United States ex. rel. Grupp v. DHL Express, Inc.

In this qui tam suit, Kevin Grupp and Robert Moll appealed the district court’s decision to dismiss their action for failure to satisfy a statutory notice requirement. Grupp and Moll, appellants, brought this action against DHL Express, Inc. (“DHL”) under the False Claims Act (“FCA”), alleging that DHL billed the United States jet-fuel surcharges on shipments that were transported exclusively by ground transportation.

From 2003 to 2008, DHL provided delivery services to the General Services Administration, the Department of Homeland Security, and the Department of Defense. During this time, DHL offered Air Express Services—Same Day, Next Day, Second Day—and a Ground Delivery Service. Customers who purchased one of the Air Express Services were charged a jet-fuel surcharge, and those who purchased the Ground Delivery Service were charged a diesel-fuel surcharge. Appellants alleged that the government was charged a jet-fuel surcharge, even though the shipment was transported exclusively by ground transportation. They also alleged that DHL knowingly defrauded the U.S. government because they included the jet-fuel surcharge for Air Express Services as a matter of common practice, regardless of the actual means of transportation used.

The district court dismissed the suit for failing to satisfy the statutory notice requirement which provides that a shipper must request the Surface Transportation Board to review disputed charges within 180 days of receipt. However, such a claim can also be brought under the FCA. The issue before the court was whether a failure to comply with the statutory notice requirement of 49 U.S.C. section 13710 (b) (3) (B) also bars a shipping-rate challenge before a federal court when brought pursuant to the FCA.

The FCA allows an individual, known as a relator, to bring a civil qui tam action alleging that the defendant presented a false or fraudulent claim for payment against the United States. The court agreed with the government that application of the 180-day rule to qui tam actions would undermine both the FCA’s privacy provisions and statute of limitations. When Congress amended the FCA to include the tolling provision with a three-year statute of limitations, it said that fraud was deceptive by nature and such tolling was necessary to ensure the government’s rights are not lost through a wrongdoer’s successful deception. The circuit court vacated the district court’s ruling on the ground that the 180-day rule cannot apply to a qui tam action under the FCA and remanded the case to the district court.
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742 F.3d 51 (2d Cir. 2014)

Starr Int’l Co., Inc. v. Fed. Reserve Bank of N.Y.

The appeal considered whether a breach of fiduciary duty cause of action could be brought against the Federal Reserve Bank of New York (“FRBNY”) over its rescue of American International Group, Inc. (“AIG”) during the fall 2008 financial crisis. The plaintiff-appellant, Starr International Co., Inc., (“Starr”), commenced this suit in the Southern District of New York alleging direct and derivative claims against FRBNY for breach of fiduciary duty and for aiding and abetting AIG’s officers in breaching their fiduciary duties. The district court dismissed the suit for two reasons: (1) Starr did not plead adequately in accordance with Rule 12(b)(6) that FRBNY was a fiduciary to AIG under Delaware law, and (2) Delaware fiduciary duty law is preempted and does not apply to the challenged actions. Starr, 906 F. Supp. 2d at 214-15, 252. Starr appealed.

Of central importance in this case were the facts that Starr was a principal shareholder in AIG, and, in 2008, AIG faced liquidity stress during the financial crisis because of collateral calls, Lehman Brothers’ bankruptcy, and AIG’s downgraded credit rating. As a result, to avoid bankruptcy, AIG entered into a rescue arrangement with FRBNY. As one of twelve regional federal reserve banks, FRBNY conducts important governmental functions regarding the general fiscal duties of the United States.

The arrangement between AIG and FRBNY provided a credit facility from FRBNY of $85 billion at an initial interest rate of 14.5% and required AIG to give the federal government 80% interest in AIG common stock to be held in trust. After the deal was made, Edward Liddy, who was alleged to have been under control of FRBNY, replaced the existing AIG CEO. In its pleadings, Starr alleged that FRBNY caused a special vehicle called Maiden Lane III to be used to purchase $62 billion in assets from AIG credit default swap counterparts at full par value and challenged FRBNY’s involvement in the trust operations that held AIG common stock.

