Judicial Reports:
LOOSE LIPS
By Mark Thompson
markthomp@yahoo.com
Posted 04-30-08
New York County Justice Edward J. McLaughlin, who has regularly gotten into trouble with the Appellate Division for hectoring and badgering jurors, was reversed again, this time for overbearing behavior towards a criminal defendant and his supporting witnesses.
McLaughlin “unduly injected himself” into the trial of Vincent Raosto, said a unanimous panel of the Appellate Division, which reversed Raosto’s conviction for selling drugs. But that was only one of a laundry list of other prejudicial errors. The prosecutor also was out of line, and as for Raosto’s defense attorney, he was a junky, the appellate panel observed.
The appellate judges saw the trial proceeding in quite a different light. The judge, the prosecutor and the defense attorney each made errors that alone warranted reversal of the conviction, particularly since the evidence against Raosto was “far from overwhelming,” a unanimous panel concluded.
McLaughlin’s missteps included conducting “lengthy and inappropriate cross-examinations of defendant and defense witnesses, which were neither neutral nor aimed at clarification, but disrupted the flow of testimony and plainly conveyed to the jury the court's disbelief of these witnesses,” the appellate panel said. The prosecutor’s reversible errors included his improper impeachment of Raosto with statements made by a former attorney that were not fairly attributable to him.
As for Raosto’s trial attorney, his “general carelessness and inattention throughout the trial constituted prejudicially unsatisfactory representation,” the appellate judges said. Among other things, his opening statement contradicted the testimony of his own witnesses, he appeared to be confused about the time of the arrest, and he elicited inaccurate and highly prejudicial information about his client's prior record. He also never objected to the improper questions asked by McLaughlin and the prosecutor.
“The record reveals no possible strategic explanations for any of counsel's errors and omissions,” said the appellate panel. But there were abundant indications of another explanation for his abysmal performance. There was “very substantial evidence” that he was “under the influence of heroin throughout the proceedings” in McLaughlin’s court, the appellate panel observed. Indeed, he was convicted of a drug felony shortly after the trial. People v. Raosto (April 24)
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
CRIMINAL: Justice William A. Wetzel botched the trial of Flor Cruz, according to the Appellate Division, by refusing to let the defendant’s 19-year-old daughter contradict the story told by an undercover officer. The officer asserted that he met Cruz in a parking garage and followed him outside to complete a drug transaction, while the daughter insisted that her father left to find a taxi. Wetzel precluded the testimony on grounds that it was irrelevant and, even if it were relevant, the daughter was an alibi witness and the defense had failed to provide advance written notice, as required by law. A unanimous appellate panel, however, concluded that the daughter’s proposed testimony wasn’t an alibi at all, because it would have rendered the prosecution scenario unlikely but not impossible. Nor was there any indication that Cruz sought to call his daughter primarily to garner sympathy from the jury. Instead, her account of events corroborated his story and therefore should have been admitted into evidence, said the appellate panel, which concluded that the error wasn’t harmless and therefore compelled a reversal of Cruz’s conviction. People v. Cruz (April 22)
FAMILY: Justice Gloria Sosa-Lintner threatened to put a father behind bars for failing to obtain a life insurance policy as required by a child support order, but the Appellate Division thought better of it. Civil contempt penalties are supposed to be remedial, but the sanction imposed in this case appeared designed solely to punish a father who had approached at least 20 insurance carriers, only to find that none would offer him a policy because he had suffered from a brain aneurism. “Incarcerating him now will not make him insurable,” said the appellate panel, vacating the arrest warrant and order of conditional incarceration. Sosa-Litner correctly stuck it to the father on another issue, the appellate panel said. She properly granted the mother’s motion for an upward modification in the father’s child support based on expenses set forth in her financial disclosure affidavit, concluding that he would have to live with the figures that the mother provided since he had failed to submit his own affidavit. Matter of Sheenagh O'R. v. Sean F. (April 22)
CIVIL PROCEDURE: Justice Bernard J. Fried should have given a break to a litigant whose attorney missed a hearing, the Appellate Division said. It was clear that the attorney had not ditched the hearing on purpose but honestly believed it had been adjourned, so Fried should have granted the defendant’s motion to vacate the default order, the appellate panel said. Osborne v. Jones (April 24)
