New York Legal Update

Was It An Escape Or An Attempted Escape?

How far do you have to get away in order to be convicted of an escape as opposed to an attempted escape? The Court of Appeals was confronted with this issue today in People v Antwine, 2007 NY Slip Op 05585. In that case, the defendant was arrested after stealing an automobile. He was taken to the precinct for processing. While there, he complained of a toothache and a hernia, and Officers Rosario and Bohan-McDowell escorted him, in handcuffs, to a hospital by ambulance. Defendant was brought to the emergency room where Officer Bohan-McDowell handcuffed his right wrist to his assigned bed. Shortly thereafter, defendant complained that the handcuff was too tight, and the officer observed a visible discoloration of defendant's wrist. She placed the key in the cuff and started to loosen it when defendant lifted up on the cuff and ran away. The officer caught up to defendant about 25 to 30 feet down the hallway and grabbed him, but he broke free. He then made a right turn and headed for the hospital exit approximately 12 feet away. After defendant got through the first of two sets of exit doors, the officer tackled defendant and remained on top of him until two doctors and another officer helped subdue him.

The defendant was convicted, among other crimes, of escape in the second degree (Penal Law § 205.10 [2]).  On appeal, the defendant argued that the evidence was insufficient to prove escape in the second degree, and argued that his conviction should be reduced to attempted escape in the second degree. The Court of Appeals rejected the defendant's argument and affirmed his conviction.

Penal Law § 205.10 states that:

A person is guilty of escape in the second degree when: . . .(2) Having been arrested for, charged with or convicted of a class C, class D or class E felony, he escapes from custody.

"Custody" in turn is defined by Penal Law § 205.00(2) as:

restraint by a public servant

Defendant argued that in order to be convicted of the crime of escape under Penal Law § 205.10(2), he would have had to make it past the hospital exit doors. Anything short of leaving the building, according to defendant, was simply an attempted escape. The Court of Appeals noted that this might have been required if the defendant was convicted under subdivision (1) of Penal Law § 205.10. That subdivision requires escape from a "detention facility." However, the Court stated that there was no such crossing-the-threshold requirement under Penal Law § 205.10(2). The Court stated:

[O]nce the People show that a defendant broke free or got away from the restraint or control of the officer, as defendant did here by physically removing restraints to free himself from the controls imposed and running away, sufficient evidence exists to support the crime of escape. This is not to say that simply circumventing one's handcuffs constitutes an escape. Had defendant pushed off the handcuff but remained within the officer's control, he may have been found guilty of an attempted escape. Rather, here it was the point when defendant was no longer under the control of the officer and had removed himself from her custody without authorization — when she had to give chase, placing herself and the public at risk — that the elements of Penal Law § 205.10 (2) were sufficiently met.

The lesson for the police officer - handcuff the defendant's other hand before loosening the first handcuff.

Court of Appeals Finds Right of Confrontation Was Not Violated

The Sixth Amendment guarantees a criminal defendant's right to confront witnesses against him. What happens if a victim of a crime makes statements to the police and then dies, and thus, is unable to testify at trial. Can the victim's statements be admitted in evidence, i.e. do such statements violate the defendant's right to confront witnesses? Prior U.S. Supreme Court cases have held that only statements that are "testimonial" in nature make the unavailable declarant a "witness" within the meaning of the Sixth Amendment Confrontation Clause. In addition, the U.S. Supreme Court has explained that statements made in response to police inquiries are not testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency (Crawford v Washington, 541 US 36 [2004]; Davis v Washington, 126 S Ct 2266 [2006]).

Today in People v Nieves-Andino, 2007 NY Slip Op 05584, the Court of Appeals held there was such an emergency under the following circumstances.

The victim, Jose Millares, was shot on a Bronx street where he sold drugs. His associate Michael O'Carroll called 911. Within minutes, two police officers arrived on the scene, and immediately went to Millares. There was a small crowd of onlookers. Officer Doyle bent down to observe the victim more closely. He was bleeding and grimacing with pain. As soon as Officer Doyle had summoned an ambulance, he spoke with Millares, who replied in a low voice. The officer asked for, and Millares gave, his name, address and phone number. In addition, the officer then asked Millares what had happened. Millares responded that he had argued with a man named Bori, who had shot him three times, and he told the officer Bori's address. Officer Riordan, meanwhile, searched the location for shell casings, finding four discharged casings from a .380 pistol.

