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 In People v. Stuckey, Anderson Stuckey was accused of having sexual intercourse with his young daughter over the course of two years.
When the child finally disclosed to a teacher what her father had supposedly been doing, Stuckey objected to the use of his daughter's statements as "hearsay" -- utterances lacking appropriate evidentiary value (and thus unusable in a court of law).
When he was convicted of "sexual conduct against a child in the first degree, criminal contempt in the first degree (five counts), criminal contempt in the second degree (two counts)" and sentenced to a 16-year term, he appealed.
The Appellate Division, First Department, found the child's statements qualified under the "prompt outcry" exception to the hearsay rule.
"An outcry of rape is prompt if made at the first suitable opportunity and is a relative concept dependent on the facts." Given the victim's young age, and fear of revealing her father's misconduct, the AD1 concluded the minor's statements -- made some three days after the last attack -- fell within the law's exception.
No outcry there.
 To download a copy of the Appellate Division's decision, please use this link: People v. Stuckey
 In People v. Henderson, Brian Henderson was convicted of attempted assault in the first degree and sentenced -- as a second felony offender -- to 16 years to life.
Apparently, a fight broke out at Rikers Island, causing injury to Pablo Pastrana, a fellow inmate. Henderson was implicated in the incident and was tried for attempted assault. When Pastrana claimed Henderson wasn't the inmate who attacked him, prosecutors questioned Pastrana's credibility and suggested he was lying because he was intimidated by Henderson. That theme continued through summation when a prosecutor proclaimed to the jury, "[s]nitches get stitches," and that the case was about Henderson's "arrogance and thinking that no one would be here to testify ... against him. He got the victim [Pastrana] to testify for him."
Once summations ended, the defense asked the judge for a mistrial, claiming that the prosecutor improperly implied Pastrana had been coerced into testifying in Henderson's favor. That request was denied by the Bronx County Supreme Court.
On appeal, the Appellate Division, First Department, could discern no prejudice caused by the prosecutor's trial tactics and noted it was appropriate on cross-examination to inquire whether Pastrana's testimony had been forced.
A lone dissenter -- Justice Catterson -- was of the opinion reversal was warranted since the defendant had been "substantially prejudiced by the People's improper comments." Catterson noted that, without evidence of intimidation by Henderson, prosecutors lacked a "good faith basis to question [Pastrana's] credibility."
Will the Court of Appeals be doing some stitching of its own?
To download a copy of the Appellate Division's decision, please use this link: People v. Henderson
 In Santo B. v Roman Catholic Archdiocese of N.Y., it was claimed that Rev. William White -- a monsignor associated with the Roman Catholic Archdiocese of New York -- sexually abused Santo B. for three years while he was altar boy at Holy Family Church.
When the Archdiocese sought to dismiss Santo's case on the ground that it was "time-barred," Santo contended that the limitation didn't apply since the Archdiocese engaged in a "practice of concealing the problem."
When the Westchester County Supreme Court dismissed his case, Santo appealed to the Appellate Division, Second Department.
The AD2 noted that Santo was required to file his suit no later than his 21st birthday, which was on October 16, 2001. Because he waited until 2005, the time to start his case had long since passed.
The appellate court was also of the opinion Santo was unable to establish the Archdiocese "engaged in affirmative wrongdoing, fraud, deception, or misrepresentations," which stopped him from timely filing his case. And, finally, while he also alleged "insanity" -- which might have stopped the clock from running -- Santo was unable to show an inability "to protect his legal rights because of an overall inability to function in society."
Spirito Santo!
 To download a copy of the Appellate Division's decision, please use this link: Santo B. v Roman Catholic Archdiocese of N.Y.
 In Castro v. City of New York Dept. of Educ., Nicholas Castro -- a three-year old "special needs" student -- was allegedly attacked on three separate occasions by another student while at school.
When an assault ultimately resulted in a broken femur, Castro filed suit alleging that school officials had failed to adequately supervise the child who injured him.
When the New York County Supreme Court denied the New York City Department of Education's (DOE) request to dismiss the case, DOE appealed to the Appellate Division, First Department.
Since there were unresolved questions as to whether the school provided adequate supervision under the circumstances, the AD1 concluded that the case needed to proceed to trial.
Viva Castro!
 For a copy of the Appellate Division's decision, please use this link: Castro v. City of New York Dept. of Educ.
 In Louis v. Knowles, the Estate of Louis filed suit to recover damages for personal injuries sustained by a 17 year-old child who was assaulted "by a gang of youths" in a New York City subway car.
