Judicial Reports:
SEE NO ERROR
By Mark Thompson
markthomp@yahoo.com
Posted 05-14-08
New York County Supreme Court Justice John A. K. Bradley let a prosecutor get away with an "egregious violation" of the rules of evidence, depriving Ronald Moye of a fair trial, said the majority of an Appellate Division panel, in a divided opinion that re-exposed a split in perspectives among appellate judges on police and prosecution tactics.
The prosecutor, Assistant District Attorney Chao, may have had an axe to grind, the appellate majority seemed to suggest. He had been the prosecutor at a first trial, which hung up on jurors’ doubts about whether officers really could have seen what they said they saw from their vantage point.
Prosecutors chose to retry Moye, on the single count of third-degree drug possession, after staging a reenactment of the drug transaction. Photographs of the reenactment back up the officers’ claims that they clearly saw a drug deal going down, Chao asserted at the second trial. To Chao’s dismay, however, the employee of the district attorney’s office who took the photos testified that the scene had to be rearranged to fit the prosecution’s theory, a surprise revelation that led the defense attorney to suggest in his summation that someone was lying and Chao knew it.
Rebuking the defense attorney for calling his integrity into question, Chao hotly replied that he had been on hand for the reenactment, and didn’t know what the photographer was talking about because he had seen for himself that it was beyond reproach.
Those remarks, according to three of the five judges on the appellate panel, flagrantly violated the well settled law that prosecutors are not supposed to act as unsworn witnesses in cases they try. Two dissenting judges, however, insisted that Chao did nothing wrong -- certainly nothing that warranted tossing out the conviction in the case. Chao “responded in a restrained manner to a reprehensible and unsupported personal attack on his integrity by defense counsel,” the dissenters said, in an opinion written by Justice James McGuire. A former Manhattan prosecutor himself, who later served as former governor George Pataki’s legal counsel, McGuire regularly parts company with his colleagues on police search issues, most recently last month.
For their part, the judges in the majority didn’t think Moye’s defense attorney was the least bit out of line. “In this case, where two witnesses, both appearing for the prosecution, offered conflicting, contradictory statements about what had happened during the taking of photographs from the observation post, it was obviously defense counsel's duty to draw attention to the inconsistencies.” It was also “entirely reasonable” for defense counsel to suggest that one of the two witnesses must have committed perjury. As for the defense attorney’s suggestion that Chao might have been complicit, the appellate panel majority noted that the prosecutor had placed himself “at center stage” by acknowledging that he was there, yet had no explanation for the discrepancy, other than that the photographer was mistaken. People v. Moye (May 8)
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
EVIDENCE: Justice Budd G. Goodman has retired but he has been keeping the Appellate Division busy reversing decisions he made back in 2004 and 2005. Since December, four convictions that he handed down were reversed or held in abeyance in cases in which he suppressed evidence without benefit of a suppression hearing. He was reversed in a fifth case in recent months for imposing an excessive sentence. Goodman’s latest reversals was brought about by a different sort of error. In a suit against a wrong-way driver for criminally negligent homicide, Goodman erroneously admitted testimony that defendant's driver's license was suspended at the time. The Appellate Division has previously stated that such information is irrelevant, and can serve no other purpose than to inflame the jury, even in a suit for civil damages, a concern that should carry even greater weight in a criminal proceeding, the appellate panel said. The conviction was supported by the evidence, the judges noted. The driver, Lynette Caban, drove her jeep backwards at nearly 20 miles an hour going the wrong way on a one way street through a red light and into a crosswalk, killing an elderly pedestrian. But Goodman’s error compelled the judges to reverse Caban’s conviction and remand the case for a new trial. People v. Caban (May 6)
Justice Milton A. Tingling was reversed for declining to dismiss a lawsuit brought by the victim of a notorious criminal known in the tabloids as the “cackling psycho” and “baby stabber nut.” It was left to a divided panel of the appellate division to break the news to the plaintiffs that they don’t have a claim. The suit was brought by the family of Isabella Avins, who was 10 months old and in a stroller on the sidewalk one afternoon in the fall of 2005 when Bernard Derr suddenly lunged from out of nowhere for no apparent reason and seriously wounded the child with a knife. The plaintiffs filed a suit for negligent supervision and medical malpractice against the nonprofit organization that ran the “supportive housing” facility where Derr lived, several blocks away from the scene of the attack. Tingling summarily denied the defendant’s motion to dismiss the claim, with leave to renew after further discovery
All five judges on the appellate panel agreed that Tingling should have tossed out the plaintiff’s medical malpractice cause of action because the minimal level of supportive services provided by the staff, which included assuring that residents have food and keep their apartments clean, obviously did not constitute medical treatment.