O'Carroll had witnessed the shooting and, after Millares died of his injuries, he informed the police that he had seen defendant Juan Nieves-Andino, who was known as Bori, shoot Millares. The defendant was charged with second-degree murder and other crimes. He moved for an order excluding, as hearsay, the victim Millares's statement that he had been shot by a man named Bori. Citing Crawford v Washington, 541 US 36, the defendant argued that admission of the statement would violate his Sixth Amendment right to confront a witness against him. The People responded that the statement was admissible as an excited utterance and that its admission would not violate the Sixth Amendment. Both the trial court and the Appellate Division agreed with the People. The jury subsequently convicted defendant of second-degree murder.

In affirming the defendant's conviction, the Court rejected the defendant's argument that once an assailant leaves the crime scene and no longer poses a threat to the victim (as was the case here), a police officer's questioning of a victim cannot be to meet an ongoing emergency. The Court explained:

Whether an officer's primary reason for making an inquiry was to deal with an emergency is a fact-based question that must necessarily be answered on a case-by-case basis. Even when the assailant has fled, the circumstances of the police officer's questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm.

Officer Doyle arrived at the scene of a recent shooting and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker's identity was part of Officer Doyle's reasonable efforts to assess what had happened to cause Millares's injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, so that he could decide what, if any, action was necessary to prevent further harm (quotes, citations omitted). The nature of what was asked and answered . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past (quotes, citations omitted). In short, Officer Doyle . . . reasonably assumed that there was an ongoing emergency. It follows that Millares's responses to Officer Doyle's inquiries were nontestimonial . . . and that their admission did not implicate defendant's right to confrontation.

A concurring opinion by Justice Jones disagreed with the majority that the victim's statements concerning the defendant's identity, address and past conduct where necessary for the police to deal with any emergency. He found that such statements should have been excluded. However, Justice Jones nevertheless found that the error was harmless in light of the other evidence.

Parties Cannot Agree To Subject Apartment To Rent Stabilization Law

On Tuesday the First Department held in 546 W. 156th St. HDFC v Smalls, 2007 NY Slip Op 05574 that parties can not voluntarily agree to subject an apartment to Rent Stabilization Laws where the apartment is in a building created as a not-for-profit housing cooperative under the Private Housing Finance Law. Such buildings are statutorily exempt from rent stabilization (Administrative Code of City of New York § 26-504[a]; 9 NYCRR § 2520.11[j], [l]), and thus, the Court held that for parties to voluntarily subject an apartment to rent stabilization would contravene the statutory scheme. However, the Court did state that such a voluntary agreement could be enforceable only to the extent that it set the rental amount and only for the duration of the lease signed by the parties.

Court Of Appeals Holds "Driving While Intoxicated" Only Applies To Impairment From Alcohol, Not Drugs

The Court of Appeals issued a decision today (People v Litto, 2007 NY Slip Op 05582) which may have the Legislature scurrying to quickly amend Vehicle and Traffic Law § 1192(3). The Court held that under that statute the Legislature intended to use "intoxication" to refer to a disordered state of mind caused by alcohol, not by drugs. Vehicle and Traffic Law § 1192(3) provides that:

Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

The fact were as follows. The defendant, 19 years old, was driving with three passengers in his car. While traveling at 50 mph on a road where the average speed was of 30 mph, the defendant picked up a can of "Dust-Off" and sprayed it into his mouth. About 45 seconds later, he veered into oncoming traffic and crashed into a vehicle driven by Andrea Sett. One of the passengers in Sett's car was killed. Sett, another passenger, defendant and two of his passengers were injured, some seriously. "Dust-Off" contains a hydrocarbon, difluoroethane, which assists as a propellant and gives a person who "huffs" it a "high." A forensic expert testified before the grand jury that inhalation of this hydrocarbon initially acts as a stimulant. However, within seconds, the person's central nervous system becomes depressed, making it difficult to perceive and react to the environment.

The People submitted a total of 14 counts to the grand jury including one count each of Manslaughter in the Second Degree (Penal Law § 125.15 [1]), Vehicular Manslaughter in the Second Degree (Penal Law § 125.12), Criminally Negligent Homicide (Penal Law § 125.10), Reckless Endangerment in the Second Degree (Penal Law § 120.20), Reckless Driving (Vehicle and Traffic Law § 1212), and Operating a Motor Vehicle While in an Intoxicated Condition (Vehicle and Traffic Law § 1192 [3]).

With respect to Count 6 - Operating a Motor Vehicle While in an Intoxicated Condition - Vehicle and Traffic Law § 1192 (3) - the prosecutor charged the grand jury:

If you find by the credible and legally sufficient evidence that . . . the defendant . . . did operate a motor vehicle while in an intoxicated condition, you may find one count of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs.