BRONX COUNTY
JUVENILE: Justice Alma Cordova, who gets reversed or modified more often than any other juvenile judge in the city, was corrected by the Appellate Division in the ninth case since the start of 2007, this time in a proceeding involving an illegal alien child from Jamaica. According to the appellate panel, Cordova should have allowed the girl to petition for Special Immigrant Juvenile Status, which is provided to children who are eligible for long-term foster care due to abuse, neglect or abandonment. The child qualified for such status, according to the Appellate Division, because she had been abandoned by her parent in Jamaica, and it was clearly in the child’s best interests to continue living in her aunt's loving and nurturing home. Matter of Antowa McD. (April 24)
TORT: A couple of slip-and-fall lawsuits that passed muster with trial judges in the Bronx got booted by the Appellate Division. In one of the cases, an appellate panel said Justice Dianne T. Renwick should have dismissed the complaint filed against the out-of-possession landlord by a store customer who slipped on a stockroom ramp. The Building Code sections that require handrails on stairs or ramps at the entrance to buildings do not apply to the ramp in question, the panel explained. Also, while the landlord had a duty to maintain public areas of the building, the tenant was responsible for the stockroom, so Francisco Reyes’ lawsuit should have been summarily dismissed. Reyes v. Morton Williams Associated Supermarkets, Inc. (April 22)
Justice Patricia Anne Williams should have summarily dismissed a complaint against Costco for an alleged slip and fall in a bathroom, another appellate panel said. The testimony indicated that the bathrooms were cleaned and monitored regularly, and no problems were noted either before or after plaintiff Marlene Smith's slip and fall, so she failed to established that Costco had notice of a hazardous condition. Smith v. Costco Wholesale Corp. (April 24)
KINGS COUNTY
TORT: The Appellate Division vacated a jury verdict for the plaintiff in one Brooklyn tort suit, and summarily dismissed another complaint that the judge had sent on to trial.
In the first case, Justice Martin Schneier approved a $1 million verdict in favor of Ana Lovato on a theory of liability that didn’t withstand the Appellate Division’s scrutiny. Lovato claimed – and the jury and judge agreed -- that the bus driver caused her to fall and sprain her ankle when she stepped off the bus because he let her out at a place where the pavement was “raised and uneven.” The photograph submitted by Lovato of the area in question, however, did not depict a hazard for which liability can be imposed, and even if it did show such a hazard, the bus driver could not have observed it from his vantage point, the appellate panel said. Schneier, therefore, should have dismissed the case at the close of the plaintiff’s evidence, the appellate judges concluded. Lovato v. New York City Transit Authority (April 22)
Justice David Schmidt erred in allowing Ronald Schwartz to proceed to trial with a claim for a fall on allegedly hazardous stairs that he had safely descended at least 100 times, the Appellate Division said. Schwartz asserted that the staircase was dimly lit, and that the carpet on the staircase, which was identical to the carpet on the floor, created an optical illusion, making the last step hard to see. But as the appellate panel saw it, the condition he described was open and obvious, not inherently dangerous, and above all, known to the injured plaintiff, given that he had used the staircase so many times before. Schwartz v. Hersh (April 22)
RICHMOND COUNTY
EMPLOYMENT: Justice Judith N. McMahon let Lorraine Barcellos do an end run around a well established law that bars suits for grievances like hers, but the Appellate Division cut her off at the pass. Barcellos lost her job but could not sue for that reason alone, since she was an at-will employee. So she recast her firing as an instance of “tortious interference with employment.” The trouble is, as the appellate panel observed, the complaint alleged no injury that was separate and distinct from the termination, and New York does not recognize a cause of action for the tort of abusive or wrongful discharge of an at-will employee, the panel said, so McMahon should have dismissed the complaint. Barcellos v. Robbins (April 22)
MEDICAL MALPRACTICE: Justice Joseph Maltese should have let Staten Island University Hospital off the hook in a medical malpractice case stemming from an allegedly botched birth, said the Appellate Division. The child was delivered by a private attending physician and the hospital established that its employees who assisted were only following his orders, which were in line with standard procedures. In the absence of evidence of independent acts of negligence by the nurse or other members of the hospital staff, there was no reason for Maltese to keep the hospital in the case, the appellate panel concluded. Martinez v. La Porta (April 22)
Posted by Ennis on April 30, 2008 12:55 AM to Judicial Reports