possible application of such a theory and its limitations, if applied, will be considered in discussing the appearance of evil, infra.
[10] "It would be unjust to the bar as a whole and to the litigants appearing before our courts to place advocates in a position where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged, relationship." Watson v. Watson, Sup.Ct.1939, 171 Misc. 175, 11 N.Y.S.2d 537, 540. See Consolidated Theatres, Inc., v. Warner Bros. Circuit Management Corp., 2 Cir., 1954, 216 F.2d 920, 925; Brown v. Miller, 1923, 52 App.D.C. 330, 286 F. 994; T. C. & Theatre Corp. v. Warner Bros. Pictures, Inc., D.C.S.D.N.Y.1953, 113 F. Supp. 265, 269; American Bar Association, Committee on Professional Ethics and Grievances, Opinions #83 and 177 (hereafter cited as A.B.A. Opinion # ____); Association of the Bar of the City of New York, Committee on Professional Ethics, Opinions #2 and B-39 (hereafter cited as City Opinion # ____).
Where it is clear that betrayal of confidences can be avoided, however, it is permissible for an attorney to take a case adverse to the interests of a former client. See City Opinions #87, 119, 383, 508, B-26, B-32, B-172.
[11] The reason for the access extension to this rule is that there might be a situation where the client does not consult orally with the particular attorney (e. g., if the attorney is a junior attorney assigned to the case); nevertheless, records, files and other materials substantially related to the controversy at hand are made available to that attorney by the client. The attorney thus has access to the various documents, and the assumption is that these were made available to him only because of the confidential nature of the attorney-client relationship.
The question of whether this inference follows from access alone where there is no proof of use by the attorney of the materials in question will be discussed infra under the headnotes dealing with government attorneys.
[12] Clayton Act § 5, 38 Stat. 731, 15 U.S. C.A. § 16.
The activities of another attorney similarly involved in such a motion picture anti-trust suit gave rise to several suits involving disqualification of himself and his partners. See Fisher Studio, Inc. v. Loew's, Inc., 1954 Trade Cases, p. 69,335 (E.D.N.Y.1954); Laskey Bros. of W. Va. Inc., v. Warner Bros. Pictures, Inc., D.C.S.D.N.Y., 130 F. Supp. 514, affirmed, 2 Cir., 1955, 224 F.2d 824. The attorney himself was disqualified upon findings similar to those in the T. C. Theatre and Consolidated cases; the question of his partners' positions will be discussed infra.
[13] The above-mentioned motion picture anti-trust cases represent the most complex factual questions as to substantial relationship which the courts have been called upon to decide; in the other major cases there was a very close and unassailable connection between the attorney's former employment and the subject matter of the pending litigation. E. g., General Contract Purchase Corp. v. Armour, 5 Cir., 1942, 125 F.2d 147 (Attorney who defended client in a criminal proceeding, cannot now sue him in civil suit based on same accident); United States v. Bishop, 6 Cir., 1937, 90 F.2d 65 (Former government attorney cannot now take opposite side in retrial of same suit in which he had formerly represented the government); Brown v. Miller, 1923, 52 App.D.C. 330, 286 F. 944 (Former attorney for the Alien Property Custodian cannot represent claimant of company whose affairs he handled for the Custodian where the claim is mal-administration by the Custodian); Thatcher v. United States, 6 Cir., 1914, 212 F. 801 (Attorney cannot accept professional employment to attack legal arrangement he himself had set up); In re Boone, C.C.N.D.Cal.1897, 83 F. 944 (Attorney who defended petitioner's patents in several suits cannot now offer services to those attacking the same patents in other suits); United States v. Costen, C.C.D.Col.1889, 38 F. 24 (Attorney who served one side in a case, cannot after termination of his employment, offer to serve the other side in the same suit); Porter v. Huber, D.C.W.D.Wash. 1946, 68 F. Supp. 132 (Attorneys who worked for plaintiff OPA when refund suit was pending, and who did some work on the pending case, cannot now act as attorneys for defendant).
[14] See Michel v. McKenna, 1929, 199 Wis. 608, 227 N.W. 396; A. B. A. Opinions #135, 247.
[15] See Sheffield v. State Bar of California, 1943, 22 Cal. 2d 627, 140 P.2d 376; Federal Trust Co. v. Damron, 1933, 124 Neb. 655, 247 N.W. 589; A. B. A. Opinion #177; City Opinion #32. Cf. City Opinion #715.
[16] See In re Maltby, 1949, 68 Ariz. 153, 202 P.2d 902; Bowman v. Bowman, 1899, 153 Ind. 498, 55 N.E. 422; In re Themelis, 1951, 117 Vt. 19, 83 A.2d 507; A. B. A. Opinion #83; City Opinion #B-19.
[17] See Anderson v. Eaton, 1930, 211 Cal. 113, 293 P. 788 (Attorney cannot represent conflicting interests arising from the same transaction); People v. Gerold, 1914, 265 Ill. 448, 107 N.E. 165 (Attorney who had represented X in matters dealing with his term in office cannot now prosecute X when these same matters are involved); Watson v. Watson, 1939, 171 Misc. 175, 11 N.Y.S.2d 537 (Attorney who had represented defendant in criminal action against him cannot now represent defendant's wife in annulment action based on his former bad character); Pierce v. Palmer, 1910, 31 R.I. 432, 77 A. 201 (Attorney who represented executor of estate cannot now represent legatees in suit against executor). See also A. B. A. Opinions #33, 39, 49; City Opinions # 42, B-39; New York County Lawyers' Association, Committee on Professional Ethics, Opinion #157 (hereafter cited as County Opinion # ____).
[18] The necessity for requiring a substantial relationship before assuming that confidences were reposed is particularly acute where the personal integrity of the attorney in question has not been challenged i. e., where complainant bases its case on an inadvertent betrayal so far as the issue of confidences is concerned, as is the case here.
[19] Stokes affidavit, September 26, 1955, pp. 257-258.
[20] In thus holding, I reject the government's claim that the affidavits are distinguishable and that they are not inconsistent with the government's position. The government's attempted distinction is based on the fact that these affidavits were made by persons who severed their connection with ECA before the end of 1952, and that:
"The subject matter of the oil litigation as it was then understood to exist in 1952 and prior thereto is not the same as matters substantially related to the issues of this case as created by the affirmative defenses pleaded in defendant Esso's answer, filed on May 12, 1953. * * * *
[T]he test should be whether Mr. Horn had access to, investigated, or passed upon matters substantially related to or closely interwoven with the issues in the case, as they now appear to the Court." (Oral argument submitted in printed form, pp. 40-41.)
This argument disregards the fact that these affidavits were all made on September 22, 1955 and thereafter by intelligent persons who were aware of the purpose to which they would be put, and who, it must be assumed, made these affidavits in light of the case as it then appeared.
[21] In his affidavit of September 26, 1955, Mr. Horn avers (pp. 188 and 225) that he never consulted or had access to any files other than the files of the General Counsel's Office of OSR/Paris during his tenure in the department, and he further avers that he never consulted the oil folders of the files in the General Counsel's Office. He states that he never had access to or consulted any of the files of the General Counsel's Office in Washington or any other government file in Washington, and avers the same with respect to the files of the various ECA Missions. The question of whether, because of Mr. Horn's key position and the frailty of human memory, access might nevertheless be inferred to the various files throughout the OSR/Paris office will be discussed infra, but it must be assumed that he would remember consulting files in Washington, D. C., if he ever did so.
[22] It should be noted that two of the reasons for this access-substantial relationship-confidence inference which were mentioned in the Consolidated case are lacking here: (a) In that case, the complainant did not want to show the court what the particular confidences reposed were; he wanted his privacy as to those matters protected. Here the government has produced for court scrutiny many of the claimed confidential papers. (b) In that case, there was no showing that particular matters were revealed to the former attorney in a confidential manner. Here, the government has produced many documents which are classified so that the presumption of confidence is unnecessary.
On this motion, neither side has requested a hearing, nor was one necessary. The government has been content to rest its case on specific documents. The defendant rests its case on affidavits based upon the knowledge of the affiants concerning the events and explaining these documents. The basic issue here is really one of documentary interpretation.
[23] This access inference will be discussed with the problem of imputed knowledge, infra.
[24] This appearance of evil rationale would also seem to explain the rule applied to privately employed attorneys that the attorney may not attack the validity of his own work. It has been held that where an attorney draws a document for a client, or advises a client to take a certain legal position, he is forever barred from asserting that that position was unsound or that document invalid. See Thatcher v. United States, 6 Cir., 1914, 212 F. 801; Federal Trust Co. v. Damron, 1933, 124 Neb. 655, 247 N.W. 589; A. B. A. Opinions #33, 64, 71, 177; City Opinion #32; County Opinion #156. See also Drinker, op. cit. pp. 113-114. Outside these restrictions, however, an attorney is free to change his legal viewpoint generally; the ethical question is posed only when the lawyer attempts to change his viewpoint with respect to the merits of a specific matter with which he has previously dealt.
[25] The question of what creates an appearance of evil is largely one of ethical mores; it is interesting to note, therefore, that the New York County Lawyers' Association and the Association of the Bar of the City of New York, in their briefs amicus curiae in the instant case, considered the possible application of the "should have passed upon" test urged by the government, and rejected it. Both groups maintained that disqualification was called for only where the attorney in question had actually passed on the validity of the regulation in question while in government service, or had, while in that service, gained knowledge of a weakness in it. The Association of the Bar specifically approved the formula for the "actuality" test set forth in this opinion, i. e., that proof of actual investigation of the validity of a regulation will not be necessary to bar an attorney where there is proof of a clear and unequivocal duty on his part to so investigate. The Association of the Bar pointed out that this must be a duty to investigate the validity of a regulation as opposed to the duty of applying an existing regulation where no question of validity is raised while so employed. The latter duty would not bar an attorney from later contesting validity. Association of the Bar of the City of New York, Brief Amicus Curiae, pp. 2-4; New York County Lawyers' Association, Brief Amicus Curiae, pp. 9-15.
[26] Similar views have been expressed by the A. B. A. Committee on Professional Ethics. See Opinions #33, 49, 72, 103.
[27] See City Opinion #2. In the Fisher case (cited Note 12 supra), on which the Laskey case is based, the attorney with actual knowledge was a salaried lawyer at the time he received the information. In Consolidated (cited Note 10 supra), the attorney in question had also been a salaried law clerk at the relevant time. In that case the Court said expressly that Canon 6 as well as Canon 37 covered salaried lawyers.
[28] See Drinker, op. cit. pp. 24-25. This Canon is applicable to all public positions, of course, not just those of the United States government, though the larger the governmental unit, the more difficult the problems of identifying the attorney's former client and his former "partnership" office.
[29] Such a conclusion is buttressed by the views of the two Bar Associations discussed in Note 25 supra.
Further, the words "investigated" or "passed upon" seem indicative of a requirement that an attorney has done more than see certain confidential files. Although the cases discussing the access rule have not considered this point, a possible explanation for their not having done so is that, in those cases, it was clear that the attorney in question had done far more than just accidentally see or briefly peruse and initial a related document. True, these cases for the most part did not deal with government officials, but a consideration of this nature would be valid in all cases. Again, common sense dictates that an attorney should not be disqualified where actual knowledge of the controversy based on his former employment is non-existent, but this stricture must be considered in relation to the problem of avoiding the appearance of evil. Once more, an ad hoc, practical approach to the specific factual problems in each case is indicated.
[30] This vertical imputed knowledge rule was employed in A. B. A. Opinion #37. See, also, Porter v. Huber, D.C.W.D. Wash.1946, 68 F. Supp. 132.
[31] The New York County Lawyers' Association, in its brief, considered whether, assuming the data in certain documents would disqualify Mr. Horn, he should be chargeable with knowledge of their contents when neither he nor the government has present knowledge of whether he actually saw the documents in question. It stated:
"In our opinion a distinction should be drawn between Mr. Horn's chargeability with the contents of data or information contained in documents received at E. C. A., Paris, while he was merely one of several attorneys in the office * * * and information or data * * * received in E. C. A. Paris while Mr. Horn was * * * in a supervisory capacity over the work of all the attorneys in the office.
While Mr. Horn served merely as one of the attorneys, it is our opinion that, in the absence of proof that a particular document was routed to him, or that he learned of its contents in some other way, Mr. Horn should not be charged with knowledge of the contents of the document. During the periods * * * [when he acted in supervisory capacity] we are of the opinion that, in the absence of proof that he did not see a document, or learn of its contents in some other way, he should be chargeable with the contents of all documents which passed through the Legal Section." (Brief of the New York County Lawyers' Association, Amicus Curiae, pp. 6-7.)
A position akin to that of the New York County Lawyers' Association was taken by the Association of the Bar, which said, "In the application of Canons 6 and 36, there should be no presumption of a lawyer's access to or actual knowledge of information." (Brief Amicus Curiae, p. 2). It added:
"If it is found that Mr. Horn had access to certain files but failed to make use of such access and was not directed by his superior to examine the files, then no case for his disqualification under Canon 36 can be said to have been made out in that respect." (Brief Amicus Curiae, p. 2.)
Compare A. B. A. Opinion #134.
[32] The practical and ethical problems faced by present and former government attorneys with relation to federal statutes on this subject are thoroughly discussed in McElwain and Vorenberg, The Federal Conflict of Interest Statutes, 65 Harv.L.Rev. 955 (1952).
[33] See Plaintiff's reply to Memorandum of Bethuel M. Webster as Amicus Curiae, pp. 15, 17.
[34] A converse problem arises when an attorney who has represented several corporate clients enters government service as the head of a department or as a lower ranking official, and that department wishes to undertake an investigation of or lawsuit against his former clients. If he is head of the department, knowledge of his subordinates' activities is imputed to him as is responsibility for their actions. A former department chief is barred from undertaking to represent in private practice any interests adverse to the government in any matters which were pending in his department during his tenure; why should not the present chief be barred while in government service from undertaking any activities adverse to interests of his former client. And if he is barred, why not his subordinates since he is held responsible for their actions. The answer which has been reached is that the hands of the government cannot be tied because of the former associations of one of its officials; therefore, that top person disqualifies himself from handling that particular matter, and the conflict of interest question is considered resolved. Similarly, the particular lower ranking attorney disqualifies himself and another attorney handles the matter. No such opportunity is given to one partner in a law firm to disqualify himself and qualify the firm. The only explanation for the difference in result is that the practical exigencies are more compelling in the former situation than the latter. This is another illustration of the fact that ethical problems cannot be viewed in a vacuum; practical, everyday facts of life must be considered.
[35] See Note, Disqualification of Attorneys for Representing Interests Adverse to Former Clients, 64 Yale L.J. 917, 927-928 (1955); Casenote, 68 Harvard L. Rev. 1084 (1955).
[36] In the District Court opinion in Laskey, and in the T. C. Theatre case, the burden of proving that the knowledgeable attorney had conveyed that information to his former partner was placed upon the complainant. For other treatment of this problem see A. B. A. Opinion #167 and City Opinion #793.
[37] The Yale article cited was a critique of the possible harsh, practical consequences which might arise in other cases based on the broad disqualification precedent of the Consolidated case where the Court had said that the public policy of the Canons outweighed practical considerations. The Laskey opinion thus clearly represents a back-tracking from the broad statement in Consolidated. For an illustration of how far this chain of disqualification could otherwise extend see A. B. A. Opinion #33.
[38] "The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection." In re Boone, C.C.N.D.Cal. 1897, 83 F. 944, 952-53. This statement has been repeatedly quoted as establishing the basic test of consistency of the attorney's present and past positions. See also Note, 51 A.L.R. 1312-1315; Drinker, op. cit., pp. 107-108; City Opinions #87, 119, 383, 508, B-26, 8-32, B-172.
[39] None of these duties, as set forth, deals in any way with the subject of this controversy.
[40] The names and official positions of these affiants, and their periods of tenure are set forth in an unreported Appendix to this Opinion: Appendix A.
[41] Mr. Horn points out in his affidavit of September 26, 1955 (p. 190) that Judge Barnes has never had any connection with ECA and its successor agencies, and did not become associated with the Federal Government until 1953. He avers similarly that Mr. Herter, present General Counsel of the I. C. A. (ECA's ultimate successor) whose descriptive affidavit accompanied the government exhibits, became associated with the organization in 1954, and he, too, has had no actual experience with OSR/Paris or its legal offices.
[42] This oral argument, which was submited in printed form, also considers and interprets the submitted documents.
[43] With regard to the government's contention that there is an appearance of evil arising from the fact that out of 85 men in the firm of Sullivan & Cromwell, Mr. Horn is a key figure in the present suit, it must be pointed out that Mr. Horn's specialty is the field of foreign economic and legal problems. If he is not qualified to act, his firm would be disqualified regardless of his participation, under the partnership-imputed knowledge theory. If he is qualified, there is no appearance of evil arising from his participating in the case rather than some other partner. To contend for this would be to place the single practitioner in a more favored position.
[44] In an unreported appendix to this decision, Appendix B, I have analyzed each document, giving the Exhibit number and (a) the government's interpretation of the document; (b) Mr. Horn's explanation of it; (c) my conclusions with respect to it. Included also in a separate appendix, Appendix C, are discussions of the estoppel defense and the counterpart fund defensedefenses which I find to be no grounds for disqualification here by reason of the unrefuted affidavits of Mr. Horn and Mr. Dean. Also considered in that Appendix are several other pertinent affidavits not included in the documentary discussions in Appendix B.
[45] "[S]ome of the greatest errors in thinking have arisen from the mechanical, unreflective, application of old formulations forgetful of a tacit `as if'to new situations which are sufficiently discrepant from the old so that the emphasis on the likenesses is misleading and the neglect of the differences leads to unfortunate or foolish consequences." United Shipyards v. Hoey, 2 Cir., 1942, 131 F.2d 525, 526-527.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/6822928/
|
Smith, Judge,
delivered the opinion of the court:
This appeal is from the decision of the United States Customs Court, First Division, C.D. 2207, overruling the importer’s protest and holding the merchandise, consisting of floor covering in the form of tiles, to have been properly classified by the collector under paragraph 1539 (b) of the Tariff Act of 1930, rather than under paragraph 1021 thereof, as contended by the importer.
The competing provisions are as follows:
Paragraph 1539 (b), as modified by T.D. 54108:
Laminated products (whether or not provided for elsewhere in the Tariff Act of 1930 than in paragraph 1539 (h) thereof) of which any synthetic resin or resin-like substance is the chief binding agent:
* * * # * * #
Manufactures wholly or in chief value of any product described in the preceding item 1539(b) or of any other product of which any synthetic resin or resin-like substance is the chief binding agent_21 (á per lb.
and 17% ad val.
Paragraph 1021, Tariff Act of 1930:
Common China, Japan, and India straw matting, and floor coverings made therefrom, 3 cents per square yard; carpets, carpeting, mats, matting, and rugs, wholly or in chief value of flax, hemp, or jute, or a mixture thereof, 35 per centum ad valorem; all other floor coverings not specially provided for, 40 per centum ad valorem.
Paragraph 1021, as modified by T.D. 54108:
Floor coverings not specially provided for (except grass or rice straw floor coverings, and not including felt-base floor coverings)_17% ad val.
It appears from facts stipulated by the parties that the merchandise in issue is in the form of tiles 10% x 10% inches in size and %6 of an *150inch thick. The tiles are composed in chief value of a synthetic resin, polyvinyl chloride, as the binding agent and contain in addition calcium carbonate, mineral pigment, phthalic esters, phosphate esters, halogenated hydrocarbons and organic salts of lead, barium and cadmium. The tiles, in use, are glued, cemented or otherwise fastened to the floor to provide the wearing surface thereof. They are generally applied from wall to wall.
The instant merchandise is not provided for eo nomine under paragraph 1021. It is, however, a floor covering and the paragraph provides, in terms, for all floor coverings not elsewhere provided for or excepted. The issue to be decided, therefore, is whether the provision for “floor coverings not specially provided for” in paragraph 1021 as modified is to be taken literally or whether it is limited by the doctrine of ejusdem generis to floor coverings of the same character as those specifically enumerated in the paragraph.
The court below, while stating at some length its reasons for considering the doctrine of ejusdem generis inapplicable, felt itself bound to apply it because of the following decisions of this court: Gimbel Bros., Inc. v. United States, 22 CCPA, 146 T.D. 47111; United States v. J. L. Hudson Co., 23 CCPA 313, T.D. 48177; United States v. Inter-Maritime Forwarding Co., Inc., 41 CCPA 107, C.A.D. 537; and United States v. Damrak Trading Co., Inc., 43 CCPA 77, C.A.D. 611.
The court below was correct in holding that the Damrah decision is of such scope as to be controlling on the determination of the issue here presented. However, that decision turned upon the majority’s interpretation of paragraph 1022 of the Tariff Act of 1922 in the Gimbel case, and of paragraph 1021 of the Tariff Act of 1930 in the Hudson and Maritime decisions, which required the application of the doctrine of ejusdem generis to paragraph 1021 of the Tariff Act of 1930. In the Damrak case, the dissenting opinion analyzed the Gimbel, Hudson and Maritime cases and found them not controlling on the issues. Upon our review here, we agree with that analysis.
As properly pointed out in the dissenting opinion in the Damrah case, the Girnbel and Maritime cases did not involve “floor coverings” because “the mats involved were not used as floor coverings within the meaning of the paragraph, and the differences in texture and 'material between those mats and the goods provided for eo nomine in the paragraph were mentioned merely as supporting that conclusion.” With respect to the Hudson case, the dissent in Damrah notes that while the court mentioned the doctrine of ejusdem generis, that decision was made before paragraph 1021 was modified by GATT to expressly include felt base floor covering referred to in the Summary of Tariff Information of 1929. We would now add that the court in the Hudson case based its decision upon two independent grounds. *151The first was that Congress specifically intended the fnr mats involved to be classified with furs, as established by the legislative history. The second basis for the decision was that the mats were excluded from paragraph 1021 of the Tariff Act of 1930 by ejusdem generis. Since the latter ground could not have been conclusive of the issues involved there, and since it was not necessary to the decision, it is dictum and therefore not controlling.
Thus, the DamraJc case stands, bereft of its rationale, and contra to strong indicia of Congressional intent as found in the statutory language and the legislative history. To begin with, there is no general provision for floor coverings save that in paragraph 1021 of the Tariff Act of 1930. Although schedule 10 is entitled “Flax, Hemp, Jute, and Manufactures of,” we find in paragraph 1020, provision for linoleum, corticine, floor oilcloth and cork carpet, and mats or rugs made from those materials. While such floor coverings may have a woven fiber base, they are not always so made. Paragraph 1023 ends schedule 10 and is an ms.p.f. provision for all manufactures of vegetable fiber, indicating that when Congress sought to limit a provision to products made of vegetable fiber, it was not at a loss for words to do so.
Schedule 9, “Cotton Manufactures” contains an n.s.p.f. provision for floor coverings, but it is limited to floor coverings “wholly or in chief value of cotton.” 19 U.S.C. 1001, par. 921. Similarly, Congress provided for floor coverings n.s.p.f. in 19 U.S.C. 1001, par. 1117(c), but there it limited the provision to such floor coverings as are “wholly or in chief value of wool.” Thus, of three parallel provisions in adjacent schedules dealing with floor coverings, only paragraph 1021 is free from limitation as to the material from which the covering is made. Moreover, that, paragraph is immediately preceded by provision for a floor covering not limited in its composition to the vegetable fiber with which schedule 10 is primarily concerned. Following paragraph 1021 is the ms.p.f. provision for schedule 10, where Congress did limit the provision to vegetable fibers.
Thus it is evident that where Congress intended to limit a provision for floor covering to the material from which the covering is made, it did so in express, unequivocal language. Where Congress has not so limited a provision for floor covering, the absence of a limitation cannot be considered mere legislative oversight. Finally, in view of the preceding paragraph dealing with floor coverings made of diverse artificial materials, the modification by GATT to expressly include felt base floor covering, and the absence of other provision in the statute for floor coverings generally, it would be only reasonable to give the language of paragraph 1021 of the Tariff Act *152of 1930 its plain meaning, unless there is a basis for different construction in the legislative history.
The Summary of Tariff Information for 1929, prepared for and used by Congress in drafting the language here involved, indicates that the n.s.p.f. provision for floor coverings was not to be limited to those coverings made from vegetable fibers, for it specifically includes felt-base floor covering and rubber tile. The Summary also notes that the judicial decisions as of that date included rubber bath mats and paper rugs under the n.s.p.f. provision. Finally, the Summary notes that the corresponding provision of the 1922 Act (section 1022) also included cotton floor coverings. Congress did alter the scope of the provision to exclude floor coverings of cotton but placed those coverings in a different schedule. We think it is significant that Congress did nothing to indicate that it wished to exclude those other floor coverings not made from vegetable fibers.
No such limitations were added to paragraph 1021, because Congress did not intend to limit the n.s.p.f. provision. That is evidenced by an effort made in the Senate to amend the 1930 Tariff Act to include provision for sponge rubber mats used to prevent rugs from slipping. Senator Smoot argued that such mats were already provided for under paragraph 1021. 72 Cong. Eec. 5921. Although the amendment was agreed to in the Senate, it was rejected by the Conference Committee for the expressed reason that the rubber mats were already included in the n.s.p.f. provision of paragraph 1021. Conf. Eep. No. 1326, 71st Cong., 2d Sess., Amend. 801.
Clearly Congress never intended to limit the n.s.p.f. provision of paragraph 1021 to just those floor coverings made from flax, hemp, jute or the like. Thus the dictum of this court in the Hudson case, and the decision in the Damrale case applying the doctrine of ejusdem generis to paragraph 1021 are plainly in error, which error resulted in substituting judicial interpretation for what appears to have been a contrary Congressional intent in enacting this legislation.
“The public policy of putting an end to litigation and of not reopening questions which have been decided is a sound one, subject only to the qualification that clear error should not be perpetuated.” United States v. Mercantil Distribuidora, et al., 45 CCPA 20, 23-24, C.A.D. 667. A former holding should not be disturbed in the absence of a convincing showing of error. Ibid.; United States v. Charles H. Demarest, Inc., 45 CCPA 109, 111, C.A.D. 682; United States v. Dodge & Olcott, Inc., 47 CCPA 100, 103, C.A.D. 737; Manca, Inc. v. United States, 47 CCPA 103, 105, C.A.D. 738. While we are reluctant to depart from precedent, here a convincing showing of clear error has been made and the salutary principle of stare decisis we think does not provide a sufficient reason for perpetuating the error.
*153Therefore, we expressly overrule the holding and decline to apply the dictum in United States v. Damrak Trading Co., Inc., 43 CCPA 77, C.A.D. 611, and United States v. J. L. Hudson Co., 23 CCPA 313, T.D. 48177, that the n.s.p.f. provision of paragraph 1021 of the Tariff Act of 1930 is limited by the doctrine of ejusdeto generis to floor coverings wholly or in chief value of flax, hemp, or jute or a mixture thereof.
We agree with the reasoning of the court below in suggesting that the precedents of this court were erroneous. However, being bound by these precedents, the court reached a decision which is contrary to its reasoning and to the views here expressed. For these reasons we reverse the decision of the Customs Court.
Worley, C. J., sat but did not participate in decision.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822930/
|
Rich, Judge,
delivered the opinion of the court:
This is an appeal from the judgment of the United States Customs Court, Second Division, Appellate Term (A.R.D. 123), affirming the judgment of a single judge sitting in reappraisement. The imported merchandise is blue asbestos yam exported from England on or about September 6, 1957 and appraised at 6 shillings, 5% pence per pound net, plus cost of packing. The importer claims the proper valuation is 5 shillings, 2y2 pence per pound plus packing.
