NY Court of Appeals

Unlikely Inferences Do Not a Felony Make

Drlogo11 This week's Daily Record column is entitled "Unlikely Inferences Do Not a Felony Make."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Unlikely Inferences Do Not a Felony Make

Last week the New York State Court of Appeals handed down its decision in People v. Finley,2008 WL 2338613.

At issue was whether small amounts of marijuana smuggled into New York correctional facilities by inmates constituted “dangerous contraband” pursuant to Penal Law §§ 205.00(4) and 205.25(2), thus rising to the level of a felony.

The court considered appeals from decisions of the Third and Fourth Departments, both of which concluded the possession of marijuana did, in fact, amount to felonious conduct, even though the amounts possessed were relatively small.

The Court of Appeals framed the issue as follows: “[W]hether the imposition of felony consequences, based upon possession of small amounts of marihuana, which would constitute a violation outside of prison (see Penal Law §§ 221.05, 221.10 [2] [absent aggravating circumstances, not present here, possession of 25 grams or less of marihuana is a non-criminal violation]), comports with the Legislature’s intent as codified in Penal Law §§ 205.00 (4) and 205.25 (2).”

In reaching its determination, the court first noted the Penal Law created a distinction between “contraband” and “dangerous contraband.”

The possession of ordinary contraband, simply a misdemeanor, is defined as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” Possession of “dangerous contraband,” on the other hand, is defined as that “which is capable of endanger[ing] the safety or security of a detention facility or any person therein.”

In the underlying cases, the Appellate Divisions concluded the inmates’ possession of a small amount of marijuana created a potentially dangerous condition, which could feasibly result in disobedience and altercations among inmates and with correctional officers.

The Court of Appeals disagreed, based in part on the legislative intent behind the passage of the Penal Law provisions at issue. 

The court noted that, by enacting legislation creating levels of penalies for the possession of “contraband” as opposed to “dangerous contraband,” the Legislature obviously intended to differentiate between the two.

The court stated that: “Under the people’s view, the Legislature intended a definition of dangerous contraband so broad that it would capture any item that, when present in a detention facility, could lead to altercations and inmate disobedience. But the fatal flaw in the people’s argument is that their proposed construction would effectively nullify the misdemeanor crime of promoting contraband in the second degree. ... If, as the Appellate Divisions here held, testimony as to these possibly pernicious secondary effects were sufficient to establish the felony promoting contraband offense then every item of contraband could be classified as dangerous.”

Finally, the court concluded contraband is dangerous only if there is a substantial probability the item will be used in a manner likely to cause death or serious injury; facilitate an escape or pose a threat to institutional safety or security.

This is the only conclusion that makes sense.

I reviewed the Appellate Division decisions last year when preparing the supplement to “Criminal Law in New York, Fourth Edition,” a Thomson-West treatise that I co-author with Judge Karen Morris and Gary Muldoon.

I recall thinking the Appellate Divisions’ conclusions were somewhat attenuated from reality, given the possibility of institutional chaos resulting from possession of such a small amount of marijuana is remote, at best.

This latest decision, therefore, is a pleasant and unexpected surprise. After all, it’s not every day the highest court in New York agrees with the conclusions of a criminal defense attorney such as myself.

Youthful Inexperience Is Not a Crime

Drlogo11 This week's Daily Record column is entitled "Youthful Inexperience Is Not a Crime."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Youthful inexperience is not a crime

Last week, the New York Court of Appeals handed down its decision in People v. Cabrera, 2008 NY Slip Op 03994.

In this case, the 17 year-old defendant, Brett Cabrera, was driving an SUV in Sullivan County with four teenage passengers.

It is estimated he was traveling at about 70 mph in a 55- mph zone and failed to slow down in a curve for which the recommended speed limit was 40 mph.

His vehicle skidded off the roadway and into a tele- phone pole. Three of his passengers were killed, and the other suffered a fractured spine. None were wearing seatbelts. Cabrera was not under the influence of alcohol or drugs at the time of the accident.

