New York Legal Update

Columbia Law School Hosts “Bid For Justice" Auction

On March 6th, Columbia Law School's Public Interest Law Foundation will hold its 16th annual “Bid for Justice” auction. Half of the money from the auction supports the Law School’s guaranteed summer funding, which gives all Columbia Law School students stipends to work for a qualified public service organization during their first-year summer. The other half provides grants to non-profit legal organizations that apply to PILF’s Community Grants Program. For more information on the auction check my Legal Events Calendar to the left.

Indictment Dismissed For Potential Bias Of Grand Juror

The Criminal Procedure Law does not contain a specific provision to challenge a grand juror or an Indictment based on that grand juror's familial relationship to a witness. But as the Third Department's decision last week in People v Revette, 2008 NY Slip Op 01452 demonstrates, this does not mean an Indictment cannot be dismissed because of such a relationship.

The case involved a prosecution for arson. One of the grand jurors was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury. When the prosecutor was informed of this he asked the grand juror, "So you don't think you could be fair and impartial? Your [sic] not just listening to him." The grand juror simply responded, "I can stay." The prosecutor then indicated they would evaluate the situation later before the grand jury deliberations and vote to see if the grand juror could be impartial.

In finding that the Indictment should have been dismissed under CPL 210.35(5), the Third Department stated that even though this statute contains no provision for dismissal because of a relationship between a grand juror and witness, dismissal is merited in "instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury."

The Court found that in the case before it that the grand juror's response to the prosecutor's question of whether she could be impartial was ambiguous, and the prosecutor never followed through with his suggestion that they would reevaluate the situation before grand jury deliberations began. Thus, the Court dismissed the indictment with leave to the People to resubmit the charges to a new grand jury.

Juvenile Convicted For Using The "N" Word

There are many reasons not to use the "N" word. One of which is Aggravated Harassment In the Second Degree (Penal Law § 240.30). Take the case of Matter of Shane Ee., 2008 NY Slip Op 01479 decided by the Third Department last Thursday.

In that case, the juvenile Shane Ee, over the course of two months, while riding on the same school bus, called the victim several names. Some of those names indicated a bias against her based upon her race, color and gender. At one point, the juvenile told the victim, "I've got a gun with your name on it." Another time, he stared at her and stated, "we shoot niggers like you in the woods."

Based on these incidents the juvenile was charged with Aggravated Harassment In the Second Degree, which provides that a person is guilty of that offense when:

with intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct (Penal Law § 240.30 [3]).

In upholding the juvenile's conviction, the Court reject his argument that his threats and racial slurs constituted protected speech under the 1st Amendment. The Court stated:

In addition to threatening physical harm, the language at issue here is so personally and racially offensive that it was likely to provoke the average person to retaliation, and thereby cause a breach of the peace (quotes and citations omitted). Such language is not considered privileged free speech, and may constitutionally be proscribed by the government.

The Court also found that the evidence was legally sufficient and that the verdict was not against the weight of the evidence:

The evidence plainly showed that respondent at least intended to annoy or alarm the victim with his repeated name-calling and threats of physical harm. The racial and gender-based character of those names was circumstantial evidence sufficient to show that his actions were motivated by bias or prejudice. No physical contact occurred, but respondent's statements, "I've got a gun with your name on it" and "we shoot niggers like you in the woods," constituted threats of harmful physical contact. Although the victim testified that she did not fear that respondent would actually shoot her, no particular feelings on the part of the victim are required. The court believed the victim's testimony and did not believe several aspects of respondent's testimony, specifically when he denied making any racial slurs or the threat regarding a gun. Viewing the evidence in a neutral light, while accepting these credibility determinations, the weight of the evidence supports a finding that respondent committed acts which would constitute the specified crime.

County To Challenge Recognition Of Canadian Gay Marriage

On February 1st, the Fourth Department gave legal recognition in New York to a homosexual marriage that was performed in Canada in Martinez v County of Monroe, 2008 NY Slip Op 00909 (See My Post of February 3rd).