The Second Circuit held that state fiduciary duty law is preempted by federal common law; therefore, Starr did not pled a plausible claim under Rule 12(b)(6), and the court dismissed the complaint. The court reasoned that Delaware fiduciary duty law did not apply to FRBNY’s rescue activities because of the federal interests at stake, which would have been compromised by the application of state law. In fact, the court looked to Supreme Court precedent and concluded that displacement of state law by federal common law occurs in areas of “uniquely federal interests” when “a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law.’” Boyle v. United Techs. Corp., 487 U.S. 500, 504-07 (1988). The court reasoned that if FRBNY were a fiduciary of AIG under Delaware law, that private duty would be in significant and direct conflict with FRBNY’s obligation to act in the public interest as a fiscal agent of the United States and to take action in unusual and exigent circumstances. The court affirmed the judgment of the district court and granted FRBNY’s motion to dismiss Starr’s complaint.
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742 F.3d 37 (2d Cir. 2014)

Union Square Park Community v. New York City Department of Parks and Recreation

This case arose when Plaintiff challenged Defendant’s agreement with Chef Driven Market, LLC (“CDM”) permitting CDM to operate a seasonal restaurant in Union Square Park for a term of fifteen years.

In 2012, the New York City Department of Parks and Recreation (“Department”) executed a written “license agreement” with CDM. This agreement allowed CDM to operate a seasonal restaurant every day from 7:00 a.m. until 12:00 a.m. from mid-April to mid-October. However, the Department retained extensive control over CDM’s operation of the restaurant. In addition, the agreement contained a termination clause, which allowed the Department to terminate the agreement at will at any time as long as the reason was not arbitrary or capricious.

Plaintiff challenged the licensing agreement by alleging that the agreement violated the public trust doctrine in two ways. First, the restaurant constituted a non-park purpose and was therefore unlawful absent legislative approval. Second, the licensing agreement constituted a lease, making it an improper alienation of parkland.

The public trust doctrine prohibits a city from converting dedicated parkland to a non-park purpose for an extended period of time absent approval from the state legislature. The court, recognizing that restaurants have long been operated in parks, ruled that a restaurant could constitute a valid park purpose. Further, the court acknowledged that the Department enjoys broad discretion to choose among alternative valid park purposes. Plaintiff’s facts only proved a difference of opinion as to the best use of the park land and not that it was a non-park purpose. Accordingly, the court dismissed Plaintiff’s first claim.

While it is unlawful for the Department to lease parkland without legislative approval, it may execute a license without violating the public trust doctrine. Courts generally view an agreement that reserves the grantor the right to cancel whenever it wishes as a license. The court found that the agreement between CDM and the Department reserved the Department significant control over CDM’s daily operations. Further, the agreement contained a termination clause which allowed the Department to cancel at any time. Because of these elements, the court dismissed Plaintiff’s second claim.
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2014 WL 641518, 2014 N.Y. Slip Op. 01207

Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc.

The plaintiff, Gurumurthy Kalyanaram (“Kalyanaram”), was a professor in the School of Management at the New York Institute of Technology (“NYIT”) and a union member of the American Association of University Professors (“the Union”). In 2007, following an investigation into sexual harassment and racial discrimination complaints by students, NYIT terminated Kalyanaram. Kalyanaram challenged the termination through arbitration, provided for in the Union’s collective bargaining agreement (“CBA”). The arbitration culminated in a decision that there was just cause under the CBA to terminate Kalyanaram. In October 2009, the arbitrator issued a Final Award adopting the earlier decision. The arbitrator later issued additional orders for NYIT to comply with provisions allowing Kalyanaram interim pay and letters of recommendation to potential employers.

Kalyanaram filed a petition in New York Supreme Court to vacate the Final Award, but the court denied his petition. Nine months after the Final Award, while Kalyanaram’s appeals in state court were still pending, he filed a complaint against the Union alleging breach of the duty of fair representation during the arbitration. The district court dismissed Kalyanaram’s claim as time-barred, and Kalyanaram appealed.

The circuit court noted that the appropriate statute of limitations for claims against unions for breach of the fair duty of representation (“DFR” claims) is six months and accrues when the plaintiff knew or reasonably should have known that a breach has occurred. The court held that since Kalyanaram’s complaint was that the Union failed to adequately represent him during arbitration, his DFR claim accrued on the date of the Final Award.