The attack reportedly resulted in neck and face lacerations which required over 100 stitches.
Following a jury trial, the Kings County Supreme Court found the New York City Transit Authority (NYCTA) 30% at fault for the incident.
On appeal, the Appellate Division, Second Department, concluded that without a "special relationship," the NYCTA had no duty to protect the child, nor was it demonstrated that NYCTA failed to "exercise reasonable care under the circumstances."
With that, the AD1 derailed the Estate's recovery.
(Did NYCTA avert a train-wreck?)
To download a copy of the Appellate Division's decision, please use this link: Louis v. Knowles
 In Kielbasa v. Stonehurst III Association, Michelle Kielbasa sued her landlord after she was attacked in her apartment by an "intruder."
When the Suffolk County Supreme Court denied Stonehurst’s motion to dismiss the case, an appeal to the Appellate Division, Second Department, followed. The AD2 found that Kielbasa failed to establish that her landlord had breached a duty to provide adequate security. In order to recover damages for her injuries, Kielbasa needed to show that “the owner knew or should have known of the probability of criminal conduct … likely to endanger the safety of those lawfully on the premises.” Despite prior "nonviolent offenses" -- such as “peeping Toms, trespassers," and other activities which required "police intervention" -- the AD2 didn't believe those incidents were enough to put Stonehurst on notice that a violent attack could occur on the premises. With that, Kielbasa's case was cooked. To download a copy of the Appellate Division’s decision, please use this link: Kielbasa v. Stonehurst III Association
 In Lynch v. Dobler Chevrolet, Brenda Lynch was injured in a car accident involving James Schnitzer.
After a negligence suit was filed, Schnitzer asked the Queens County Supreme Court to dismiss the case since Lynch had violated the State’s Vehicle and Traffic Law when she made a left turn directly into the path of Schnitzer’s vehicle. Schnitzer testified that he was traveling no faster than 40 m.p.h., while a nonparty eyewitness claimed that Schnitzer was driving at least 85 m.p.h. immediately prior to the collision. Despite this conflicting evidence, the Supreme Court granted Schnitzer’s request to end the dispute and an appeal to the Appellate Division, Second Department, ensued. Since a lay witness is “ordinarily permitted to testify as to the estimated speed of an automobile based upon the prevalence of automobiles in our society and the frequency with which people view them at various speeds,” the AD2 concluded that Schnitzer’s rate of speed was an issue which should have been left for a formal hearing or trial. Now that the case is reinstated, is Schnitzer going get Lynched? To download a copy of the Appellate Division’s decision, please use this link: Lynch v. Dobler Chevrolet
 After renting out his basement for four months, Norman Beckford approached his tenant and gave him a week to find a new place.
Inexplicably, the next night, the tenant returned to find his belongings in the driveway. In response to ten minutes of banging on his door, Beckford reportedly lunged at the tenant with a machete and struck him four times. When the Queens County Supreme Court found Beckford guilty of assault in the second degree and criminal possession of a weapon in the second degree, he appealed to the Appellate Division, Second Department, contending that he acted with “criminal negligence,” since he lacked the intent to cause “serious physical injury or physical injury,” and that the jury should have been instructed on “the justifiable use of ‘physical force’ and ‘deadly physical force’.” Because he attacked the tenant multiple times with a five pound machete, the AD2 didn’t believe Beckford was using "anything other than deadly physical force.” Nor did the appellate court find a “justification charge” was supported by the evidence. Anybody want to take a stab at that? To download a copy of the Appellate Division’s decision, please use this link: People v. Beckford
 In People v. Doyle, Shawn Doyle was convicted of second degree murder after the body of his ex-girlfriend -- who had been missing for 10 weeks -- was discovered inside a chest floating in the Champlain Canal.
Around the time she disappeared, Doyle agreed to help his ex-girlfriend move into a new apartment and accompanied her to the bar where she worked. She left the establishment with a patron whom she had been dating and then later reconnected with Doyle. According to reports, Doyle was the last person to see her alive. The victim had been gagged with a bandana and her mouth had been taped shut. Her hands and feet were handcuffed, her body wrapped in a comforter, and she was stuffed into a trunk along with sand tubes for weight. (An autopsy revealed that she had suffocated.) After the County Court of Washington convicted Doyle of second degree murder and sentenced him to 25 years to life, Doyle appealed to the Appellate Division, Third Department, claiming that the evidence was legally insufficient and that the verdict was against the weight of the evidence. But the circumstantial evidence established to the contrary. According to the AD3: (1) Doyle had purchased the chest less than a week before the victim’s disappearance; (2) the key to the chest was found in his truck’s glove compartment; (3) sand tubes and handcuffs matching those used in the crime were found at Doyle’s home; (4) bandanas found at Doyle’s home were similar to the one used to gag the victim; (5) testimony from Doyle’s friend said she had seen the chest in Doyle’s car, asked about it, and was told it was for fishing, even though Doyle didn’t fish; and (6) when Doyle stopped at the witness’ house after his trip with the victim, Doyle wasn't wearing his bandana.