A jury convicted Cabrera of three counts of criminally negligent homicide, assault in the third degree, reckless driving and other traffic infractions. He was sentenced to 1 1/3 to 4 years in state prison. He served the full length of his sentence in a maximum-security prison while his appeal was pending.

The verdict and sentence were upheld by the Third Department. The majority opinion acknowledged that the New York Court of Appeals had previously held that excessive speed alone could not form the basis for a conviction based on a showing of recklessness or culpable negligence, but concluded that the necessary level of culpability was established in light of the evidence that Cabrera committed two traffic violations: failing to ensure that no more than two passengers were under the age of 21; and failing to require that all passengers were wear seat belts.

When I wrote about this case a few months ago, I lamented the Third Department’s decision and was hopeful that the Court of Appeals would reverse the ruling.

Last week, my hopes became reality when the Court of Appeals disagreed with the Third Department, concluding that Cabrera’s, traffic violations did not cause or contribute to the crash.

The court held that:

The question on this appeal is therefore whether, when viewed in the light most favorable to the People, the evidence adduced at trial showed that Cabrera's conduct constituted "not only a failure to perceive a risk of death, but also some serious blameworthiness in the
conduct that caused it" (Boutin, 75 NY2d at 696). Measured by that standard, the evidence falls short. For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined
"criminal negligence," even though the consequences here were fatal...

This crash resulted from noncriminal failure to perceive
risk; it was not the result of criminal risk creation.

This was a horrific and devastating accident that will no doubt haunt Cabrera for the rest of his life.  What happened in this case was a tragedy for all involved. Young lives were needlessly lost as a result of Cabrera’s negligence.

However, as the Court of Appeals aptly noted, negligent conduct does not necessarily constitute criminal conduct.  If ever there was a case in which prosecutorial discretion was called for, this was it.  Instead, discretion was thrown to the wind and a young man was criminally prosecuted and convicted for the crime of youthful inexperience.

Fortunately, the Court of Appeals had the good sense to reverse this travesty of justice and allow the issue of Cabrera’s negligence to be prosecuted in the proper venue:  civil court.

Generally Speaking, Death By Speeding Not a Crime

Gavel2 Last week, the New York Court of Appeals handed down its decision in People v. Cabrera, 2008 NY Slip Op 03994.  I wrote about this case in my Daily Record column last September and was quoted in March in this article from Sullivan County's newspaper, the Times Herald-Record. 

In both instances I stated that it was my opinion that the Third Department incorrectly upheld the jury's verdict, which convicted Mr. Cabrera of three counts of criminally negligent homicide, assault in the third degree, reckless driving and a number of traffic infractions.  The Third Department reasoned that the verdict was supported by the traffic violations convictions, which included failure to keep right, driving left of a yellow line and violations of his junior license restrictions (namely that he failed to ensure no more than two passengers were under the age of 21 and that all passengers were wearing seat belts).

It was my opinion that:

In this case, a 17-year-old boy who possessed a junior driver’s license was sentenced to one and one-third to four years in state prison for doing what inexperienced teenage drivers have done since the advent of motor vehicles — exercising poor judgment while driving too fast...Civil liability does not necessarily amount to criminal liability...The vast majority of errors in judgment simply do not rise to the level of culpable conduct required for a criminal conviction.

The New York Court of Appeals (at least the majority of the court, in this case) and I apparently see eye to eye on this issue.  The Court held that:

For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined "criminal negligence," even though the consequences here were fatal. This crash resulted from noncriminal failure to perceive risk; it was not the result of criminal risk creation.

My faith in humanity is restored--at least temporarily.


Futile Degradation

Drlogo11This week's Daily Record column is entitled "Futile Degradation."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Futile Degradation

In People v. Hall, 2008 N.Y. Slip 02676, the New York State Court of Appeals considered the issue of whether a “visual body cavity inspection” of an arrestee may be conducted in the absence of a warrant.