It is agreed that the proper basis of appraisement is foreign value as defined in section 402(c) of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938.3
It has been stipulated that if there is a foreign value for merchandise such as that here under consideration, then that value is the appraised value, 6 shillings, 5y2 pence per pound, and that if there is no foreign value for such merchandise, then the value of similar merchandise, 5 shillings, 2y2 pence per pound, will be the basis of the appraisement. The collector appraised the merchandise on the basis of such merchandise. The importer contends that the appraisal should be based upon the value of similar merchandise under the stipulation.
It should be borne in mind that this stipulation, as will be evident, presents the case to us with a single extraordinarily simple issue: At the time of exportation was there or was there not a foreign value for “sucW merchandise? If there was not, then, by stipulation, the 5 shilling, 2y2 pence per pound agreed value of “similar” merchandise applies. The case, therefore, does not involve any attempt to prove affirmatively either value or any of the other elements of section 402(c), such as usual wholesale quantity and the like. All the importer has to prove is that there was no one price at which such merchandise was freely offered for sale in England in usual wholesale quantities to all purchasers. As the single judge phrased it,
It is apparent from the foregoing [stipulation] that the issue has been narrowed to the question of whether a foreign value for such merchandise existed within the meaning of section 402(c) * * *.
*155His bolding on tbe issue was:
I am of the opinion that the evidence establishes that there never was any single price at which blue asbestos yarn manufactured and sold by Cape Asbestos was freely offered for sale to all who wished to buy such merchandise.
In unanimously affirming, tbe three-judge Appellate Term said:
The value claimed by appellee in the instant case has been established by stipulation of the parties, and all that it is sought to prove here was that the appraiser’s action in finding a foreign value for “such” merchandise was erroneous for the reason that prices at which it was sold or offered for sale were not uniform. Stated otherwise, appellee was merely endeavoring to negate the facts, inherent in the appraiser’s return of value, that such merchandise was freely offered for sale in the usual wholesale quantities and in the ordinary course of trade at prices which were the same for all. That the quantum of proof required to controvert a presumed state of facts is less than that needed to affirmatively establish such facts in the first instance seems clear. [Emphasis ours.]
Tbis being a reappraisement case, tbe only question before us is wbetber, as a matter of law, there is any “substantial evidence” to support tbe judgment below. It is not our province to weigh tbe evidence. Kobe Import Co. v. United States, 42 CCPA 194, 196, C.A.D. 593, M.J. Corbett & Co. v. United States, 20 CCPA 178, 180, T.D. 45965, United States v. Malhame & Co., 19 CCPA 164, 170, T.D. 45276, United States v. Vietor & Achelis, 16 Ct. Cust. Appls. 122, 124, T.D. 42767, United States v. Meadows Wye & Co., Inc., 15 Ct. Cust. Appls. 451, 454, T.D. 42643, United States v. Johnson Co., 9 Ct. Cust. Appls. 258, 270, T.D. 38215.
The case was submitted for decision on the stipulation and importer’s exhibit 1 which comprises a number of price lists attached to an affidavit by Albert George Grant, the “General Commercial Manager” of The Cape Asbestos Company, manufacturer and exporter of the merchandise at bar.
The pertinent portions of the Grant affidavit, wherein is contained all of the evidence, including the price lists which are a part thereof, read as follows:
By reason of my experience, as explained above, I am also familiar will (sic) all sales of my company’s products in England for consumption in England. My company does not publish or circulate any price list showing the prices at which these products are offered for sale or sold. We have prepared price lists for our own use, but these price lists are never circulated in the trade or shown to prospective purchasers. These price lists are not, and are not intended to be, offers to sell any of the merchandise at the prices listed therein. I attach hereto copies of our private price lists which were effective April 6, 1954, January 21, 1955, February 27,1956 and March 24,1958.
. From 1st January, 1957 to date, Blue asbestos yarn has been sold in England at different prices to two classes of purchasers. The first class of purchasers are Henry Crossley & Company Eimited and Beldam Asbestos Company Limited, both of which companies manufacture Blue asbestos yarn into various kinds of Blue *156asbestos packing. Blue asbestos yam was offered and sold throughout this period to Henry Crossley & Company Limited at the prices shown on the price list and to the Beldam Asbestos Company Limited at the same price less approximately 19 per cent. This discount is not a quantity discount and applies to any purchases made by the Beldam Asbestos Company Limited. During this period we have never offered Blue asbestos yarn ior sale to other manufacturers in England. To the best of my recollection and belief we have never refused to sell the material to other manufacturers in England.
The second class of purchasers are merchants and small consumers who, to my own certain personal knowledge, use Blue asbestos yarn in the condition in which we sell it for maintenance purposes and not for further manufacture. We try to discourage sales to merchants and small consumers by charging them a price for the yarn that is approximately equal to the price of cloth made from the same count (or cut) of yarn. This policy ensures that the purchasers will not use the yarn for further manufacturing to produce a product that will compete with our own manufactures. The prices paid by these merchants and small consumers are at least equal to the prices shown on our private price list, the exact amount in excess thereof being determined by the bargaining ability of the purchaser. To the best of my knowledge and belief there has never been a case where merchants and small consumers paid less than the amount shown on our private price lists and there have been many many eases where they paid amounts in excess of that shown. Since 1st January, 1957, the Beldam Asbestos Company Limited have always received a discount from the prices shown in our price list. There was never, at any time, one single price at which merchandise was freely offered and sold to anyone who wished to purchase it.
Affidavit evidence in this type of proceeding is acceptable evidence. Section 501, Tariff Act of 1930. The right to introduce evidence herein by affidavit cannot be questioned. Kobe Import case, supra, at page 199.
The argument invoked by appellant here is the argument it made in vain below, thus described by the Appellate Term:
Citing the cases of Brooks Paper Co. v. United States, 40 C.C.P.A. (Customs) 38, C.A.D. 495; Kobe Import Co. v. United States, 42 C.C.P.A. (Customs) 194, C.A.D. 593; United States v. Fisher Scientific Co., 44 C.C.P.A. (Customs) 122, C.A.D. 648; and United States v. Baar & Beards, Inc., 46 C.C.P.A. (Customs) 91, C.A.D. 705, counsel for appellant contends that plaintiff’s collective exhibit 1 contains statements of the witness which are mere conclusions of ultimate issuable facts, lacking in probative value. Appellant challenges the entire document as devoid of evidentiary facts * * *.
Tire single judge said:
I have examined the affidavit carefully in the light of the criticisms made, and I find that the statements made in the affidavit * * * are statements of evi-dentiary facts made by an affiant whose competency to make the statements had been established, and that they are sufficient, together with the stipulated facts, to overcome the statutory presumption attending the value found by the appraiser.
The Appellate Term said it found no error in this conclusion, adding,
We are not unmindful of the precepts of the Broolcs, Kobe, Fisher, and Baar & Beards cases, supra, concerning the necessity of careful distinction between *157evidentiary facts and ultimate issuable facts and bave sought to preserve them here. Under the circumstances which prevail in the ease before us, however, we do not characterize the statements of affiant as mere conclusions unsupported by evidentiary facts. * * *
* * * * * * *
Accordingly, we are of opinion that the court below properly regarded the statements of Grant in plaintiff’s collective exhibit 1 as having evidentiary value.
If these views as to the distinction between ultimate and evidentiary facts and the categorizing of the affidavit as including evidence in the latter category are correct, then there is substantial evidence to support the judgment below and it must be affirmed. We repeat that it is not for us to weigh the evidence as to its sufficiency in this type of proceeding and we would be reluctant to reverse without strong reason.
The rule as this court stated it in the Brooks case, which the other cases relied on by appellant but copy, is:
The Supreme Court has defined “substantial evidence” as evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred. Substantial evidence, said the Court further, is such relevant evidence as a reasonable mind might accept to support a conclusion, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. * * * [Authority cited.]
Under this test of substantial evidence we think it clear that a mere declaration of an essential ultimate fact in issue is not substantial evidence. [Emphasis ours.]
A declaration of the ultimate fact in issue here would be: Cape Asbestos Company’s blue asbestos yarn is not freely offered for sale in England, in wholesale quantities, to all purchasers at any uniform price. While the affidavit concludes with what is, in effect, such a statement, the sufficiency of the affidavit is not to be judged on that final statement alone. Mr. Grant tells us, in addition, about a number of facts concerning the sale of blue asbestos yarn, that it is sold to the Crossley and Beldam companies and at two different prices, an unpublished list price to one and a price 19% less than that to the other, that others can buy it only at a still different and higher price which is negotiated in each instance by bargaining. These are not mere conclusions. They are business facts which, if sent to a jury, would, we think, justify a verdict that Cape Asbestos Company does not freely offer the merchandise at bar for sale at any uniform wholesale price. It was not necessary, in this case, to prove anything else.
Under the rule of the Brooks case, the Grant affidavit provided “substantial” evidence to support the lower court’s judgment which must, therefore, be affirmed.
(c) FOREIGN VALUE. — The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the united States, at which such or similar merchandise is freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, including the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the united Stales. [Emphasis ours.]
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901825/
|
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered January 3, 1986, convicting him of arson in the first degree, attempted murder in the second degree, robbery in the first degree and criminal possession of a weapon in the third 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 identification testimony.
Ordered that the judgment is affirmed.
In the early morning hours of July 21, 1985, a taxicab driver was robbed by two men who then set fire to his cab with a Molotov cocktail and fled.
The following morning, Police Officer Philip Insardi pulled over an automobile in which the defendant was a passenger for traffic violations. While the officer was conducting an inquiry into the status and ownership of the vehicle which ultimately revealed that it had not been stolen, several additional police units arrived on the scene to render assistance. Officer Insardi testified at the pretrial hearing that he "was informed by one of the other officers that responded that the vehicle that [he] had stopped and the two occupants of that vehicle fit the description of a vehicle that was used in a robbery that had occurred in the past”. Officer Insardi thereafter arrested the defendant and the driver of the automobile, his codefendant.
The defendant’s argument that probable cause for his arrest did not exist, as evidenced by the arresting officer’s testimony that, inter alia, he placed the defendant in custody in order to *751conduct a further investigation into the ownership of both the vehicle and a taxi meter which was seen lying on the rear floor of the car and that the defendant was not under arrest for any specific charge at the time is without merit. As this court held in People v Lopez (95 AD2d 241, 242), "judicial evaluation of police action must be based on objective criteria and not an officer’s subjective view of his right to make an arrest”. Therefore, Officer Insardi’s subjective observations that he arrested the defendant for, inter alia, further investigation into the ownership of the taxi meter, which would clearly not constitute a proper basis for the arrest in the absence of evidence that the defendant, a passenger in the car, had physical possession or otherwise exercised dominion or control over the meter (see, Penal Law § 10.00 [8]; cf, Penal Law §§ 220.25, 265.15), does not militate against a finding that the information conveyed to him by a fellow officer constituted a proper basis for the arrest. Clearly the officer had probable cause to arrest thé defendant based upon the information he received from a fellow officer (see, People v Lypka, 36 NY2d 210, 213-214; People v Ward, 95 AD2d 233). The hearing record supports the conclusion that "the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest” (People v Horowitz, 21 NY2d 55, 60) inasmuch as the defendants matched the descriptions of the perpetrators of the robbery/arson provided by the complainant and they were present in a vehicle bearing the license plate of an automobile wanted in the crime only one day later. The defendant’s failure to have challenged the reliability of, or questioned the basis for, the information conveyed to the arresting officer by his fellow officer leaves intact the presumption of probable cause created by the information (see, People v Jenkins, 47 NY2d 722; People v Muriell, 128 AD2d 554, Iv denied 70 NY2d 652; People v Ward, supra).
While portions of the court’s instructions to the jury were not exemplary, the errors contained therein neither rendered the charge "fatally defective” (People v Sanders, 69 NY2d 860, 861) nor warrant reversal in the interests of justice.
Finally, the record reveals that defense counsel was active and informed during the proceedings and that the defendant was afforded meaningful representation (see, People v Zaborski, 59 NY2d 863; People v Baldi, 54 NY2d 137). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901826/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered April 25, 1986, convicting him of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In light of the prompt curative instructions given by the trial court, which also ascertained that each juror would be able to disregard the stricken testimony, and considering that the proof of the defendant’s guilt was overwhelming, we find that a brief mention during the People’s direct case that defendant was a drug dealer did not deprive him of a fair trial. Therefore, the court did not err in denying the defendant’s motion for a mistrial (see, People v Santiago, 52 NY2d 865; People v Lee, 118 AD2d 593, Iv denied 67 NY2d 945). Inasmuch as the defendant consented to the court’s decision to not marshal the evidence, his contention on appeal concerning the court’s failure to do so is not only unpreserved for our review but was expressly waived by him (see, People v Patterson, 121 AD2d 406, Iv denied 68 NY2d 759; People v Sutton, 104 AD2d 1057).
Finally, the court did not abuse its discretion in denying the defendant’s motion pursuant to CPL 330.30 (3) for a new trial on the ground of newly discovered evidence. At the hearing held to determine the validity of defendant’s claim, he failed to show by a preponderance of the credible evidence that the purported new evidence was likely to result in a more favorable verdict upon retrial (see, e.g., People v Rivera, 108 AD2d 829). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901827/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (O’Brien, J.), rendered September 3, 1986, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the prosecutor’s remarks in summation did not deprive him of a fair trial. The defendant’s objection to the prosecutor’s characterization of a criminal trial as a search for the truth rather than a search for reasonable doubt was sustained by the trial court and immediate curative instructions were given thereby vitiating *753any possible prejudice (see, People v Galloway, 54 NY2d 396; People v Jalah, 107 AD2d 762). Moreover, the prosecutor’s remarks referring to a former baseball player in an attempt to imply that the defense had employed deceptive tactics were within the bounds of permissible rhetorical comment (see, People v Galloway, supra).
Finally, the defendant’s challenges to the propriety of the trial court’s jury charge are either unpreserved for appellate review or without merit. Mollen, P. J., Thompson, Lawrence and Fiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901828/
|
Appeal by the defendant from a judgment of Supreme Court, Queens County (Buchter, J.), rendered January 27, 2010, convicting him of attempted robbery in the second 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 a videotaped statement made by him to law enforcement authorities, and identification evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress a videotaped statement made by him to law enforcement authorities is granted, and a new trial is ordered.
*989The defendant moved to suppress a videotaped statement made by him to an assistant district attorney during the course of an interview conducted prior to the defendant’s arraignment, pursuant to a program instituted by the Queens County District Attorney’s office. In accordance with that program, a script formulated by the Queens County District Attorney’s office was read to the defendant prior to administering Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and obtaining a waiver of the defendant’s rights. Because this procedure was not effective to secure the defendant’s fundamental constitutional privilege against self-incrimination and right to counsel, the defendant’s videotaped statement should have been suppressed (see People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]).
The Supreme Court also should have suppressed the identification evidence because the police lacked reasonable suspicion to stop and detain the defendant on the street. The radio broadcast of a robbery in progress described the perpetrators as two black males wearing black jackets, one of whom was wearing blue jeans and one of whom was wearing black jeans. When responding police officers spoke with the complainant, however, the complainant merely described the perpetrators as “wearing dark clothing,” one taller than the other, and one with a hood. These descriptions of the perpetrators did not provide the police with reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone, outside a liquor store, 20 blocks away from the crime scene. In this respect, the defendant’s appearance did not match the description broadcast on the radio, and the complainant’s description was too vague and general to supply reasonable suspicion to stop and detain the defendant (see People v Stewart, 41 NY2d 65, 69 [1976]; People v Dubinsky, 289 AD2d 415, 416 [2001]; People v Riddick, 269 AD2d 471 [2000]; People v Yiu C. Choy, 173 AD2d 883 [1991]; People v Dawkins, 163 AD2d 322, 324 [1990]). Nor did the other facts identified by the People supply reasonable suspicion to stop him. Accordingly, that branch of the defendant’s omnibus motion which was to suppress the identification evidence should have been granted (see People v Ridley, 307 AD2d 269 [2003]; People v Thomas, 300 AD2d 416 [2002]; People v Dubinsky, 289 AD2d at 416; People v Riddick, 269 AD2d 471 [2000]; People v Yiu C. Choy, 173 AD2d 883 [1991]).
These errors were not harmless beyond a reasonable doubt, since the evidence of the defendant’s guilt, without reference to the errors, was not overwhelming, and there was a reasonable *990possibility that the errors might have contributed to the defendant’s conviction (see generally People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Schaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912 [2012]).
The defendant’s remaining contention is without merit. Skelos, J.P., Balkin, Leventhal and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901829/
|
—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Murray, J.), rendered May 12, 1983, convicting him of burglary in the second degree, petit larceny and criminal possession of stolen property in the third degree, under indictment No. 511/82 upon a jury verdict, and imposing sentence, and (2) a judgment of the same court (Egitto, J.), rendered January 25, 1984, convicting him of robbery in the first degree (three counts), under indictment Ño. 512/82, upon his plea of guilty, and imposing sentence.
Ordered that the judgments are affirmed.
At approximately midnight on January 27, 1982, the defendant was discovered by the police standing in the doorway of an apartment which had been ransacked. The door had been torn from its hinges and the defendant was found to have been carrying a box containing property which belonged to the occupants of the apartment. Viewing the evidence in the light most favorable to the prosecution, as we must, we find that it is legally sufficient to support the defendant’s conviction of the crimes charged under indictment No. 511/82 (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The jury reasonably inferred that the defendant unlawfully entered the apartment.
As to indictment No. 512/82, the Supreme Court did not abuse its discretion in refusing the defendant’s oral request at sentencing to withdraw his guilty plea, since the court found the defendant had voluntarily, knowingly and intelligently admitted to the elements of the crimes during the plea allocution (see, People v Francis, 38 NY2d 150; People v Tinsley, 35 NY2d 926).
*754We have examined the defendant’s remaining contention and find it to be without merit. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/2626537/
|
204 P.3d 1096 (2009)
FIDELITY NATIONAL TITLE COMPANY, INC., as Trustee, and not in its corporate capacity, under Trust Nos. 30, 199 and 60,104, Plaintiff/Appellant,
v.
TOWN OF MARANA, a municipal corporation, and Jocelyn Bronson, in her capacity of Town Clerk; Defendants/Appellees,
Carolyn E. Nessinger, Intervenor/Appellee.
No. 2 CA-CV 2008-0189.
Court of Appeals of Arizona, Division 2, Department B.
February 13, 2009.
Reconsideration Denied February 18, 2009.
Stubbs & Schubart, P.C. By G. Lawrence Schubart and Jeffrey H. Greenberg, Tucson, Attorneys for Plaintiff/Appellant.
*1097 Frank Cassidy, Marana Town Attorney By Cedric Hay, Marana and Arizona Center for Law in the Public Interest By Joy E. Herr-Cardillo, Tucson, Attorneys for Defendants/Appellees.
OPINION
ECKERSTROM, Presiding Judge.
¶ 1 In this expedited election appeal pursuant to Rule 8. 1, Ariz. R. Civ.App. P., appellant Fidelity National Title Company has appealed from the trial court's entry of summary judgment and dismissal of its special action complaint against appellees the Town of Marana and Carolyn Nessinger. Fidelity argues the trial court disregarded the bright-line rule set forth in Arizona law defining the event that triggers the running of the thirty-day period to challenge a rezoning ordinance by referendum. Because we agree that the court erred in its application of the law, we reverse the grant of summary judgment, remand the case, and direct the trial court to grant summary judgment in favor of Fidelity.
¶ 2 The parties stipulated to the following facts. On October 2, 2007, the Town of Marana approved Ordinance 2007.27, which changed the zoning on a parcel of land owned by Fidelity subject to certain conditions being met. The ordinance provided, in relevant part:
This Ordinance shall be treated as having been adopted and the 30-day referendum period established by Arizona Revised Statutes section ("A.R.S. §") 19-142(D) shall begin when the Town files with the county recorder an instrument (in a form acceptable to the Town Attorney), executed by the Developer and any other party having any title interest in the Rezoning Area, that waives any potential claims against the Town under the Arizona Property Rights Protection Act (A.R.S. § 12-1131 et seq., and specifically A.R.S. § 12-1134) resulting from changes in the land use laws that apply to the Rezoning Area as a result of the Town's adoption of this Ordinance. If this waiver instrument is not recorded within 90 calendar days after the motion approving this Ordinance, this Ordinance shall be void and of no force and effect.
The ordinance became available to the public on October 5, 2007.
¶ 3 Soon thereafter, Nessinger obtained a referendum petition for the ordinance from the town clerk. The petition stated the deadline for filing it was November 8, 2007. Later, the Town, through the clerk, contacted Nessinger and advised her the ordinance had not yet become effective because the property owner had not recorded the waiver. The Town assured Nessinger it would contact her after the waiver was recorded and would provide her an amended referendum petition. The Town then contacted Nessinger on November 8, 2007, informed her the waiver had been recorded, and told her an amended referendum petition was available. The amended referendum petition she obtained from the town clerk provided that the deadline for filing it was Monday, December 10, 2007. Nessinger filed the petition on that date. The Town accepted the referendum petition as timely filed and, on January 2, 2008, certified that it contained enough signatures to refer the ordinance to the voters.
¶ 4 Fidelity challenged the timeliness of the petition in a complaint for special action relief filed in Pima County Superior Court on April 25, 2008, requesting that the court order the Town "to cease the processing of the Referendum Petition, including the scheduling of an election on the Referendum Petition." The parties stipulated to the relevant facts and each moved for summary judgment. The trial court denied Fidelity's motion and granted summary judgment against it. The court entered final judgment on December 1, 2008, and this appeal followed.
¶ 5 When reviewing the grant of summary judgment in a case in which the parties have stipulated to the relevant facts, we review de novo the trial court's application of the law. Canady v. Prescott Canyon Estates Homeowners Ass'n, 204 Ariz. 91, ¶ 6, 60 P.3d 231, 232 (App.2002). The Arizona Constitution provides that the legislative actions of a town are subject to the referendum process. See Ariz. Const. art. IV, pt. 1, § 1(8). But referendum proponents must strictly comply with all constitutional and *1098 statutory requirements. Feldmeier v. Watson, 211 Ariz. 444, ¶ 12, 123 P.3d 180, 183 (2005).
¶ 6 Fidelity argues that Nessinger and the Town failed to comply strictly with the timeliness requirements set forth in § 19-142(D) for challenging the ordinance by referendum. Specifically, it contends the event that triggered the time for challenging the ordinance by referendum was the town council's approval of the ordinance on October 2, 2007, as confirmed by the approval of the minutes on October 5, 2007. The trial court disagreed, ruling instead that the fulfillment of the Town's condition for adopting the ordinance the recording of a waiver by the applicant for the ordinance thirty days later triggered the time frame for filing a referendum petition.
¶ 7 In Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 66-69, 811 P.2d 22, 27-30 (1991), our supreme court addressed a nearly identical dispute. There, it held that the initial approval of a condition-laden ordinance triggered the time governing the filing of referendum petitions. Id. The court reasoned that "the logical and practical time for a referendum is when the rezoning is conditionally approved[,] ... shortly after the contested proceedings and public hearings." Id. at 66, 811 P.2d at 27. The court further noted:
Adopting the time of conditional rezoning as the triggering time for a referendum also provides a bright-line rule easily ascertainable by all interested parties. If enactment of the final zoning ordinance were the triggering mechanism, parties would be required to make repeated checks to determine whether the [legislative body] has enacted the final zoning ordinance. Thus, practical as well as legal considerations lead us to conclude that conditional approval of rezoning is a referable legislative act.
Id.
¶ 8 In 1999, consistent with the holding in Pioneer Trust, our state legislature enacted § 19-142(D). See 1999 Ariz. Sess. Laws, ch. 90, § 1; Hause v. City of Tucson, 199 Ariz. 499, ¶¶ 12-13, 19 P.3d 640, 644 (App.2001). The subsection provides that, when challenging a rezoning by referendum, the challenger may file a petition "on the approval by the city or town council of the ordinance that adopts the rezoning or on the approval of that portion of the minutes of the city or town council that includes the council's approval of the rezoning, whichever occurs first." § 19-142(D). And, the thirty-day period within which to challenge the rezoning begins on the day that the ordinance or approved minutes are available from the town clerk. § 19-142(A), (D).
¶ 9 Thus, both our legislature and supreme court have made clear that the subsequent adoption of a rezoning ordinance is not the triggering event for purposes of the right of referendum. The Town's attempt here to circumvent that clear mandate by delaying the adoption of the ordinance therefore had no effect on the statutory triggering event-the approval of the ordinance. For that reason, we agree with Fidelity that the time for challenging the ordinance by referendum began running on October 5, 2007, and the petitions Nessinger filed over sixty days later were untimely.
¶ 10 In ruling otherwise, the trial court distinguished Pioneer Trust, finding the ordinance at issue here "included language indicating that it would not take effect until there was compliance with the mandate of Proposition 207. That was an integral part of the ordinance, and not a list of conditions as occurred in Pioneer Trust." But the trial court overlooked the fact that, regardless of the form of the pre-condition to adoption or the importance of that pre-condition to the Town, the Town approved the ordinance at the October 2 meeting and a copy of the ordinance was available on October 5. And, as the language of § 19-142(D) and the holding of Pioneer Trust require, it is the approval of the ordinance rather than the specified effective date of the ordinance that triggers the time limit to challenge the legislative act.
¶ 11 The Town emphasizes that the language of its ordinance, which specified its adoption date and the date from which the right to file a referendum petition would run, fulfilled the public policy goal set forth in Pioneer Trust to clarify for the public and *1099 the rezoning applicant the triggering event for any challenge. And, we would be reluctant to fault citizens for relying to their detriment on the very terms set forth in the ordinance when timing their challenge to it. But, we can find no language in § 19-142(D) suggesting that our legislature intended to endow our state's subdivisions with the power to specify different triggering events than those the legislature itself set forth in the statute.
¶ 12 Importantly, the triggering events set forth in § 19-142(D) are subject to public notice requirements and are the products of formal legislative acts.[1] Thus, they are "easily ascertainable by all interested parties," Pioneer Trust, 168 Ariz. at 66, 811 P.2d at 27, while the triggering event the Town established in the ordinance came with no alert to the citizenry and could occur at any time. This practical consideration was one of the factors leading the court in Pioneer Trust to adopt "the time of conditional zoning as the triggering time for a referendum." Id. There, the court noted that "[i]f enactment of the final zoning ordinance were the triggering mechanism, parties would be required to make repeated checks to determine whether the Board has enacted the final zoning ordinance." Id. We therefore are not persuaded the Town's ordinance served to clarify the triggering event for a referendum challenge.
¶ 13 We also find little logic in the Town's implicit suggestion that, as a matter of public policy, the very legislative bodies that have approved an ordinance should be empowered to determine the conditions for challenging it. To the contrary, public policy favors uniformity in the referral process uniformity the statutory framework was intended to provide. See A.R.S. § 19-141(A) ("The provisions of this chapter shall apply to the legislation of cities, towns and counties, except as specifically provided to the contrary in this article.").
¶ 14 Indeed, this case illustrates the harsh consequences that can occur when the statutory framework is not followed. Although Nessinger initially obtained the referendum petition at the correct time immediately after the town council's approval of the ordinance she was subsequently advised by the town clerk that she needed to wait until the ordinance had formally been adopted before she could secure an amended petition and begin circulating it for signatures.[2] Thus, Nessinger and those citizens who sought to challenge the ordinance have lost their opportunity to do so because they relied to their detriment on the erroneous advice of a government official who purported to have both the knowledge and the duty to direct them. But, it is the challenger's responsibility to comply with the statutory requirements for filing a referendum petition, and the receipt of erroneous advice, even from governmental officials responsible for administering the referendum process, does not excuse that responsibility. See Robson Ranch Mtns., L.L.C. v. Pinal County, 203 Ariz. 120, ¶ 38, 51 P.3d 342, 352 (App.2002) ("A referendum applicant's receipt of or reliance on inaccurate advice from a county elections director does not extend the time period for filing the petition or otherwise excuse noncompliance with the statutory requirements."); accord Perini Land and Dev. Co. v. Pima County, 170 Ariz. 380, 381, 384, 825 P.2d 1, 2, 5 (1992) (although issue not addressed directly, erroneous advice from county elections director about referendum signatures did not excuse noncompliance).