Doyle’s convictions for menacing (after he had pushed and choked a former girlfriend), and for unlawful imprisonment (when he duct-taped the mouth of another former girlfriend, choked and strangled her), together with the abusive nature of his relationship with the victim, were all properly considered. As the AD3 noted: Evidence regarding (Doyle’s) prior abusive and threatening behavior toward the victim herself, while prejudicial, was legally relevant and material to issues aside from (Doyle’s) propensity to commit murder, namely, motive, intent, identity and relevant background information, and its probative value in this circumstantial evidence case outweighed its potential prejudice … Prior incidents, which do reveal a sufficiently distinctive crime pattern, were properly admitted to establish defendant’s motive and identity as the victim’s murderer.
"Shiver my timbers!" To download a copy of the Appellate Division’s decision, please use this link: People v. Doyle
 In Piazza v. Regeis Care Ctr., LLC, Nancy Piazza sued Regeis Nursing Home for “failing to maintain a safe environment” after she was attacked by a sibling while visiting their mother at the Home.
Since Regeis had been warned of her brother’s drug problems and requests had made (both orally and in writing) that he be banned from the facility, Piazza claimed the Home could have prevented the assault. Regeis countered that the letter and warnings only put them on notice of her brother’s drug abuse and “unsavory” disposition, but never about any violent tendencies. The Bronx County Supreme Court granted Regeis’ motion to dismiss the case based on Piazza’s failure to express discomfort with her brother’s presence prior to the assault and -- because he had never previously attacked a family member -- the confrontation wasn't foreseeable. In view of her failure "to raise any triable issues of fact as to whether she was lulled into any false sense of security” after giving Regeis those warnings, the Appellate Division, First Department, affirmed the suit's dismissal. In other words, Regeis reigned Supreme, while Piazza suffered a knock out. 
To download a copy of the Appellate Division’s decision, please use this link: Piazza v. Regeis Care Ctr
 In Esteves v. City of New York, John Esteves filed suit for injuries sustained in a shooting incident on New York City Housing Authority property.
The Housing Authority alleged the security system installed by Stonewall Contracting Corporation was inadequate and asked the court for an order dismissing the case or finding Stonewall liable according to the terms of an indemnification agreement. Stonewall, on the other hand, sought to be released from the case. The Bronx County Supreme Court denied the Housing Authority’s motion, but granted Stonewall’s request. When the Housing Authority appealed, the Appellate Division, First Department, affirmed the lower court’s decision in its entirety. The AD1 found that Esteves’ testimony, that none of the locks in the building worked, had been buttressed by a Housing Authority’s superintendent who confirmed “that there was a pervasive problem with the locking mechanisms on the doors throughout the project.” (And, although Esteves wasn’t shot in the building, the AD1 didn’t believe that negated the Housing Authority’s liability in this particular instance.) As for the Housing Authority’s contractual indemnification claim, the AD1 didn’t bite. Stonewall had agreed to indemnify the Housing Authority for damages “resulting directly or indirectly from the Work of the Contractor, or his subcontractors, in their performance of this Contract,” and there was no showing that the building’s locks were inoperable because of Stonewall’s “work.” In fact, vandalism -- an act excluded by the parties’ contract -- was to blame. And, finally, since Esteves and Stonewall were not in privity and the latter owed no duty to him, the AD1 concluded Stonewall was entitled to dismissal. Was Esteves stoned by Stonewall? 
For a copy of the Appellate Division’s decision, please use this link: Esteves v. City of New York
 When her eight-year-old autistic son came home from school with bruises, a Brooklyn mother placed an audio recording device in her son’s backpack to get some answers. To her shock and dismay, the recording revealed an exchange with her son’s “personal bus matron,” Connie Clark, which evinced abuse.