According to canada.com, Monroe County will now appeal the Fourth Department's decision to the Court of Appeals. Monroe County's top political official, Republican executive Maggie Brooks claimed that the Fourth Department's decision was a clear "misinterpretation" of New York law and must be challenged. She stated, "we're letting people in Ontario, Canada define marriage for people who live in New York State. I don't think that's appropriate."

The conservative Coalition to Save Marriage in New York has applauded the appeal stating, "one activist court is not at liberty to substitute a foreign law for our state's law simply because that court may prefer the foreign law. This decision compromises the sovereignty of our state and violates its public policy."

The couple involved in the marriage, Patricia Martinez and Lisa Ann Golden, were not surprised by the appeal. However, the couple said: "We still view our marriage as legitimate. No court decision will devalue or negate what our marriage means to us."

Heating Pad - Medical Malpractice Or Negligence?

You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.

The plaintiff claimed that she sustained burns from heating pads applied to her legs by technicians at the defendant Central Westchester Neuromuscular Care, P.C. where she was receiving treatment for neuropathy and other neuromuscular ailments. The defendant moved to dismiss the action because it was not commenced within the two years and six months medical malpractice statute of limitations of CPLR 214-a.  The Supreme Court found that the plaintiff's action was timely because it was commenced with the the three-year statute of limitations period applicable to actions to recover damages for personal injuries CPLR 214(5).

However, the Second Department reversed finding that the action sounded in medical malpractice, and thus, should have been dismissed as untimely. The Court explained:

Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (citations and quotes omitted).

Here, the incident which resulted in the alleged injuries to the plaintiff arose out of the physician-patient relationship and was substantially related to the rendering of medical treatment to combat her neuropathy and other neuromuscular ailments. Accordingly * * *  as it sounds in medical malpractice, [the action] * * * is therefore subject to the limitations period of two years and six months.

Court May Award Maintenance In Action To Annul Marriage Based On Fraud

Domestic Relations Law § 141 specifically provides that maintenance may be awarded in an action to annul a marriage on the ground of incurable mental illness for five years of one of the parties. But can maintenance also be awarded in actions to annul a marriage on other grounds? There are five grounds to annul a marriage listed under Domestic Relations Law § 140: (1) under the age of consent, (2) mental illness, (3) physical incapacity, (4) force, duress, or fraud, and (5) mental illness for five years.

Article 9 of the Domestic Relations Law, which governs actions to annul marriages, is silent as to the other grounds. Only § 141 mentions maintenance in actions based on mental illness for five years.

The Second Department addressed this issue Tuesday in LeMieux v LeMieux, 2008 NY Slip Op 01510. In that case, the trial court awarded maintenance in an action to annul a marriage based on the ground of fraud.

The Second Department upheld the award rejecting the argument that Domestic Relations Law § 141 limited the power of the trial court to award maintenance only in actions based certain grounds. The Second Department found that the trial court had the discretion to award maintenance pursuant to Domestic Relations Law § 236(B)(2). Domestic Relations Law § 236(B)(2) states that the court has the discretion to make a maintenance award in any matrimonial action.  Thus, the trial court could award maintenance in an action to annul based on fraud. The Court stated that Domestic Relations Law § 141 simply provided an:

additional procedural and substantive detail with respect to an action to annul a marriage based upon five years' incurable mental illness of one of the parties, to ensure that the disabled spouse is cared for and does not become a public charge.

The Uncomfortable Jury Foreperson

New York's Criminal Procedure Law § 310.30 contains a certain procedure when a court receives a note from a jury during deliberations. It generally requires that when a court receives a note from the jury, it must return the jury to the courtroom and, after notice to both the people and defendant's counsel, and in the presence of the defendant, the court must deal with the note as it deems proper.