*1100 ¶ 15 We are well aware that, as this case and others like it demonstrate, seemingly straightforward statutory requirements for pursuing a referendum are at times mystifying to all but the most sophisticated legal specialists. See, e.g., Pioneer Trust, 168 Ariz. at 64-66, 811 P.2d at 25-27 (referendum challenged on ground proponents misidentified relevant legislative action in context of complex county rules for approval and adoption of ordinance); Robson Ranch, 203 Ariz. 120, ¶¶ 17, 38, 51 P.3d at 348, 352 (petition filed one day late because thirty-day deadline ran from when ordinance was available from town clerk, not when made available by elections director; referendum invalidated even though referendum proponents "went to great lengths" to obtain correct materials for circulation and relied on questionable information from various county officials); Perini Land and Dev. Co., 170 Ariz. at 381, 384, 825 P.2d at 2, 5 (referendum invalidated when proponents filed 20,065 valid signatures, after elections director calculated that proponents needed only 17,167 signatures based on population at time of election prior to circulation of petition, but election occurring between dates for circulating and filing petitions changed requisite number to 20,148); Grosvenor Holdings L.C. v. City of Peoria, 195 Ariz. 137, ¶¶ 14-15, 985 P.2d 622, 626 (App.1999) (referendum invalidated as untimely by split appellate panel, when proponents believed referable act was adoption of more specific ordinance following more general, and less articulate, earlier approval; but criticizing "heads we win, tails you lose" advantage enjoyed by referendum opponents).[3] However, our state's experience, as reflected in this case and those cited above, suggests that the procedural complexities of the legislative process and the presumptive cost of obtaining legal counsel in order to successfully navigate the statutory requirements for referendum in that context would become all the more complex and burdensome were public bodies throughout the state empowered to deviate from the statutory referral process as the Town suggests. Nessinger's experience, as one who tried to abide by the letter of the statutory requirements, is but one example.
¶ 16 For the foregoing reasons, we reverse the grant of summary judgment in favor of the Town and Nessinger and remand the case to the trial court, which is directed to enter summary judgment in favor of Fidelity.
¶ 17 Fidelity argues it is entitled to its reasonable attorney fees incurred in the trial court pursuant to A.R.S. § 12-2030, which provides that reasonable fees shall be awarded when a party prevails against a town in a mandamus-type action. Fidelity has now prevailed. Therefore, upon remand, the trial court is directed to entertain Fidelity's request for attorney fees incurred in the trial court and to enter an award accordingly.[4] We reject Fidelity's request for attorney fees on appeal because it has failed to separately articulate an appropriate statutory basis for that request. See Bed Mart, Inc. v. Kelley, 202 Ariz. 370, ¶ 24, 45 P.3d 1219, 1224 (App.2002) (request for appellate fees under Rule 21(c), Ariz. R. Civ.App. P., insufficient, as rule "does not provide a substantive basis for a fee award"); see also W. Sun Contractors Co. v. Superior Court, 159 Ariz. 223, 232, 766 P.2d 96, 105 (App.1988) *1101 (refusing to award appellate attorney fees under § 12-2030 when not timely requested).
CONCURRING: J. WILLIAM BRAMMER, JR., Judge and GARYE L. VÁSQUEZ, Judge.
NOTES
[1] See A.R.S. § 38-431.01(A) (meetings of public bodies must be open to the public and all legal action must occur at such meetings); A.R.S. § 38-431.02 (public must be given notice of meetings); see also § 38-431.01(B), (D) (public bodies must keep written minutes or recordings of all meetings; minutes or recording shall be made available for public inspection three working days after meeting).
[2] In their appellate brief and at oral argument, the Town and Nessinger attempted to raise the affirmative defenses of laches, estoppel, and waiver. But because those defenses were neither specifically pled nor raised in a timely fashion to the trial court, we do not address the arguments for the first time on appeal. See Hegel v. O'Malley Ins. Co., 122 Ariz. 52, 56, 593 P.2d 275, 279 (1979) (affirmative defenses must be pled and proven by defendant or waived); cf. Magma Copper Co. v. Indus. Comm'n, 139 Ariz. 38, 48-49, 676 P.2d 1096, 1106-07 (1983) (to properly raise affirmative defense party must give sufficient notice to allow opposing party to produce evidence on the issue).
[3] Included in Fidelity's challenge to the validity of the referendum petition, and the briefing to this court, was the alternative contention that the petitions were arguably submitted two days late when the thirtieth day of the deadline fell on a weekend, and Nessinger filed the petitions on the first day the clerk's office was open thereafter. We need not address this contention in light of our resolution of the case on other grounds.
[4] The Town relies on Fleischman v. Protect Our City, 214 Ariz. 406, 153 P.3d 1035 (2007), to argue Fidelity is not entitled to attorney fees because "there is no statutory basis for its request." In Fleischman, a referendum case, the supreme court held that the challengers were not entitled to their attorney fees on appeal because they contested the clerk's certification under A.R.S. § 19-121.03(B), rather than bringing a mandamus action to compel the clerk to perform a certification. Fleischman, 214 Ariz. 406, ¶ 26, 153 P.3d at 1039. Here, Fidelity asked the trial court to order the clerk "to cease the processing of the Referendum Petition, including the scheduling of an election on the Referendum Petition," pursuant to Rule 3(a), Ariz. R.P. Spec. Actions, which replaced the old writ of mandamus. See Ariz. R.P. Spec. Actions 1(a); Home Builders Ass'n of Central Ariz. v. City of Apache Junction, 198 Ariz. 493, ¶ 31, 11 P.3d 1032, 1042 (App. 2000). Thus, Fleischman does not control this issue.
|
01-03-2023
|
11-01-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/5901830/
|
Appeal by the defendant from a judgment of Supreme Court, Queens County (Buchter, J.), rendered January 27, 2010, convicting him of attempted robbery in the second 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 a videotaped statement made by him to law enforcement authorities, and identification evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress a videotaped statement made by him to law enforcement authorities is granted, and a new trial is ordered.
*989The defendant moved to suppress a videotaped statement made by him to an assistant district attorney during the course of an interview conducted prior to the defendant’s arraignment, pursuant to a program instituted by the Queens County District Attorney’s office. In accordance with that program, a script formulated by the Queens County District Attorney’s office was read to the defendant prior to administering Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and obtaining a waiver of the defendant’s rights. Because this procedure was not effective to secure the defendant’s fundamental constitutional privilege against self-incrimination and right to counsel, the defendant’s videotaped statement should have been suppressed (see People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]).
The Supreme Court also should have suppressed the identification evidence because the police lacked reasonable suspicion to stop and detain the defendant on the street. The radio broadcast of a robbery in progress described the perpetrators as two black males wearing black jackets, one of whom was wearing blue jeans and one of whom was wearing black jeans. When responding police officers spoke with the complainant, however, the complainant merely described the perpetrators as “wearing dark clothing,” one taller than the other, and one with a hood. These descriptions of the perpetrators did not provide the police with reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone, outside a liquor store, 20 blocks away from the crime scene. In this respect, the defendant’s appearance did not match the description broadcast on the radio, and the complainant’s description was too vague and general to supply reasonable suspicion to stop and detain the defendant (see People v Stewart, 41 NY2d 65, 69 [1976]; People v Dubinsky, 289 AD2d 415, 416 [2001]; People v Riddick, 269 AD2d 471 [2000]; People v Yiu C. Choy, 173 AD2d 883 [1991]; People v Dawkins, 163 AD2d 322, 324 [1990]). Nor did the other facts identified by the People supply reasonable suspicion to stop him. Accordingly, that branch of the defendant’s omnibus motion which was to suppress the identification evidence should have been granted (see People v Ridley, 307 AD2d 269 [2003]; People v Thomas, 300 AD2d 416 [2002]; People v Dubinsky, 289 AD2d at 416; People v Riddick, 269 AD2d 471 [2000]; People v Yiu C. Choy, 173 AD2d 883 [1991]).
These errors were not harmless beyond a reasonable doubt, since the evidence of the defendant’s guilt, without reference to the errors, was not overwhelming, and there was a reasonable *990possibility that the errors might have contributed to the defendant’s conviction (see generally People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Schaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912 [2012]).
The defendant’s remaining contention is without merit. Skelos, J.P., Balkin, Leventhal and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5904775/
|
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).
We have reviewed the contentions raised in the defendant’s supplemental pro se submissions and find them to be without merit. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822931/
|
Maetin, Judge,
dissenting, with whom KiRkpateick, Judge, joins.
I dissent from the majority opinion for the following reasons:
In view of the stipulation, there is but one issue for us to resolve in this case: Is there adequate evidence to overcome the presumption of the correctness of the appraiser’s valuation? In order to accomplish this result, it must be established by evidence that there was no market value or price at the time of exportation of the merchandise at bar to the United States at which such merchandise had been freely offered for sale in the usual wholesale quantities for home consumption to all purchasers in the principal markets of England. The conclusion of this ultimate fact will determine the issue presented to us here. Such a conclusion can be reached only by consideration of evidentiary facts. Therefore, it finally resolves into the question of whether the statements that Grant made in his affidavit and the price lists (Exhibit 1) can be so considered and, if so, whether the statements have such definiteness that they establish the facts which are determinative of the ultimate issue.
There are many statements of fact in the affidavit which can be considered evidentiary but which are so ambiguous that the significant facts cannot be determined with any degree of definiteness. Therefore, I do not believe that those statements add up to the substantial evidence required to determine the ultimate fact, vis, that there was no market value or price at which such merchandise had been freely offered for sale. The burden is on the importer to establish that fact if it is to prevail.
The majority mentions statements concerning the sales to the Cross-ley and Beldam companies which sales are not significant in determining the issues here. Likewise there are many other statements in the affidavit which are inconsequential and have no bearing on the matter. The most significant and important statement reads: “To the best of my knowledge and belief there has never been a case where merchants and small consumers paid less than the amount shown on our private lists and there have been many many cases where they paid amounts in excess of that shown.” I believe this statement to be so indefinite and open to so many interpretations that it cannot be considered substantial evidence.
Let us analyze this statement. Merchants usually buy goods for resale. Therefore, unless otherwise indicated, it could be assumed that this group purchases in “wholesale quantities.” It is stated that the merchants never paid less than the “amount shown on our private price lists.” The records of the company might show that these private price listings could very well be “the market * * * price * * * at which such * * * merchandise is freely offered for sale * * * in the usual wholesale quantities and in the ordinary course of trade * * [Emphasis ours.1 There is nothing before us from *159•which we can draw any definite conclusions as to what the situation really was at the time of exportation. The statement that “there have been many many cases where they paid amounts in excess of that shown” does not help matters at all. “Many many cases” could be a very negligible percentage of the total sales to the merchants and, therefore, would not preclude the list price from being the price at which such merchandise is freely offered for sale, as the records could show that during the time of exportation of the merchandise, the great percentage of sales to these merchants were made at the same prices as appear on the price lists. Also, there is no statement as to when the many sales at prices exceeding the price list were made. These sales could have been made long before or long after the exportation of the merchandise, and the statute provides that the time of exportation is the price-determining period.
Although Grant states that his company tries “to discourage sales to merchants * * * by charging them a price for the yarn that is approximately equal to the price of the cloth,” whatever that price may be, there is nothing in the affidavit to indicate that the yam is not freely offered for sale to the merchants at that price. For all we know, the prices in the price list may be approximately equal to the price of the cloth.
Grant’s statement, “There was never, at any time, one single price at which merchandise was freely offered and sold to anyone who wished to purchase it.”, is a conclusion of the ultimate fact which is the paramount issue in this case, which must be determined by evi-dentiary facts, and cannot be established by a mere statement containing only the conclusion itself. Therefore, that statement cannot be considered substantial evidence to prove anything.
This court should arrive at conclusions of ultimate facts only through evidentiary facts which are clear, concise and complete. Since there are no unambiguous statements which could establish such evidentiary facts from which the court could conclude that there was no market value or price at which such merchandise had been freely offered for sale, I do not think that there is substantial evidence which successfully rebuts the presumption of the correctness of the appraiser’s valuation. Therefore I would reverse the judgment of the Customs Court.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901832/
|
—Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Mallon, J.), imposed December 1, 1983.
Ordered that the appeal is dismissed as academic (see, People v Skaar, 97 AD2d 484). Mollen, P. J., Weinstein, Kooper and Harwood, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901833/
|
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered May 8, 1985, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues that the trial court erred in allowing the introduction into evidence of currency which had been taken from him and his codefendants at the time of their arrest.
In order for real evidence to be admissible it must be shown to accurately portray a relevant and material element of the case (see, People v Julian, 41 NY2d 340, 342). In the instant action the defendant and his two accomplices were charged with forcibly stealing currency from a cab driver. At the time of the robbery the complainant was acutely aware of the amount of money he had in his possession, as well as its specific denominations, since he had just finished counting it prior to responding to the location where the incident occurred. Shortly after the robbery, the suspects were apprehended and subsequently the police discovered on their persons the amount of currency that the complainant had alleged to have been taken from him, but for an unspecified amount of loose change which had been removed from his pocket. This currency was immediately vouchered by the arresting officer and later introduced into evidence during his trial testimony.
The admission of the currency into evidence was directly related to the main issue of the case, i.e., the robbery of the complainant. Furthermore, there was an adequate foundation *756for the introduction of the currency into evidence since the People established an unbroken chain of custody from the time of the defendant’s arrest until its introduction into evidence at trial (see, People v Newman, 129 AD2d 742, Iv denied 70 NY2d 652; People v Scott, 124 AD2d 684, 685, lv denied 69 NY2d 833).
We have reviewed the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be either without merit or unpreserved for appellate review. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901836/
|
Casey, J.
Appeal, by permission, from an order of the County Court of Albany County (Turner, Jr., J.), dated September 4, 1985, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of murder in the second degree, after a hearing.
Defendant seeks to vacate the judgment convicting him upon his plea of guilty of the crime of murder in the second degree. It is defendant’s claim that he received ineffective assistance of counsel. He bases this claim upon the brief time interval between arraignment and the plea, defense counsel’s failure to make any motions for discovery or suppression of evidence, and defense counsel’s advice that defendant should accept the prosecution’s offer and plead guilty to the top count of the indictment. Following a hearing at which defendant and his former defense counsel testified, County Court rejected defendant’s claim. We affirm.
The record establishes that defense counsel, an experienced criminal trial attorney, was retained by defendant’s father the day after defendant was indicted for the crimes of murder in the second degree and manslaughter in the second degree arising out of the brutal beating of Philip Derrico in the City of Cohoes, Albany County. Defense counsel obtained from the Cohoes Police Department copies of statements made by defendant, the codefendant and the codefendant’s brother. Despite the absence of any informal discovery motion, the prosecutor provided defense counsel with all relevant material in *757his file, including the autopsy report and photographs of defendant’s bloody clothing recovered by the police. After speaking with defendant, counsel concluded that there was overwhelming proof of defendant’s participation in the crimes charged and that there was little likelihood of success on a motion to suppress defendant’s statement. A plea-bargaining conference resulted in an offer of the minimum term of 15 years to life if defendant pleaded guilty to the top count of the indictment—murder in the second degree. County Court indicated at that time that it would not consider accepting a plea to manslaughter.
Defense counsel concluded that since defendant was a predicate felon, still on probation based upon the prior conviction, he would receive substantially the same term of imprisonment as that offered in the plea bargain even if he went to trial and succeeded in obtaining a conviction of the lesser crime charged in the indictment. Defense counsel was also concerned that if the codefendant decided to plead guilty before defendant, the prosecution might withdraw its offer since defendant’s testimony would no longer be needed. Accordingly, after discussing the matter with defendant and defendant’s father, defense counsel recommended that defendant accept the offer. Seven days after the arraignment defendant freely and voluntarily entered his plea of guilty of the crime of murder in the second degree and he was subsequently sentenced to the agreed-upon term (see, People v Jacques, 111 AD2d 471). In the circumstances, defendant received the "meaningful representation” required by People v Baldi (54 NY2d 137). Defense counsel’s failure to engage in pretrial procedures available to defendant does not, in itself, establish that defense counsel’s representation was ineffective (see, People v Elliott, 124 AD2d 673, 674, Iv denied 69 NY2d 879; People v Rollova, 124 AD2d 886, 888, Iv denied 69 NY2d 716). The question is whether the record as a whole confirms that defendant was provided meaningful representation (see, People v Cogswell, 127 AD2d 871, 872; People v Reddy, 108 AD2d 945, 948). Since we have answered this question in the affirmative, there is no basis for disturbing County Court’s denial of defendant’s CPL 440.10 motion.
Order affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901837/
|
In a proceeding, in effect, pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Neary, J.), entered December 21, 2012, which dismissed the proceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, the writ is sustained, and upon receipt of a certified copy of this decision and order the Warden of the facility at which the petitioner is incarcerated, or his or her agent, is directed to immediately release the petitioner.
On October 24, 2011, the petitioner was convicted of two counts of petit larceny and one count of criminal possession of stolen property in the fifth degree, and was sentenced to definite terms of imprisonment of one year on each of his convictions of petit larceny, to run concurrently with each other, and a definite term of imprisonment of one year on his conviction of criminal possession of stolen property in the fifth degree, to run consecutively with the sentences imposed on his convictions for petit larceny. Thereafter, the petitioner was convicted of escape in the second degree and grand larceny in the fourth degree, *991arising out of incidents occurring prior to his October 24, 2011, convictions. He was sentenced to a definite term of imprisonment of one year on each of those convictions, to run consecutively with each other and with the terms he was already serving. The respondents determined that the petitioner was entitled to a credit of 106 days for time served prior to the commencement of his sentences for his convictions of petit larceny and criminal possession of stolen property in the fifth degree. Additionally, they later granted the petitioner 486 days of good-time credit. However, they calculated his release date based on an aggregate period of incarceration of four years, resulting in a release date of October 24, 2013. In this proceeding, the petitioner contends that pursuant to Penal Law § 70.30 (2) (b), his aggregate period of incarceration can be no more than two years, resulting in a release date in November 2012. In the judgment on appeal the Supreme Court dismissed the proceeding.
Pursuant to Penal Law § 70.30 (2) (b), where a person is sentenced to serve multiple consecutive definite sentences in the same institution, and has committed no offense while under the sentences, “his aggregate period of incarceration for all of the convictions is limited to two years” (Matter of Serfaty v Jablonsky, 236 AD2d 413, 414 [1997]; see People v Teti, 41 AD2d 841, 842 [1973]). When the two-year limit on the aggregate term of consecutive definite sentences provided by this section applies, a person’s “release date must be calculated based on a two-year aggregate term of incarceration” (Matter of Serfaty v Jablonsky, 236 AD2d at 415 [emphasis added]). Any credit for time served or good-time credit must be applied against this two-year aggregate term (see Penal Law § 70.30 [3] [b]; [4] [b]; Matter of Serfaty v Jablonsky, 236 AD2d at 414; People v Teti, 41 AD2d at 842).
Applying the good-time credit the petitioner can use (see Penal law § 70.30 [4] [b]; Correction Law § 804 [2]), and his credit for time served, the petitioner’s release date has passed. Thus, he currently is being illegally detained and must be discharged forthwith.
In light of our determination, we need not reach the petitioner’s remaining contentions. Mastro, J.P., Lott, Roman and Cohen, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901838/
|
Casey, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), ren*758dered June 13, 1985, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the seventh degree and reckless endangerment in the second degree.
On September 18, 1984 defendant, although he had no driver’s license, drove a rented vehicle to Long Island. After he returned to Ulster County, Brenda Coddington testified that she saw defendant holding a plastic bag in the apartment that they shared and heard defendant comment to his friend, Brian Brodhead, that he was going to make a lot of money. At about 11:00 that same night defendant, Brodhead, Nancy Girard and Michael Ector drove to a nearby motel to rent a room. Defendant, who was driving, left the rented car under the canopy of the motel’s rental office with the engine running and phoned the manager, who was upstairs and stated that he would be right down. Because there had been robberies in that area by persons driving rented cars, the manager became suspicious and phoned the police. After 20 minutes defendant became impatient and phoned the manager again. Police officers arrived and one officer, Sergeant Charles Brodhead of the Ulster County Sheriff’s Department, happened to be the uncle of Brian Brodhead, who was sitting in the front passenger seat, with Nancy Girard and Michael Ector in the rear seat.
When questioned by Sergeant Brodhead, defendant said he was trying to get a room and had not done anything wrong. Sergeant Brodhead and Deputy Scott Weaver noticed a glassine envelope sticking out of the pouch of defendant’s nylon jacket. Sergeant Brodhead asked defendant to empty his pockets and defendant replied that he was not doing anything wrong, stuffed the envelope back in his pocket and started to walk toward the car. Sergeant Brodhead stopped him and again requested that he empty his pockets. Defendant became nasty and told Brian Brodhead to inform his uncle they were not doing anything wrong. Brian Brodhead left the car and stood under the canopy of the motel. Defendant then went to the driver’s seat and left the driver’s door open. Sergeant Brodhead was standing between the door and the running board, when defendant suddenly shifted the car into reverse and stomped on the accelerator. The car jumped backwards, pinning Sergeant Brodhead to the door. Sergeant Brodhead put his arms over the top of the door and lifted his feet off the ground. He was carried backwards about-35 feet before he rolled over on the hood of the car and fell face down on the *759blacktop. The force of the car ripped one of the canopy posts out of the ground.
After Sergeant Brodhead fell, defendant continued to back the car up. He stopped it eventually and then started to drive forward across the parking lot toward the police officers. Officer George Carlson of the City of Kingston Police Department drew his service revolver and fired a warning shot. As the car entered a grassy area headed toward Route 9W, Deputy Weaver fired a second shot at the then speeding vehicle. The officers radioed headquarters and roadblocks were set up. Defendant stopped the car after crossing the Loughran Bridge just before the roadblock and the officer in pursuit saw him leave the car and flee into a nearby field. Girard and Ector were apprehended at the scene. No one else entered or left the vehicle.
Investigator Steven Weishaupt arrived and sealed the car. The car was impounded and towed to the Sheriff’s Department. When examined by Investigator Weishaupt later that night at the Sheriff’s Department, the seals were still intact. Investigator Weishaupt searched the car and recovered four blue paper packets in a plastic bag. The packets were found on the console between the driver’s and front passenger’s seats. Subsequent scientific testing revealed that the packets contained "angel dust”. After defendant’s arrest, Sergeant Brodhead and Deputy Weaver returned to the motel and followed the tire marks left in the grass by defendant’s vehicle. The police recovered two glassine envelopes in a brown paper bag containing one gram of cocaine. Defendant’s arrest was made pursuant to a warrant at 7:00 a.m. at the apartment he shared with Coddington, where he had returned after fleeing the scene. He indicated to Coddington that he panicked when asked what was in his pocket because he was "dirty”.
Defendant was subsequently indicted for the crimes of criminal possession of a controlled substance in the third degree, two counts of attempted assault in the second degree, three counts of reckless endangerment in the second degree and criminal possession of a controlled substance in the seventh degree. Following a jury trial, defendant was convicted of one count of reckless endangerment in the second degree and criminal possession of a controlled substance in the seventh degree. He was sentenced to concurrent one-year jail terms in the Ulster County Jail. The sentence has been served.
Defendant’s principal argument on this appeal is that the prosecution failed to establish a sufficient factual foundation *760for County Court’s charge on the presumption of a controlled substance (Penal Law § 220.25 [1]) or, in the alternative, that defendant successfully rebutted the presumption, even if it is applicable. In pertinent part, Penal Law § 220.25 (1) provides that "[t]he presence of a controlled substance in an automobile * * * is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found”. The prosecution concedes its requirement to prove that defendant was in the car and that illegal drugs were found in the car (see, People v Leyva, 38 NY2d 160, 169). Defendant contends, however, that a defendant’s presence in the car and the discovery of the illegal drugs must be simultaneous for the presumption to apply (see, People v Hunt, 116 AD2d 812). In reply, the prosecution argues that since the car was under police observation from the time it stopped and defendant fled the scene until it was impounded, sealed and towed, and since the controlled substance was discovered some three hours later by Investigator Weishaupt, who found the seals intact when he began the search of the vehicle, the presumption is applicable and was properly charged (see, People v Hunter, 82 AD2d 893, affd 55 NY2d 930; People v Anthony, 21 AD2d 666, cert denied 379 US 983). The jury could have accepted or rejected the permissive inference to be drawn from the statute, as it was within their province to accept or reject any explanation offered by defendant to rebut the presumption (see, People v Leyva, supra, at 168-171). Contrary to defendant’s argument, the circumstances placed defendant and the illegal drugs in the vehicle simultaneously and triggered the statutory presumption (see, People v Hunter, supra).
Further, it is our view that the facts and circumstances outlined above establish beyond a reasonable doubt all the essential elements of reckless endangerment in the second degree as to weight, as well as sufficiency. Accordingly, the judgment of conviction should, in all respects, be affirmed.
Judgment affirmed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901840/
|
Mikoll, J.
Appeal from a judgment of the County Court of Albany County (Clyne, J.), rendered June 15, 1983, upon a verdict convicting defendant of the crime of robbery in the third degree.
On December 24, 1982, at approximately 10:00 a.m. on a street corner in the City of Albany, a male teen-ager came up from behind 78-year-old Alexandra Herzog and snatched her umbrella and pocketbook, which contained about $60. Herzog pursued the purse snatcher, saw him joined by another male teen-ager, and then watched both of them as they ran and disappeared down an alleyway. She later described her assailants as two black teen-agers in their mid to late teens, with the second teen-ager being the taller of the two.
On December 28, 1982, another purse snatching occurred at the same Albany street corner. Willie Martin, a witness to that crime, rode with the police in search of the perpetrator. Martin spotted defendant and said, "There’s the guy that mugged the woman.” Detective Donald Gavigan jumped out of the vehicle and grabbed defendant, who was later interrogated at the police station concerning the purse snatching that occurred that day. Defendant gave a statement that was later reduced to writing. In that statement, defendant allegedly confessed to participating in another crime involving the taking of a shopping bag containing pizza dough from a woman. This statement was also reduced to writing.
Defendant was also questioned about the Herzog purse *762snatching. Defendant confessed to this robbery and described where Herzog’s pocketbook was discarded. This statement was also reduced to writing and all statements were signed by defendant. Gavigan later said defendant was questioned for approximately 1 to XVi hours while two other detectives were in and out of the room. Gavigan asserted that no unlawful force or police brutality was used in obtaining these statements.
Defendant eventually was charged with robbery in the third degree for the Herzog purse snatching. At a pretrial suppression hearing, defendant testified that he was beaten by the police and forced to make the confessions. to the robberies. County Court denied the motion to suppress the oral and written statements. Trial commenced on May 24, 1983 and the proof was closed on the following day. On May 26, 1983, following summations and the charge, the jury began deliberations at approximately 11:00 a.m. and eventually rendered a verdict on the morning of May 28, 1983, convicting defendant of the charged crime. He was sentenced to 2Vs to 7 years’ imprisonment and this appeal ensued.
Turning to the first issue, defendant alleges that County Court abused its discretion by failing to declare a mistrial requested by defendant on the ground that the jury was deadlocked. Defendant further argues that the continued deliberations sanctioned by County Court coerced the verdict. We find that defendant’s arguments have merit.