The prosecutor also instructed the grand jury that in order to charge defendant with Vehicular Manslaughter in the Second Degree, count two, it would have to find legally sufficient evidence that defendant committed the crime of Criminally Negligent Homicide and caused the death of the victim by operation of a vehicle in violation of Vehicle and Traffic Law § 1192(3). The grand jury indicted defendant on all 14 counts.

The defendant moved to dismiss the Indictment. Both the Supreme Court and the Appellate Division found that the evidence was legally sufficient on all counts except counts two and six. Those courts found that ingestion of hydrocarbon did not fall within Vehicle and Traffic Law § 1192(3), driving while intoxicated, and therefore could not serve as a basis for the count of vehicular manslaughter.

The Court of Appeals agreed with these determinations of Supreme Court and the Appellate Division and affirmed dismissal of those counts. The Court stated that the legislative history of the statute and its scheme revealed that the Legislature's intent had been to treat a driver's use of alcohol differently from a driver's use of drugs, and that the prohibition of driving while intoxicated under subdivision 3 of section 1192 was part of the strategy to prevent the "drinking driver" from using the roadways. The Court reviewed the legislative history of 1192(3) back to 1910 and found that the common usage of the term "intoxication" at the time only referred to consumption of alcohol. In addition, the Court noted that through various amendments throughout the years, the Legislature added additional provisions to the legislative scheme to deal separately with impairment by different levels of blood alcohol (§ 1192[2], [2-a]), impairment by listed drugs (§ 1192[4]), and impairment by the combined affect of drugs and alcohol (§ 1192[4-a]). But there was nothing in the legislative history to indicate that § 1192(3) itself was intended to cover anything other than the consumption of alcohol. 

It should be noted that while the Court of Appeals' ruling reveals that there may be gaps in the legislation, the accused defendant still must face 12 remaining criminal charges. It will be interesting to see how the Legislature will respond to the Court's decision and whether it will amend § 1192(3), or the entirety of § 1192.

Department Of Corrections Proposes New Rules For Inmate-Lawyer Visits

The Department of Corrections today announced proposed rules affecting visits between lawyers and their clients in Department of Correction facilities. The Department is proposing the addition of a part 210 to 7 NYCRR in order to provide a uniform manner in which inmate legal visits are conducted throughout Department of Correction facilities. The full text of the proposed rules can be found by Clicking Here. Among the highlights of the proposed rules are:

1. Attorneys are expected to give one business day notice to see an inmate;
2. Visits are to be conducted Monday-Friday during facility visiting hours. Special requests for off hour visits are reviewed on a case by case basis;
3. A superintendent of facility may deny a legal visit for good cause to maintain safety;
4. Legal materials may be exchanged during a visit and left with an inmate subject to inspection for contraband; and
5. A superintendent of a facility shall designate a confidential area for legal visits.

Public comments on the proposed rules will be received for 45 days.

Lawsuits That Can Drive You Crazy

There are some lawsuits that just typify in the eyes of the public all that is wrong with the legal system. These lawsuits can make one nuts and wonder whether we have all just gone crazy. A perfect example of such a suit was a case reported by the First Department yesterday entitled Rossman v RCPI Landmark Props., L.L.C., 2007 NY Slip Op 05557. In that case a woman fell while ice skating at the Rockefeller Center ice skating rink. She claimed that her fall was caused by a bump on the ice. She testified that when she first started skating, the surface of the ice was "smooth," but that, after skating for approximately an hour and a half, some 15 minutes before her fall, she observed that the skating surface was deteriorating, and there were ice chips, bumps, and wet spots on the ice. Thankfully the First Department  affirmed a dismissal of the case finding that the woman continued skating after the ice allegedly deteriorated, and she assumed the risk of ice skating. While the case was dismissed, we have to wonder what is it in the psychology of people (and their lawyers) that would lead them to believe that recovery in such a case is even conceivable. One goes ice skating precisely because there is the thrill, excitement, and challenge of trying to retain one's balance on ice. It simply would not be as fun if there were not the prospect of falling. And yes ice does get bumps and chips in it after skating on it. A normal person is able to recognize these realities and would not think of commencing a lawsuit if they fell. Unfortunately cases like this are not all that unusual. Perhaps this blog will highlight more such cases in the future. So what has happened? At some point we fell down that proverbial slippery slope of finding fault and causation where none exists, and we now all find ourselves on the slippery, flat surface of potential liability for every conceivable occurrence, and are heads are literally spinning. It is time for us to collectively start climbing back up that slope where we can regain our perspective.

