Judicial Reports:

HOLDMAN CENTRAL RAILROAD
By Mark Thompson
markthomp@yahoo.com
Posted 04-09-08

Kings County Justice Robert Holdman kept the Appellate Division busy over the past year reversing convictions entered after plea and sentencing hearings that he oversaw in 2006. The appellate court recently found that Holdman committed some of the same sorts of reversible abuses in another type of proceeding: a parole revocation hearing that he conducted in early 2007.

Actually, what transpired in Holdman’s court when prosecutors sought revocation of Mario Almonte’s probation didn’t amount to a “hearing,” as such a proceeding is defined in the penal code, a unanimous appellate panel found. To begin with, prosecutors offered no testimony but instead relied solely on “certain assertions and updates” provided by a probation officer. Moreover, there was no evidence that Almonte received prior notice of an "added specification" that was handed to Holdman by the probation officer at the so-called hearing. To top that off, Almonte “was not permitted the opportunity to be heard,” the Appellate Division observed, reversing Holdman’s ruling, which sent Almonte back to prison on his underlying conviction, and remanding the case to the trial court for a genuine revocation hearing. People v. Almonte (April 1)

That is the sixth reversal picked up by Holdman in the last year for railroading criminal defendants. There are common themes in the reversals, one being the judge’s apparent disdain for defendants who want to say something. Holdman was reversed last November in People v. Warde, for example, for conducting a sentencing hearing at which the defendant “attempted to speak but was not afforded that opportunity.”

Another thing that all six reversals have in common, coincidentally or not, is that they came in cases in which the defendants faced charges of criminal possession of a weapon. In one of the cases, resulting in a reversal last May, even prosecutors conceded that the five-year sentence imposed by Holdman for a weapons-possession conviction was excessive. An appellate panel agreed, reducing the sentence to time served.

Holdman’s three other reversals in the past year included one last October in which the Appellate Division reduced a six-year sentence that Holdman imposed on a gun offender to one year. The Appellate Division reversed Holdman this February for accepting a guilty plea based on a preprinted waiver form that failed to correctly inform the defendant of his rights, and then imposing a sentence that was nearly twice as long as the appellate panel thought was warranted. In another case this year, an appellate panel in March overturned yet another conviction entered by Holdman, who in another plea hearing, failed to fully inform the defendant about the sentence he could get.

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

CRIMINAL: Justice Ronald A. Zweibel picked up two reversals for over-sentencing criminal defendants. In one case, adhering to the jury’s verdict, Zweibel entered a conviction for three counts of burglary against Ronald Cubino. Yet, according to the Appellate Division, one of the three alleged burglaries was clearly no such thing. Cubino broke into a basement, but he obviously had no intent to steal anything. Instead, he was desperately trying to hide from the police after committing the other burglaries. Zweibel therefore should have reduced the conviction on that count to criminal trespass, concluded the appellate panel, modifying the judgment and reducing Cubino’s sentence accordingly. People v. Cubino (April 3)

In the other case, an appellate panel found no fault with the conviction, which was based on Felicita Figueroa’s plea of guilty to charges of forgery and grand larceny. But the aggregate prison term of 4 to 8 years that he imposed was “excessive,” concluded the appellate panel, which cut the sentence in half. People v. Figueroa (April 1)

EMPLOYMENT: The Appellate Division reversed two Manhattan judges for butting in on employment determinations that didn’t warrant judicial review.

In one case, Justice Alice Schlesinger second-guessed an arbitrator for no good reason that the Appellate Division could see. Schlesinger may have forgotten that arbitrators aren’t bound by the rules of evidence. The arbitrator in question admitted into evidence a memorandum about a conflict between the petitioner and a co-worker that had nothing to do with the arbitration, but as the appellate panel noted, the arbitrator did not exceed her authority in doing so. The memorandum was not so prejudicial that any mistake in accepting it was so gross as to establish fraud or misconduct.  For that matter, even if an arbitrator made an error of law, judges are not supposed to “assume the role of overseers to conform the award to their sense of justice,” the appellate judges concluded, reversing Schlesinger and reinstating the arbitrator’s decision. Matter of Social Services Employees Union, Local 371 v. City of New York (April 1)

In the second case, Justice Paul G. Feinman was reversed for blocking a decision of the school board to terminate a probationary teacher. As the Appellate Division saw it, the decision was rationally based on the recommendation of petitioner’s principal, who had observed the teacher in the classroom and gave him a year-end unsatisfactory rating for his inability to control his classroom. Matter of Andersen v. Klein (April 3)