The jury first retired to the jury room for deliberations on May 26, 1983 at about 11:00 a.m. Thereafter, on the same day the jury requested that the testimony of two of the testifying police officers be read back to it, after which it retired for further deliberations. Subsequent to a lunch break, the jury requested that the testimony of defendant’s mother be read. At approximately 4:00 or 5:00 p.m., the jury sent this note: "We have a deadlock vote official.” County Court advised the jurors that the law required that they deliberate an extensive period of time and that, in the court’s judgment, they had not done so. County Court sent the jury back for further deliberations followed by a dinner break. Later the same night, the jury advised County Court in writing: "Your Honor, unfortunately we, the jury, are in a locked-in vote of seven not guilty, five guilty. Essentially this has not changed since 3 P.M. this afternoon. No one seems to indicate they will change their vote.” Nevertheless, County Court again determined that the jury had not deliberated an extensive period of time and, as it was about 10:00 p.m., directed that the jury take up its *763deliberations in the morning. Thereafter, the jury was sequestered in a motel for the night.
Jury deliberations again commenced on May 27, 1983 at about 9:30 a.m. Within 45 minutes, defense counsel moved for a mistrial on the ground that the jury appeared to be deadlocked and County Court was implicitly coercing the jury to reach a verdict by sending it back to further deliberate. The court commented that because the jury had earlier in the morning asked for additional testimony and instructions to be read and since, in the judgment of the court, the jury had not deliberated for an extensive period of time, the application was denied. The requested information was then read to the jury. Later that same day, the jury advised County Court in writing that it had not yet reached a fully unanimous decision and requested a review of the court’s instructions on credibility and the rereading of certain testimony. This was done, and the jury retired to continue their deliberations.
Still later on May 27, 1983, the jury returned to the courtroom where County Court read the first of two notes: “Your Honor, since 11 A.M. the jurors have been unchanged. The vote stands eleven guilty, one not guilty. The dissenting juror has indicated that after all subsequent review of testimony and clarification of the law, has not and will not change the dissenting vote.” The second note read: “Your Honor, after an additional hour of vigorous discussion, the count remains eleven guilty, one not guilty. The dissenting juror indicates that there is no possibility of the dissenting vote changing.” The court then further instructed the jury:
“As I indicated to you in my initial charge, no juror has the right to erect an arbitrary standard and refuse to discuss the evidence or close his mind in judgment to the reasons advanced by his fellow jurors. You should always be open to reason.
“Consequently, I am going to send you back and direct you to continue your deliberations. Talk over the evidence. Advance your reasons and thoughts. You will return and continue your deliberations in this matter.”
The jury then retired to deliberate further.
At 5:15 p.m. defense counsel again moved for a mistrial asserting that the jury had been deliberating since 9:30 a.m. and that they were not sent out to lunch. In response, County Court noted that the vote had changed considerably since 9:30 a.m. from seven not guilty, five guilty and denied the application for a mistrial. The jury subsequently returned to open *764court where the court read the following communication from the jury: "Your Honor, the eleven jurors who are in agreement in their verdict believe that the dissenting juror is using different standards from the rest of us. However, the dissenting juror states T cannot change my mind in good conscience based on the evidence that has been presented in this trial.’ ” The court then advised the jury that it was of the opinion that if they "discuss the matter further, in further detail, and each advance their reasons or lack thereof, you will be moving in the right direction, perhaps”. The jurors were then sent out to dinner and directed to deliberate further on their return. Subsequently, at about 10:00 p.m. the court sent the jury to a motel for the second night.
On May 28, 1983, while the jury was deliberating, defense counsel again applied to County Court for a mistrial. This application also was denied. The jury subsequently reported their verdict of guilty.
The amount of time a disagreeing jury should be kept together and whether a mistrial should be declared are matters of sound judicial discretion (People v Gonzalez, 115 AD2d 899, 900, appeal dismissed 68 NY2d 995; People v Blanchard, 105 AD2d 492, 494). The jury must have deliberated an extensive time and the court must be satisfied that agreement is unlikely within a reasonable time (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.60, at 674).
Significantly, County Court made no effort in the instant case to satisfy itself, by inquiry of the jury or otherwise, that agreement was unlikely in a reasonable time (ibid.). In view of the many announcements that the jury was deadlocked and that one juror could not in good conscience change his or her vote, County Court should have inquired of the jury whether the deadlock was genuine and whether future deliberations would be fruitless (see, Matter of Plummer v Rothwax, 63 NY2d 243, 252). This case clearly turned on the credibility of witnesses; hence, a jury could easily become deadlocked (see, Matter of Owen v Stroebel, 65 NY2d 658, 661, cert denied sub nom. Owen v Judge of County Ct., 474 US 994; People v Gonzalez, supra, at 900). The continued resubmission of this case to the jury without proper inquiry and instruction clearly had a coercive effect on the jury’s verdict.
Moreover, County Court clearly failed to balance its supplementary instruction by "stressing that 'the verdict must be the verdict of each individual juror, and not a mere acquies*765cence in the conclusion’ of the others” (People v Ali, 65 AD2d 513, 514, affd 47 NY2d 920, quoting Allen v United States, 164 US 492, 501; see, People v Andrews, 109 AD2d 939, 940). The supplemental charge was obviously directed at the lone dissenting juror and was a clear message to that dissenter that he or she must agree with the majority, especially in light of County Court’s repeated insistence that the jury continue to deliberate. Accordingly, the verdict was coerced and the case must therefore be remitted for a new trial.
We find that reversible error also occurred in this case when County Court abused its discretion by allowing evidence of other similar crimes to be introduced on redirect. At trial, defendant’s confession to the December 24, 1982 robbery of Herzog, People’s exhibit No. 3, was admitted into evidence and read to the jury. On cross-examination, Detective Stephen Voss, one of the interrogating officers who secured the confession, was questioned by defense counsel as to whether he participated in urging or threatening defendant in order to persuade him to sign exhibit No. 3. Voss was also asked if he hit or pushed defendant or if he told defendant something would happen to him if he failed to sign the confession. County Court was of the opinion that this line of questioning created an inference of police brutality suggesting the confession was involuntary and therefore defense counsel "opened the door” to further questions by the prosecutor to show what occurred during the interrogation.
Thereafter, the prosecution was allowed to ask Voss on redirect whether the taking of exhibit No. 3 was the only incident that Voss observed discussed between defendant and Gavigan. Voss responded that it was not, and the prosecution asked Voss to testify concerning the other confessions. Defendant’s ensuing motion for a mistrial was denied. At the outset, we note that it is questionable whether the cross-examination "opened the door” to the questions allowed on redirect concerning the other confessions. However, even assuming that defense counsel’s questioning of Voss opened the door, there is no doubt that the extent of the redirect examination concerning the other confessed crimes exceeded the bounds' of discretion. The prosecution was improperly allowed to introduce indirectly prejudicial evidence against defendant that it could not introduce on its direct case. Such error also requires that defendant be afforded a new trial.
We have examined defendant’s other claims of error and find them without merit.
Judgment reversed, on the law, and matter remitted to the *766County Court of Albany County for a new trial. Mahoney, P. J., Kane, Weiss, Mikoll and Levine, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129212/
|
Motion for leave to appeal to the Court of Appeals denied.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129213/
|
Davis, P. J.:
On the 19th of June, 1860, the late William B. Astor, being the owner of certain premises in the city of New York, executed to one George Hertfelder a lease thereof for the term of twenty years and two months, from the first day of March, 1860. The lessee thereafter erected a five story brick building on the premises, which building is still remaining on the lot, and is worth from six to ten thousand dollars. On February 1,1867, the lease and building were assigned in due form to one Christian Rado, who, on the 6th of February, 1872, sold and assigned the said lease and property to William Wipfier and Elizabeth, his wife, who on the same day executed to said Christian Rado the bond and mortgage sought to be foreclosed in this action, which were given to secure a part of the consideration or purchase-money expressed in the assignment by Rado to them,
On March 3, 1873, the said Christian Rado assigned the said bond and mortgage to the plaintiffs, who still hold and own the same; and thei’e is due and unpaid thereon the sum of $3,500 and interest. Mr. Astor died prior to January 14, 1880, and by his will duly probated, the fee of said leased premises was vested in the trustees appointed by said will who are devisees thereof for the purposes of the trusts created by said will. On the 14th of January, 1880, the said trustees executed and delivered to the defendants, William Wipfier and Elizabeth, his wife, a lease of the same lot, demised by the above mentioned lease of Mr. Astor.
The lease by the said trustees was executed and delivered to said Wipfier and wife while they were owners and holders of the lease firstly described and in possession of the leasehold premises. On the 17th of March, 1880, Wipfier and wife made an assignment of *3the lease made by said Astor, subject to mortgages, amounting in the aggregate to $9,000, to one Jacob Muller; and on the 9th day of April, 1880, the said Muller made an assignment of said lease subject to the same mortgages to the defendant Caroline Reis. The lease by the trustees to Wipfier and wife does not appear to have been assigned. The original lease did not contain any covenant of renewal. It contained, however, a covenant that the lessee “ shall be at liberty to remove the building standing on said lot at the end of the term hereby demised provided the same shall be entirely removed ten days before the expiration of this lease and not otherwise. ”
The contention of the defendants is that the mortgage sought to be foreclosed is not a lien on the leasehold created by the lease from the trustees of Astor’s estate.
It sufficiently appears in the case that the lease by the trustees was given because the lessees were the owners of the former lease and in possession of the premises thereunder, and of the building standing thereon, with a right to remove the same, in accordance with the provisions of the lease. These rights were expressly subject to the mortgage. ' It was the custom or usage of Mr. Astor to give new leases under such circumstances to owners and occupants ■uuder the former lease, and the trustees have continued that usage. There can be no doubt but that the new lease was obtained by the lessees by reason of their relation to and their rights under the old one. The principle governing the case was enunciated by Chancellor Kent in Holdridge v. Gillespie (2 Johns. Ch., 30), where a lease held as security by a third party was surrendered by the lessee and a new lease taken for a new term. It was held that a new lease inured to the benefit of the pledgee.
And in Slee v. The Manhattan Company (1 Paige, 18) the Chancellor held that when a mortgagee obtains a renewal of a lease or other advantage, in consequence of his situation as such mortgagee, the mortgagor coming in to redeem is entitled to the benefit thereof. That case establishes that if the trustees had executed a lease to the present plaintiffs because they were holders of the mortgage now in suit, the present defendants would be entitled to redeem the mortgf ge and take the new leasehold estate.
In Phyfe v. Wardell (5 Paige, 279) it was held that where it was *4the usage to renew to a tenant who held under a lease without covenant of renewal, equity would take cognizance of the vendible interest in an imperfect right of renewal and regard a subsequent lease as a renewal of the former one, to protect equities; and the Chancellor laid down this general rule: “ If a person who has a particular or special interest in a lease, obtains a renewal thereof from the circumstance of his being in possession as tenant, or from having such particular interest, the renewed lease is in equity considered a mere continuance of the original lease, subject to the additional charges upon the renewal, for the purpose of protecting the equitable rights of all parties who had any interest, legal or equitable, in the old lease.” ■ And see Gibbes v. Jenkins (3 Sandf. Ch., 131), Phyfe v. Wardell, and Gibbes v. Jenkins ; which cases are cited with approval in Mitchell v. Reed (61 N. Y., 123), where Earl, Commissioner, says that the principle governing the cases “ springs from the fact that the party obtained the new lease from the position he occupied, being in possession and having the good will which accompanies that, or being connected with the old lease in some way, and thus enabled to take an inequitable advantage of other parties, also interested, to whom he owed some duty.”
We think the principle of these cases is applicable to and controlling of the case before us. The authorities cited by the counsel for the appellant are distinguishable in principle and do not disturb the equitable rules established in the cases above cited.
From the facts appearing in the case it is doubtful whether the parties who appeal have any interest in the controversy. It does not appear that they are assignees of the new lease or of anything more than the rights and interest of Wipfler and wife in the original lease. They seem to make some claim as such assignees, to the new lease, but the assignment to them of the old lease was expressly subject to the plaintiff’s mortgage, and if they are able to work out an equitable title to the new lease on the basis of that assignment, their equity is certainly by the assignment itself charged with the lien of the mortgage.
We think the judgment right. It should be affirmed, with costs.
Brady and Daniels, JJ., concurred.
Judgment affirmed, with costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129214/
|
Davis, P. J.:
This action was brought to recover damages for injuries resulting in death, received by plaintiff’s intestate while attempting to get on *6board a train of the appellant.. There is no controversy in the evidence as to the fact that the train was in motion when the deceased attempted to get on board. He, with several other persons, had come up on the Third avenue cars from the City Hall station to the Chatham Square station, and were hastening to catch the train on the Second Avenue road, at that junction. To do this they were to ascend one flight of stairs and descend another, beside passing some little distance on the platforms. The Second Avenue train was coming up as the passengers left the other train, and it appears they ran over the stairs with the intention of catching the train then at the station. Some of them succeeded ; but the evidence shows that as deceased ran down the stairs, with two persons in advance of him, the gate of the Second Avenue car was closed, and the train started. The two persons in advance pushed open the gate and got on board the moving train; the deceased attempted to get on board, but at the same moment the conductor again closed the gate, and the foot of the deceased was caught by the gate so that he was carried along several feet till, at the end of the platform, he was struck by the iron water pipes descending from the roof of the station and knocked from the car, and received such injuries that his death resulted therefrom. The incident occurred on the evening of the 9th of December, 1881, at seven o’clock and two minutes. Another train was due at the station in four minutes. There was no occasion for great haste or urgency on the part of the deceased, except that his son, who was going home at the same time, had succeeded in boarding the train. The learned judge who tried the case, seemed, as appears by his charge, to have been under the impression that there was a controversy as to the fact whether the train was moving when the deceased attempted to board it, for he said to the jury: “ To attempt to board a train while in motion would be an act of negligence. It has been so held by the court; but the plaintiff claims that when the intestate attempted to board the train it was not in motion; that the gate was open, and as he put one foot upon it the gate was shut and he was thrust out. The defendant has given an entirely different version of the affair, and it is for you to say which theory of the case you will adopt in rendering a verdict.” The judge had already charged that the jury must “ be satisfied that the person who was killed was without fault *7or negligence, or if there was the least fault or negligence on his part which contributed to the injury, even though the defendant’s agents were guilty of negligence, the plaintiff cannot recover.”
This was a correct statement of the law as settled in this State ly numerous. authorities. It is also well settled that an attempt to board a railway train while the cars are in motion is.contributory negligence, if injury results from such attempt; and that no recovery can be had for the injury. (Phillips v. Rensselaer, etc., R. R. Co., 49 N. Y., 177; Burrows v. Erie R. R. Co., 63 N. Y., 556.)
There being no controversy in the case on the question whether or not the train was in motion to leave the station, when the deceased attempted to board it, it seems manifest that the learned judge gave to the jury an issue not really in the case, when he stated to them the claims of the respectiv'e parties; and the other portions of the charge show that he must have been under a misapprehension as to the evidence, or he would have directed a verdict for the defendants.
The cars were certainly in motion, in the act and for the purpose of leaving the station, when the deceased made his attempt to get on board; the only controversy was whether the gate was open at that moment, and whether the conductor’s act of closing the gate defeated the attempt and caused the injury.
It would be our duty to order a new trial because of the submission of an unsupported issue to the jury; but the case presents a question of law which should not be evaded. That question is whether upon the whole case it was not the duty of the .court to have directed a verdict for the defendant. The case which the evidence presents is this: The defendant’s Second Avenue train on the elevated railway had reached and was about leaving the Chat-ham Square station; the deceased with other persons were hastening from another train to get on board; but as they, came running up for that purpose the gate on the platform of the car was closed and the train started to leave the station. It was moving, but slowly, when two persons running in advance of the deceased pushed open the closed gate and boarded the car; the deceased also attempted to get on, but at that moment the conductor again closed the gate while the deceased was stepping on the car having one foot on the platform ; that foot was caught by the gate so that the deceased was carried along a short distance by the moving car until struck *8by a projecting pipe of the station by which he was knocked from the car upon the track below and fatally injured.
On this state of facts it is apparent that there was no negligence on the part of the defendants in the closing of the gate at first, and starting the train. The deceased and others, though running to catch the train, were too late to do so before the gate was closed and the train started. When they saw that state of things their duty was to stop and wait for the next train, only five minutes later. To attempt to force open the gate and get on the moving train was not only a violation of the rules of the railroad company, but gross negligence on the part of the persons who succeeded in doing it. Up to that point there was no ground for charging the defendant with.negligence; and at that point the conductor’s duty was to close the gate and prevent other persons from exposing themselves to the special danger that attends the boarding of a moving train on that class of railroáds. When he attempted to perform that duty the deceased was attempting to get on board. The deceased could not fail to know that the cars were moving, but he doubtless supposed he could safely board them. Still there was manifest risk in his act, and it was therefore clearly a negligent act. Concede that if the conductor saw his persistence in attempting to get on board, it was negligence to close the gate to prevent its success; yet that negligence could not have happened but for the negligent act of 'the deceased in endeavoring to board a moving train. It required in any view a concurring negligence to produce the conditions which led to the injury. Which of the two was most negligent is an unimportant inquiry, because it is apparent that the injury would not and could not have happened but for some concurring negligence of both. However great the negligence might have been on the part of the conductor, yet if the negligence of the deceased contributed in any degree it is fatal to a recovery. (Wild v. The Hudson R. R. R. Co., 24 N. Y., 430; Owen v. The Hudson R. R. R. Co., 35 id., 516.) It is not claimed that the defendant was guilty of any willful wrong, as that it took advantage of the negligent exposure of defendant’s foot to be caught by the gate, to entrap and purposely injure him. The catching of the foot was doubtless an incidental accident which would not have occurred in many similar cases, yet which, in this case, happened to occur because of *9the deceased’s attempt to do what he ought not to have done, to get on a train after it had started from the station. It is impossible not to see that, whatever negligence there was in this ease chargeable to the defendant, there was also mutual and contributory negligence, without which no injury would have happened to the deceased. But for his persistence in attempting to get on board a moving train, no improper or negligent act of the conductor in shutting the gate would have injured him; or, in other words, the negligence of the deceased put him in a position where the negligence of the defendant’s servant produced the injury which resulted in the fatal injury
While the elevated railroads are to be held to strict responsibilities, it cannot be too strongly impressed upon the minds of all persons who make daily use of the elevated railway trains that their duty to' themselves, as well as to the railway company, is to obey the reasonable rule of law and of good sense that forbids all attempts to board a moving train. The act is none the less dangerous because it is often done with impunity. When the train is in motion, whether the platform gates are closed or not, more or less risk of danger always accompanies an attempt to get on board the cars.
The law must hold the taking of that risk by a j>asseuger to be negligence, because it is an imprudent exposure to danger of serious injury. To accomplish “ rapid transit,” á great and now indispensable convenience to an active and busy population, the trains must not only be frequent and travel speedily, but must stop and start quickly, otherwise great frequency of trains would be impracticable. They who find a train already moving away from a station and think the few minutes before the next train of more value than safety from danger, must understand that in law they take life and limb into their own keeping when they violate the reasonable rule that charges the risk of negligent exposure upon themselves. The law is thus established by the highest courts and our simple duty is to respect and apply it. The court in this case should haye directed the verdict for the defendant.
The judgment must therefore be reversed and new trial granted, with costs to abide the event.
Daniels, J., concurred; Brady, J., concurred in the result.
Judgment reversed, new trial granted, costs to abide event.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129215/
|
Daniels, J.:
The action was for the partition of real estate owned by Hanford Smith in his lifetime, and upon its final determination an additional allowance of costs to the extent of two thousand dollars was made and distributed between the parties to the action, including the compensation of the guardian ad litem.
The court declined to increase the aggregate amount of the allowance upon the supposition that it could in no event exceed the sum of two thousand dollars, and that the guardian’s compensation should also be included within that sum.
*11The compensation made to a guardian ad litem in equitable actions was not, however, dependent upon this, or any similar provision of the Code. For before its enactment it was the practice of the Court of Chancery to compensate the guardian for the services performed by him in the protection of the infant’s interests, by allowing him-to recover costs not exceeding the taxable items prescribed for the services performed. (Union Insurance Company v. Van Rensselaer, 4 Paige 85, 87; Gott v. Cook, 7 id., 523, 544.)
And under this inherent and well established authority of the court the rule has been prescribed and followed, of awarding to the guardian, to be paid out of the subject matter of the action, such a compensation as appears to be reasonable for the services he in fact performs. And Bule 50 of the present rules of all the courts of record of the State in express language embodies and sanctions the continued application of the same principle. The authority has not been derived from and is not included within the provisions of the Code relating to additional allowances, and for that reason the compensation to be made to the guardian ad litem should be considered as independent of and forming no part of the amount mentioned in the Code.
By the language of section 3253 of the Code, the most general authority is given to the courts to make additional allowances by way of costs in actions for the partition of real property. And this general language is subjected to no other restriction than that contained in the succeeding section, and that restriction is, that all the sums awarded t.o the plaintiff, or to a party, or two or more parties on the same side, cannot exceed in the aggregate two thousand dollars. The ordinary effect of this section would be to limit allowances in an action to this sum of two thousand dollars. For the cases are not common in which each of the adverse parties to-the action may become entitled to costs and when they are not the allowance must necessarily be confined to the successful party. But when parties who may be adversely related to the action are each successful and for that reason become entitled to costs, there this-restraint can have no application. For it has been expressly confined to the party or parties on the same side in the action, and by that phraseology it must have been intended to include only the party or parties sustaining the same relation • to the controversy either as-*12plaintiff or defendant. The language cannot consistently be construed so as to give it any greater legal significance.
.When, therefore, the parties on each side of the action may prove to be successful, and on that account each entitled to recover costs separately, this provision does not stand in the way of the court, in the exercise of the preceding general authority, in its power over this subject of allowances further than that they shall not exceed $2,000 to the parties on each side of the action. It does not, in other words, prevent the court from exercising the same authority in behalf of the parties on each side of the litigation, so that an allowance may now be made in a proper case to the plaintiff or plaintiffs in an action, and also to the defendant or defendants, provided that they shall not exceed $2,000 on a side, or $4,000 in the aggregate.
In determining this point it becomes unnecessary to recur to the provisions contained in the preceding Code, for the language which has been now employed to express the legislative 'intention is reasonably plain and free from ambiguity, and it supports this and no other fair construction.
Whether an action for the partition of real estate may be included within this authority, to the extent of permitting an allowance to the parties on each side, is not a matter now required to be determined. If actual partition of the property is made, that may be the subject of serious doubt. (Code, § 1559). While if a sale of the property is made then the right would seem to be reasonably free from doubt. (Code, § 1519.) But as the right to the allowances was not considered when the order was made, but only the extent of the authority of the court over the subject, this doubt is not required to be solved on this occasion. All that can now be determined is that the provisions relating to allowances do not limit them to the sum of $2,000, when they may be made to one or more plaintiffs, and also to one or more defendants in the action.
The order should be reversed, but without costs.
Davis, P. J., and Brady, J., concurred.
Order reversed, without costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129216/
|
Brady, J.
Tbe appellant was convicted of robbery in tbe first degree. Hpon tbe trial be was examined on bis own bebalf and denied positively tbe commission of the offense or any participation in it, and proved an alibi. Several witnesses called on bis bebalf also testified that, at tbe time of tbe commission of tbe robbery, be was at bis sister’s residence, where be himself stated be was, and where he went to *14attend the festivities consequent upon a christening. In rebuttal^ the people called a police officer, who testified that he knew the general reputation of the defendant, that it was bad, and that he would not believe him under oath. The officer also testified as to the bad character of one of the witnesses examined on behalf of the appellant. Captain Petty was also called as a witness in reference to the reputation of the prisoner, and said it was bad. No other witnesses were examined on that subject by the people. No witnesses were called on behalf of the appellant in respect to his good character. After conviction a motion was made for a new trial under section 465 of the Code of Criminal Procedure, upon affidavits of persons who were present, or in the vicinity, at the time the robbery was committed , and who were positive in stating that the appellant was not one of those engaged in it, as they distinctly saw all who were; and affidavits also showirg the good character of the prisoner, who, it may be here observed, is but twenty-one years of age.
It appears from the affidavit of one of the affiants, that he was in court during the trial, expecting to be called as a witness as to the character of the defendant, but was not examined for some reason which he does not understand. Section 465 of the Code of Criminal Procedure, to which reference has already been made, provides, by its seventh subdivision, that a new trial may be granted when it is made to appear by affidavit that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict, if such evidence has been discovered since the trial, is not cumulative, and the failure to produce it on the trial was not due to want of diligence. The evidence as to the occurrence itself must be regarded as cumulative and, therefore, not one of the elements indicated. The element of good character, however, as to which there was no evidence given on behalf of the appellant, was not cumulative. (See Huebner v. Rosevelt, 1 Daly, 111.)
This court held, in the case of Clute v. Emmerick (12 Hun, 504), that the error of a counsel in admitting a paper to be immaterial worked an injustice and therefore a new trial should be granted. Hence, there are two features of this case which commend themselves to the consideration of the court, the omission of counsel to call witnesses as to good character and the probable effect of such *15proof in answer to the evidence given by two witnesses connected with tbe police department. The section of the Code provides for a case where a defendant could produce evidence such as, if before received, would probably have changed the verdict. It may be said with very great propriety that, considering the youth of the prisoner, his positive denial of the accusation against him and the evidence relating to the alibi, if he had superadded to that, evidence of good character given by persons of respectability, such proof would probably have changed the verdict. Assuming the counsel to have known of the presence of the witnesses for that purpose, and that he omitted to call them, such omission should not act to the prejudice of the appellant.
Motions of this character are addressed to the discretion of the court, and each application must therefore depend upon its distinct characteristics and cannot be said to furnish a precedent. It is not intended, by the view which is taken of the application made to the court below, to encourage applications of this nature, or to establish as a general rule that the omission of counsel to call witnesses upon a vital point in the case shall find favor in applications for a new trial. "When, however, it is the conviction of the court of review that injustice has arisen from the incidents of the trial, and the application for a new trial is brought within the provisions of the Code (supra), a new trial will be granted without hesitation.
The learned recorder fully considered the motion and delivered an elaborate opinion; but the effect of the proof of good character, in response to the evidence on that subject given by the people, does not seem to have received particular consideration.
It is thought, for these reasons, that the administration of justice demands a new trial.
Ordered accordingly.
Daniels, J.:
I agree to the conclusion of Mr. Justice Brady that there ought to be another trial of the indictment against the defendant. Upon the whole case as it is now presented, but which may be very mate; rially changed on the oral examination of the witnesses, there is serious ground for doubt as to his guilt. That will be either removed or confirmed, by another trial; and under the circum*16stances justice requires that it should be ordered, for the doubt can be removed in no other way.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6714092/
|
Petition by Attorney General for writ of supersedeas and motion for temporary stay denied 8 December 1997. Petition by Attorney General for discretionary review pursuant to G.S. 7A-31 denied 8 December 1997.
|
01-03-2023
|
07-20-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901842/
|
Mikoll, J.
Appeals (1) from an order of the Family Court of Montgomery County (Aison, J.), entered March 12, 1986, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 7, to adjudicate respondent a person in need of supervision, and (2) from an order of said court, entered March 14, 1986, which remanded respondent to a nonsecure detention facility pending placement with the Montgomery County Department of Social Services.
Petitioner made application to have respondent, her 15-year-old son, adjudicated a person in need of supervision (hereinafter PINS). Following a hearing, held on February 5, 1986, Family Court found that respondent had been absent from school on approximately seven occasions; that respondent had been intoxicated at his residence on approximately six occasions and was drinking at his home on two occasions; and that, when intoxicated, respondent used obscene language toward petitioner and his siblings and was uncontrollable. Family Court placed respondent in petitioner’s custody and set the matter down for a dispositional hearing. Respondent was ordered to desist from drinking and curfews were imposed.