Yesterday in People v Figueroa, 2008 NY Slip Op 01604, the First Department was confronted with whether the trial court violated the procedure in CPL § 310.30 after receiving a somewhat unusual note from the jury foreperson.

After the jury had sent a note indicating that it had reached a verdict, the foreperson sent a personal note to the court indicating that he did not feel "comfortable" about reading the verdict. The court inquired of the foreperson about the meaning of the note, outside the presence of defendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel of the note, and related that during the inquiry, no mention of the verdict itself was made. Instead, the foreperson stated that he was uneasy about having to read the verdict out loud in some sort of narrative form. The court related to counsel that when it assured the foreperson he would only have to answer the clerk's questions, the foreperson, who had not served on a jury before, was "relieved" and satisfied. In response to the prosecutor's question, the court stated that the foreperson never indicated any discomfort with the verdict itself, which was simply not discussed. Neither defendant objected to this procedure or sought a further inquiry of the foreperson. The jury then rendered its verdict, and, when individually polled, each juror including the foreperson agreed with it.

Subsequent to trial, the codefendant moved to set aside the verdict on the ground that the court failed to follow the procedure set forth in CPL § 310.30, specifically in that he was absent when the court responded to the note. The foreperson signed an affidavit, which was obviously drafted by an attorney, in which he claimed that other jurors had coerced his verdict, and that he had communicated to the court that this was why he was uncomfortable announcing the verdict. However, during the course of a CPL § 330.30 hearing, the foreperson conceded that he had never communicated to the court any discomfort with the substance of the verdict, but only with the process of reading it out loud. Thus, he essentially corroborated the court's version of the colloquy. The court, treating the motion as the motion of both parties, ruled that it had acted only ministerially, that defendants had waived any challenge, and that there was no basis to set aside the verdict.

The First Department agreed with trial court's ruling on the motion and refused to set aside the verdict. While the defendant argued that his presence was necessary and that counsel's presence would have elicited from the foreperson a better articulation of why he was "uncomfortable," the First Department found that the only reasonable conclusion was that the trial court's interaction with the foreperson, involving only the mechanism by which the foreman would announce the verdict, was entirely ministerial. The First Department stated the trial court simply clarified what the foreperson meant by being uncomfortable, and it did not discuss anything about the law, the facts of the case or the verdict. Thus, neither the defendant nor his attorney could have made a meaningful contribution, so their presence was not required. The First Department added that since the trial court's action was only ministerial and did not fall within its core responsibilities in responding to a jury note, the defendant was required to request a further inquiry of the foreperson or otherwise preserve a claim of error, which he failed to do.

Are DNA And Fingerprint Reports "Testimonial" Statements?

Under the Sixth Amendment and the N.Y. Constitution, a criminal defendant has the right to be confronted with the witnesses against him. Prior U.S. Supreme Court decisions have interpreted this right as applying to those who "bear testimony." And "testimony" in turn, as expressed by the Supreme Court, "is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact" (Crawford v Washington, 541 US 36 [2004]).

On Tuesday, in People v Rawlins, 2008 NY Slip Op 01420, the Court of Appeals held, under the circumstances before them, that latent fingerprint comparison reports were testimonial statements, while DNA profile reports were not. In both cases, however, the Court of Appeals found that the introduction of the reports were harmless beyond a reasonable doubt.

In a long decision, the Court stated that the question of testimoniality requires consideration of multiple factors, but two play an especially important role in this determination. First whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing.

The Court found that the fingerprint reports at issue were clearly testimonial because the police officer prepared his reports solely for prosecutorial purposes and, most importantly, because they were accusatory and offered to establish defendant's identity.

With respect to DNA reports, the Court stated

A salient characteristic of objective, highly scientific testing like DNA analysis is that the results are not inherently biased toward inculpating the defendant; they can also exculpate. The inescapable corollary is that police or prosecutorial involvement is unlikely to have any impact on the test's results.