The court distinguished between three types of progressively invasive bodily searches prior to reaching its conclusion: “A ‘strip search’ requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination — a ‘visual body cavity inspection’ — occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a ‘manual body cavity search’ includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface.”

The court then concluded that “visual cavity” inspections were constitutionally permissible as long as the police had reasonable suspicion to believe that contraband, evidence or a weapon was hidden inside the arrestee’s body, while “body cavity” searches conducted in the absence of exigent circumstances were unconstitutional unless authorized by a warrant.

In his concurring opinion, Judge Carmen Beauchamp Ciparick agreed with the majority’s conclusion regarding the constitutionality of manual body cavity searches, but disputed the majority’s determination regarding visual body cavity searches: “[J]ust like a manual body cavity search, this intrusive, degrading, and humiliating species of search may only be conducted upon a neutral and detached magistrate’s issuance of a warrant based upon probable cause. … The search incident to arrest exception to the warrant requirement does not apply to ‘searches involving intrusions beyond the body’s surface’ (Schmerber, 384 US at 769). Rather, to safeguard the interests in the ‘human dignity and privacy’ that the Search and Seizure Clauses were designed to protect, an intrusion extending beyond the body’s surface may not be undertaken on the ‘mere chance that evidence might be obtained’ (id. at 769-770).”

Judge Ciparick’s convincing arguments notwithstanding, warrantless visual cavity searches of arrestees are now permissible in New York. The majority asserts these invasive searches are required to locate contraband, weapons or drugs, which is certainly the case with those already incarcerated, such as convicted prisoners or pre-trial detainees.

However, outside of the prison environment, visual cavity searches generally are used in an attempt to locate drugs on a recently arrested person suspected of dealing drugs. Thus, as was the case in Hall, these humiliating and degrading searches occur most frequently in the context of the neverending “war on drugs.”

This “war” has resulted in an ever-increasing number of drug prosecutions. More and more Americans are imprisoned, many on drug charges, resulting in the incarceration of about 1 percent of the U.S. population. Our jails are overcrowded and bursting at the seams, yet drug abuse remains relatively steady.

Drug use has been around since the dawn of time. In comparison, the concept of civil rights is a relatively new concept — one that has served as the bedrock of this great nation.

Sadly, in an effort to win this war on drugs, our Fourth Amendment rights have been eroded slowly to the point that they are no longer recognizable. The Hall decision continues this trend by permitting law enforcement officers to conduct warrantless and extremely invasive searches as part of a neverending and futile quest to win a war that cannot be won. Nicole Black is of counsel to Fiandach

The NY Court of Appeals Considers the Issue of Grave Injury Yet Again

Gavel2 On Thursday, the New York Court of Appeals handed down Fleming v Graham, 2008 NY Slip Op 02502.  At issue was whether the plaintiff suffered from a "permanent and severe facial disfigurement" thus constituting a "grave injury" under Workers Compensation law s. 11. 

In reaching its decision, the Court noted that the legislative intent behind the enactment of WCL s. 11 was "to protect employers by limiting third-party actions against them 'except in extremely limited, defined circumstances.'"

The Court then turned to the task of determining whether a facial injury is a "permanant and severe...disfigurement" and concluded that:

While no conceivable standard can capture in toto the highly limited class of "severe" facial disfigurements contemplated by section 11, we nonetheless conclude that an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurement is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident. The foregoing standard, ordinarily one for the court as a matter of law, removes the inquiry from plaintiff's subjective self-assessment and most closely approximates what the Legislature contemplated.

Applying that standard, the Court held that the plaintiff's injuries did not rise to that level in this case:

The photographs in the record show numerous scars. However, they demonstrate a steady progression from the initial injuries to scarring, to significant recovery...While in some cases that question is one properly for the jury, we determine that, on the facts of this case, Fleming's injuries do not rise to the level of a "severe" disfigurement. Although there are cases where a reasonable person might view multiple scarring as satisfying the standard we articulate here, this is not one of them.

