New York Legal Update

Bar Association Releases 2008 "Current Legal Issues Affecting the Profession"

The New York State Bar Association has released its 2008 manual - Current Legal Issues Affecting the Profession. The manual contains concise summaries of 33 subjects of concern to the legal profession, the organized bar, and the public. The handbook is divided into two sections, current topics and informational topics. The current topics section addresses issues of immediate concern, while the second grouping examines issues where action may not be imminent, but the subject matter is of sufficient interest to be included in the manual. This 27th edition of “Current Legal Issues” provides background information, and the relevant activity and policy position of the New York State Bar Association concerning each subject.

The subjects range from lawyer advertising to the impact of the U.S. Supreme Court's 2005 decision in Kelo v. City of New London, 545 U.S. 469 on eminent domain. Also included is an examination of a proposed rule, intended to apply in the wake of a major disaster, that would allow out-of-state lawyers to do pro bono work in New York if it were deemed necessary.

The full text of the manual can be found by clicking on the above link.

Self-Incrimination Symposium

On March 2-3, Cardozo School of Law will host a two day symposium on self-incrimination entitled: "The Future of Self-Incrimination: Fifth Amendment, Confessions, and Guilty Pleas." The symposium will take a fresh look at the use of confessions and guilty pleas as a means to establishing a criminal defendant's guilt. Specifically, it will discuss the Fifth Amendment and common law protections against coerced confessions, plea bargaining and the vanishing trial phenomenon, and the relationship between pleas and sentencing, and a number of related issues. For additional information Click Here or see my Legal Events Calendar on the left. 

Treatment Of Prisoners With Serious Mental Illness

Yesterday Governor Spitzer signed new legislation that will purportedly enhance the care and treatment of prisoners with serious mental illness by limiting the instances in which these inmates can be placed in segregated confinement. The legislation will remove prisoners with serious mental illness from what are commonly known as “special housing units” – where inmates who have committed disciplinary infractions are segregated from the rest of the prison population. The legislation would also implement a more sensitive approach to the treatment of prisoners with psychiatric disorders while meeting prison safety and security standards.

Those inmates with serious mental illness who are not removed from segregated confinement will be offered a heightened level of care, including additional out-of-cell treatment and programming. Mental health clinicians will also conduct periodic mental health assessments of all inmates who remain in segregated confinement.

Inmates with serious mental illness who are diverted or removed from segregated confinement will be housed in residential mental health treatment units that are jointly operated by the Department of Correctional Services and the Office of Mental Health. In these units, inmates will receive out-of-cell therapeutic programming and mental health treatment. A formal review process involving the input of mental health clinicians will decrease the likelihood that inmates will cycle back into segregated confinement. A number of these new mental health treatment beds already exist and many more are in development.

The new legislation authorizes the Commission on Quality of Care and Advocacy for Persons with Disabilities to monitor the quality of mental health care provided to inmates and make recommendations about necessary improvements.

The full text of the new legislation can be found by Clicking Here and searching on Bill No. S06422.

Cell Phones, Schools, and Searches - How Far Can They Go?

The issue of cell phones in schools seems to keep coming up. New York City's ban on cell phones in schools has been upheld, but the issue remains contentious between parents and school administrators.                 Now the issue may be turning from the ban itself to just how far can school administrators go to search students for prohibited cell phones. And what if in searching students for cell phones, other more illegal contraband is found? An interesting case from the First Department yesterday sheds some light on the matter - Matter of Elvin G., 2008 NY Slip Op 00555.

Elvin G. was a 15 year old student in middle school. The teacher of his class reported to the dean of the school that a noise, which sounded like a ringing cell phone, was disrupting her class. The dean entered the classroom to investigate and enforce the school rule that prohibited cell phone use in class. According to Elvin, the dean had the students stand up, and started checking their pockets for something that was making the musical sounds. As a result, Elvin G. took a hunting knife with a six-inch blade out of his pocket. The cell phone apparently was not found.

Elvin G. was then charged as a juvenile with criminal possession of a weapon in the fourth degree, and unlawful possession of a weapon by a person under sixteen. He moved to suppress the knife on the grounds that it was unlawfully obtained in violation of state law and the Federal and State Constitutions [The presenting agency claimed that in fact no search occurred because Elvin was holding the knife in plain view]. The Family Court summarily denied Elvin's motion to suppress without conducting a hearing.