When Clark was charged with endangering the welfare of a child, she requesed that the audio be "suppressed" -- not admitted into evidence at her trial. According to Clark, the conversation was recorded without her permission or the that of the child and thus violated Penal Law 250.05 -- a law which makes “eavesdropping” a felony.* While the Kings County Criminal Court granted Clark's motion, the Appellate Term, Second Department, reversed. Likening the New York law to a federal wiretapping statute, the AT2 adopted the reasoning of a federal case which addressed wiretapping boundaries. In Pollock v. Pollock (154 F3d 601 [6th Cir 1998]), the Sixth Circuit Court of Appeals held that “when a parent or guardian can demonstrate a ‘good faith, objectively reasonable basis to believe that it was necessary for the welfare of the child to record a conversation,’ a parent may consent to the recording on the child’s behalf.” Because of the overriding public policy to safeguard minors, the AT2 bought a “vicarious consent” argument and found the child’s mother “consented to the recording on behalf of her child” and reversed the suppression order. A lone dissenter disagreed and found the outcome contrary to the law's “plain meaning.” The dissenter observed, “had the legislative intended the result proposed by the majority, it could have included such an exception in the statute.” We consent to your making a record of that. 
To download a copy of the Appellate Term’s decision, please use this link: People v. Clark _______________________ *“Eavesdropping” is defined as the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device of equipment.” Another state law -- CPLR 4506 -- safeguards against eavesdropping by excluding any evidence obtained in violation of Penal Law provisions.
 After an incident which involved attempted oral sexual contact with a minor, Jack Nash pled guilty to attempted criminal sexual act in the first degree and was sentenced by the County Court of Rensselaer County to a seven year prison term with three years of post-release supervision.
Although he waived his right to appeal, Nash contended that the plea wasn't voluntary because he hadn't been told of the long-term implications of being registered as a sex offender. On appeal, the Appellate Division, Third Department, explained that while Nash’s challenge to the voluntariness of his plea survived the waiver, the "consent" component of his claim hadn't been preserved for appellate review. Had it been properly before the court, the AD3 noted that it would have found the argument meritless, as Nash had been advised prior to his plea that he would be required to register as a sex offender upon his release from prison. And even if his contentions were true, since Nash conceded guilt and registration under the Sex Offender Registration Act was a “collateral consequence” of that plea, the court didn't believe that any error impinged upon the voluntariness of his decision. With that, all hopes for Nash were dashed. To download a copy of the Appellate Division’s decision, please use this link: People v. Nash
In People v. Gonzales, Luis Gonzalez appealed from his conviction of “assault in the first degree” on the grounds that a juror had made an unauthorized visit to the crime scene. Gonzales’ showdown initiated in the building's basement and then continued onto the street. Gonzales moved to set aside the verdict when he later discovered that one of his jurors had reportedly visited the exterior area of the crime scene, during the course of the trial, without the court’s permission. Since the charges were distinct and Gonzales had been acquitted of any wrongdoing related to that exterior area, the Bronx County Supreme Court concluded that the juror’s visit had no prejudicial effect on the outcome. On appeal, the Appellate Division, First Department, agreed noting that, if anything, “the juror’s observations inured to [Gonzales’] benefit by contributing to his acquittal of the charges relating to the outdoor incident.” Why wasn't an example made of this meddling juror? In addition to exposing himself to the possibility of bodily injury or harm, the juror could have sabotaged the outcome of the prosecution. We're of the opinion that the AD1 needed to send a clearer message: Overly inquisitive jurors -- like the one in this case -- should stay home, under covers. 
To download a copy of the Appellate Division’s decision, please use this link: People v. Gonzales
 In People v. Palladino, Marie Palladino's attack of her ex-boyfriend caused him to incur a contusion to his scrotum, bruises, and scratches that required a tetanus shot. He also reportedly missed a day of work and was in pain for several weeks.
The New York County Supreme Court convicted Palladino of criminal contempt in the first degree, resisting arrest, assault in the third degree, harassment in the second degree, and, sentenced her to five years' probation. The Appellate Division, First Department, affirmed the outcome and noted “that the injuries were more than mere ‘petty slaps, shoves, kicks and the like …’ and satisfied the element of physical injury.” The AD1 further ruled that the background evidence, which related to orders of protection that had been secured against Palladino, was relevant to motive and intent and “inextricably interwoven with the charged crimes.” We’re finished kicking that one around. To download a copy of the Appellate Division’s decision, please use this link: People v. Palladino
 After spending an afternoon smoking marijuana, five teenagers transitioned to other activities and a fifteen-year old, named Harley Courts, eventually wound up taking a paintball to the eye.