At the dispositional hearing, held March 12, 1986, additional evidence was adduced as to respondent’s continued intoxication on several occasions, violations of curfew and arguing with his siblings. Respondent was found to be a PINS. Respondent was placed with the Montgomery County Department of Social Services for an initial period of 18 months. After a ruckus at respondent’s home on March 13, 1986, the Department moved for respondent’s placement in a nonsecure detention facility. At a hearing held on March 14, 1986, testimony was adduced indicating that respondent had threatened petitioner and that the police were called. Thereafter, Family Court remanded respondent to the nonsecure detention facility.
On this appeal, respondent urges that Family Court did not have legally sufficient evidence adduced before it to adjudge him a PINS. Respondent contends that petitioner’s failure to introduce school records of respondent’s absences as business records was fatal in that Jacob La Bete, the attendance counselor for the school district, had no personal knowledge of *767defendant’s absences and thus the adjudication was based on inadmissible hearsay. We note that no objection was raised to the admission of La Bete’s testimony. However, accepting the legitimacy of the argument, we nonetheless conclude that La Bete had personal knowledge of 3 of the 7 unexcused absences which underlie the determination. In addition, the record is replete with other relevant evidence to sustain the PINS finding, namely, respondent’s persistent abuse of alcohol, tirades against family members and failure to obey reasonable parental directions.
We find the other arguments raised by respondent to be without merit.
Orders affirmed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901843/
|
by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (McKay, J.), imposed January 18, 2011, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d 248, 255 [2006]; People v Stanley, 99 AD3d 955 [2012]). Eng, P.J., Rivera, Leventhal and Hall, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901845/
|
Harvey, J.
Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered May 30, 1986, convicting defendant upon his plea of guilty of the crime of operating a motor vehicle while under the influence of alcohol, as a felony.
On November 13, 1985, defendant was stopped by police while driving a motor vehicle in Chemung County. A blood alcohol test was administered and defendant tested at .17%. Defendant was indicted in January 1986 for two counts of operating a motor vehicle while under the influence of alcohol, as a felony (see, Vehicle and Traffic Law § 1192 [2], [5]). The previous conviction which provided the basis for the felony status of the crime had occurred in November 1978 when *770defendant pleaded guilty in City Court of the City of Corning, Steuben County, to driving while intoxicated.
In March 1986, defendant pleaded guilty to the first count of the felony indictment in full satisfaction of the charges against him. He reserved the right, however, to challenge whether the November 1978 conviction could be used to enhance the 1986 charges to felony status. Defendant contended that he had been denied his right to counsel at the time of the 1978 conviction and, thus, that the 1978 conviction could not be used to enhance the instant crime. After conducting a hearing at which testimony was taken from, among others, defendant and the City Court Judge who had presided over the 1978 conviction, County Court concluded that defendant had not been denied the right to counsel at the time of his appearance and plea in 1978. County Court thus determined that the felony status of the current crime had been established. Defendant was sentenced to one year in jail, fined $1,000 and had his driver’s license revoked. This appeal followed.
A misdemeanor conviction which was obtained when the defendant was not represented by counsel or had not intelligently waived counsel cannot be used as the basis to enhance a subsequent crime from a misdemeanor to a felony (Baldasar v Illinois, 446 US 222; People v Butler, 96 AD2d 140, 144). Defendant testified at the hearing that at the time of his 1978 conviction he was earning $93 a week. He stated that when he requested assigned counsel the court told him that the income cutoff for assigned counsel was $90 a week. The Judge who presided over that matter also testified. While he was unable to recall the specific case, he testified to his routine practices. He stated that he would routinely inform a defendant of his rights and make a notation of that on the docket. A review of defendant’s docket revealed such a notation. The Judge stated that if assigned counsel was requested, another notation would be made on the docket. No such notation appeared on defendant’s docket. He further testified that when assigned counsel was requested he would inquire into the defendant’s financial status, with each inquiry being decided on an ad hoc basis. According to the Judge, there was no inflexible cutoff point with regard to income level. He stated that if it appeared close, he would assign counsel. When presented with hypothetical facts reflecting defendant’s financial condition in 1978, the Judge testified that he unquestionably would have assigned counsel upon a request by such defendant.
We conclude that County Court’s assessment of the facts *771and determination that defendant was not denied the right to counsel at the time of his 1978 conviction were proper. Hence, the 1978 conviction properly formed the basis for enhancing the 1986 conviction to the level of a felony.
Defendant’s further contention, that the sentence imposed was harsh and should be reduced in the interest of justice, appears to be moot in light of a statement in the record that the sentence has already been served. In any event, there being no extraordinary circumstances or an abuse of discretion, the contention is meritless (see, e.g., People v. Millington, 134 AD2d 645, 646).
Judgment affirmed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901847/
|
Harvey, J.
Appeal from a judgment of the Supreme Court (Crew, III, J.), rendered August 7, 1986 in Chemung County, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.
On March 4, 1986, defendant and three other individuals broke into a house in the City of Elmira, Chemung County, where they injured the person who lived there and then purportedly took property with a value in excess of $1,500. Defendant was indicted for the crimes of burglary in the first degree and grand larceny in the second degree. Defendant subsequently pleaded guilty to the crime of burglary in the first degree in full satisfaction of the charges against him. At *773that time, the Assistant District Attorney agreed that he would not make a recommendation as to sentencing. Supreme Court stated that the maximum sentence it would impose on defendant, a predicate felon, would be a term of imprisonment of IVi to 15 years. Defendant was subsequently sentenced to 6 to 12 years. This appeal ensued.
Defendant contends that the Assistant District Attorney violated the terms of the plea bargain by making remarks regarding the sentence to be imposed upon defendant. Where a prosecutor promises as a condition of a guilty plea not to make a sentence recommendation, he or she must adhere to that promise (Santobello v New York, 404 US 257; People v Torres, 67 NY2d 659; People v Tindle, 61 NY2d 752). The following relevant colloquy took place at the sentencing between Supreme Court and the Assistant District Attorney.
"the court: Mr. Levins, do you wish to be heard before I sentence the Defendant?
"mr. levins: Yes, your Honor, the Defendant committed this crime while on probation for the crime of Grand Larceny in the 3rd degree.
"the court: Excuse me, I apologize. My indication is both at the pre-trial conference notes and at the 7-16-86 appearance, that the District Attorney would take no position at all at sentencing. So, strike that from the record. I am not inquiring as to whether or not you have a position.”
Significantly, defendant did not object to these remarks (cf, People v Torres, supra, at 661; People v Tindle, supra, at 754, n). In the absence of a timely objection, an issue is generally not preserved for appellate review (see, People v Nuccie, 57 NY2d 818). While this court has discretionary power to review in the interest of justice an error for which no objection was made (CPL 470.15 [3] [c]; People v Cona, 49 NY2d 26, 33), we do not believe that the prosecutor’s innocuous remark merits such consideration. It is apparent from the record that the prosecutor was not permitted to take any position, even if he had intended to do so. The only information given by him was already before the court in the form of a presentence report.
Defendant’s further contention that the sentence imposed was harsh and should be reduced in the interest of justice is meritless. The sentence was less than the potential maximum agreed to in the plea bargain, and neither an abuse of discretion nor extraordinary circumstances meriting a reduction of the sentence has been shown (see, People v Quick, 122 AD2d 296, 299, Iv denied 69 NY2d 715).
*774Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901848/
|
Mikoll, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510 [4]) to review a determination of *775respondent Commissioner of Education which revoked petitioner’s license to practice medicine in New York.
Petitioner, a licensed doctor since 1971, was charged with 13 specifications of professional misconduct, fraudulent practice of medicine and incompetent practice of medicine. Four female patients, denominated A, B, C and D, alleged that petitioner improperly touched their breasts during office visits. A hearing was held before a five-member committee of respondent State Board for Professional Medical Conduct.
Dr. Frederick C. Lane, an expert called by the Office of Professional Medical Conduct (OPMC), testified that if the breast examinations performed on patients A, B and C were as they were described by said patients, they did not conform to accepted medical norms. Dr. Lane described a proper breast examination and indicated that such an examination is an accepted part of the general examination which should be done in anticipation of surgery where a general anesthetic will be given.
Patient D testified that she had several appointments with petitioner regarding pressure in her ears. As a part of the treatment, she underwent several tests, including a sophisticated procedure to test for allergies. On April 9, 1984, she returned to petitioner’s office to review the test results during regular office hours. Petitioner asked her to return at 6:00 p.m., after office hours, so that they could discuss her problem further and without interruption. During this session, petitioner told her to sit on the couch. He sat beside her and began to caress her neck, directed her to put her head on his lap and began caressing her breasts. Petitioner asked patient D to go to bed with him; she refused. They continued to talk for about an hour. Patient D claimed that she feared petitioner since there was no one else in the office. Before leaving the couch, petitioner placed his hand on the inside of patient D’s upper thigh.
Petitioner contended that as to patients A and B, he examined their breasts in the manner customarily followed in the profession, visually while the patient was in a seated position, and then manually while the patient was in a supine position. Each examination was related to contemplated surgery that these patients were to undergo and to which they had given consent. As to patient C, petitioner claimed that he did no breast examination because another physician had recently given her a breast examination. He did examine her chest with a stethoscope. Petitioner also confirmed Dr. Lane’s testimony that it was an accepted norm in the profession and a *776requirement of the Saratoga Hospital, where the surgeries were to take place, that patients first undergo general physical examinations before surgery, including breast and abdominal examinations. Petitioner testified that one of his staff nurses or his assistant, Linda Castracani, was always present during general physical examinations. Castracani testified that she was present during general examinations and that petitioner always conducted them in the customary manner. She contradicted patient C’s allegations that petitioner had felt her breasts through her clothing. Although Castracani specifically recalled patient C, she testified from office records regarding patients A and B.
As to patient D, petitioner confirmed that he met with her for about IV2 hours with no one else present. He denied patient D’s allegations of seduction. He said that he met with patient D to get to the root of her ear pressure problem because his clinical examinations failed to disclose a physical cause for its persistence. Petitioner believed that patient D had a temporomondibular joint disorder which may have had a psychosomatic basis. He opined that patient D is disturbed and that she manufactured the allegations against him; he said that the story was a part of a plan to secure a favorable result in patient D’s $4,000,000 civil lawsuit commenced against him. Petitioner testified that he had asked patient D (who was 18 years old at the time) to have her parents communicate with him after their April 9, 1984 meeting. This did not occur and he was sued by patient D within a month.
The hearing disclosed that patient D’s complaints against petitioner were highly publicized and, as a result, patients A, B and C came forward and the disciplinary proceedings resulted. Petitioner presented evidence that patient C had made a complaint against him to the Saratoga Hospital administration which was subsequently referred to the Saratoga County Medical Society. A committee was then formed to review patient C’s complaint. A member of said committee testified at the hearing that the committee accepted petitioner’s written explanation over that of patient C, and therefore deemed the matter concluded without any evidentiary hearings.
There were several references in the hearing about complaints made to the police regarding the underlying events. Patient A related that she made her complaint to the police some five years after the event; she did so to help patient D after hearing of patient D’s lawsuit on television. Patient B made the second police complaint. She claimed to have dictated a statement of her complaint to a friend who was to file *777it with the Police Department. However, no criminal proceedings resulted from either of these police complaints. Finally, petitioner’s counsel himself brought up the fact that the accusations of patient D were heard by the Saratoga County Grand Jury. Although the Hearing Committee disallowed inquiry as to the result of these Grand Jury proceedings, petitioner’s counsel forcefully argued before the Hearing Committee that failure to find probable cause of criminality by a Grand Jury of 16 to 23 people would assist the Hearing Committee in arriving at a decision with respect to patient D’s allegations. The intimation that the Grand Jury found no cause for action was made abundantly clear.
The Hearing Committee issued a report finding patients A, B, C and D to be credible and finding petitioner’s testimony not believable. By unanimous vote, the Hearing Committee sustained 11 of the 13 specifications in the statement of charges and recommended that petitioner’s license to practice medicine be revoked and never restored. Ultimately, after administrative review, respondent Commissioner of Education revoked petitioner’s license to practice medicine.
In this proceeding, petitioner contends that the findings of professional misconduct, fraudulent practice of medicine and negligent or incompetent practice of medicine are not supported by substantial evidence. We find that a review of the complaining witnesses’ testimony, if believed, provided substantial evidence (see, Matter of Libra v University of State of N. Y., 124 AD2d 939, Iv denied 70 NY2d 603). Deciding which witnesses to believe and how much weight to accord their testimony raised factual questions to be resolved by the trier of facts. The reviewing court must defer to the administrative agency’s resolution of those conflicts and differences unless there is no rational basis for the decision (Matter of Pell v Board of Educ., 34 NY2d 222).
Petitioner contends that the exclusion of evidence regarding the Grand Jury’s action violated the doctrine of res judicata. We disagree. Evidence of the Grand Jury’s action did not prove or disprove any violation of the Education Law. It was properly excluded (see, Matter of Afif v Commissioner of Educ., 134 AD2d 679). We have already noted that petitioner’s counsel did in fact make clear, by implication, that the Grand Jury returned a no bill.
Petitioner contends that permitting references to criminal proceedings denied petitioner a fair hearing. Such references are advisedly not appropriate in a disciplinary proceeding and may contaminate such proceedings. Here, however, they were *778not of the significance attributed to like references made in Matter of Afif v Commissioner of Educ. (supra). Patient A’s complaint was stale, having been made five years after the event. Patient B’s complaint was never personally made by her and it is questionable if it was ever lodged on her behalf. These references, if anything, were more favorable to petitioner than to OPMC. They were certainly not indicative of outraged patients who pursued their recourses. We cannot say that petitioner was deprived of a fair hearing because of them.
We find no merit to the other issues raised by petitioner.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901850/
|
Stein, J.
Appeal from an order of the Supreme Court (Tait, J.), entered June 22, 2011 in Broome County, which granted a motion by defendants BRRS Associates and Parkway Plaza, LLC to dismiss the complaint against them.
Defendant BRRS Associates and defendant Parkway Plaza, LLC (hereinafter collectively referred to as defendants) each owned adjacent parcels of land fronting on Ozalid Road in the Town of Vestal, Broome County. The parcel owned by BRRS was subject to an easement granted to New York Telephone Company. Pursuant to that easement, the telephone company constructed a communications equipment vault on the BRRS property. In 1995, the Town abandoned, for public roadway purposes, the portion of Ozalid Road upon which defendants’ parcels fronted and title to each portion was transferred from the Town to each of them, respectively. Defendants thereafter removed the pavement from the portions of Ozalid Road fronting their parcels of land, regraded the former roadbed and planted grass and other vegetation thereon. BRRS conveyed its parcel to Parkway Plaza in 1996 and Parkway Plaza transferred both parcels to the current owner, defendant Vestal Parkway Plaza, LLC, in 2003.
In November 2007, plaintiff Eric Scheffield (hereinafter plaintiff), an employee of Verizon New York, Inc.,1 allegedly sustained injuries when he slipped and fell on the former roadbed property previously owned by defendants, as he was attempting to access the equipment vault. Plaintiff and his wife, derivatively, commenced this action against defendants and Vestal in November 2010 alleging, among other things, that defendants and Vestal breached their duty to plaintiff by creating a dangerous condition on the property and by failing to maintain the property in a reasonably safe condition. Defendants moved to dismiss the complaint against them for failure to *993state a cause of action. Plaintiffs now appeal from Supreme Court’s order granting that motion.2
We reverse. When ruling on a motion to dismiss pursuant to CPLR 3211 (a) (7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Simkin v Blank, 19 NY3d 46, 52 [2012]; Leon v Martinez, 84 NY2d 83, 88 [1994]). In determining whether a complaint states a cause of action for purposes of such a motion, we must accept the facts alleged in the pleading as true, confer on the plaintiff the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory (see Simkin v Blank, 19 NY3d at 52; Leon v Martinez, 84 NY2d at 88; Matter of Quiver Rock, LLC v New York State Adirondack Park Agency, 93 AD3d 1135, 1136 [2012]).
It is well settled that a prior owner of premises may not be held liable for a dangerous condition on the land where “a dangerous condition existed at the time of the conveyance and the new owner has . . . had a reasonable [amount of] time to discover the condition, if it was unknown, and to remedy the condition once it is known” (Bittrolff v Ho’s Dev. Corp., 77 NY2d 896, 898 [1991]; accord Smith v Northern Lights Land Co., LLC, 80 AD3d 964, 965 [2011]). However, a prior owner who affirmatively created the alleged dangerous condition will not be absolved from liability (see Marrero v Marsico, 218 AD2d 226, 229 [1996]).
Here, Supreme Court correctly determined that no cause of action exists against defendants under the theory that they failed to maintain the property in a reasonably safe condition (see Smith v Northern Lights Land Co., LLC, 80 AD3d at 965). At the time of plaintiff’s injury, approximately 11 years had passed since BRRS last owned the property and more than four years had elapsed since Parkway Plaza owned any interest therein. In response to defendants’ motion to dismiss, plaintiffs failed to adequately set forth facts demonstrating that defendants retained any control over the property, that they concealed the allegedly dangerous condition or that Vestal did not have ample time to discover and address such condition, so as to defeat the motion (see id.; Restatement [Second] of Torts § 353; see generally Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 804 [2001]).
We cannot agree, however, that plaintiffs failed to state a *994cause of action based upon defendants’ alleged creation of a dangerous condition on the property.3 The complaint specifically alleges that “ [defendants breached their duty by removing the pavement from the former Ozalid Road, regrading the former road bed, and planting and maintaining grass and other vegetation thereon, thereby depriving plaintiff . . . of a safe means of access to the communication equipment and vault, and thereby creating a dangerous condition.” The complaint further alleges that “[a]s a result of the removal of the pavement from the former . . . roadway, and the failure to provide alternate reasonable access to the vault, employees ... of Verizon must park their vehicles distant from the vault, and traverse, with their tools, across a sloped grassy surface to the vault.” In our view, these allegations, when accorded the benefit of every favorable inference, are sufficient to set forth a claim upon which, if proven, relief may be granted.4 Thus, the complaint should not have been dismissed against defendants.
Mercure, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.
. Verizon is the successor to New York Telephone Company.
. Vestal is not a party to this appeal.
. We note that the complaint contains only two separate causes of action—one against all three defendants on behalf of plaintiff and the other against all three defendants on behalf of plaintiffs wife, derivatively.
. Given the early stage of this litigation, it is entirely premature to make any determination with regard to such issues as the existence of a dangerous condition or who actually created it.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901851/
|
Stein, J.
Appeal from an order of the Supreme Court (Tait, J.), entered June 22, 2011 in Broome County, which granted a motion by defendants BRRS Associates and Parkway Plaza, LLC to dismiss the complaint against them.
Defendant BRRS Associates and defendant Parkway Plaza, LLC (hereinafter collectively referred to as defendants) each owned adjacent parcels of land fronting on Ozalid Road in the Town of Vestal, Broome County. The parcel owned by BRRS was subject to an easement granted to New York Telephone Company. Pursuant to that easement, the telephone company constructed a communications equipment vault on the BRRS property. In 1995, the Town abandoned, for public roadway purposes, the portion of Ozalid Road upon which defendants’ parcels fronted and title to each portion was transferred from the Town to each of them, respectively. Defendants thereafter removed the pavement from the portions of Ozalid Road fronting their parcels of land, regraded the former roadbed and planted grass and other vegetation thereon. BRRS conveyed its parcel to Parkway Plaza in 1996 and Parkway Plaza transferred both parcels to the current owner, defendant Vestal Parkway Plaza, LLC, in 2003.
In November 2007, plaintiff Eric Scheffield (hereinafter plaintiff), an employee of Verizon New York, Inc.,1 allegedly sustained injuries when he slipped and fell on the former roadbed property previously owned by defendants, as he was attempting to access the equipment vault. Plaintiff and his wife, derivatively, commenced this action against defendants and Vestal in November 2010 alleging, among other things, that defendants and Vestal breached their duty to plaintiff by creating a dangerous condition on the property and by failing to maintain the property in a reasonably safe condition. Defendants moved to dismiss the complaint against them for failure to *993state a cause of action. Plaintiffs now appeal from Supreme Court’s order granting that motion.2
We reverse. When ruling on a motion to dismiss pursuant to CPLR 3211 (a) (7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Simkin v Blank, 19 NY3d 46, 52 [2012]; Leon v Martinez, 84 NY2d 83, 88 [1994]). In determining whether a complaint states a cause of action for purposes of such a motion, we must accept the facts alleged in the pleading as true, confer on the plaintiff the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory (see Simkin v Blank, 19 NY3d at 52; Leon v Martinez, 84 NY2d at 88; Matter of Quiver Rock, LLC v New York State Adirondack Park Agency, 93 AD3d 1135, 1136 [2012]).
It is well settled that a prior owner of premises may not be held liable for a dangerous condition on the land where “a dangerous condition existed at the time of the conveyance and the new owner has . . . had a reasonable [amount of] time to discover the condition, if it was unknown, and to remedy the condition once it is known” (Bittrolff v Ho’s Dev. Corp., 77 NY2d 896, 898 [1991]; accord Smith v Northern Lights Land Co., LLC, 80 AD3d 964, 965 [2011]). However, a prior owner who affirmatively created the alleged dangerous condition will not be absolved from liability (see Marrero v Marsico, 218 AD2d 226, 229 [1996]).
Here, Supreme Court correctly determined that no cause of action exists against defendants under the theory that they failed to maintain the property in a reasonably safe condition (see Smith v Northern Lights Land Co., LLC, 80 AD3d at 965). At the time of plaintiff’s injury, approximately 11 years had passed since BRRS last owned the property and more than four years had elapsed since Parkway Plaza owned any interest therein. In response to defendants’ motion to dismiss, plaintiffs failed to adequately set forth facts demonstrating that defendants retained any control over the property, that they concealed the allegedly dangerous condition or that Vestal did not have ample time to discover and address such condition, so as to defeat the motion (see id.; Restatement [Second] of Torts § 353; see generally Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 804 [2001]).
We cannot agree, however, that plaintiffs failed to state a *994cause of action based upon defendants’ alleged creation of a dangerous condition on the property.3 The complaint specifically alleges that “ [defendants breached their duty by removing the pavement from the former Ozalid Road, regrading the former road bed, and planting and maintaining grass and other vegetation thereon, thereby depriving plaintiff . . . of a safe means of access to the communication equipment and vault, and thereby creating a dangerous condition.” The complaint further alleges that “[a]s a result of the removal of the pavement from the former . . . roadway, and the failure to provide alternate reasonable access to the vault, employees ... of Verizon must park their vehicles distant from the vault, and traverse, with their tools, across a sloped grassy surface to the vault.” In our view, these allegations, when accorded the benefit of every favorable inference, are sufficient to set forth a claim upon which, if proven, relief may be granted.4 Thus, the complaint should not have been dismissed against defendants.
Mercure, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.
. Verizon is the successor to New York Telephone Company.
. Vestal is not a party to this appeal.
. We note that the complaint contains only two separate causes of action—one against all three defendants on behalf of plaintiff and the other against all three defendants on behalf of plaintiffs wife, derivatively.
. Given the early stage of this litigation, it is entirely premature to make any determination with regard to such issues as the existence of a dangerous condition or who actually created it.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901852/
|
Yesawich, Jr., J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510 [5]) to review a determination of respondent Commissioner of Education which revoked petitioner’s license to practice podiatry in New York.
Respondents determined that petitioner violated Education Law § 6509 (5) (b) by reason of his having been found guilty, in April 1985, of professional misconduct (inappropriately prescribing controlled drugs, practicing as a medical doctor without proper licensure, abusing controlled drugs and failing to abide by conditions of a mandated license probation after testing positive for cocaine use) by the Florida Board of Podiatry. Initially petitioner maintains, unconvincingly in our view, that he was denied due process because he was not notified of the adjourned date when a Regents Review Committee (hereinafter RRC) of respondent New York State Board of Regents was to hear his case.
After admittedly being served with a notice of hearing and the statement of charges, and being made aware that a hearing before the RRC was scheduled to be held August 7, 1986, petitioner retained Louis Marett as counsel. Seeking time to prepare the case, Marett requested an adjournment of the hearing by letter dated July 22, 1986, a copy of which was sent to petitioner. That request was granted and notice of the date of the adjourned hearing was sent on August 7, 1986 by certified mail to Marett and to petitioner at petitioner’s registered address (see, Education Law § 6502 [5]; 8 NYCRR 59.8 [c], [f]). The letter to Marett was acknowledged as received. Despite three attempted deliveries over a 15-day period to *779petitioner, however, the United States Postal Service returned the letter sent to petitioner marked “unclaimed”. On the morning of the adjourned hearing, Marett contacted the RRC to inform it that petitioner had not returned his telephone calls and refused to accept his mail and that, under such circumstances, he could no longer represent petitioner. The RRC proceeded with the hearing in petitioner’s absence and recommended revocation of his license to practice podiatry in New York. That determination, subsequently adopted by respondent Commissioner of Education, prompted petitioner to commence this proceeding.
Due process does not require petitioner’s presence at the hearing (see, Matter of Lazachek v Board of Regents, 101 AD2d 639, 640), but only that he have received " 'notice reasonably calculated, under all the circumstances, to apprise [him] of the pendency of the action and * * * an opportunity to present [his] objections’ ” (Silverstein v Minkin, 49 NY2d 260, 263, quoting Mullane v Central Hanover Trust Co., 339 US 306, 314). That occurred here. First, notice was sent to and received by petitioner’s attorney of record, Marett (see, People ex rel. Knowles v Smith, 54 NY2d 259, 266). Although petitioner claims that he “fired” Marett sometime prior to the RRC hearing, it is curious, to say the least, that he failed to advise the RRC to that effect. In any event, petitioner’s dereliction in this regard hardly furnishes cause for charging respondents with any due process violation. Second, notice was sent to petitioner at his registered address, which he must keep current pursuant to Education Law § 6502 (5) and 8 NYCRR 59.8 (c) and (f), particularly when charges of misconduct are pending (see, Matter of Stern v Ambach, 128 AD2d 232, 235-236). Significantly, petitioner verified that he still resided at that address when he commenced this CPLR article 78 proceeding. Thus, it was petitioner’s inaction in claiming his mail, not respondent’s conduct, which denied him the hearing notice he claims was lacking.
Petitioner’s other argument, that the Commissioner’s determination must be annulled because the RRC’s decision does not set forth factual findings as to why it issued a decision in petitioner’s absence (see, State Administrative Procedure Act § 307), is equally unconvincing. The particular facts upon which the RRC relied in going forward with the hearing without petitioner are not essential to the decision. The agency is not obliged to document with findings each procedural ruling it makes in arriving at its determination. Furthermore, the facts underlying the substantive basis for the *780administrative decision, that Education Law § 6509 (5) (b) requires the revocation of petitioner’s license to practice podiatry in New York are not in dispute.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901853/
|
Harvey, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered April 9, 1987, convicting defendant upon his plea of guilty of two counts of the crime of robbery in the first degree.
The sole issue on appeal is whether defendant’s sentence was excessive and should be reduced in the interest of justice. On January 12, 1987, defendant entered a store in Ulster County where a 16-year-old girl was working alone as a salesclerk. When she turned her back, defendant struck her with a gun. Threatening to kill her, defendant demanded money. Defendant struck the girl again before leaving the store with $120. The following day, defendant entered a service station and asked the clerk for cigarettes. When he turned his back, defendant struck him over the head with a stick. Defendant demanded money and, when the attendant hesitated, defendant struck him repeatedly on the head until the stick broke. Defendant fled with $250. The clerk was rushed to a nearby hospital, unconscious and near death. Emergency surgery was required and, in addition to the obvious psychological scars, he continues to have many serious physiological problems.