Court Not Obligated To Provide Electronic Monitoring Equipment To Criminal Defendant Who Forfeits Right To Be Present At Trial

Today in People v Young, 2007 NY Slip Op 05558, the First Department reiterated a previous holding that when a defendant forfeits his right to be present at trial, a trial court is not obligated to acquire and employ some type of electronic communication device so that the defendant can monitor the proceedings. In the case at issue, the defendant was briefly excluded from jury selection proceedings. The defendant did not preserve the issue for review. But the First Department indicated that if it were to review the issue it would reject the defendant's contention.

Law Schools Being Ranked By Blogs

As reported in LexBlog Blog, an interesting article appears today in the Wall Street Journal about how blogs are now ranking law schools. And what's more, prospective students are finding the information in such blogs more valuable than traditional ranking sources. One such blog was started by a Notre Dame Law School Graduate who began visiting law school student message boards, and who invited students to provide figures on school representation in law firms' summer-associate programs, as well as where federal appeals clerks went to school. The information is posted on lawfirmaddict.blogspot.com and lawclerkaddict.blogspot.com. Another ranking blog was created by a University of Texas-Austin law professor who posts lists ranging from Supreme Court clerkship placement to scholarly reputation: www.leiterrankings.com

As the LexBlog Blog post states:

Just another example of bloggers with first hand expertise being a more valuable source of information than long standing traditional sources. As people become more comfortable with alternative sources of information you can expect blogs to provide even more valuable information.

Bravo to these bloggers! The more sources of information the better.

Judges Preparing Suit For Salary Hike

As reported in Law.com, attorneys for various judges' organizations are drafting a lawsuit to force the Governor and the Legislature to give state judges a pay raise, their first since January 1999. The complaint is being drafted on a pro bono basis by Chadbourne & Parke partners Thomas Bezanson and George Bundy Smith, a former judge on the Court of Appeals. Groups backing the suit so far are the Board of Judges of the Civil Court of the City of New York, state Family Court Judges Association, the New York City Family Court Judges Association, and the city Criminal Court Judges Association. The Association of Supreme Court Justices of the State of New York will discuss the possibility of backing the litigation during a meeting July 11. 

New York City Process Server May Lose License For Filing False Affidavit Of Service Outside New York City

The New York City Department of Consumer Affairs (DCA) licenses process servers in the City. What happens if a process server files a false affidavit of service outside of the City. Can the Department of Consumer Affairs take away his license? Last week, the Second Department in Matter of Laureiro v New York City Dept. of Consumer Affairs, 2007 NY Slip Op 05509 held that it could. The process server at issue had served process in Connecticut relating to a matrimonial action in Westchester County. In response to a complaint that the process server filed a false affidavit of service, the DCA requested a written explanation from the process server and issued a subpoena commanding him to appear before it and to bring copies of certain records. The process server's counsel responded with letters contesting DCA's jurisdiction over issues related to service of process occurring in Connecticut in connection with a Westchester County action. The process server then failed to appear pursuant to the subpoena. DCA then sent the process server a notice of hearing which outlined the charges against him and directed him to appear and show cause why his license should not be revoked.

Prior to the hearing date, the process server commenced a CPLR article 78 proceeding seeking to prohibit DCA from conducting the hearing, based on its alleged lack of jurisdiction over the matter, among other challenges. The Supreme Court declined to issue a temporary restraining order and DCA rescheduled the hearing. The process server failed to appear at the hearing, and the Hearing Officer found him guilty, upon default and revoked his license. The petitioner then amended his article 78 petition to seek review of the DCA determination.

On appeal in the Second Department, the Court rejected the process server's argument that the DCA lacked jurisdiction to revoke his license. The Court noted that the DCA was charged with the maintenance of standards of integrity, honesty, and fair dealing among persons engaging in licensed activities (see Administrative Code of City of NY § 20-101). And it stated that the filing of a false affidavit of service in any location was relevant to a licensee's fitness to serve process in the City of New York. Moreover, it noted that pursuant to Administrative Code § 20-104, the Commissioner of DCA was authorized, upon due notice and a hearing, to impose penalties:

for the violation of . . . any of the provisions of any . . . law, rule or regulation, the enforcement of which is within the jurisdiction of the department . . . provided that such violation is committed in the course of and is related to the conduct of the business, trade or occupation which is required to be licensed (NYC Admin Code § 20-104 [e][1]).

It stated that the filing of a false affidavit of service was a violation of DCA Rules committed "in the course of" and "related to" the conduct of the occupation of process server, regardless of which county the affidavit is filed in or where the service allegedly occurred. Thus, DCA had the jurisdiction to hold the hearing into the process server's continued fitness to hold his DCA license and to issue its determination upon the process servers' default.