Two of the five appellate judges agreed with Tingling that the plaintiffs had a viable negligent supervision claim. But the majority noted that the home imposed no curfews or limitations on a resident's ability to come and go, and in fact had no legal right to do so. Since the staff couldn’t keep him from leaving, they certainly couldn’t control his conduct on the sidewalk several blocks away and therefore can’t be held accountable for the Avins family’s losses, the appellate panel majority said, so Tingling should have dismissed the negligent supervision claim, as well. Avins v. Federation Employment and Guidance Service Inc. (May 6)
TORT: Justice Joan B. Carey was reversed for giving the estate of a woman who was killed by a cancerous donor kidney a shot at a double recovery for the alleged malpractice of those involved with the transplant. The estate already settled a medical malpractice claim against the hospital and signed a general release that, according to the Appellate Division, covered “all other potential or possible tortfeasors” “whether presently known or unknown.” That expansively worded released clearly and unambiguously covered the organ donor network, so Carey should have summarily dismissed the complaint, the appellate panel concluced. Rodriguez v. Saal (May 6)
INSURANCE: Justice Doris Ling-Cohan was reversed for saddling Cordula Bartha and her daughters with responsibility for damage inflicted by her late ex-husband when he flew into a rage in the midst of divorce proceedings and set off an explosion in a townhouse that had just been declared marital property, destroying the building and killing himself. Cordula had been divorced from her husband several years, and neither she nor the couple's daughters had authority to control his actions, the Appellate Division said. The insurer that is pursuing the claim may have a cause of action against the estate but not against Cordula or her daughters, the appellate panel concluded. New Hampshire Insurance Co. v. Bartha (May 8)
TORT: The Appellate Division nudged two judges to be a bit bolder in applying the Labor Law section known as the scaffold law. Justice Walter B. Tolub was reluctant to conclude that Marcin Kaminsky had a valid claim under the provision for injuries he sustained while attempting to realign a side panel of a sidewalk bridge, which fell, pulling him down with it. The Appellate Division concluded that Kaminski was entitled to summary judgment on the issue of liability. The risk of falling was inherent in the task at hand, which required Kaminski to lean over the side of the bridge to nail in the side panels. His employer therefore had a duty which it failed to meet to supply safety equipment to minimize that risk, the appellate panel concluded. Kaminski v. One (May 8)
BRONX COUNTY
LABOR LAW: Justice Patricia Anne Williams should have granted summary judgment to the injured worker in another scaffold law case, the Appellate Division said. Instead, she appeared to give too much credence to an unbelievable defense. The worker, Ricardo Pichardo, fell through a hole in the floor of a building under construction, but Williams apparently concluded that the contractor raised a triable issue of fact as to whether the hole existed. The contractor’s supervisor, after all, testified that he did not remember a hole in the floor. Given that he testified that he was at the worksite ever day, “his inability to remember a six-foot-wide hole that extended from the fifth floor through to the basement is simply incredible,” the appellate panel concluded, granting summary judgment on liability to Pichardo. Pichardo v. Urban Renaissance Collaboration Ltd. Partnership (May 8)
Posted by Ennis on May 14, 2008 12:07 AM to Judicial Reports