Harley’s parents, acting on his behalf, filed suit in New York County Supreme Court against the parents of Eric Gushee -- in whose apartment the shooting had taken place -- claiming negligent supervision of the teens. The Gushees then sued Vincent DiPilato, the trigger-happy 19 year old, for contribution and/or indemnification. Shortly thereafter, Harley’s parents filed a second case, this time against Eric Gushee, for negligently permitting DiPilato to fire the paintball gun. When the Gushees requested the case's dismissal, the New York County Supreme Court found there was no duty imposed upon a minor to supervise a nineteen-year old and granted the request as against the Gushees’ child. While parents are generally not responsible for their children’s torts, “a parent owes a duty to third parties to shield them from an infant’s improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use.” Under New York law, a paintball gun is classified as an “air gun” and, unless used in an “entertainment facility,” an individual under the age of sixteen can’t own or possess one. Accordingly, the court concluded that, by purchasing the paintball gun and then giving it to their son, the Gushees were negligent as a matter of law, and the only remaining question was whether that violation triggered Harley’s injuries. Since several questions remained unanswered, including whether the DiPilato’s actions as “an adult” absolved the Gushees from liability, the case against the Gushees was permitted to continue. Three guesses who wasn't gushing over that. To download a copy of the Supreme Court's decision, please use this link: Courts v. Gushee
 In Laura I.M. v. Hillside Children’s Ctr., Laura filed a negligence suit against Hillside Children’s Center, a treatment facility for emotionally challenged children.
Sergey R., a minor with a history of “pedophilic behavior,” voluntarily admitted himself to the Center to address his “sexual issues” so he could control his “sexual impulses.” During his stay at the Center, Sergey was listed as a “status 3” client, which meant that he needed supervision at all times, except when bathing, showering, dressing, toileting, or in his room. Hillside’s Social Worker, Wendy Y., repeatedly allowed Sergey to visit his New York City home where he was supposedly being monitored by his mother and older sister. But, in actuality, Sergey’s family members were unable to control Sergey’s “pedophilic behavior” and, inexplicably, Hillside never addressed or discussed that issue with the Sergey's family at any point in time. While in the City, Sergey established a friendship with Laura and her family and, since she was unaware of his condition, Sergey was allowed to babysit Laura’s two infant children. In April of 1998, upon discovering that Sergey had been sexually abusing her offspring, Laura contacted the authorities and later sued the Center alleging negligent failure to exercise professional judgment. After discovery, when Laura moved for summary judgment and Hillside cross-moved for the case’s dismissal, the New York County Supreme Court found that Laura had established a winning case and denied Hillside’s dismissal request. The Appellate Division, First Department, affirmed that outcome on appeal. The AD1 found that Hillside failed to exercise appropriate professional judgment when it permitted Sergey to make home visits without discussing with his mother whether she had the ability to monitor him. Furthermore, Hillside’s failure to take action in response to a letter from Laura that she was “very fond” of Sergey and that she met him “through [her] boys who are now 9-10 and 10-11” and that Sergey “babysat with them extensively,” reinforced the Center’s negligence and comprised an “independent” basis of liability for the abuse that occurred. Does that sound like a little shop of horrors, or what? For a copy of the Appellate Division’s decision, please use this link: Laura I.M. v. Hillside Children’s Ctr.
 Ambroise v. City of New York is the tale of a tooth that met its end in a schoolyard mêlée.
Hassan Ambroise alleged that Shaquan, another pupil of his junior high school, openly harassed him, repeatedly challenged him to a fight and, on two occasions, entered Ambroise’s classroom and provoked him in a teacher's presence. On the day in question, Ambroise solicited help from the teachers present in the school lunchroom after Shaquan leered at him aggressively, but was told “they were busy at the time and ... could not do anything.” Only after Shaquan was observed shoving Ambroise were the boys separated and sent out of the lunchroom in opposite directions. Shortly afterward, Ambroise observed Shaquan, and three adolescent henchmen, approaching him and attempted a preemptive punch. He missed and took a blow to the mouth, breaking a tooth. Ambroise later filed suit against the City of New York in the Kings County Supreme Court seeking to recover damages for personal injuries premised on a “negligent supervision” theory. When the Supreme Court denied the City's motion to dismiss the case, the "Big (bruised) Apple" appealed to the Appellate Division, Second Department. While the negligent supervision theory would be inapplicable if Ambroise had been a voluntary participant in the altercation, since he raised triable issues of fact regarding his need to resort to self-defense, the AD2 was of the opinion that the City’s request had been properly denied and that the parties needed to battle it out some more at a formal hearing or trial. 