The First Department affirmed accepting Elvin's version of the events as true. The Court set forth the law as follows: When there are reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating the law or the rules of the school, a search is permissible when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction. And it stated:

[A]lthough the dean may not have had reasonable suspicion that [Elvin G.] was the offending student, such individualized suspicion in the context of an administrative search such as this was not required. The dean clearly had a reasonable basis to believe that some student in the classroom was violating school rules and there is no question that such breach was disrupting the class.

[I]t cannot be said, as a matter of law, that asking students to empty their pockets in order to restore order to the classroom and enable the classroom teacher to resume the lesson was unreasonable or overly intrusive.

The next case to come along will probably be where school administrators not merely ask students to empty their pockets, but have some school personnel actually reach into students' pockets or bags.

Criminal Defendants Not Entitled To DNA Testing After Guilty Plea

CPL 440.30(1-a) allows a convicted criminal defendant to make a post-judgment motion to perform DNA testing on evidence introduced at trial. Both the First and Second Departments have previously held that CPL 440.30(1-a) does not permit defendants who have pleaded guilty to seek such DNA testing of forensic evidence (People v Lebron, 44 AD3d 310 [2007]; People v Byrdsong, 33 AD3d 175 [2006], lv denied 7 NY3d 900 [2006]).

Yesterday the First Department extended this holding slightly in People v Allen, 2008 NY Slip Op 00565. In that case, the defendant was originally convicted after a trial in 1983. However, his conviction was subsequently reversed on appeal. The defendant then entered a guilty plea, and after this guilty plea, the defendant sought DNA testing of certain evidence. The First Department rejected the defendant's contention that since he originally had a trial he was entitled to DNA testing under CPL 440.30(1-a). The Court stated that the ultimate judgment resulted solely from a guilty plea, and thus, CPL 440.30(1-a) did not apply.

Columbia Law School Hosts Copyright Symposium

On February 8th, Columbia Law School will host an all-day symposium on the recent evolution of the "fair use" doctrine of U.S. copyright law. The symposium, which features fair use experts from law schools across the country and a representative of the U.S. Copyright Office, will probe a variety of topics, such as whether the relative weight of the factors used to invoke fair use has changed in the digital world, and other approaches that have been proposed to supplement or further define fair use. For additional information Click Here or see my NY Legal Events Calendar on the left.

Bronx Hall Of Justice Opens

As reported in the New York Law Journal, seven years after construction began, the new 775,000 square foot Bronx Hall of Justice opened for business yesterday morning. The schedule was light but one jury trial was in progress, and a jury in a second case will hear closings and start deliberating tomorrow. The two-block long $421-million facility at 265 E. 161st Street between Sherman and Morris Avenues is one of the largest in the nation. All judges will have relocated to the facility by February 11th. The building was constructed incorporating many "Green" features including passive solar heat, low-VOC paints, occupancy-sensing lighting, and compact fluorescent lights.

Partial-Birth Abortion Ban Symposium

On March 7th, Brooklyn Law School will host a symposium entitled: "The Partial-Birth Abortion Ban: Health Care in the Shadow of Criminal Liability." The symposium will bring together a group of legal scholars and medical practitioners who will assess the U.S. Supreme Court's decision in Gonzales v. Carhart, 550 U.S. ____ (2007); 127 S. Ct. 1610, upholding the validity of the federal Partial-Birth Abortion Ban. Following the Court’s decision, the legal status of these procedures is likely to remain contested, with debates shifting to address how the law will be enforced and interpreted. Also, the extent to which criminal prosecution will influence, or dictate, physicians’ decision making remains unclear. Thus, the symposium will assess Carhart’s likely effects on health care, including physicians’ professional medical judgments and patients’ access to treatment.

For more information and to register Click Here.

Rear End Collisions Into Double Parked Cars And The Vexing Problem Of Proximate Cause

Double parked cars in Manhattan - it is as common as grass in the suburbs. Taxicabs picking up fares, buses loading and unloading passengers, and everyone else giving up the hunt for the one existing parking space and putting on the hazards for the few minutes it takes to run in a buy a lottery ticket. Everyone does it in Manhattan and it is basically unavoidable. But given the First Department's decision in White v Diaz, 2008 NY Slip Op 00433 last week you may want to strongly reconsider double parking; the Court held that if you double park and someone else strikes your vehicle from the rear, you may have contributed to the accident. 