Defendant was charged with three counts of robbery in the first degree, two counts of robbery in the second degree and one count of burglary in the second degree. Defendant subsequently pleaded guilty to two counts of robbery in the first degree in full satisfaction of the charges against him. As part of the plea, it was agreed that he would receive concurrent sentences of 7 to 25 years’ imprisonment. On April 9, 1987, defendant was sentenced in compliance with the negotiated plea. This appeal ensued.
This court is vested with discretion to review the sentence imposed upon a defendant, even where the sentence was given as part of a negotiated plea (CPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513, 519-520). However, in the absence of an abuse of discretion or extraordinary circumstances, we rarely disturb the sentence given by the sentencing court (see, e.g., People v Andrews, 115 AD2d 807; People v Mabry, 101 *781AD2d 961, 963). Defendant here seeks to establish extraordinary circumstances. He points to the fact that he is young and had no prior criminal record. He argues that his crimes were precipitated by drug and alcohol abuse for which he has sought counseling. Several letters attesting to defendant’s good character were submitted. Relying primarily on this court’s decision in People v Jensen (111 AD2d 986), defendant seeks to have this court reduce his sentence. Defendant, however, overlooks some crucial distinctions between this case and Jensen. In Jensen, the defendant received the maximum sentence allowable for her crime, she did not agree to the sentence as part of her plea nor was there evidence that she had numerous other charges dropped in return for her plea. Here, defendant received less than the maximum sentence for the crimes for which he pleaded guilty, he agreed to the sentence as part of his plea, and the plea arrangement resulted in several other serious charges being dropped. Also of significance is the fact that the culpable mental state in Jensen was criminal negligence, whereas defendant has pleaded guilty to violent offenses involving the brutal use of physical force.
Further, we do not find that defendant’s self-induced drug and alcohol problems present the type of extraordinary circumstances which would justify reducing the sentences for these crimes. Defendant received the sentence which he agreed to as part of an advantageous plea bargain and neither an abuse of discretion nor extraordinary circumstances meriting reduction of the sentence has been shown. Thus, his contention that the sentence was harsh and excessive is unpersuasive (see, People v Jewell, 123 AD2d 463, 464, Iv denied 68 NY2d 1001; People v Quick, 122 AD2d 296, 299, Iv denied 69 NY2d 715).
Judgment affirmed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901854/
|
Levine, J.
Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered July 25, 1986, convicting defendant upon his plea of guilty of the crime of sodomy in the first degree.
Defendant’s conviction stems from an incident involving his four-year-old stepson. Sexual abuse was first suspected when the boy was physically examined at a local emergency room after he had complained to his mother of discomfort in his rectal area. When defendant learned that a criminal investí*782gation was underway, he voluntarily committed himself to St. Lawrence Psychiatric Center (hereinafter the Center), apparently believing that this would enable him to avoid criminal charges. A few days later, after he had been informed by the staff that his admission to the Center would not preclude criminal proceedings, defendant asked to be discharged. Police Detective Dominic Germano was present at the Center when defendant was released and asked defendant to accompany him to the police station to discuss the alleged incident of sexual abuse. Defendant agreed and while en route to the police station, Germano recited to defendant his Miranda rights from memory. Defendant subsequently gave the police a written confession in which he admitted to sexual involvement with the boy on two separate occasions.
After he was indicted on the charge of sodomy in the first degree, defendant moved to suppress his confession on the ground that it had not been given voluntarily. Following a suppression hearing, County Court upheld the confession. Thereafter defendant entered a guilty plea to the charge in the indictment. At sentencing, defendant, an 18 year old with no prior criminal convictions, was denied youthful offender status and sentenced to an indeterminate term of 2 Vs to 7 years’ imprisonment. This appeal ensued.
On appeal, defendant contends that County- Court erred in refusing to suppress his confession. In support of this contention, it is argued that defendant was not mentally competent at the time of his release from the Center and, in addition, that Germano did not properly advise defendant of his Miranda rights.
Defendant’s mental competency to waive his Miranda rights and give a confession was a factual question for County Court (see, People v Krom, 91 AD2d 39, 43, affd 61 NY2d 187). At the suppression hearing Germano testified that, upon defendant’s release from the Center, he ascertained from both a member of the staff and from defendant that he was not taking any medication. In addition, there was psychiatric evidence that defendant was not psychotic, but rather was suffering from alcohol and drug abuse and an antisocial personality disorder. Based on the foregoing, there was ample evidence to permit County Court to conclude that defendant was mentally competent at the time of his confession.
Regarding defendant’s contention that he had not been given a complete recitation of his Miranda rights by Germano, this too was a factual issue to be resolved by County Court. *783The record demonstrates that County Court was well aware that Germano’s suppression hearing testimony, in which he stated that he had advised defendant of all of his Miranda rights, varied from his prior testimony at the preliminary hearing in which he failed to assert that he had advised defendant that anything he said could be used against him in court. County Court noted in its decision that it found Germano’s testimony at the suppression hearing credible in spite of this inconsistency. We cannot say that the court’s resolution of this credibility issue was clearly erroneous. Accordingly, we find no grounds for disturbing the suppression ruling.
We also reject defendant’s contention that he should have been given youthful offender status. County Court observed that this violent act committed upon a young child also involved a serious breach of trust since defendant was the victim’s stepfather. In sum, we find no fault with County Court’s exercise of discretion in denying youthful offender status to defendant. We are also unpersuaded that defendant’s sentence of 2 Vs to 7 years’ imprisonment is harsh and excessive under these circumstances.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129217/
|
Davis. P. J.
(dissenting):
I cannot concur in the views expressed by my brothers. It is, I think, a very dangerous rule to hold that verdicts In criminal cases may be set aside and new trials ordered on the affidavit of the convicted defendant that, on a'new trial, he will be able to produce witnesses of his own good character to contradict witnesses called on the trial to impeach his credibility by showing him to be a man of bad general character.
When the defendant made himself a witness on his own behalf, he, of course, opened the door for the people to attack his credibility by showing his general bad reputation or character. This was a collateral issue, and not one, in my opinion, within the intent and meaning of the 165th section of the Code of Criminal Procedure. To so construe that section as to embrace it, will be a most dangerous inovation in the law governing criminal trials, and will virtually, in eveiy case where the defendant, as a witness, is impeached, or his witnesses are impeached, require that a new trial be ordered on affidavits that witnesses to sustain his or their character can be produced on a new trial.
The new testimony on such a question is cumulative, because it relates to a question on which an issue was necessarily presented and tried, and on which witnesses were examined. The defendant was not surprised, for he had a witness in court on that very issue who, for some unexplained reason, was not called. The reason was doubtless a good one, as explanation .would be likely to show. I have carefully read the learned recorder’s opinion on the motion, and think the reasons he assigns for denying the motion to be correct, and that they ought to be controlling.
I therefore dissent from the conclusions of my brethren, and concur in those of the recorder.
New trial ordered.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129218/
|
Beady, J.:
This is an action of slander, and appears to have been once tried and once partially tried. The complaint was once dismissed, and upon the subsequent investigation and before it was concluded, a juror was permitted to be withdrawn on account of the illness of the counsel for the plaintiff. Subsequently the parties signed a paper as follows:
“We, the undersigned, hereby agree to leave our differences to the above named parties, Shether, Connett and Silverman, as arbitrators, whose decision shall be final.
(Signed) JAS. McNULTY.
JOHN B. SOLLEY.
“ The within document was signed in our presence.
(Signed) J. D. E. HERSEY.
N. B. DAY.
FRANK A. ELLIS.”
In May, 1888, the plaintiff was directed to show cause why an order should not be made declaring the action discontinued, and why such other or further order or relief should not be made in the premises.
*18Tbe facts already stated as characterizing the litigation, are set out in the affidavit of the plaintiff. It was admitted by him that on the 27th of April, 1883, he and the defendant met for the peaceful settlement of certain differences, at which meeting the witnesses whose names are subscribed to the agreement of arbitration, were present and formed themselves into a committee. It was then suggested and advised that the paper already mentioned should be signed. The plaintiff averred that since the signing of the paper no action whatever had been taken by either of the persons named in the paper, they having been selected without their knowledge or previous consent, and that one of them, Mr. Shether, declared he would not act; and he further alleged that he was ready and willing to comply with the terms of the agreement. • And the plaintiff also presented for the consideration of the court an affidavit showing that a person called upon the defendant asking him to name a time when he would meet the committee, and substantially that he had failed to do so. This was denied by the defendant, who said that what he did say was that he could not attend upon the days named because of his business, but further, that if he could attend on one of the days named, he would send word.
The submission to arbitration was therefore admitted. It is supposed by the appellant that the willingness of all the parties to act is an implied condition precedent to the taking effect of the agreement, and that the refusal of the arbitrators to act leaves the parties in statu quo ¡ and further, that the agreement is defective, as a binding agreement, because it waé not acknowledged as required by the Code. Both of these propositions are valueless. Whatever may be the effect of the refusal of the arbitrators to act in an arbitration where there is no pending action at law, and whatever may be the effects of the provisions of the Code upon an arbitration made with reference to them, these effects do not control the question presented by this appeal.
The provisions of the Code, however (sec. 2366), evidently contemplate a submission to arbitration of any controversy existing between persons at the time of the submission, which might be the subject of an action. The cases bearing upon the question of the effect of a submission to arbitration of differences when an action is pending, have not declared that any particular form of acknowledg*19ment is indispensable. It is enough that the parties have in writing agreed to a submission to arbitrators. In this case such an agreement is admitted to have been made. The effect of such an instrument has been declared in a number of adjudicated cases. It is to discontinue the action. And this seems to be the effect, even if the submission was void. (Keep v. Keep, 17 Hun, 152, where the cases are collated ; see, also, Barrett v. Western, 66 Barb., 205.)
Justice Marcy, in Larkin v. Robbins (2 Wend., 505), said that the general position is that a submission of a cause pending in court is a discontinuance of the suit, that the reason the submission operates as a discontinuance is not because the subject of the suit is ■otherwise disposed of than by the decision of the court in which it was prosecuted, but because the parties have selected another tribunal for the trial of it. And again: “ The distinction that the plaintiff in error makes between a submission never acted on by the arbitrators, and one which has been followed by an award or hearing by the arbitrators, does not appear to have been recognized by the court, nor do I see any good reason for making such distinction. * * * It is this agreement which withdraws the cause from the court and effects the discontinuance of the action.” And it was also said by the learned justice that the point evidently, for the consideration of the court, was whether the mere submission of a cause to arbitration, the arbitrators never taking, or consenting to take, upon themselves the burden of the submission, operated as a discontinuance of the suit pending in court. As justly observed by the counsel for the respondent, the refusal or omission of either party to attend before the arbitrators would not alter the consent, inasmuch as upon proper notice the arbitrators could proceed in the absence of the defaulting party. It thus appears that upon the eases bearing on the subject the mere submission to arbitration operates as a discontinuance of the action, and the order appealed from could not be reversed without, in effect, reversing these decisions.
It follows that the order should be affirmed.
Order affirmed.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129219/
|
Brady, J.:
The National Trust Company of the city of New York was a moneyed corporation, organized under chapter 460 of the Laws of 1867. On the 14th of December, 1877, an order was made, under the provisions of the Revised Statutes relating to the subject, upon the petition of certain stockholders of the corporation, enjoining it from transacting any further business, and appointing William J. Best receiver for the purpose of winding up its affairs. The receiver «qualified at once and entered upon his trust, and converted into cash the assets, which consisted chiefly of marketable securities. Within ■a period of about six months after thus qualifying, these securities had been reduced to cash and the depositing creditors paid their .accounts in full. The corporation had not been dissolved, however, under these proceedings, and consequently, in March, 1879, the attorney-general began an action against the corporation to accomplish that result. In April, following, judgment was rendered to that effect, and Best was appointed receiver, and directed to transfer to himself, as such, the property which he held as receiver in the former proceeding. This he did.
In August, 1878, an order was made in the first proceeding passing the accounts of the receiver from the time of his appointment until the 29th of June, 1878; and it appeared that during that period he had collected from all sources $1,734,642.44, and had disbursed $1,548,400.98. Upon the coming in of the report he was allowed as a commission three per cent on the sum first named, or $52,039.27; and an allowance of $10,000 was also made to his counsel for services. This order was made at Special Term and is dated the 7th of August, 1878, and is predicated of the report ■of the referee who was appointed to take proof of all the facts and -circumstances stated in the report of the receiver, and to examine and pass upon his accounts and to report thereon to this court. On the 7th of August, 1879, a further order was made in the first proceeding at the Special Term, in which it was recited that the receiver having given notice to all persons in anywise interested in the National Trust Company of the city of New York, as required by law, of his intention to present and render to this court, at a Special Term thereof to be held in the county court-house, in the city of New York, on the 9th of June, 1879, at ten o’clock in *22the forenoon of that day, a full and accurate account, under oath, of all his proceedings as receiver; and having rendered to the court, pursuant to the statute in such case made and provided, and of sucli notice, a full and accurate account, under oath, of all his proceedings ; and the same having been filed with the cleric of the county on the 12th of June, 1879, an order was thereupon on that day made and entered, pursuant to the provisions of the statute, referring the account so filed to John S. Lawrence and "William. A. Boyd, of the city of New York, counselors at law, who were by the order-appointed referees to examine the account and to hear and examine the proofs, vouchers and documents offered for and against it, and to report thereon to this court; and to take proof of the claims-presented to the receiver for costs and counsel fees mentioned in the schedule of the account, and to report to this court as to whether the same were proper and reasonable charges against the funds in the hands of the receiver; and that the said John S. Lawrence and William A. Boyd having made their report to the court, dated the 30th of July, 1879, and which was filed with the clerk of the county, and by which it appeared, amongst .other things, that the referees had examined the account of the receiver so filed and the proofs, vouchers and documents offered for and against the same, and that the receiver,, as such, had in his hands the sum of $186,241.46. The receiver was by this order allowed two percent upon the sum of $1,734,642.44, and five per cent upon the sum of $41,478.69, which had been received in addition to the sum heretofore stated, and which commissions aggregated in all the sum of $89,506.65.
It appears further that in July, 1882, an accounting of the affairs of the receivership was begun by the present attorney-general. On the accounting the receiver asked to be credited with $36,766.73 paid' to himself for commissions under the order of August 7, 1879. The attorney-general believing that the receiver was entitled for receiving and disbursing the sum received by him to no greater amounts than those allowed by law to executors and administrators, and that such commission was the only sum with which the receiver could be asked to be credited, made a motion at the Special Term on the first Monday of August, 1882, to resettle the orders of August 7, 1879, so that the fees adjudged to the receiver should *23not be more than those allowed by law to executors and administrators. It appears that this motion never was decided, and in December, 1882, the attorney-general withdrew it, having ascertained in the meantime that by an order made August 7, 1878, the sum of $52,039.27 had been allowed to the receiver for commissions. It also appears that the accounting set in motion by the attorney-general had not been closed and that the referee had not made his report at that time, whereupon a motion was immediately made by the attorney-general for leave to intervene in a stockholder’s proceeding and to set aside and vacate or resettle the orders of August 7, 1878, and August 7, 1879, and for an order fixing the receiver’s fees at the same amount as those allowed by law to executors and administrators. The motion was returnable on the first Tuesday of January, 1883, and it was not heard until the twenty-third of that month. Before the motion was heard the referee had made his report, but it had not been confirmed. The motion was denied for the reason that the justice presiding could not review, as he stated, the action of another justice of this court. Upon this last order the appeal is taken to this court by the attorney-general.
As the object was to reduce the amount of commissions which had been allowed, the application was one to resettle a judgment; and it was not made until nearly three years had elapsed from the-time of its entry. No fraud or irregularity in obtaining the judgment was alleged.
There can be no doubt of the jurisdiction of the learned justice who presided when the orders were made, to entertain the proceeding before him, and to make the allowance for commissions; and assuming the sum allowed to be erroneous, as it may be, for the. purposes of this appeal, the application should have been made to him to resettle or vacate the order, or an appeal taken for the purpose of reviewing the propriety of the order made. The learned justice at the Special Term therefore very properly determined that an application to vacate or resettle the order or judgment in refer-, ence to the commissions, should have been made to the learned justice presiding at the time the orders or judgments were made, if that course were the one which the attorney-general thought best, under the circumstances, to adopt.
To entertain applications of this character would lead to inextri*24cable confusion, and would in effect be asking one judge presiding at the Special Term to review the decisions of another, a practice which for a time prevailed to some extent, it may be, in the history of the jurisprudence of the State, but which was attended with serious, if' not disastrous, consequences.
It is not necessary to consider whether the attorney-general has any remedy by way of appeal from the order confirming the report of the referee on the last accounting, nor is it necessary to determine whether he has any interest in the proceeding. It must be assumed that the learned justice who presided when the orders and judgments were’made, of which the complaint is predicated, would, on his attention being called to the propositions, make such changes as are demanded by the application of the proper rules of law. And as there seems to have been some error in the amount of the commissions awarded, the .better disposition of this matter is to remit it to the'Special Term, to be brought on before the learned justice presiding when the orders of August 7, 1878, and August 7, 1879, were directed, for him to make such disposition of the application as, .under the circumstances, he shall deem best. The proceedings herein have been set out in detail, so that the necessity of observing and enforcing the rule which prohibits one justice from reversing the order of one of his brethren made in the same tribunal, may be made apparent. The application of the attorney-general before any judge to accomplish the object designed is not warranted upon the decision in the case of Kamp v. Kamp (59 N. Y., 212) in which the court said: “ The application in the case before us is not to reverse the judgment and decision of the court making the orders, or to reconsider the merits of the controversy, but to arrest the proceedings for enforcing a void judgment.”
The complaint made in that case was that the order which was the subject of consideration, was made without any jurisdiction, and the court sustained the objection. Nor is the application warranted by anything decided in the case of the Attorney-General v. The North America Life Insurance Company (89 N. Y., 94).
For these reasons the order suggested should be made.
*25Daniels, J.:
It may be assumed in tbe decision of this appeal that the orders which it was the object of the motion to reponsider, were erroneously or inadvertently made, for the allowances made by them to the receiver exceeded the rate prescribed by the statute for his commissions. But the orders by which the commissions were allowed, were not directed by the justice who presided in the court at the time when the motion resulting in the present order was made. Those orders were made at another term of the court, held by another justice, and upon what was then deemed to be a full consideration of the merits of the respective applications-.
The court, as it was then constituted, had jurisdiction to hear and decide the applications, and if the orders were erroneously made, the remedy provided for their correction has been that of an appeal to the General Term by section 1347 of the Code of Civil Procedure.
But while that is the general course of proceeding prescribed for reviewing orders affecting substantial rights, it is not to be regarded as exclusive. Por, in addition to the appeal so provided for, the party entitled to complain of the order may still move to vacate or obtain its reconsideration. (People ex rel. Day v. Bergen, 53 N. Y., 405, 410.)
But an application of that nature made before a court presided over by another justice than the one directing the orders, is practically an appeal from one co-ordinate court to another, and that has not been provided for in the system of practice now prevailing in and governing the courts of this State. The only class of cases in which, by the Code, one justice of the court is authorized to vacate or modify the orders made by another, is that provided in section 772 of the Code of Civil Procedure, and those relating to provisional remedies. Under that section an order, not being a provisional remedy, but made by a justice of the court without notice, may be vacated by the court, although the justice presiding may be another and different person from the one making the order. With this exception, and those included as orders known as provisional remedies, no authority has been, expressly or by any clear implication, given to one justice presiding in court to vacate or reconsider the orders made by another, and the omission to provide such authority is a circumstance, indicating it to have been the intention of the legis*26lature that it should not be exercised. And pursuant to that general policy, the power which previously existed of allowing one justice at Special Term to review trials had before another at the circuit has been so far qualified that a motion for a new trial must now be heard before the justice presiding at the trial, if he is living and his term of office has not expired, unless he specially directs it to be heard before another judge of the same court. (Code of Civil Pro., § 1002.)
In its theory the policy of the Code has been to prevent one judge from- reconsidering and reviewing the orders which upon motion may have been heard and decided in a court held by another. And that policy has been ordinarily observed and carried into effect by the determinations of the courts themselves before the enactment even of the present Code; and the rule has been very generally adopted and observed where the order complained of has not been obtained by collusion, or there is not an absence of jurisdiction in the tribunal directing it, in either of which cases it may be disregarded, to require the application for its reconsideration, when that is not to be made by a direct appeal from it, to be made in a court held by the same justice originally directing the order. And the only exceptions made to this rule have been to provide for cases where the justice giving the direction may himself have died or ceased to be a member of the court, and orders taken without notice or by default. In those events, as the observance of the rule would be impracticable for the purpose of securing what may be just and right, the application for a reconsideration of the order may then be made before a court held by another justice.
This rule has been very uniformly adhered to, to avoid the unseemly conflict which would otherwise necessarily arise between courts possessing co-ordinate authority, and a departure from its observance has only been sanctioned in the exceptional cases which have already been referred to. ( Wilson v. Barney, 5 Hun, 257; Dinkelspiel v. Levy, 12 id., 130.)
Upon this subject it has been justly said that “ it would be a very unwise administration of justice and lead to much vexatious litigation if a judge holding one Special Term could upon a mere motion set aside the decision and judgment of another judge at Special Term, upon allegations that the latter had erred as to any of the *27questions submitted for his determination. (Fisher v. Hepburn, 48. N. Y., 41, 53.)
This is without doubt a concise and accurate statement of the rule prevailing in the courts upon this subject, and the application which has now been brought up by appeal was clearly within the principle of this determination. It was further sanctioned in Kamp v. Kamp (59 N. Y., 212), where it was said, in the course of the opinion, that the case just referred to “ gives the true reason why it is not fit that one judge should sit in review of the decisions and judgments of another judge of the same court; and that reason rests not so much on a want of power to correct what has been mistakenly done, as the confusion and vexatious litigation that would be likely to arise from so unwise a course in the administration of justice.” (Id., 217.)
It will be seen that these observations are very just and discreet, when the effect of a different practice is considered. For if one judge at a term of court held by him may reconsider the orders or judgments directed by a preceding judge at another court, his own orders or judgments would be liable to re-examination by still another judge, and the investigation could not often be limited to the intervention of a third tribunal. For it might, with the same propriety, be continued from time to time as long as any other differently constituted tribunal could be found that would be willing to take up and examine the case.
The principle or practice.which would allow that course of proceeding would necessarily bring the courts as well as their authority into disrepute, and deservedly deprive them of the confidence and respect of the public.
Where the preceding order may have resulted from a default without any actual decision of the court directing it, the principle, of course, would not be applicable. (Thompson v. Erie Railway Company, 9 Abb. [N. S.], 233.)
But the application which was made in this case was not dependent upon such an order. Neither was either of the contingencies, or qualifications already considered, applicable to the case. For the justice under whose authority the orders were made is still presiding in the same court, and no obstacle whatever stands in the way of an application to him to reconsider the orders because of this erroneous *28excess of authority included within their direction. And no doubt at all can be entertained, when the subject shall be brought to his attention, that the proper correction in the allowances of the receivers commissions will at once be made. But if any error or mistake should by any possibility then intervene, the remedy has been clearly prescribed by the provisions of the Code, and that is by way of appeal from the order.
The order in this case should be affirmed, but without costs, and with liberty to the attorney-general to renew his application at a court held by the justice under whose authority the orders to be considered were made.
Present — Beady and Daniels, JJ.; Davis, P. J., taking no part.
Order affirmed, without costs, and with liberty to the attorney-general to renew the application. 1
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5903874/
|
— Order, Supreme Court, Bronx County (Jack Turret, J.), entered June 8, 1987, which, sua sponte, modified the judgment of divorce of said court entered September 8, 1986, to the extent of permitting appellant to purchase defendant-respondent’s share of the marital residence at present fair market value, unanimously reversed, on the law, without costs.
The court was without power to modify or amend the judgment of divorce in any substantive way "or limit the legal effect of it to meet some supposed equity called to its attention or subsequently arising” (Herpe v Herpe, 225 NY 323, 327 [1919]; Reinfurt v Reinfurt, 67 AD2d 968 [2d Dept 1979]; Baum v Baum, 40 AD2d 1000 [2d Dept 1972]). Concur — Murphy, P. J., Sandler, Asch, Rosenberger and Smith, JJ. [See, 135 Misc 2d 800.]
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901855/
|
Levine, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 29, 1986, which reduced claimant’s unemployment insurance benefits pursuant to Labor Law § 600 (7).
Claimant worked for his employer for approximately 14 years until November 1985, when he elected to retire rather than be laid off. Although claimant was eligible for retirement when he reached age 65 in June 1984, he continued to work for 18 months. When claimant was notified that he was going to be laid off, he was permitted to choose between a layoff with severance pay or retirement with an extra five years of service time added, thereby increasing his monthly pension benefit rate. Claimant chose the retirement option.
Thereafter claimant applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that claimant’s benefit rate was subject to reduction because "claimant’s employment * * * after the beginning of the base period * * * increased the amount of [his] pension” (Labor Law § 600 [7] [á]). This appeal by claimant ensued.
Claimant contends that the Board’s ruling cannot be sus*784tained because the only increase in his pension during the base year was by virtue of the five years’ added service credit, and that this was not due to his employment during the base period, but rather to his election of an option offered by the employer upon terminating his employment. The Commissioner of Labor argues that even accepting claimant’s contention that his 18 months of employment after age 65 did not in itself increase his pension benefit rate, the Board could properly find a nexus between claimant’s employment during the base period and the increase in his pension due to the five-year service credit bonus.
We agree with the Commissioner. There is sufficient evidence in the record to support a factual inference that claimant’s employment was related to an increase in his pension entitlement. Clearly, had claimant not been employed during the base period, he would not have received the service credit bonus. Hence, the Board’s decision is supported by substantial evidence (see, Matter of Sherbell [Roberts], 133 AD2d 892). We also conclude that the Board’s decision reflects a rational interpretation of Labor Law § 600 (7) (a) (see, supra).
Decision affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901856/
|
Harvey, J.
Appeal from a judgment of the Supreme Court (Hanofee, J.), entered April 8, 1987 in Sullivan County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.
Petitioner was sentenced in July 1980 to concurrent prison terms of 20 years to life and 8 Vz to 25 years following his conviction of the crimes of murder in the second degree and robbery in the first degree. The judgment of conviction was affirmed by the Appellate Division, Second Department (People v Milhood, 108 AD2d 875). Petitioner subsequently initiated this habeas corpus proceeding claiming that he had been denied effective assistance of counsel during the course of his extradition from California and that his initial arrest was not supported by probable cause. Supreme Court ultimately dismissed the petition and this appeal ensued.
The facts purportedly supporting petitioner’s instant arguments were known before his appeal to the Appellate Division, Second Department, and could have been raised on that *785appeal, or the arguments could have been advanced in a motion pursuant to CPL article 440. Accordingly, habeas corpus is not an appropriate remedy (see, People ex rel. Davis v Coombe, 97 AD2d 667; People ex rel. Hall v LeFevre, 92 AD2d 956, affd 60 NY2d 579). The facts alleged by petitioner do not provide a basis for departing from traditional orderly procedure (see, People ex rel. Keitt v McMann, 18 NY2d 257).
Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901857/
|
Casey, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a [4]) to review a determination of the Commissioner of Education which revoked petitioner’s registration to practice as a physician’s assistant in New York.