INSURANCE: Justice Judith J. Gische kept an insurer on the hook in a personal injury suit against Hunan Ritz Restaurant, despite the fact that, as the Appellate Division saw it, the restaurant flagrantly breached its duty to notify the insurer “as soon as practicable” about an "occurrence" that may give rise to a claim. Charlotte Theodoratos, a patron of the restaurant, fell on stairs as she made her way to the women’s restroom and was taken away by ambulance, an event that couldn’t have escaped the notice of restaurant employees, the appellate panel observed. Even if it had, the fact that Theodoratos two weeks later hired a lawyer who sent two letters suggesting that the restaurant might want to contact its insurance carrier, clearly triggered the restaurant’s obligation to notify the insurer about the accident. Yet the restaurant waited nine months to send notice. That delay wasn’t egregious enough to compel Gische to summarily rule in the insurer’s favor on its claim seeking a declaration that it is not obligated to defend the restaurant in the slip-and-fall suit. All five of the appellate judges disagreed with Gische and voted to grant summary judgment to the insurer. Two of the five members of the appellate panel went on to assert, in a partial dissent, that Theodoratas had made just enough of an effort to contact the insurer on her own behalf that she should not be charged vicariously with the restaurant's delay, and instead, has an independent right to pursue a claim under the restaurant’s policy. Tower Insurance Company of New York v. Lin Hsin Long Co. (April 3)

KINGS COUNTY

TORT: Justice Francois Rivera hamstrung the plaintiff during the trial in a police-shooting case and then approved a paltry damage award that was patently unreasonable, according to the Appellate Division. The suit brought by Michael Zito for the permanent injuries he sustained when he was shot by an off-duty police officer, who claimed that Zito was approaching him in a threatening manner. The case went to trial, culminating in a jury verdict that found Zito 85 percent liable for the fateful encounter, leaving him with just $74,000 for past pain and suffering and medical expenses, but no damages at all for future pain and suffering. Because of Rivera’s erroneous rulings on several issues, Zito is entitled to a new trial, the appellate panel concluded. To begin with, Rivera erred in admitting into evidence a statement in the history portion of the plaintiff's hospital records indicating that the bullet entered through the front of Zito’s body. The trouble with that statement was, it wasn’t based on a doctor’s diagnosis or treatment of Zito but was merely hearsay and therefore should have been excluded from evidence. Rivera also erred in denying Zito's request for a missing-witness charge regarding the defendants' ballistics expert, who was available but didn’t appear to testify. The instruction would have allowed the jury to infer that the expert's testimony would not have contradicted the evidence offered by the plaintiff, which indicated that the bullet entered through Zito’s back. As for the verdict, the jury showed its true colors, according to the appellate panel, by awarding Zito nothing at all for future damages, a patently unreasonable position in light of the undisputed evidence that he sustained permanent injuries that required multiple surgical interventions. That suggests, the appellate panel said, that the “jury improperly arrived at a compromise verdict.” Since the jury very well may have been steered down that path by Rivera’s erroneous evidentiary rulings, Zito’s suit against the city for the police shooting should be sent back to court for a new trial, the appellate panel concluded. Zito v. City of New York (March 25)

TORT: Justice Arthur Schack erred in sustaining a jury verdict that found the transit authority 30 percent liable for an assault on subway passenger Josephina Louis, the Appellate Division said. The transit authority generally owes no duty to protect a person on its premises from assault by a third person, except under circumstances that were not present in this case, the appellate judges explained. Louis asserted that transit authority employees must have seen the assault, but that is based solely on speculation and conjecture and is insufficient to support the jury’s finding that that agency was partially responsible, said the appellate panel, ruling that Schack should have set aside the verdict. Louis v. Knowles (April 1)

TORT: Justice Martin Solomon got reversed for the seventh week in a row. The first six in the streak came in cases in which Solomon was charged with erroneously denying motions to dismiss tort claims. In the latest case, Solomon was reversed for prematurely dismissing a personal-injury claim against the transit authority. Maglio v. Molinelli (April 1)

BRONX COUNTY
 
MEDICAL MALPRACTICE: Justice Diane T. Renwick erred in setting aside a jury verdict in favor of the defense in a medical malpractice case on grounds that it was inconsistent, the Appellate Division said. The jury found that doctors did not improperly delay surgery but did improperly administer a fluid overload that was a cause of the decedent's death, a split verdict that was adequately supported, the appellate panel said, by the testimony of the plaintiff's own expert witness. Renwick should have upheld the verdict, the appellate panel concluded. But she properly denied the plaintiff’s motion to set aside the damage award as inadequate because it did not deviate materially from what would be reasonable compensation. Villanueva v. Ragins (April 1)

Posted by Ennis on April 9, 2008 12:14 AM to Judicial Reports