A concurrence by Justice Read questioned that majority's reasoning because, "fingerprint comparisons (although arguably not as "highly scientific" as DNA analysis) may also exculpate."

Communications Law & Policy Lecture

On February 28th, Syracuse University College of Law will host Bryan Tramont, former chief of staff for the Federal Communications Commission (FCC) who will give a lecture entitled  “The First Semester Curriculum and Your Cell Phone—They Have More in Common Than You Think.” The lecture will address the classroom elements that affect communication law and policy. For additional information see my Legal Events Calendar in the left hand side bar.

The Stealing Of Business Ideas - The Question Of Novelty

You have a great idea for a new business. You tell somebody about it, and then that person goes out and creates a very similar business to the one expressed in your idea. Are you allowed to recover damages for the misappropriation of your idea? The answer to that question depends on whether your idea was sufficiently novel or original.

The First Department had to confront such a case last week in American Bus. Training Inc. v American Mgt. Assn., 2008 NY Slip Op 01416.

In that case, the defendant American Management Association (AMA) was a not-for-profit association that offered instructional seminars in areas of business and management. Judith Segal was an employee of AMA from 1976 through 1991; and her responsibilities included the development and promotion of seminars.

After she was laid off by AMA, Ms. Segal founded her own company American Business Training, Inc. (ABT) which was in the business of developing and marketing seminars for the business community. After creating her new company, she began to create what she thought was a novel and unique concept for a course for business executives. It was a seminar known variously as "The 5-Day MBA" and "Essentials of an MBA." ABT's publicity materials described the course as designed for managers, executives, and other business professionals who did not have an MBA degree but who needed to learn basic business concepts and techniques in order to acquire a broader overall understanding of the processes of operating a business. These materials stated that the course provided practical skills and knowledge in such areas as management, accounting, finance, sales, marketing, pricing, strategic planning, research and development, and human resources. ABT expended $700,000 in the development of the program.

Ms. Segal claimed that the course was well received, but that it struggled with profitability. Thus, in November 2000, Ms. Segal telephoned an AMA employee, William Fexas, to inquire if AMA would be interested in entering into a joint venture to market the program. It was alleged that Fexas told her that AMA "could be interested," and directed her to Edward Selig, an AMA employee in charge of new course offerings. After Segal called Selig and gave him an overview, he asked her to forward the course brochure, which she did "with the understanding that AMA could only make use of the materials in a joint enterprise with ABT."

Two weeks later, Selig advised Segal that AMA would not run such a course because it was competitive with other courses being offered by AMA. Yet, in June 2001, AMA began offering a course entitled "AMA's Five Day MBA . . . Essential Elements." Like the ABT course, the AMA "Five-Day MBA" course was billed as providing a grounding in the essential elements of an MBA program, covering the basic principles of business economics, accounting, finance, marketing and management, so that attendees would learn how all the components of running a business fit together. AMA's course quickly became highly successful.

Ms. Selig and her company brought an action asserting seven causes of action, claiming fraud, misappropriation of ideas, breach of a joint venture agreement, unjust enrichment, breach of an implied-in-fact contract, breach of a quasi-contract, and conversion.

In upholding summary judgment in favor of the defendant AMA, the First Department set forth the law to property rights in ideas previously expressed by the Court of Appeals in Downey v General Foods Corp. (31 NY2d 56, 61 [1972]):

An idea may be a property right. But, when one submits an idea to another, no promise to pay for its use may be implied, and no asserted agreement enforced, if the elements of novelty and originality are absent, since the property right in an idea is based upon these two elements (citation omitted).

The First Department then found that there was no contract entered into following plaintiff's submission to defendant of the claimed idea. Thus, in order for the plaintiff to recover under Downey the elements of novelty and originality had to be established. Reviewing the evidence of AMA's prior course offerings, as well as other organizations offerings of various business courses, the First Department concluded that the plaintiff's "The 5-Day MBA" was not significantly novel or original to warrant protection.