If you ask us, Ambroise has a lot to be thankful for this holiday season. (But he needs to be in better shape for the next round!) To view a copy of the Appellate Division's decision, please use this link: Ambroise v. City of New York
 New York’s highest court issued a decision which Assembly-member Dale Volker, the original sponsor of the statute, called the “last nail in the coffin” for our state’s death penalty law.
People v. Taylor involved the headline-grabbing case of John Taylor and Craig Godineax, convicted of killing five people, execution-style, in a Wendy’s restaurant back in 2000. Death penalty advocates and opponents closely tracked this case to see if the Court of Appeals would uphold its 2004 decision in People v. LaValle, which involved a schoolteacher stabbed to death with a screwdriver after she chastised LaValle for urinating in public. In a 4-3 decision, the court hobbled the death penalty by striking down the law's “deadlock provision” while finding that it was inseverable from the statute as a whole and thus required that the law to be rewritten by the Legislature. The “deadlock provision” required an instruction to juries -- should they deadlock over death or a life sentence without parole -- that judges were required to sentence the criminal defendant to a 20-25 year term, with the possibility of parole. And, as it did in LaValle, the Court of Appeals in Taylor found the provision to be unconstitutional “because of the risk that it might coerce jurors into giving up their conscientious beliefs in order to reach a verdict.” (The court noted that our death penalty statute was the only one in the entire country that required an instruction to the jury that, if a unanimous decision could not be reached, the judge was required to hand down a more lenient sentence.) The nuance presented in Taylor was that trial court judge in that case had instructed the jury that if they were to reach a deadlock he would “almost certainly” sentence Taylor to 175 years in prison, thus deflating the concern that the jury would feel coerced to vote for death to avert the possibility of parole. In its decision, the Court of Appeals rejected the trial judge’s attempt to cure the law's defect because “doing so would condone a trial court’s remaking of an unconstitutional statute into a new statute not subject to the legislative process.” The court also applied the venerable judicial doctrine of stare decisis deferring to its decision in LaValle. In a rebuke of the court’s 3-4 decision, Judge Read -- a dissenter -- wrote, “fair-minded citizens might well be forgiven for wondering whether [this court] is simply unwilling ever to uphold a death sentence, no matter how the law is written (or may be rewritten), no matter how carefully the trial judge and the jury carry out their responsibilities.” The New York State Legislature may also share that bewilderment for it has been unable to craft a bill correcting the law's constitutional infirmities. Could our Assembly be deadlocked? (And, what instruction need we give them?) To download a copy of the Court of Appeals's decision in this case, please use this link: People v. Taylor
 Lisa Steinberg died on November 4, 1987, at age 6, after receiving a blow that was “equivalent to a fall from a tall flight of stairs or third-story window.”
Lisa’s father, Joel Steinberg, was convicted of manslaughter in the first degree and a $15 million judgment was later secured against him by the administratrix of Lisa’s estate. In that lawsuit, two causes of action alleged acts of prior abuse while a third asserted that Steinberg knew of Lisa’s life-threatening injury and recklessly and dangerously failed to obtain medical treatment for her. In reaching its decision, the New York Supreme Court invoked the legal doctrine of “collateral estoppel” and granted relief on those three claims based on Steinberg’s manslaughter conviction. Of the $15 million awarded, $5 million was for Lisa’s pain and suffering in the hours before her death, $5 million was for pain and suffering from past abuse, and $5 million was in punitive damages. In a 3-2 decision -- that made no attempt to disguise the repulsion for Steinberg’s insensitive submissions made to the court -- the Appellate Division, First Department, affirmed the judgment. On appeal to the state’s highest court, the case was remitted to the Supreme Court for further proceedings. "Collateral estoppel" requires that there be an “identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling.” In this case, while evidence of past physical abuse was presented at the criminal trial, Steinberg had not been given ample opportunity to contest that evidence, nor had reason to do so, as the past abuse was not the basis of the criminal charges against him. As a result, the Court of Appeals concluded that a new trial was warranted. Horrific. To view a copy of the Court of Appeals's decision, please use this link: Launders v. Steinberg To view our prior post on this topic, please use this link: $15M JUDGMENT AGAINST JOEL STEINBERG, STANDS
 In Barbara E. v. John E., the New York County Family Court granted Barbara a two-year order of protection as against John.