The court first rejected Kalyanaram’s argument that the claim did not accrue until the Final Award was confirmed in state court. The language in the CBA that “the decision of the arbitrator shall be final and binding subject to appeal by either party” did not mean that the arbitration process was not final until confirmed by the courts, but only that parties could later appeal the final decision to the courts.

Next, the court rejected Kalyanaram’s claim that the statute of limitations was tolled during the state court proceedings. Although the issue was one of first impression, tolling is not available where a plaintiff simply pursues parallel avenues of relief. The court found that Kalyanaram’s claims were parallel because a suit to vacate an arbitration award in state court may be pursued independently of a DFR claim against a union, the purposes of the two areas of relief differ, and the result is in harmony with public policy favoring the prompt resolution of labor disputes.

Finally, the court rejected Kalyanaram’s claim that the Final Award was not actually final, since the arbitrator later issued supplemental awards. The subsequent awards merely carried out the provisions of the Final Award. Kalyanaram’s DFR claim accrued when the arbitrator issued the Final Award, and the circuit court affirmed the judgment below.
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2013 WL 6482578 (2d Cir. 2013)

Hillside Metro Associates, LLC v. JPMorgan Chase Bank

On September 25, 2008, the Office of Thrift Supervision appointed the Federal Deposit Insurance Corporation (“FDIC”) as Washington Mutual’s receiver, and the FDIC entered into a Purchase and Assumption Agreement (“PAA”) with JP Morgan Chase Bank (“Chase”) on that same day. Thereafter, Chase assumed many of Washington Mutual’s assets and liabilities. In April 2008, prior to its insolvency, Washington Mutual entered into a ten-year lease for the premises at 216-20 Hillside Avenue, Queens, N.Y., previously a video store. The parties to the lease intended that the premises be used as a new bank branch, and plans for renovations were attached to the lease. These plans were never carried out. Pursuant to the PAA, Chase acquired most of Washington Mutual’s real property leases, but not its “Leased Bank Premises,” all of which Chase could be assigned within ninety days of signing the PAA. The PAA was also expressly for the benefit of the FDIC and Chase only, ruling out any intent to benefit third parties. The agreement provided that it would be governed by federal law, or in the absence of controlling federal law, by the laws of the State housing Washington Mutual’s main office.

The FDIC and Chase had agreed that the Hillside lease was for bank premises, and by January 2009, Chase properly declined assignment of the lease. As a result, the FDIC decided that compliance with the Hillside lease would burden its receivership, and, in April 2009, the FDIC informed Hillside that it would exercise its authority under the Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) to repudiate the lease. Hillside then declined to seek recovery from the FDIC, and sought it instead from Chase, operating under the theory that Chase had assumed the lease under the PAA and was in default. Chase refuted Hillside’s claim and refused to pay the rent. The question, then, before the Second Circuit was whether Hillside had standing to assert that the lease at issue was among the assets and liabilities that Chase assumed under the PAA.

In October 2011, the district court denied Hillside’s motion for summary judgment, Chase’s cross-motion for summary judgment, and the FDIC’s cross-motion to dismiss the suit. Chase and the FDIC argued primarily that Hillside lacked standing to sue Chase because it was neither a party to nor a third-party beneficiary of the PAA. The district court held that Hillside had standing to sue because Hillside’s interpretation of the PAA conceivably placed Chase and Hillside in privity of estate. On that theory, Hillside had a protected legal interest in the enforcement of the PAA. The district court also permitted the parties to submit additional evidence on the issue of whether the property was “bank premises.” With the aid of such additional evidence, the court reasoned that the lease was not in fact for bank premises because the video store had not been fully converted at the time Washington Mutual collapsed. This reasoning lead to the court’s conclusion that Chase had automatically assumed the lease pursuant to the PAA, and the district court granted Hillside’s motion for summary judgment.

Before the circuit court, the only issue to be addressed was Hillside’s standing to sue. In order to pursue a claim under federal law, plaintiffs must have (1) prudential standing and (2) Article III standing. The Second Circuit noted that it could assume Hillside’s Article III standing to sue in federal court and thus address the issue of prudential standing. Prudential standing embodies the principle that a litigant may not raise another person’s legal rights, or that the plaintiff’s complaint must fall within the zone of interests of the law invoked. The court concluded that Hillside did not have prudential standing because, as neither a party nor a third-party beneficiary, it could not enforce the terms of the PAA and that enforcement was necessary to its claim.

