Judicial Reports:

SENTENCING WATCHDOG AWAKENS
By Mark Thompson
Posted 12-12-07

Appellate Division panels reduce criminal sentences imposed by New York City trial judges several dozen times a year, mostly for a handful of recurring reasons. The judge imposed back-to-back sentences that should instead run concurrently. The judge misled the defendant about the terms of a plea bargain. The judge misclassified the defendant as a persistent violent offender.

About a dozen times this year, appellate judges have cut prison terms because the sentencing judges were just plain too harsh. The Appellate Division’s First Department added two more to that category of sentencing modifications in rulings on December 4.

New York County Justice Lewis Bart Stone, one of the two latest to get rapped for imposing an excessive sentence, had imposed a one-year jail term on Norma Colon for selling bootleg compact disks. An appellate panel cut the sentence to 90 days plus three years of probation. People v Colon  

An appellate panel tinkered with the sentence that another New York County Justice, Robert Stolz, imposed on Rodney Bobbitt, a repeat offender most recently convicted of robbery and weapons counts. He was properly sentenced as a persistent violent felon, the appellate panel said. But the concurrent terms of 25 years to life for the latest convictions should be trimmed in the interest of justice to 20 years to life. People v Bobbitt  

With those two reversals, the First Department, which covers trials courts in New York and Bronx Counties, has edged ahead of the Second Department in sentence reductions in the interests of justice so far this year. The First Department has handed down eight such reversals, with Manhattan judges picking up six of them, more than any of the other boroughs. The Second Department, which saves its nitpicking for tort cases, has reduced six “excessive” criminal sentences so far this year.

 
OTHER NOTABLE REVERSALS

BRONX COUNTY

TORT: Judges in the Appellate Division’s First Department have offered another round of conflicting advise about what constitutes an acceptable excuse for a litigant’s failure to file a document on time or appear for a hearing.  Appellate panels reversed one trial judge for being too gullible and another for not being forgiving enough.

For the fifth time this year, Justice Paul Victor was reversed for accepting an excuse offered by a plaintiff’s attorney that that an appellate panel pooh-poohed as unacceptably flimsy. This time, however, a dissenting appellate justice, David Saxe, agreed with Victor that under the circumstances, the excuse was just good enough. The plaintiff, after all, was a child with a credible medical malpractice claim for serious brain damage.  A possible explanation for the child’s problems is apparent in the records from the public hospital where he was born, which chronicle a delivery that went awry. He shouldn’t be denied a day in court because of the failings of the adults who are prosecuting his case, Victor and Saxe said.

Four of the five appellate judges took a harder line. They were fed up with the attorney’s excuses. He had dropped the ball several times before, and on other occasions, the child’s guardian failed to show up for hearings. The last straw was his failure to complete discovery and file the note of issue by a clear deadline, a lapse for which he offered a pathetic excuse: his firm’s calendar clerk just plain forgot to make note of the date in the case file.

“There was no question that the plaintiff’s attorney repeatedly failed to take the steps necessary to ensure the protection of plaintiff's interests, the most recent being the failure to complete discovery and file a note of issue,” the dissenting appellate judge, David Saxe, acknowledged. However, given that the it is the hapless plaintiff who will hurt by the guardian’s and attorney’s failing, “this clear case of law office failure establishes an acceptable excuse for the delay,” Saxe said, in casting a lone vote to uphold Victor, who had agreed to restore the case to the trial calendar, if the guardian shows up for hearings within 30 days. Unmoved, the panel majority reversed Victor and unconditionally dismissed the medical malpractice claim. Walker v City of New York (December 6)

All five judges on an appellate panel agreed that Justice Janice L. Bowman rebuffed a perfectly good excuse for the failure of a defendant’s attorney to file a motion for summary judgment on time. The fact that the case had gotten temporarily knocked off track was the plaintiff’s attorneys fault. He insisted on redoing a deposition because the stenographer died before transcribing her notes. That constituted perfectly good cause for the defendant’s delay in moving for summary judgment, and Bowman should have considered the motion, the panel said. Butt v Bovis Lend Lease LMB, Inc. (December 6)

FRAUD: Justice Mary Ann Brigantti-Hughes allowed a woman who apparently got cheated out of her home to go after two deep-pocketed parties that, according to the Appellate Division, had no duty to steer her away from the bargain and bear no blame for her plight. Gloria Robinson thought she was refinancing her mortgage but ended up selling her house. Brigantti-Hughes allowed her to proceed with a claim against Chase Bank, which had handled the financing, on grounds that the bank was guilty of “fraud by omission.” The judge should have dismissed that claim, the appellate panel said, because omission does not constitute fraud unless there is a fiduciary relationship between the parties, and Robinson had no such relationship with Chase. Brigantti-Hughes allowed Robinson to proceed with another claim against the lawyer who represented the purchaser in the transaction. She should have dismissed that part of the complaint because Robinson didn’t offer any examples of fraudulent representations by the attorney, the appellate panel said. Robinson v Crawford (December 4)