Likely a frustrating decision for the third-party plaintiff (thanks to Louis Schepp's comment for pointing out the error in my original post) in this case since his case appears to be an exception to the general rule that the issue of grave injury is one for the jury.  Also frustrating is that it's a decision purporting to offer guidance that, in my opinion, offers very little and gives trial courts great leeway in deciding summary judgment motions on this "issue of fact" that can sometimes, apparently, be an issue of law, should a court be so inclined to interpret it as such. 

How Much of Your Finger Must Be Missing to Constitute a "Grave Injury"?

Gavel2 In Castillo v 711 Group, Inc., 2008 NY Slip Op 01255, the Third-Party Appellant apparently believed that although Workers' Compensation Law § 11 expressly defined "grave injury" as including the loss of one's index finger, the plaintiff did not suffer a grave injury since an "amputation stump" remained on his injured index finger.

Specifically, "the plaintiff demonstrated that he lost both interphalangeal joints of his left index finger, leaving a 'painful amputation stump" that required two corrective surgeries to desensitize.'"

Not surprisingly, the New York Court of Appeals rejected the Third-Party Appellant's argument and denied its motion for summary judgment, concluding that:

(The) plaintiff established that he suffered the "loss of an index finger" within the meaning of Workers' Compensation Law § 11 (cf. Mentesana v Bernard Janowitz Constr. Corp., 36 AD3d 769, 770 [2d Dept 2007]; Blackburn v Wysong & Miles Co., 11 AD3d 421, 422 [2d Dept 2004]; McCoy v Queens Hydraulic Co., 286 AD2d 425, 425 [2d Dept 2001]).

Thank goodness.  I don't know about you, but I'd have been both concerned and disconcerted had the court accepted the hyper-technical argument that no grave injury existed since a "stump" remained.

Judicial selection, certifications and lies, oh my.

Checkmark Just a few quick New York highlights--direct from Florida.

Old news already, but important news:  the United States Supreme Court has upheld New York's judicial selection process.  More here from Simple Justice and New York Legal Update.

And, in Reddington v. Staten Island University Hospital, ___F.3d___(2d Cir. Dec. 14, 2007)the Second Circuit certified the following questions to the New York Court of Appeals:

(1)Does the institution of a time-barred claim pursuant to New York Labor Law § 740 simultaneously with a claim pursuant to New York Labor Law § 741 trigger section 740(7)’s waiver provision and thereby bar the section 741 claim, even if the section 740 claim is subsequently withdrawn?

(2) Does the definition of employee in New York Labor Law § 741 encompass an individual who does not render medical treatment, and under what circumstances?

Hat tip:  Adjunct Law Prof Blog.

Finally, Judge Alvin K. Hellerstein of the Southern District of New York criticized the CIA's handling of interrogation tapes. (NY Times) 

Potential Violation of Doctor/Patient Confidentiality Not Subject to Suppression

Gavel2 So said the New York State Court of Appeals in People v Greene, 2007 NY Slip Op 09066.

In Greene, a detective investigating a homicide that occurred in 2001 learned that the assailant had been slashed by a knife during the altercation that lead up to the murder and asked an administrator at a nearby hospital if anyone had been treated on the date of the murder for a "slash...to the face."  The administrator answered in the affirmative and provided the name and address of the person who later became known as "the defendant."

The Court held that it was unnecessary to reach the issue of determining whether a violation of the physician/patient privilege set forth in CPLR 4504 was violated when deciding whether the release of that information was subject to suppression:

The physician-patient privilege is based on statute, not the State or Federal Constitution (Klein, 221 NY at 453). Our decisions make clear that a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads (People v Patterson, 78 NY2d 711, 716-717 [1991])...The physician-patient privilege...does not serve primarily to protect individuals against government conduct; it regulates a private relationship. The primary obligation to comply with CPLR 4504 is the doctor's — or, in this case, the hospital's. To suppress evidence resulting from a violation of Section 4504 would be to punish the State for a doctor's or hospital's misconduct — a punishment unlikely to deter doctors and hospitals, who have little interest in whether criminal prosecutions succeed or not.