Petitioner, a registered physician’s assistant, was charged with professional misconduct, pursuant to Education Law § 6509 (5) (a) (i), following his conviction upon a plea of guilty of the crime of attempting fraudulently to file, furnish and obtain a diploma purporting to authorize the practice of medicine, a class E felony (Education Law § 6512 [1]). A hearing was held before a Regents Review Committee, pursuant to Public Health Law § 230 (10) (m) (iv), at which petitioner appeared with counsel. After the introduction of documentary proof of the conviction, which petitioner did not dispute, petitioner and his attorney made statements seeking to mitigate the penalty. The Regents Review Committee found petitioner guilty of misconduct as charged and recommended that petitioner’s registration as a physician’s assistant be revoked. Respondent adopted the finding and the recommended penalty, and the Commissioner of Education issued the determination under review.
Petitioner contends that the determination is arbitrary and capricious since there was no hearing or finding on the issue of whether petitioner’s conduct had an adverse impact on the practice of his profession. There is, however, undisputed evidence in the record that petitioner was convicted of a crime under the laws of New York and, therefore, he was properly found guilty of professional misconduct (Education Law § 6509 [5] [a] [i]), permitting the imposition of an appropriate penalty (see, Matter of Rubin v Board of Regents, 101 AD2d 970, 971). On the question of whether the penalty is inappropriate, this court’s scope of review is a limited one (see, Matter of Pell v *786Board of Educ., 34 NY2d 222), and we see no basis for disturbing the determination imposing a penalty of revocation under the circumstances (see, Matter of Nicholson v Ambach, 80 AD2d 690, appeal dismissed 55 NY2d 601; cf, Matter of Mandel v Board of Regents, 250 NY 173). Petitioner’s other arguments have no support in the record and, therefore, the determination must be confirmed.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129221/
|
Beady, J.:
After the assessment had been made in the first instance the relator applied to have the same stricken from the books, and in support thereof submitted to -the tax commissioners the following statement:
Capital stock actually paid in, or secured to be paid in.. $400, 000
Amount paid for real estate owned in fee by said corporation, describing particularly by ward numbers :
Twelfth ward, farm lands, ward No. 61____ '$48,000
Twenty-third ward, Highbridgeville, wards Nos. 14, 15 and 16....................• 135,000
$183,00
*33Brought forward............................. $400, 000
Less amount thereof retired in exchange for an equal amount of the stock of the New York City and Northern Railroad Company, and included in the capital stock of said company in its report.......... 390 , 000
$10,000
Amount invested in the stocks of other corporations which are taxed upon their capital................ Nothing.
Amount invested in United States securities at par..,. Nothing.
Amount of surplus earnings.............•.......... Nothing.
And claimed that as the amount expended for real estate was in excess of the capital stock that had not heen retired, nothing remained upon which an assessment could be imposed; and, further, that the capital stock had no actual value. The tax commissioners, after considering these objections, fixed the amount of the assessment at $10,000.
The method in which the capital stock is to be assessed is pointed out in chapter 456 of the Laws of 1857, and is as follows:
“ Section 3. The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually, owned by such company, which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the county.”
By the method adopted by the tax commissioners in assessing the plaintiff’s property, no deduction was made on account of the amount of real estate; but the stock which was retired in exchange for an equal amount of that of the New York City "and Northern Railroad Company was deducted from the capital stock paid in, leaving a balance of $10,000 which, as we have seen, was adopted as the amount upon which the assessment was to be made.
The statute, as will have been perceived, declares that the stock of every company shall be assessed at its actual value, and taxed in the same manner as other personal and real estate of the county. *34The relator asserts that the stock has no actual value and is worthless, for the reason that it appears that $4,000,000 of bonds of the New York City and Northern Railroad Company cover the property of the "West Side and Yonkers Railroad Company; and this indebtedness must necessarily be considered in determining the actual value of the stock. It may not be necessary in this matter to determine whether the real estate should be deducted from the amount of the capital stock, in view of the conclusions arrived at in the consideration of this appeal; but it may be observed in passing that it does not appear by the statement made on behalf of the appellant, as correctly suggested by the learned counsel for the respondent, that the real estate was paid for out of the capital <?f the appellant. It might be, as also suggested by him, that an investment in real estate might be made by a corporation to an amount equal to or exceeding its capital stock, without the expenditure of one cent of its capital; and if that were so, it would seem that the real estate should not be deducted.
In the cases to which the respondent refers in regard to the question suggested, namely, People ex rel. The Bank of the Commonwealth v. Commissioners of Taxes (23 N. Y., 193) and The Oswego Starch Company v. Dolloway (21 N. Y., 455) it appeared that the real estate was purchased out of the capital stock. In this matter the statement is, the “ amount paid for real estate owned in fee by the said corporation; ” and from which, although this view may be regarded as hypercritical, it does not appear that it was paid for out of the capital. But, as already suggested, this is not an important element in this appeal for the reason that it seems to be established beyond peradventure that the capital stock, namely, $10,000, has no actual value. £lt is so stated by Mr. Goddard, the secretary, who swears that it has none for the reason stated in the report of the New York City and Northern Railroad Company and made a part of the return; aud this statement is predicated of the fact, already mentioned, that $4,000,000 of bonds of the railroad just referred to cover the property of the appellants. And it further appears that the New York City and Northern Railroad Company cannot be sold at any price, owing to the fact that the road has not earned its operating expenses since it was opened for business, and because there is a large debt for construction and for *35accrued interest on its mortgage bonds amounting to $4,000,000; and for tbe further reason that both these roads, at the time of the assessment, were in the hands of a receiver. It seems to be sufficiently established therefore that the entire assets of both companies are insufficient to pay the amount of the bonds already mentioned ; and assuming this to be the fact, the stock has no value whatever, because the amount of the indebtedness of the company is in excess of its assets.
The question of actual value is one which may be examined, and it is the duty of the tax commissioners to examine and dispose of it under the statute of 1851 (supra).
The stock is to be assessed at its actual value, as we have seen; and, as decided in the fiswego Starch Oompcmy (supra), whether above or below the nominal par, and this irrespective of its possessing a surplus capital or reserve fund. (See, also, People ex rel. Thurman v. Ryan, 88 N. Y., 142.)
The action of the commissioners should for these reasons be reversed.
Present — Brady and Daniels, NT.
Daniels, J., concurred.
Order of commissioners reversed.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6129222/
|
Opinion by
Daniels, J.;
Davis, P. J., and Brady, J., concurred.
Order modified as directed, and affirmed as modified, without costs.
|
01-03-2023
|
02-04-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5903875/
|
— Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 9, 1987, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint, unanimously modified, on the law, to deny said motions, and, except as thus modified, affirmed, without costs or disbursements.
Trans World Airlines, Inc. (TWA) maintains a taxi loading area, which it designed, for the use of its passengers at its terminal at Kennedy Airport. On August 9, 1982, plaintiff, an English tourist, together with his wife and two children, after arriving at Kennedy Airport on a TWA flight, was directed by *450the taxi dispatcher toward one of the cabs waiting in line. Plaintiff’s wife and two children entered the taxicab from the pedestrian mall, filling the rear passenger compartment. As plaintiff walked around the rear of the cab in order to occupy the front passenger seat, the cab next in line, driven by defendant Montilla and owned by defendant Segan Cab, surged forward and struck him. The Segan taxicab could not have pulled out of line except that the rear part of the taxi queue, in which Montilla was next on line, had been constructed so as to allow taxicabs to pull out as soon as the drivers wished and irrespective of whether the taxicabs further ahead in line were still actively boarding passengers. This could not occur in the front part of the taxi line, where traffic was channeled one vehicle at a time by means of a traffic island. Plaintiff would not have been in the roadway in the first place, moreover, had the area been designed so that the front passenger’s, rather than the driver’s, side of the taxicab adjoined the pedestrian mall. Since the rear passenger compartment was fully occupied, plaintiff necessarily had to walk into the roadway to gain entry to the front passenger’s seat. In so doing, he was exposed to those taxicabs which, because of their location in the rear section of the taxi line, were permitted to proceed at will. Plaintiff sued both Montilla and Segan for the former’s negligent operation of the Segan taxicab. He also sued TWA and the Port Authority, which operates Kennedy Airport and subleases certain areas of the airport to the airlines, including the area involved herein, premised upon their negligent design and maintenance of the taxi loading area. After a trial of the action had to be aborted for juror misconduct, TWA and the Port Authority moved for summary judgment, arguing, basically, that any negligence in the design of the area "merely furnished the condition or occasion [oí] the occurrence * * * and was not one of the causes.” In opposition, plaintiff submitted the affidavit of a civil engineer who found that the roadway design was defective because the traffic island should have been extended the full length of the pedestrian mall area, and the front passenger’s side of the taxicab should have abutted the pedestrian mall. He described the design as a "figurative nightmare.” Neither TWA nor the Port Authority controverted the opinion of plaintiffs expert with expert proof of their own. The motion court granted the motion, finding the design of the roadway to be "consistent with the designs for traffic throughout the City” and therefore safe and that, in any event, any negligence in the design of the area was, as a matter of law, not a proximate cause of the accident.
*451The motion court’s analogy of the design of TWA’s taxi loading area to traffic designs throughout the city was inappropriate, particularly in light of plaintiffs uncontroverted expert’s opinion to the contrary. Defendants had a duty to exercise reasonable care in the operation and maintenance of the taxi loading area, taking into account the danger presented, the likelihood and potential seriousness of injury therefore and the burden of avoiding the danger. (See, Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233.) Generally, resolution of the question of the foreseeability of danger is for the trier of the facts. (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 829.) "What safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury.” (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520, n 8.)
In the circumstances presented, where the design of the area was such as to force a would-be taxicab passenger into the roadway and the path of other moving taxicabs we cannot say, as a matter of law, that the accident was unforeseeable or that Montilla’s intervening negligence so attenuated any negligence in the design of the area as to be deemed a superseding cause. (See, Kush v City of Buffalo, supra, 59 NY2d, at 33.) We note, parenthetically, that negligence in forcing a pedestrian into the roadway may, irrespective of whether the driver of an oncoming vehicle was also negligent in failing to avoid the accident, be deemed a proximate cause thereof. (See, O’Neill v City of Port Jervis, 253 NY 423.)
Finally, we reject, at this time, the Port Authority’s claim of governmental immunity from liability with respect to the "quasi judicial” and "discretionary” function of highway design (see, e.g., Urquhart v City of Ogdensburg, 91 NY 67, 71). Regardless of whether the operation of a taxi loading zone constitutes a governmental function, such immunity would not absolve the Port Authority from liability for a design devised without adequate study or one lacking a reasonable basis. (See, Weiss v Fote, 7 NY2d 579, 589.) This issue, as well, presents a question of fact. Concur — Kupferman, J. P., Sullivan, Ross, Ellerin and Smith, JJ.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/6822933/
|
MaRtiN, Judge,
delivered the opinion of the court:
This appeal is from a judgment of the United States Customs Court, Third Division, Abstract 64376, sustaining two consolidated protests, 58/1955-9666 and 309871-K/8792, against decisions of the Collector of Customs at the Port of Chicago as to certain charges for cartage of “general order merchandise.” 3
The two shipments of merchandise in question here arrived at the Port of Chicago. Entry was not made within the time prescribed *161by Section 448 of the Tariff Act of 1930 and, in accord with the provisions of Sections 448 and 490 of said Act, both shipments were taken into custody by the collector, sent to the public stores, and held there as unclaimed merchandise. According to Section 490(a), cartage and storage in such a situation must be paid by the consignee when and if entry is finally made.
By authority of Section 565 of the Tariff Act of 1930,4 the collector had entered into two successive cartage contracts with the Lasham Cartage Company covering fiscal years 1957 and 1958, whereby said cartman agreed to charge a flat rate for cartage of each general order package regardless of its size, weight, and distance to be hauled. Under the terms of both contracts, if the goods are entered, the collector would obtain the cartage charges from the consignee and turn them over to the cartage company. In the event that entry of the general order merchandise is not later made, the cartman would be paid for his services only out of the proceeds of public sale of the merchandise.
The merchandise in Protest 309871-K/8792 consisted of 500 cases of wine which arrived at the 130th Street Dock, Calumet Harbor in Chicago and was carted from there to the Chicago Customs House on September 19,1956, at a contract charge of $566.50. The merchandise in Protest 58/1955-9666 consisted of 109 cartons of electronic amplifiers which arrived at 79th and Richmond Street, Chicago, and was carted from there to the Chicago Customs House on November 18, 1957, at a contract charge of $140.61.
Entry of the two shipments was finally made and the said contract cartage charges exacted by the collector were paid. The protests in question were filed against these exactions.
After trial, the United States Customs Court, Third Division, C.D. 2126, held that general order cartage charges “shall not be in excess of a reasonable charge for the service performed.” After then finding that the appellee-importers had shown “by testimony of qualified witnesses, that the prevailing rates for cartage of such merchandise [as that at bar] by responsible carriers in Chicago from the respective pickup points to the public stores, under the circumstances and at the times of these cartages, were substantially lower than the charges *162the collector required these plantiffs [appellee-importers] to pay,” that court stated:
We hold that the flat Lasham contract rate was an unreasonable cartage charge to these plaintiffs. Because the defendant may have been denied opportunity to adduce testimony as to what would be reasonable charges for the cartage services that were performed for the plaintiffs, submission is set aside and the cases are restored to calendar at the nest Chicago term, in order to afford the parties opportunity to present further proofs as to what rates would be reasonable.
At the second trial, the appellant-Govemment declined to submit further evidence. Thereafter, the Customs Court, Abstract 64376, found that the highest reasonable charge for carting 500 cases of wine between the described points was 20 cents per case or $100 for the 500 cases. That court also found that the appellee-importers had made out a prima facie case that a charge in excess of $15 would be unreasonable for the questioned cartage of the 109 cartons of electronic amplifiers, and that the Government had not proved otherwise. Accordingly, the collector was directed to refund to the importers the respective differences between exacted and reasonable cartage charges, namely $466.50 and $125.61.
The Government now appeals from this judgment of the Customs Court.
It appears to us that the importers have the legal right to protest these excessive charges under section 514 of the Tariff Act of 1930 which reads in part as follows:
SEC. 514. PROTEST AGAINST COLLECTOR’S DECISIONS.
* * * all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate an amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury), * * * shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. * * *
The pertinent part of protest 58/1955-9666 is as follows:5
Notice of dissatisfaction is hereby given with and protest is hereby made against your assessment of excessive cartage charges on General Order No. 1015 Storage & Cartage bill dated 11-21-57, covered by the entries below named, or other merchandise covered by said entries. The reasons for objection under the Tariff Act of 1930, as amended, or as modified by trade agreements or otherwise, are as follows:
*163We claim that only the usual, ordinary and established cartage charges should have been assessed, and that the excessive amount should be refunded.
We further claim that the assessment of duties made herein is illegal and void.
*******
If, under the law, cartage charges such as those involved herein must be reasonable, and we believe they must, Munn v. Illinois, 94 U.S. 113, 134; Chicago, Burlington and Quincy Railroad Company v. Iowa, 94 U.S. 155, 161; Covington and Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 222, the question for us to resolve is whether under all the circumstances the charges in this instance fall within that category. It appears to us that the evidence establishing the competitive rates for similar cartage services at least places the burden on the Government to show its charges are reasonable.
According to such evidence in the case at bar, the importer in protest 309871-K was required to pay approximately five and a half times the usual rate to have its 500 cases of wine hauled from the dock to the Customs House, and the importer in protest 58/1955 was required to pay a cartage charge of over eight times the usual cartage charge for having its amplifiers transferred from the railroad to the Customs House. It is obvious that such excessive charges are not justified unless there are circumstances which would alter the situation.
Let us analyze the Government’s contention that these charges are reasonable and justifiable. It takes this position because the charges were exacted under a contract authorized by Section 565 of the Tariff Act of 1930, negotiated in accordance with the rules promulgated by the Secretary of the Treasury and awarded to the lowest bidder.
In the first place, it should be remembered that there is nothing in Section 565 requiring a flat fee contract and, in fact, no contract6 is required at all under this Section since it reads “by contract or otherwise." [Emphasis ours.] Therefore, if the Government could not negotiate a contract whereby the rates under all circumstances would be reasonable, it should not have entered into any contract of this nature at all.
The Government maintains that, because of administrative difficulties, a contract for a definite period to cover all its hauling requirements in a particular area is necessary. We do not believe that administrative inconvenience justifies contracts involving excessive charges which must be paid before a rightful owner can take possession of his property. Furthermore, it is inconceivable to us that a contract could not be negotiated for a definite period which would take *164into consideration the usual factors such as weight, value, number of pieces and distance of haul so that the cartage fees would correspond to those existing in private enterprise and would be reasonable in every instance rather than excessive in some and deficient in others. Merely because the contracts were awarded to the lowest bidder does not, ipso facto, make the charges reasonable.
Furthermore, we are of the opinion that the contract per se is unreasonable since it did not take into consideration the factors usually contemplated in such a contract such as package size, package weight, and distance to be hauled. In fact, the 1957 contract itself states that such factors are not to be considered:7
(1) All packages and packed packages of merchandise (irrespective of size, weight, or number, except as indicated in paragraph 2 below [8]) sent, for customs examination, from freight stations and depots, bonded warehouses, docks, or other premises, in the city of Chicago, Illinois, or immediate vicinity, to the United States Customs House, 610 South Canal Street, Chicago, Illinois, or to such other premises in the City of Chicago as the Collector of Customs may direct, at a price of (62$), sixty-two cents per package. It is understood that, except as specified in paragraph 2, below the term “package” includes crates, cases, barrels, casks, bales, bundles, etc., in fact any container whatever.
The Government further argues that although there is nothing in the statute requiring flat fee cartage contracts, they are necessary because of the credit risk9 assumed by the cartman. We fail to see that a flat fee contract would minimize the alleged credit risk any more than one based upon more realistic factors. Also, it should be noted that the contract provides for higher charges10 for unclaimed merchandise. This fact demonstrates that this contract which does not take into consideration the usual factors and results into unreasonable charges is not warranted because of the so-called credit risk involved as counsel for the Government would have us believe since this higher rate for unclaimed merchandise is supposed to compensate the cartman for whatever risk he is taking.
The Government further contends that it was precluded from substantiating its position because it was prohibited from introducing certain evidence by the trial judge.
In the first place, we feel there is sufficient evidence before us to conclude that the rates charged these importers are excessive and unreasonable. Secondly, in setting aside the submission and restoring the causes to the calendar, the lower court gave the Government ample *165opportunity to offer any evidence desired. As pointed out supra, at the second trial, counsel for the Government declined to submit further evidence. Now it is argued before us that the evidence excluded from the first trial would have proved the reasonableness of the contracts and the rates provided therein, and it is claimed that the order restoring the cases to the calendar was so restrictive that it precluded admission of evidence which would substantiate its position. We are of the opinion that under this order, quoted supra, the Government could have introduced any evidence it saw fit to prove “what rates would be reasonable.” This certainly would encompass any evidence involving the circumstances, the alleged necessity for flat fee per package rates and the need for a contract for a specified period. Since the Government did not avail itself of this opportunity, we do not believe it should be heard to complain now. Besides, since the contracts, the invitations to bid, and the statements of the Government’s witnesses are all before us, we do not believe that further evidence would convince us that such exorbitant charges are justified.
Counsel for the Government further contends that these charges would have been avoided altogether if the importers had entered their merchandise promptly. Nightly so, but there is no statutory authority permitting the Government to exact a penalty for tardy entries.
Counsel for the Government would have us disregard the exces-siveness of the rates as they affect the importers in this case and concentrate on the proposition “that the flat rate contract was in the totality of circumstances a reasonable exercise of the collector’s authority.” The fallacy of this approach is apparent. Reasonableness of the exercise of a Government employee’s authority cannot exist if such exercise of authority results in an unreasonable exaction from a citizen as has been proven in this case.
This case may be summed up as follows: Although, because of administration problems and other alleged factors, a charge of somewhat more than the going rate might be reasonable, certainly it is obvious that a charge of 8 times the going rate in one situation, and 5 times in the other, at least places the burden on the Government to show what would be reasonable under the circumstances. The Government was given the opportunity to do so but decided not to avail itself of that opportunity. Therefore this court can render judgment only on the evidence before it which indicates that the importers were required to pay exorbitant charges.
In view of the foregoing, we affirm the judgment of the Customs Court. However, it should be noted in doing so we do not thereby hold that “only the usual, ordinary and established cartage charges”11 can be assessed in similar situations since the Government might be able *166at some future time to show that a different rate would be reasonable under all the circumstances.
It appears that “general order merchandise” is any imported merchandise which is taken into custody by the collector under the provisions of Section 490(a) of the Tariff Act of 1930 which reads :
General orders — Incomplete entry
(a) whenever entry of any imported merchandise is not made within the time provided by law or the regulations prescribed by the Secretary of the Treasury, or whenever entry of such merchandise is incomplete because of failure to pay the estimated duties, or whenever, in the opinion of the collector, entry of such merchandise can not be made for want of proper documents or other cause, or whenever the collector believes that any merchandise is not correctly and legally invoiced, he shall take the merchandise tato his custody and send it to a bonded warehouse or public store, to be held at the risk and expense of the consignee until entry is made or completed and the proper documents are produced, or a bond given for their production.
Section 565 reads as follows :
Cartage
The cartage of merchandise entered for warehouse shall be done by cartmen to be appointed and licensed by the collector of customs and who shall give a bond, in a penal sum to be fixed by such collector, for the protection of the Government against any loss of, or damage to, such merchandise while being so carted. The cartage of merchandise designated for examination at the appraiser’s stores and of merchandise taken into custody by the collector as unclaimed shall be performed by such persons as may be designated, under contract or otherwise, by the Secretary of the Treasury, and under such regulations for the protection oí the owners thereof and of the revenue as the Secretary of the Treasury shall prescribe. [Emphasis ours.]
"The same language except for identification numbers and date was used in protest 309871 — K/8792.
we assume that the term “contract” in Section 565 is used in a relatively narrow sense to connote an agreement between the Government and the cartage company to render service of performing all the required hauling for the Government for a specified period since any agreement to perform a particular cartage for a consideration would be a contract.
Substantially the same language although a different price is recited in the 1958 contract.
Paragraph 2 provides for a special charge of $12 for cartage of a “van” which is defined as “only a box or packing case which is 10 feet or more in length, or six foot or more in width, and comprises at least 216 cubic feet.”
This credit risk is alleged to exist because, according to the cartage contract, the cartman may be paid only out of proceeds of public auction sale of unclaimed merchandise.
In the 1957 contract, the charge was sixty-two cents for “merchandise” and one dollar and ten cents for “unclaimed merchandise” for cartage of each package.
See protest, supra.
|
01-03-2023
|
07-23-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901860/
|
Per Curiam.
Respondent was admitted to practice by this Court in 1983. He maintained an office for the practice of law in Massachusetts, where he was admitted to practice in 1977.
By decision dated March 4, 2010, respondent was suspended by this Court for a period of one year (Matter of Allen, 71 AD3d 1227 [2010]) based upon his prior suspension by the Massachusetts Supreme Judicial Court for one year and one day. The Massachusetts court reinstated respondent to the practice of law, with conditions, by order dated May 29, 2012. Respondent now applies for reinstatement. Petitioner advises that it does not oppose the application.
Our examination of the papers submitted on the application indicates that respondent has complied with the provisions of the order of suspension and with this Court’s rules regarding *995the conduct of suspended attorneys (see 22 NYCRR 806.9). We are also satisfied that respondent has complied with the requirements of this Court’s rules regarding reinstatement (see 22 NYCRR 806.12 [b]) and that he possesses the character and general fitness to resume the practice of law.
Accordingly, the application is granted and respondent is reinstated to the practice of law, effective immediately.
Rose, J.P., Lahtinen, Spain, Stein and McCarthy, JJ., concur. Ordered that respondent’s application is granted; and it is further ordered that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901861/
|
Mikoll, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 14, 1986, which ruled that claimant was entitled to receive benefits.
Claimant was hired by Lee Publications, Inc., to deliver weekly newspapers to Lee’s subscribers. In a determination made on claimant’s original claim for benefits, the Commissioner of Labor held that claimant and all other persons performing similar services were employees of Lee and eligible to receive benefits. The Unemployment Insurance Appeal Board sustained this determination and Lee appealed to this court.
There should be an affirmance. The decision of the Board is supported by substantial evidence in the record (see, Matter of Di Martino [Buffalo Courier Express Co.—Ross], 89 AD2d 829, *788affd 59 NY2d 638). The Board’s finding of an employer-employee relationship existing in this case is consistent with its own precedent in a series of delivery cases (see, Matter of Martin [Troy Publ. Co.—Roberts], 70 NY2d 679, revg 122 AD2d 360; Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679; Matter of Di Martino [Buffalo Courier Express Co. —Ross], 59 NY2d 638, supra). The instant determination is neither arbitrary nor capricious, and is in conformity with the directive of the Court of Appeals in Matter of Field Delivery Serv. (Roberts) (66 NY2d 516).
Decision affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901862/
|
Levine, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 27, 1987, which ruled that claimant was ineligible to receive benefits under Labor Law § 590 (11).
Since 1979, claimant has worked for the employer herein, the New School for Social Research, as a temporary registration clerk. Claimant assisted the permanent staff with the increased workload during the various registration periods throughout the year. Claimant worked from April 29, 1985 until June 21, 1985, when she was laid off because there was no more work for her. In mid-July the school sent a letter to claimant offering her employment during the next registration period beginning August 12, 1985. Claimant accepted this offer and reported back to work on that date.
On or about July 7, 1985, claimant filed for unemployment insurance benefits effective June 22, 1985. The matter ultimately came before the Unemployment Insurance Appeal Board which determined that claimant, as a nonprofessional employee of an educational institution, was ineligible to receive benefits during the period between two successive academic years or terms where there was also reasonable assurance that claimant would be rehired in the same capacity for the next academic year or term (see, Labor Law § 590 [11]). Hence, the Board ruled the claimant was ineligible for benefits after July 15, 1985, the period following the school’s offer of employment during the next registration period. Claimant appeals from the Board’s decision.
On appeal claimant contends that Labor Law § 590 (11) is inapplicable because the school does not operate on a conventional academic calendar but, instead, has course offerings *789year round. Claimant further contends that she was eligible for benefits under the statute since she was laid off while an academic term was in progress. Whether Labor Law § 590 (11) applied to the school generally was a factual issue to be resolved by the Board. Michael Markowitz, the school’s personnel director, testified at the hearing that the school has fall and spring semesters as well as a summer session. In addition, there are recesses during the months of August and December. The foregoing amply supports the Board’s conclusion that the school did in fact operate consistent with a conventional academic calendar and that Labor Law § 590 (11) was applicable to the school.
Regarding claimant’s contention that Labor Law § 590 (11) does not apply to her in this instance because she was laid off during an academic term, Markowitz testified that claimant was laid off during the school’s summer session. We perceive no error in the Board’s reliance on Matter of Lintz (Roberts) (89 AD2d 1038), which held that a summer session is not considered an academic term under Labor Law § 590 (10) (which is identical to the subdivision involved in this appeal except that it pertains to a school’s professional staff). Hence, the Board properly ruled that claimant was ineligible for benefits under Labor Law § 590 (11) since her period of unemployment was between two successive academic years or terms and there was reasonable assurance that she would be rehired to aid in registrations for the next succeeding term (see, Matter of Sifakis [Roberts], 133 AD2d 511). Claimant’s other contentions are also without merit.
Decision affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901863/
|
Mahoney, P. J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner’s application for credit for military service and allowed only one-third service credit for the period June 1, 1967 to June 30, 1978 in the calculation of his retirement benefits.
Petitioner was employed in a clerical position with the City of New York from January 10, 1939 to April 30, 1946, during which time he was a member of the New York City Employees’ Retirement System. This employment was interrupted by a period of military service from May 2, 1942 to October 30, *7901945. During the time he served with the city, petitioner made regular contributions to the City Retirement System. However, petitioner did not make such contributions during the time he was in the military. In May 1946, when petitioner left his position with the city to enter private employment, he withdrew his retirement contributions.