EXPERTS: Justice Alan J. Saks underestimated the ability of the average Bronx juror to grasp the basic principles of sidewalk repair, according to the Appellate Division. Saks had entered a directed verdict in favor of Azeez Baksh, a property owner who had allegedly butchered a repair of a sidewalk in front of his building where Ena Hendricks said she tripped and fell. The fatal flaw in Hendricks’ case, as Saks saw it, was the absence of any expert testimony backing up her contention that Baksh’s use of ready-mix cement to secure the cobblestone sidewalk was a terrible mistake. Experts aren’t needed to explain that, the appellate panel concluded. Since the question of whether the sidewalk was properly repaired did not involve complex scientific or technical issues that were beyond the grasp of a typical juror, Saks must let Hendricks proceed with her claim against Baksh without a supporting expert witness. Hendricks v Baksh (December 4)

KINGS COUNTY

MEDICAL MALPRACTICE: Justice Marsha Steinhardt was reversed back in 2006 for setting aside a jury verdict for the plaintiff in a medical malpractice case.  The Appellate Division recently second guessed Steinhardt for a second time in the same case, this time to trim the amount in damages that she awarded to the plaintiff after the case was sent back to her for further proceedings. The jury correctly concluded that the medical center and doctors were negligent in failing to recognize a serious infection in Marc Beck’s pinkie finger in time to avert permanent tissue loss, necessitating skin grafts, the appellate panel said. But the award of $1.2 million for pain and suffering that Steinhardt entered in Becker’s favor was 25 percent too high, said the appellate panel, ordering yet another trial on damages unless Becker agrees to a stipulated award of $900,000. Beck v Northside Medical (December 4)

NO-FAULT INSURANCE: Justice Leon Ruchelsman trimmed a jury award in favor of Mark Hamilton for the serious injuries he allegedly sustained in a two-car crash. According to the Appellate Division, Ruchelsman never should have let the case get to a jury in the first place because Hamilton’s injuries didn’t qualify as “serious,” as that term is defined in the no-fault insurance law. Hamilton acknowledged that he didn’t miss three months of work in the first six months after the accident. And his neurologist, Dr. Aric Hausknecht, whose medical opinions regularly raise eyebrows in the Appellate Division, not only failed to specify the objective means he used to ascertain the purported permanent loss of range of motion in Hamilton’s spine. Hausknecht also let slip at one point that his patient actually “has not lost a lot of motion in his neck or back.”  With the legs of Hamilton’s lawsuit knocked out from under him, Ruchelsman “should have granted the defendant's oral application…for judgment as a matter of law made at the close of the plaintiff's case,” the appellate panel concluded. Ruchelsman's attempt to limit Hamilton’s windfall by cutting the pain and suffering award from $196,500 to $130,000 wasn’t enough. Hamilton v Rouse (December 4)

QUEENS COUNTY

TORT: Justice Arnold Price, who errs in favor of defendants far more often than he errs in favor of plaintiffs in personal injury cases, was reversed again for prematurely dismissing a tort claim against the city. In the suit, Dawn Conciatori said she was struck by a Port Authority bus outside a LaGuardia Airport terminal. But Price chose to believe the defendant’s two alternative stories – that Conciatori may have tripped while avoiding a bus, but if there was such a bus, it wasn’t operated by the Port Authority. Price erred in two respects, a unanimous appellate panel said. First, he judged the credibility of conflicting testimony on a motion for summary judgment, something a trial judge isn’t supposed to do unless one side’s story is flagrantly false. Price also erred, according to the Appellate Division, by accepting the Port Authority’s story that it had nothing to do with any bus that might have been involved in an encounter with Conciatori on scanty evidence about where the authority’s buses were at the time of the alleged accident. The judge and plaintiff were in the dark about that and Price let the Authority get away with failing to comply with Conciatori’s request for documentation about its busing operations at the airport or to give her attorney an opportunity to depose a witness knowledgeable about the busing operations at the airport on the day in question. In light of the Authority’s failure to divulge that information, Price should have rejected the motion to dismiss Conciatori’s claim as premature, the appellate panel concluded. Conciatori v Port Authority of New York and New Jersey (December 4)

SENTENCING: Justice Roberta Dunlop explained that she decided to impose an especially tough sentence on Jackson Metellus because the victim “was not only robbed, but was brutally beaten." Trouble is, while there was evidence that Metellus and an accomplice held up the complainant at gunpoint, snatched his necklace, and took money out of his pocket before fleeing the scene, there was no evidence that Metellus had anything to do with any beating of the victim, the Appellate Division said. Thus, Dunlop’s sentence was based at least in part on “materially untrue assumptions or misinformation,” and Metellus was “denied due process, and must be resentenced,” the Appellate Division said.  People v Metellus (December 4)
 

Posted by Ennis on December 12, 2007 12:26 AM to Judicial Reports