The car accident in question occurred shortly before 6:00 a.m., when an Access-a-Ride van double-parked on First Avenue near East 94th Street in Manhattan to pick up the plaintiff. It was struck in the rear by a van driven by defendant Diaz and owned by defendant Agramonte. Diaz admitted to falling asleep behind the wheel. Plaintiff was a passenger who had just entered the Access-a-Ride van, which was driven by defendant Nunez and owned by defendant Atlantic Paratransit (the Nunez defendants). Defendant Nunez testified that he double parked in the first lane for moving traffic on First Avenue in front of plaintiff's building to wait for her, because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited approximately five minutes with his hazard lights on before plaintiff arrived. After the plaintiff got in, but before she was able to put on her seat belt, the accident occurred.

Following discovery, the Nunez defendants moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of Diaz, and their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

After analyzing a number of similar rear end collisions into stopped vehicles, the Court denied the defendant's motion for summary judgment. The Court stated that, "where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide." The Court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street. The Court stated that the precise manner of the accident need not be foreseeable. Rather, it was enough that it was foreseeable that the flow of traffic, being impeded by the double-parked van, that an inattentive, careless or distracted driver might not stop in time to avoid the van. The Court stated that a reasonable jury might conclude that if the Nunez van had pulled over to the curb or into a nearby parking lot to wait, it would not have been in the path of the Diaz van and plaintiff would not have been injured.

A few personal observations: After this case, I can't envision any instance in which a stopped double parked vehicle can be found not to have contributed to a rear end collision. It was undisputed that the driver of the other vehicle fell asleep while driving. If this can not be seen as the entire proximate cause I don't know what can. In addition, it seems to me to be irrelevant how long the Access-a-Ride van was double parked. The accident occurred instantaneously and thus it was irrelevant how long it was double parked. In fact, the longer it was doubled parked without an accident occurring would seem to suggest that the double parking could not have contributed to the accident. Think of the number of vehicles which passed the double parked Access-a-Ride van during the 4 minutes and 59 seconds it was double parked and did not strike it in the rear. When determining proximate cause isn't it appropriate to calculate, or at least approximate, how many potential accidents did not occur? Finally, it now becomes perilous for all taxicabs and buses in the City. All will have to foresee being struck in the rear while picking up passengers.   

Court May Not Order Additional Evidence After Jury Verdict

Courts are unusual institutions. Sometimes they believe they have the power to do anything, or create their own procedures. Take the example of Pavel Yutsis Physician, P.C. v Staten Is. Univ. Hosp., 2008 NY Slip Op 00469 decided by the Second Department on Tuesday.

In April 1999, the plaintiffs had entered into a contract with the defendants to provide administrative and professional services. However, based upon what they believed were improper billing and business practices, the defendants issued a letter dated February 20, 2002, to the plaintiffs which terminated the agreement.

The plaintiffs commenced an action and their complaint alleged that the defendants breached their contract with the plaintiffs by failing to pay the sum of $290,000 relating to services the plaintiffs performed in January 2002, and by failing to pay the sum of $250,000 relating to services the plaintiffs performed between February 1, 2002, and February 20, 2002. In pre-trial proceedings, the Supreme Court dismissed the plaintiffs' equitable claims and directed a jury trial. The jury ultimately returned a verdict in favor of the defendants finding that it was the plaintiffs that had breached the agreement, not the defendants.

The plaintiffs then, however, made a post-verdict motion in which they requested "a hearing to determine the amount due to plaintiffs from defendants under [the parties' contract] for the period January 1, 2002 through February 20, 2002." For reasons which were not clear from the record, this portion of the breach of contract cause of action was not submitted to the jury. In response to this post-verdict motion, the trial court ordered the defendants to produce certain evidence that had not been adduced at trial. The defendants, over objection, complied and produced voluminous records. Based on these post-verdict submissions, the trial court issued an order finding that the plaintiffs were entitled to judgment in their favor in the principal sum of $441,697.

The Second Department reversed finding that the trial court simply had no authority, after the jury trial had concluded with a verdict in favor of the defendants, to compel the defendants to produce additional evidence and then, based on such evidence, issue a judgment in favor of the plaintiffs. It stated that the CPLR does not authorize this procedural course of action.

Indeed it would appear that the only action the trial court could have taken would be under a post-trial motion under CPLR 4404(a) to either (1) set aside the verdict and direct that judgment be entered in favor of the plaintiff as a matter of law, or (2) order a new trial if the verdict was contrary to the weight of the evidence. There is nothing in CPLR 4404, or elsewhere, which would allow the court to take additional evidence on motion and then render a judgment on that evidence.