Subsequently, petitioner became an attorney and, on July 1, 1967, he was appointed as counsel to the North Babylon School District, a position he has held continuously to this time. Upon assuming this position, petitioner joined respondent New York State Employees’ Retirement System. The duties of the counsel position were defined by annual retainer agreements which provided for an annual fee. More complicated or unusual legal services were performed for a negotiated fee based upon an hourly rate and were paid by the use of vouchers. Beginning with the 1978-1979 school year, the parties entered into a different compensation agreement which provided that substantially more duties, which had previously been the more complicated matters, were required pursuant to the retainer agreement. In recognition of this, the retainer fee was significantly increased.1 As a result, the nonretainer work and related billings were greatly reduced. The purpose for the change was apparently to aid the school district’s budgetary process by making its fees for legal services more predictable. As a result of the change, neither the time petitioner devoted to his duties on behalf of the school district, nor the over-all compensation, changed significantly.2
In 1979, petitioner sought to "buy back” credit for the time he was employed by the City of New York. By letters dated May 30, 1979 and January 17, 1980, the State Retirement System informed petitioner that he could receive "credit” for his employment from January 10, 1939 to April 30, 1946 by paying a total of $385.02 in arrears. Petitioner made payment soon after he was notified.
In 1983, petitioner sought a "retirement estimate”. By letter dated December 21, 1983, the State Retirement System noti*791fied him that he would not be credited with the time he served in the military from October 1942 to November 1945. He was also notified that, with regard to the time he served as attorney for the school district from 1967 to June 1978, he would only be credited with one-third time because it was determined that he had been working part time. Petitioner requested a hearing, after which the Comptroller upheld the initial determination. Petitioner commenced this CPLR article 78 proceeding seeking review of the decision. The proceeding has been transferred to this court for disposition.
We turn first to petitioner’s contention regarding credit for his military service. Pursuant to Military Law § 243 (4), petitioner had the option of continuing to make contributions to the City Retirement System while he was in the military, thereby receiving credit for such time. Petitioner chose not to elect this option and did not make contributions. Further, petitioner could have “bought back” this time by electing to pay such contributions within five years after he returned to service with the city (Military Law § 243 [4]). Petitioner never elected to do so. Thus, it is clear that petitioner could not properly be credited with the time he spent in the military. Petitioner does not seriously challenge this, but argues that, because the State Retirement System notified him on May 30, 1979 and January 17, 1980 that it had been determined that he may receive credit for his employment for the period from January 10, 1939 to April 30, 1946 by paying a total of $385.02, the State Retirement System should be estopped from denying him credit for the time in the military. To determine whether this notification actually authorized credit for the military time would be an exercise in semantics. Even assuming that petitioner is correct, the statute mandates that the State Retirement System correct its mistakes (Retirement and Social Security Law § 111), and it is not estopped from doing so because of errors committed by its officials (see, Matter of Galanthay v New York State Teachers’ Retirement Sys., 50 NY2d 984). Thus, petitioner’s contention must be rejected. We note that it appears from the record that the $385.02 which petitioner paid to buy back time only related to time actually served with the city. Obviously, if that amount pays in part for the time in the military, petitioner would be entitled to a refund since he is not being credited for that time.
Next, petitioner challenges the determination that he was only entitled to one-third time for his service from 1967 to 1978. In making his determination, the Comptroller concluded that the small retainer fee from 1967 to 1978 and the substan*792tial increase in the retainer fee after 1978 indicate that petitioner was working part time until 1978 and full time thereafter. The Comptroller has exclusive authority to determine applications for all forms of retirement benefits (Retirement and Social Security Law § 74 [b]), and the extent of our review is limited to whether the decision is rational and supported by substantial evidence in the record (Matter of Sitrin v Regan, 90 AD2d 583, 584, Iv denied 58 NY2d 605).
Fractional credit for part-time service is an allowable determination for the Comptroller (Matter of Bayles v New York State Employees’ Retirement Sys., 24 AD2d 96, 98, Iv denied 17 NY2d 420). Also, service credit is available only to employees, not independent contractors (see, Matter of Barbiero v New York State Employees’ Retirement Sys., 92 AD2d 1078; Matter of Sitrin v Regan, supra; Matter of Erwin v Regan, 89 AD2d 753, 754, affd 58 NY2d 722). In the instant case, the Comptroller found that petitioner was indeed an employee, rather than an independent contractor. The issue is whether he properly found petitioner’s service prior to 1978 to be part time.
Petitioner relies heavily on the fact that his over-all compensation did not change significantly after 1978. While the form of compensation is not determinative (see, Matter of Barnett v Levitt, 66 AD2d 980), it is indicative of petitioner’s status as an employee or independent contractor. The Comptroller found that petitioner was an employee with regard to the retainer services prior to 1978. Regarding the nonretainer services performed before this time, the facts support the Comptroller’s conclusion that he was an independent contractor. Petitioner was paid by voucher on a per diem basis, no payroll deductions were taken, no vacation or sick leave was accrued and petitioner supervised his own work and set his own hours. Thus, it was not irrational for the Comptroller to conclude that, prior to 1978, petitioner was both a part-time employee and an independent contractor. Further, a comparison of the retainer fee before and after 1978 supports the one-third credit figure arrived at by the Comptroller.
Since the Comptroller’s findings are supported by substantial evidence and his conclusions are not irrational, the determination must be confirmed.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
. The retainer fees were as follows:
School years 1967-1969 $ 3,500
School years 1969-1978 7,500
School years 1978-1984 25,000
School years 1984-1985 27,500
School years 1985-present 34,000
. The total compensation for the 1977-1978 school year was $24,122.85. The total compensation for the first year under the new billing system was $29,182.64.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901864/
|
Casey, J.
Appeal from an order and judgment of the Supreme Court (Ingraham, J.), entered May 1, 1987 in Delaware County, upon a decision of the court, without a jury, in favor of plaintiff William A. Schmitt.
Plaintiffs commenced this action in 1977 to set aside conveyances of a 369-acre farm from Charles Tellerday and plaintiff Mary Tellerday to defendant Nancy Adler and from Adler to defendant George B. Morgan. A detailed recitation of the facts can be found in our prior decision in this case (98 AD2d 934, appeal dismissed 62 NY2d 914), wherein this court granted summary judgment to plaintiff William A. Schmitt against Nancy Adler and her husband Cyrus, finding that, as a matter of law, the Tellerday to Adler conveyance was fraudulent as to the Tellerdays’ creditors under Debtor and Creditor Law § 273, since the transfer was made by an insolvent for less than fair consideration. Left to be resolved at trial was whether Morgan shielded himself from knowledge that a fraudulent conveyance had occurred, so that he was not a purchaser for fair consideration without knowledge of the fraud at the time of the purchase (Debtor and Creditor Law §278 [1]). Also unresolved was the question of whether the Adlers had actual intent to defraud, warranting an award of counsel fees (Debtor and Creditor Law § 276-a). Following a nonjury trial, Supreme Court ruled in favor of defendants on these issues and on the fraud cause of action asserted by Mary Tellerday, resulting in this appeal. There should be an affirmance.
Upon a review of the evidence in the record, we agree with Supreme Court that Morgan and his attorney acted reasonably and made proper inquiry in light of the circumstances known to them (see, Anderson v Blood, 152 NY 285). On the issue of actual intent to defraud, we again agree with Supreme Court; plaintiffs’ proof is inadequate to establish the necessary fraudulent intent on the part of defendants (see, Farm Stores v School Feeding Corp., 102 AD2d 249, 256-257, affd 64 NY2d 1065). We find no merit in plaintiffs’ remaining arguments.
Order and judgment affirmed, without costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901865/
|
Mikoll, J.
Appeal from a judgment of the Supreme Court (Hughes, J.), entered October 3, 1986 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, *794to review a determination of respondent Comptroller denying petitioner’s request for a redetermination of his retirement status and the effective date of his retirement.
Petitioner was granted disability retirement, effective September 22, 1984, under Retirement and Social Security Law § 605 as a Tier III member. He commenced a CPLR article 78 proceeding challenging respondent Comptroller’s decision to retire him as a Tier III member. Supreme Court, inter alia, annulled the Comptroller’s determination granting petitioner disability retirement under Retirement and Social Security Law § 605. Respondents Broome County and Anthony C. Ruffo were directed to restore petitioner to the payroll at his regular salary and the Comptroller was ordered to process petitioner’s application as a Tier II member pursuant to Retirement and Social Security Law § 63; this court affirmed Supreme Court’s judgment (Matter of Oliver v County of Broome, 113 AD2d 239) (hereinafter referred to as Oliver I). Subsequently, respondents appealed to the Court of Appeals, petitioner cross-appealed and petitioner also moved for leave to appeal. Petitioner’s motion for leave to appeal was denied (Matter of Oliver v County of Broome, 67 NY2d 607) and both petitioner’s cross appeal and respondents’ appeal were dismissed (Matter of Oliver v County of Broome, 67 NY2d 1027), the court noting in its order that "no substantial constitutional question is directly involved”. Petitioner was not restored to the payroll pending these appeals to the Court of Appeals by virtue of respondents’ reliance on the automatic stay of enforcement provision contained in CPLR 5519 (a) (1).
The Comptroller redetermined petitioner’s eligibility for accidental disability retirement as a Tier II member and on January 9, 1986 granted him benefits under Retirement and Social Security Law §63, effective September 22, 1984, the same date which had been used as the effective date in the previous Tier III retirement. The Comptroller advised petitioner of benefit estimates and information concerning available payment options and advised him that if selections were not made within a specified time period, his retirement would be computed pursuant to the default selections provided by law. Petitioner failed to choose from the available options. His benefits were computed as he had been advised.
Upon dismissal of the appeals from the Court of Appeals and the lifting of the CPLR 5519 (a) (1) stay, Broome County and Ruffo refused to restore petitioner to the payroll because by then the Comptroller’s determination granting petitioner Tier II retirement was made, effective September 22, 1984. *795Petitioner requested a hearing and redetermination of his tier membership status, his effective retirement date and the options used to calculate his benefits. This was denied based on the judicial determination in Oliver I establishing petitioner’s Tier II membership, and based on statutes and regulations determining the effective date of retirement.
Petitioner then commenced this CPLR article 78 proceeding seeking a judgment declaring that the failure to reinstate him to the payroll following Oliver I violated this court’s order and his constitutional rights. Supreme Court dismissed petitioner’s application noting that Broome County and Ruffo were not in violation of the Oliver I judgment due to the automatic, statutory stay and, therefore, petitioner’s demand for the salary he would have earned in 1985 and 1986 was without merit. It was also held that the Comptroller properly determined the effective date of petitioner’s retirement and that res judicata barred relitigation of petitioner’s tier membership status.
Petitioner urges that he should have been returned to the payroll upon annulment of the Comptroller’s grant of Tier III retirement pursuant to Oliver I. He contends that no retirement application was in effect until January 9, 1986 when he was approved for disability retirement and he is, therefore, entitled to his full pay from September 22, 1984 to January 9, 1986. As to the automatic stay pending appeal, petitioner contends that a stay "does not permit a violation of a specific injunction contained in a judgment or order from which an appeal is taken” (Matter of Meyer, 209 NY 59, 68; see, Sixth Ave. R. R. Co. v Gilbert El. R. R. Co., 71 NY 430, 432-434). We find that a judgment directing specific relief such as the instant judgment of restoration to the payroll is distinguishable from prohibitive injunctions which bar certain conduct; therefore, it does not fall within the narrow exception to the operation of the stay (see, Cold Spring Light, Heat & Power Co. v Selleck, 256 NY 451, 457), the primary purpose of which is to preserve the status quo.
The instant stay was lifted when the appeals were dismissed by order of the Court of Appeals, dated April 29, 1986. By then, the Comptroller had processed petitioner’s application and granted him disability retirement effective as of September 22, 1984. Petitioner could not receive retirement benefits from this date and duplicative salary payments as well.
In regards to petitioner’s contention that the Comptroller’s choice of September 22, 1984 as a retirement date is arbitrary and improper, we hold that it is not arbitrary upon a redeter*796mination of eligibility, as here, to approve retirement benefits retroactive to the date when the previous retirement had been approved (see, Matter of Collins v Levitt, 94 Misc 2d 1039, 1042, affd 72 AD2d 821, Iv denied 49 NY2d 703). The effective dates of retirement are "determination[s] reserved by law to the Comptroller (Retirement and Social Security Law §63 [d])” (Matter of Oliver v County of Broome, supra, at 243). The determinations should not be disturbed unless they are arbitrary. We find that the Comptroller acted reasonably and properly within his regulations (see, 2 NYCRR 309.6).
We find no merit to petitioner’s claims that the selection of a retirement option on his behalf when he failed to select his own choice was unconstitutional (see, Retirement and Social Security Law § 90 [bb]).
Finally, petitioner contends that he was entitled to relitigate his tier status. We disagree. This matter was adjudicated in the previous CPLR article 78 proceeding and res judicata forecloses its relitigation (see, Matter of Oliver v County of Broome, supra, at 241).
Judgment affirmed, with costs. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901866/
|
—Cross appeals from an order of the Supreme Court (Prior, Jr., J.), entered May 14, 1987 in Albany County, which, inter alia, in a combined action and proceeding pursuant to CPLR article 78, ordered the parties to negotiate regarding whether there was a discontinuation of a nonconforming use.
The order appealed from is a nonfinal intermediate order from which an appeal does not lie as of right (see, CPLR 5701 [b] [1]). Since permission to appeal has not been sought and we do not choose to grant such permission sua sponte, the appeal must be dismissed.
Appeal dismissed, without costs. Mahoney, P. J., Kane, Weiss, Mikoll and Levine, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901867/
|
Mahoney, P. J.,
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 14, 1987, upon a verdict convicting defendant of the crime of assault in the second degree.
On June 22, 1986 at about 6:00 A.M., defendant, suspecting that his paramour, Kathleen Fitzgerald, was entertaining another man, went to her home and, after she refused him *797entrance, forced his way into her apartment. Another man, James Hoover, was present. After defendant refused to leave, a heated oral dispute between defendant and Hoover escalated into a fight which resulted in defendant being thrown out of the front door, where he caught his foot on a stair railing and fell to the ground. Hoover followed defendant outside and physically threw him into his car with an angry admonition to leave the premises. Rather than leave, defendant exited the vehicle with a knife in his hand, and after another physical altercation he stabbed Hoover in the chest.
Defendant was indicted for the crime of assault in the second degree. Prior to trial, defendant moved to suppress statements he made prior to his arrest and those subsequent to arrest and after he had been given Miranda warnings. County Court granted the motion only as to those statements made by defendant before he was given the Miranda warnings. This appeal by defendant ensued.
The evidence introduced at the suppression hearing revealed that Detective Keith Gamillo of the Ulster County Sheriff's Department was at the Fitzgerald residence at about 7:30 a.m. on June 22, 1986 investigating the stabbing when he received a phone call from defendant. After a preliminary discussion, Gamillo and defendant agreed to meet at the post office in the community of Modena, Ulster County. Once there, defendant admitted to Gamillo that he stabbed Hoover. Gamillo then arrested defendant and read him his Miranda rights. While being transported to police headquarters in the City of Kingston, defendant voluntarily stated that he stabbed Hoover in self-defense. At police headquarters defendant was turned over to Detective Lieutenant John Lima. After Lima again advised defendant of his Miranda rights, he elicited from defendant essentially the same facts concerning the stabbing as defendant had given to Gamillo. County Court concluded from statements made by Gamillo that defendant was in custody when he was interrogated at Modena and that, therefore, statements made by defendant before his Miranda rights were given to him were inadmissible.
The issue before us is whether defendant’s statements made after he had been given his Miranda rights were voluntary and admissible, given the circumstances under which they were obtained. The Court of Appeals has held that statements given after Miranda warnings must be suppressed where the sequence of events beginning with an arrest and unwarned statement and ending with a post-Miranda warning confession " ’was, in reality, a single continuous chain of events’ ” *798(People v Bethea, 67 NY2d 364, 367, quoting People v Chapple, 38 NY2d 112, 114). Here, unlike Bethea and Chapple, there was not a single continuous chain of events. Defendant was arrested and placed in a police car and then transported to the police station. The second interrogation was performed by a different police officer and was preceded by another reading of defendant’s Miranda rights. Thus, defendant had an opportunity to reflect upon his situation (see, People v Pabon, 120 AD2d 685, 686, Iv denied 68 NY2d 1003). Under these circumstances, we concur with County Court’s ruling that statements made by defendant after he was read his Miranda rights were admissible.
We have considered the remaining arguments advanced by defendant and find them without merit.
Judgment affirmed. Mahoney, P. J., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
|
01-03-2023
|
01-13-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/5901868/
|
Per Curiam.
Cross appeals from an order of the Supreme Court (Tomlinson, J), entered December 19, 2012 in Montgomery County, which, among other things, partially granted petitioners’ applications, in two proceedings pursuant to Election Law article 16, to, among other things, direct that certain ballots be cast and canvassed in the November 6, 2012 general election for the office of State Senator for the 46th Senate District.
George A. Amedore Jr. was the Republican, Independence and Conservative Party candidate for the office of State Senator for the 46th Senate District in the November 6, 2012 general election, and Cecilia F. Tkaczyk was the Democratic, Working Families and Green Party candidate for said office. Following the *996election, Amedore and Tkaczyk (hereinafter collectively referred to as the parties) timely commenced these Election Law article 16 proceedings seeking to preserve the ballots cast therein1 —as well as certain associated records and documentation in the possession of the Boards of Elections of Montgomery, Schenectady, Albany, Greene and Ulster Counties—and to determine the validity of certain ballots to which the parties had objected on various grounds. Following Supreme Court’s determination that certain special ballots cast by Ulster County election inspectors would not be canvassed, the court granted the motion of two such inspectors, respondents Barbara Bravo and Carole Fur-man, to intervene in proceeding No. 1. Ultimately, following numerous hearings conducted over the course of more than two weeks, Supreme Court, as is relevant here, sustained the parties’ objections to numerous affidavit and absentee ballots voted in the election and determined that these ballots would not be cast and canvassed by the respective Boards. Following its receipt of certified canvass results from the Boards, the court accordingly adjudged Amedore to be the winner of the election by a margin of 63,141 to 63,104. The parties, Bravo and Fur-man now cross-appeal, calling into contention several hundred unopened ballots.2 While we agree that Supreme Court properly sustained objections to a majority of those ballots, we find—for the reasons that follow—that 99 of those ballots should have been cast and canvassed.
Supreme Court erred in sustaining objections to 53 special ballots cast by Ulster County election inspectors.3 Election Law § 11-302 entitles an election inspector working “at a polling place other than the one at which he or she is registered to vote” to apply for and cast a special ballot in that election. The statute directs the local board of elections to provide the “ballot not earlier than two weeks before the election and not later than the close of the polls” (Election Law § 11-302). The Ulster County Board of Elections (hereinafter Ulster Board) provided *997the challenged ballots more than two weeks before the election, and the relevant special ballots are at issue because they were returned to the Ulster Board more than two weeks before the election.
While Election Law § 11-302 directs a board of elections to provide the special ballot within the two weeks prior to Election Day, it does not direct a voter to return the ballot within that period. The statute instead only directs that a completed ballot be returned “not later than the close of the polls on election day” (Election Law § 11-302). The clear language of the statute provides that the two-week time period applies only to the provision of the ballot and not its return by the voting election inspectors, a reading that is further supported by the statutory history. Significantly, the statute previously read that “[t]he board of elections shall permit such voter to cast a special ballot” within a week of the election (Election Law former § 11-302 [emphasis added]). In 2003, however, the statute was amended to direct that the board “provide” the ballot within the two weeks prior to the election, with a new sentence specifying that the voter was to return it before the close of the polls on election day (Election Law § 11-302, as amended by L 2003, ch 243). The statute now only requires that the ballots be submitted by voters prior to the close of the polls, without direction to the voters regarding the earliest time that they may cast their ballots. Despite the Ulster Board’s violation of the statutory direction to provide the special ballots “not earlier than two weeks before the election” (Election Law § 11-302), the voters did not violate any portion of the statute directed at them. Thus, the 53 challenged special ballots should be cast and canvassed.
Supreme Court upheld objections to 209 affidavit ballots on the grounds that the affidavit ballot envelopes contained inaccurate or incomplete information. Those objections were properly raised before Supreme Court because a person may object “to the casting or canvassing of any ballot on the grounds that the voter is not a properly qualified voter of the election district, ... or otherwise not entitled to cast such ballot” (Election Law § 9-209 [2] Ed]). Here, the objections were that the 209 voters were not qualified to cast affidavit ballots. Election Law § 8-302 provides that when a voter appears at a polling place and claims to live in that election district, but his or her name does not appear in the poll ledger or computer-generated registration list, that person may only vote in one of two ways: he or she can (1) obtain a court order, or (2) “swear to and subscribe an affidavit” containing specific information listed in *998the statute (Election Law § 8-302 [3] [e] [i], [ii]). We have reviewed the 209 affidavit ballot envelopes, along with supporting documentation where required, and determine that 26 of them contain all of the statutorily required information.4 Thus, those voters’ ballots should be cast and canvassed. Because the remaining voters failed to accurately complete the affidavit ballot envelopes by including all of the statutorily required information, their ballots were invalid and should not be canvassed (see Matter of Skartados v Orange County Bd. of Elections, 81 AD3d 757, 758-759 [2011]; Matter of Johnson v Martins, 79 AD3d 913, 921 [2010], affd 15 NY3d 584 [2010]; Matter of Carney v Davignon, 289 AD2d 1096, 1096 [2001]; Matter of Kolb v Casella, 270 AD2d 964, 965 [2000], lv denied 94 NY2d 764 [2000]; Matter of McClure v D’Apice, 116 AD2d 721, 723 [1986]). Tkaczyk contends that, despite the voters’ failure to properly complete the forms, their ballots should be cast and canvassed because it can be reasonably inferred that the invalidity of the ballots was due to ministerial error by the county boards of elections that induced voters to enter inaccurate or incomplete information on the forms. We disagree (see Matter of Panio v Sunderland, 4 NY3d 123, 128 [2005]; Election Law § 16-106 [1]).
Amedore’s various objections to absentee ballots were properly before Supreme Court; nevertheless, the objections should have been overruled in a number of cases.5 Many of those objections pertain to the residency of voters, but a person may properly be a resident, for voting purposes, of any place where he or she is “physically present with the intent to remain for a time” (People v O’Hara, 96 NY2d 378, 384 [2001]; accord Matter of Stewart v Chautauqua County Bd. of Elections, 14 NY3d 139, 146 [2010]; see Election Law § 1-104 [22]). Inasmuch as Amedore failed to provide sufficient evidence to overcome the presumption that the individuals who cast ballots U7, U16, *999U19, U23, U42, U235, U300, U361, U370 and U466 resided where they were registered to vote, those ballots must be cast and canvassed (see Election Law § 5-104 [2]; Matter of Willkie v Delaware County Bd. of Elections, 55 AD3d 1088, 1089 [2008]; Matter of Dorman v Scaringe, 245 AD2d 949, 950 [1997], lv denied 91 NY2d 813 [1998]).
Turning to Supreme Court’s rulings on Amedore’s other objections, the Ulster Board investigated questions regarding ballots U161, U278, U357 and U425 and presumably satisfied itself that their issuance was appropriate, and Amedore provided nothing to call that conclusion into question (see Election Law § 8-402 [2], [4]; Matter of St. John v Board of Elections of County of Albany, 145 Misc 2d 324, 328 [Sup Ct, Albany County 1989]; Sheils v Flynn, 164 Misc 302, 315-316 [1937], affd 252 App Div 238 [1937], affd 275 NY 446 [1937]). His objections to ballots Gill and U514 were not premised upon information that was statutorily required and, as such, did not invalidate those ballots. Lastly, his objections to ballots U150 and U172 were not addressed by Supreme Court and have been abandoned by virtue of his failure to raise that issue in his brief on appeal. We thus direct that absentee ballots Gill, U7, U16, U19, U23, U42, U150, U161, U172, U235, U278, U300, U357, U361, U370, U425, U466 and U514 be cast and canvassed.
Tkaczyk’s contentions regarding voters who applied or arguably should have applied for special federal ballots are also properly before us (see Election Law §§ 7-124 [1]; 11-200 [1]; 11-204 [3]). While we are unpersuaded by the bulk of those arguments, the voters who cast ballots U485 and U502 were either out of the country for a limited period or did not state that they were out of the country at all. Nothing in the record thus calls into question the Ulster Board’s determination that those individuals remained residents who were not required to vote by special federal ballots. As such, the objections to their ballots should have been overruled (see Election Law §§ 1-104 [22]; 11-202 [1] [c]; cf. Election Law § 11-200 [1]).
We have examined the parties’ remaining arguments and, to the extent that they are properly preserved for our review, have found them to be without merit.
Mercure, J.P., Spain, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by directing the respective county boards of elections to cast and canvass ballots A25, G52, G67, G68, G69, G73, G92, Gill, G210, U3, U7, U8, U16, U19, U21, U23, U36, U42, U59, U71, U74, U82, U86, U97, U116, U134, U137, U138, U150, U161, U162, U165, U172, U174, U177, U178, U179, *1000U218, U223, U227, U235, U241, U242, U278, U280, U281, U286, U300, U302, U309, U313, U321, U327, U338, U341, U353, U354, U357, U361, U368, U370, U371, U372, U377, U385, U387, U388, U391, U393, U394, U395, U403, U406, U409, U410, U411, U412, U413, U414, U415, U416, U417, U425, U429, U431, U434, U459, U460, U461, U466, U473, U485, U497, U502, U504, U511, U514, U524 and U529, and, as so modified, affirmed.
. In order to preserve the anonymity of the individual voters at issue, reference will be made to specific ballots by such ballot’s exhibit number as determined by the parties and Supreme Court.
. Amedore has abandoned his cross appeal by failing to address same in his brief (see Matter of Bjork v Bjork, 58 AD3d 951, 952 n [2009], lv denied 12 NY3d 708 [2009]; Matter of Dickinson v Woodley, 44 AD3d 1165, 1166 n 1 [2007]).
. Those ballots are numbered U8, U36, U59, U71, U82, U116, U137, U162, U165, U177, U178, U179, U218, U223, U227, U241, U242, U280, U281, U286, U302, U309, U313, U327, U338, U341, U353, U354, U368, U371, U372, U387, U388, U391, U393, U394, U395, U410, U412, U413, U414, U415, U416, U417, U429, U431, U434, U460, U461, U473, U497, U504 and U524.
. Those ballots are numbered A25, G52, G67, G68, G69, G73, G92, G210, U3, U21, U74, U86, U97, U134, U138, U174, U321, U377, U385, U403, U406, U409, U411, U459, U511 and U529.
. Supreme Court is empowered to resolve “challenges to absentee ballots based on nonresidency” (Matter of Delgado v Sunderland, 97 NY2d 420, 423 n [2002]; see Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18, 21 [2004]), and Amedore preserved those challenges by objecting to the casting or canvassing of the ballots at issue (see Election Law §§ 8-506, 9-209; Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251, 257 [2004]). To the extent that Matter of Fingar v Martin (68 AD3d 1435 [2009]) holds that individuals who are not commissioners of the board of elections must raise such arguments at the time an absentee ballot is issued, it is not to be followed (compare Election Law § 8-402; Matter of Messina v Albany County Bd. of Elections, 66 AD3d 1111, 1114 n [2009], lv denied 13 NY3d 710 [2009]).
|
01-03-2023
|
01-13-2022
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.