According to the decision, John had committed a number of offenses which, if prosecuted in criminal court, would have constituted assault in the third degree, harassment in the second degree, and attempted assault in the third degree. The testimony established that John had knocked Barbara unconscious, verbally abused her on a daily basis, hit her, and, threw things at her when he was irate. The court noted that an order of protection protecting Barbara from this tempestuous treatment was necessary as she was wheelchair bound and undergoing cancer treatments. Yet, the court declined Barbara’s request to exclude John from the family home. And that same judge issued a two-year order of protection in John's favor based upon Barbara's admission that she had slapped him. While the Appellate Division, First Department, found that the order of protection against Barbara was appropriate given her admission, it was also of the opinion that excluding John from the family home was necessary to “eradicate the root of the family disturbance.” Try kicking that one around. To download a copy of the Appellate Division's decision, please use this link: Barbara E. v. John E.
 After their house had been fired upon in a drive-by paintball attack, Russell Accetta and his son got into their car and gave chase. Upon catching up to the vehicle, Accetta approached the perpetrator and hit him twice over the head with an aluminum baseball bat.
Because of the extensive delay in prosecuting the criminal case, Accetta moved to dismiss the charges on “speedy trial” grounds. According to Accetta, the prosecution failed to conduct a trial within 184 days of the felony complaint’s filing. After Accetta was convicted of assault in the third degree, harassment in the second degree, and criminal possession of a weapon in the fourth degree, he appealed to the Appellate Term, Second Department, which affirmed. It was conceded that 166 days -- from March 7, 2004 to August 10, 2004 -- were chargeable to prosecution. But since the balance of the time was in dispute, the court examined the reason for the postponements so that it could address whether or not the additional time was also assessable to the prosecution. Although the government had requested a 10-day adjournment to August 20, the time period between August 20 and September 1 was excludable since it had been requested by Accetta’s codefendant. While Accetta argued that the period December 20, 2004 through January 10, 2005 was also attributable to the prosecution, the AT2 did not fully agree, since a part of the delay had been triggered by lack of availability of a jury until January 3, 2005. While Courts will exclude delays occasioned by “exceptional circumstances,” including the unavailability of a material witness, the People must exercise “due diligence” in procuring the attendance of said witness for trial. As a result, the period January 3 to January 10 was chargeable to the prosecution since it had failed to exercise that diligence by not subpoenaing its witnesses. The remaining time period under challenge -- from May 23, 2005 through June 6, 2005 -- was excluded from the calculation since it comprised a reasonable time for trial preparation once Accetta’s speedy trial motion had been denied by the court below. After adding up all the days chargeable to the People (183 days), Accetta fell one (1) day short of the required number to get the case dismissed, thus compelling denial of his speedy trial motion.
As to Accetta’s contentions that the evidence was insufficient as a matter of law to establish his guilt of “reckless assault in the third degree” and that the prosecution failed to disprove his justification defense, AT2 was of the opinion that the outcome was supported by the record and consistent with the evidence presented at trial. We bet a day doesn't go by without the defendant regretting this one. For a copy of the Appellate Term's decision, please use this link: People v. Accetta
 You've already heard about the incident and seen the video involving Andrew Meyer, a 21-year old University of Florida student who was tasered by police for disrupting an on-campus speech being given by Senator John Kerry.
Meyer has his own website, and a reputation for being a practical joker, but this time the kid took it a bit too far. Meyer's wailing and theatrics, as officers tried to escort him out of the auditorium, were "over the top." (And, if it wasn't a publicity stunt, the kid's response suggests that he suffers from a form of mental illness which needs to be examined.) Meyer faces an array of criminal charges (for disrupting the event), and there's also the possibility of suspension or expulsion from the University. And, frankly, after seeing the video of the arrest, we have no sympathy for the guy. As CNN Host Nancy Grace has been known to proclaim, "HE SHOULD FRY!" Undeniably, officers overreacted when they tasered the big lug (and will likely face discipline and a civil lawsuit for that conduct), but that doesn't excuse Meyer's misbehavior. The University's Student Conduct Code is clear. Students are not permitted to disrupt school related events, engage in violative on-campus demonstrations, and/or breach the peace.* An example needs to be made, and a message sent to others, that this kind of behavior will not be tolerated. There's a time and place for expressing oneself. This wasn't it. To download a copy of the video, please use this link: Andrew Meyer's arrest Now watch: We're willing to bet the kid gets offered a lucrative job with some comedy show, or ends up with a multi-million dollar book and movie deal. (We could just see him doing shtik for the likes of Howard Stern. Sad, no?) -------------------------- *(j) CONDUCT DISRUPTIVE TO THE UNIVERSITY COMMUNITY.