This analysis makes sense under the law as it existed in 2001, before HIPAA was amended in 2003 to include clauses making the release of confidential medical information subject to civil and criminal penalties.  And, perhaps the Greene analysis is applicable even now under current HIPAA laws, since it is the physician/health care provider who is subject to HIPAA's mandates, not the police.

My guess is that this scenario is unlikely to occur post-2003 since health care workers are unwilling to subject themselves to criminal and/or civil liability for a HIPAA violation of this sort.

What do you think?

It Looks Like We'll Never Know if There's a Right to Privacy in Times Square.

Gavel2A case that I discussed in March of 2006, when this blog was in its infancy, has made its way to the New York Court of Appeals.  The case is Nussenzweig v diCorcia, 2007 NY Slip Op 08783 and involves an Hasidic Jew, a photographer and an art exhibition.

It seems that one of the defendants, a famous photographer, snapped a picture of the plaintiff, a Hasidic Jew, sometime between 1999-2001.  The plaintiff was unaware that his image had been captured.

In the Fall of 2001, the disputed image was included in an art exhibition.  The plaintiff learned of this fact in March of 2005 and shortly thereafter, commenced this lawsuit alleging that the defendants had violated his statutory right of privacy as set forth in Civil Rights Law §§ 50 and 51.

The Court of Appeals concluded that the lawsuit was untimely, sinnce the statute begins to run from the date of publication, rather than the date of discovery of the publication:

Pursuant to CPLR 215(3), "an action to recover damages for . . . libel, slander . . . or a violation of the right of privacy under section fifty-one of the civil rights law" must be brought within one year. In Gregoire v G.P. Putnam's Sons, this Court formulated the single publication rule, which states that a cause of action for defamation accrues on the date the offending material is first published (298 NY 119, 125-126 [1948])...

The policy underlying the adoption of that rule is likewise implicated here and we therefore hold that the single publication rule applies to claims brought pursuant to Civil Rights Law §§ 50 and 51. Because the publishing event giving rise to plaintiff's right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, plaintiff's claims are time-barred.

Bummer for the plaintiff and for the rest of us.  Although we now know that standing around in Times Square is not an unlawful offense, it seems that we're still left to ponder the issue of whether New York's Civil Rights laws apply there. 

The New York Court of Appeals on "Maintenance"

IGavel2 n Guishard v General Sec. Ins. Co., 2007 NY Slip Op 06581, the NY Court of Appeals issued a decision in a declaratory judgment action wherein the Petitioner sought an Order declaring that the Respondent insurance company was obligated to defend and indemnify the Petitioner in the underlying personal injury aciton.  The plaintiff in the underlying action was riveting metal when he injured his eye while converting a van into a "Mr. Softee" ice cream truck.

The policy at issue excluded coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented or loaned to any insured." The insurer moved for summary judgment on the grounds that it was not obligated to defend or indemnify plaintiffs because the conversion work performed by the injured party constituted "maintenance."

The Court disagreed and concluded that:

The work performed by the injured plaintiff did not constitute "maintenance" of an auto. "Maintenance," as that term is used in an insurance policy, means performance of work on "an intrinsic part of the mechanism of the car and its overall function" (Farmers Fire Ins. Co. v Kingsbury, 105 AD2d 519, 520 [3d Dept 1984] [removing tire from rim constitutes maintenance] [citation omitted], lv denied 64 NY2d 607 [1985]; see Pennsylvania Millers Mut. Ins. Co. v Manco, 63 NY2d 940, 942 [1984] [changing a tire constitutes maintenance]). Riveting metal to a van in furtherance of its conversion to an ice cream truck aids in transforming the auto's function, an activity distinct from "maintenance."

Seems to me a fairly obvious conclusion, which leads me to wonder whether the record on appeal reveal other thorny issues not revealed in this short decision.