Conduct that is disruptive to the University's educational objectives, to its operations, or to its officials, staff, and faculty in the performance of their work, or to any other aspect of its mission. Such conduct includes, but is not limited to:
1. Disruption of a class, University activity, or any other normal activity held on University property or at a University location.
2. Classroom behavior that interferes with either (a) the instructor's ability to conduct the class or (b) the ability of other students to benefit from the instructional program.
3. Violation of the Campus Demonstration Regulation, Regulation 6C1-2.002.
4. Conduct which is disorderly or a breach of the peace. * * * DEMONSTRATION POLICY UNIVERSITY OF FLORIDA; CAMPUS DEMONSTRATIONS
1. Demonstrations may be held anywhere on the campus, so long as they do not disrupt the normal operation of the University community, except that no demonstrations are permitted inside University buildings. Although no specific areas on the campus are designated for the purpose of demonstrations or impromptu speeches, exclusive use of the Plaza of the Americas for this purpose may be obtained by prior clearance through the Office of Student Activities (300 JWRU). Any use of sound amplification equipment on the campus must also have prior clearance through this office. 2. In order that demonstrators not interfere with the operation of the University or the rights of others, they shall not:
a. obstruct vehicular, bicycle, pedestrian, or other traffic;
b. obstruct entrances or exits to buildings or driveways;
c. interfere with educational activities inside or outside the building;
d. harass passersby or otherwise disrupt normal activities;
e. interfere with or preclude a scheduled speaker from being heard;
f. interfere with scheduled University ceremonies or events; or
g. damage property, including lawns, shrubs, or trees.
 In Eves v. Ray, William Eves engaged in a campaign of “deliberate and malicious harassment and intimidation” against John Ray, his former wife’s attorney.
After a jury awarded Ray $300,000 in compensatory damages based on “intentional infliction of emotional distress,” a Suffolk County Supreme Court Judge granted the defendant's motion to set aside the verdict unless Ray agreed to accept the reduced sum of $50,000. On appeal, the Appellate Division, Second Department, further reduced the award to $25,000. According to the AD2, Eves’s actions -- which included multiple attempts to intimidate Ray by stalking him and threatening him with physical and financial harm -- were sufficiently “extreme and outrageous” so as to constitute intentional infliction of emotional distress. And even though this conduct persisted after Ray obtained a temporary order of protection against Eves, the AD2 still thought that $50,000 was “excessive” under the given circumstances. According to the Stalking Resource Center of the National Center for Victims of Crime, "stalking" -- a course of conduct intended to induce fear in another -- is widely recognized as a form of violence which can have significant emotional and economic impact on a victim. Here are just a few of the pertinent stats: roughly 1 million women and 400,000 men are stalked each year in the U.S.; more than 8 million women (8 percent) and 2 million men (2 percent) will be stalked at some point during their lives; the conduct lasts, on average, nearly two years; and 25 percent of victims lose time from work dealing with the problem.
In view of these facts and figures, doesn't a $25,000 recovery strike you as a bit low? To download a copy of the Appellate Division's decision, please use this link: Eves v. Ray
 In Martinez v Higher Powered Pizza, Inc., Rafael Martinez was injured by a bicycle deliveryman who was transporting pies for Higher Powered Pizza (HPP), a Papa John’s franchisee.[1]
After Martinez filed a personal injury suit against HPP and Papa John’s in the New York County Supreme Court, Papa John’s moved for summary judgment contending that it could not be held liable for the damages sustained. Even though Papa John’s submitted a franchise agreement, which demonstrated that the company reserved limited control over HPP's business operations, the Supreme Court concluded that the franchiser's motion was prematurely made and that discovery should continue. On appeal, the Appellate Division, First Department, reversed. Since Papa John’s didn't oversee the delivery process or the personnel employed by HPP for that purpose, and Martinez had only offered “surmise and conjecture” in opposition to the motion, the appellate court was of the opinion that Papa John’s couldn't be kept in the mix (or forced to fork over any dough). Did the AD1 “taste the difference," or was it just plain "amore?" To download a copy of the Appellate Division's decision, please use this link: Martinez v Higher Powered Pizza, Inc.
[1] According to its annual report, as of December 31, 2006, there were 3,015 Papa John’s restaurants in operation throughout the world; 588 being company-owned and 2,427 franchised establishments.
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