The court applied the contract law in interpreting the PAA. Without a contractual relationship there can be no contractual remedy, and a plaintiff must be in privity of contract with the defendant, or a third-party beneficiary of the contract, in order to successfully claim such a contractual relationship. Third-party beneficiary status can be proven by clear evidence of intent to permit enforcement by the third party at issue. The third party cannot simply be an incidental beneficiary to whom no duty is owed.

Here, the PAA did not clearly demonstrate intent to benefit or permit enforcement by Hillside, but rather it manifested the intention to benefit the FDIC and Chase only and expressly ruled out any intent to benefit third parties. Additionally, in the absence of a contractual relationship under the PAA, Hillside failed because its claim for damages required that the PAA assignments provisions be enforced in a way that would contradict the provision disclaiming any third-party benefits. Finally, the court noted that Hillside was effectively seeking to enforce the rights of a third party here (the FDIC), which the doctrine of prudential standing plainly forbids. The Second Circuit concluded that Hillside lacked prudential standing to sue.
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2014 WL 401303

In re Roman Catholic Diocese of Albany, N.Y., Inc.

This petition for writ of mandamus addressed the purported lack of personal jurisdiction that the District of Vermont had over Defendant-Petitioner, the Roman Catholic Diocese of Albany, N.Y. (“Diocese”). The district court found that it had general jurisdiction over the Diocese because it was deemed to be at home in Vermont. Subsequently, the Diocese sought the writ to compel the district court to dismiss the case for lack of personal jurisdiction.

The Respondent-Plaintiff, Michael Shovah, brought suit in district court alleging that one of the Diocese’s priests had transported him as a minor from New York to Vermont in order to sexually abuse him. The district court found that it maintained general jurisdiction over the Diocese even though the church is a New York special act corporation covering fourteen counties in New York with its principle office in Albany. Furthermore, the district court maintained the Diocese was at home in Vermont even though it owned no real property, did not maintain an office, and did not have any financial accounts in the state.

The Diocese moved to dismiss for want of personal jurisdiction, but the district court held that the priest’s weekly masses and sixteen services conducted by other priests over a ten-year period were continuous and systematic enough to render Vermont as the Diocese’s home. The court thereafter denied the motion for an interlocutory appeal and allowed the case to move forward, as the Diocese was directed to produce documents dating back from 1975 reflecting sexual abuse allegations. The Diocese subsequently filed this writ of mandamus and requested expedited consideration from the Second Circuit.

The Second Circuit ultimately granted the Diocese’s petition for writ of mandamus, compelling the district court to dismiss the case against it for lack of personal jurisdiction. In recognizing the nature of the special circumstances and remedy surrounding a writ of mandamus, the Second Circuit found that the district court erroneously exercised personal jurisdiction over the Diocese and that issuing the writ of mandamus was the appropriate remedy.

The Second Circuit reasoned that mandamus was the only correct means of relief because a post-trial appeal would have done nothing to prevent harm that the Diocese would endure by divulging its employee records and, furthermore, such sexual abuse litigation would have been time-barred if brought in the Diocese’s true home state of New York.

Additionally, the mandamus was deemed appropriate given the circumstances inasmuch as the district court’s personal jurisdiction analysis was patently erroneous due to the Diocese’s attenuated affiliation with Vermont. Thus, it was not essentially at home in the state to have general jurisdiction asserted over it. The Second Circuit noted that it needed to issue guidance regarding the proper general personal jurisdiction because the district court misapplied the law.

Finally, the Second Circuit held that the Diocese had a clear and indisputable right to the writ because the district court abused its discretion by patently applying an erroneous view of personal jurisdiction law. Having eighteen Vermont-resident employees over ten years, twenty-one Vermont based vendors over ten years, and 0.08% of its donations coming from Vermont did not constitute the minimum contacts necessary to be “at home” for general jurisdiction purposes. In the face of legal precedence, the Second Circuit articulated that in no way did the Diocese have the systematic and continuous contact with Vermont necessary for the district court to assert general jurisdiction.

Accordingly, the Second Circuit directed the lower court to dismiss the case against the Diocese because Vermont could not exert personal jurisdiction upon it.

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2014 WL 485948 (2d Cir. 2014)

Ramos v. SimplexGrinnell LP

A group of workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in New York for SimplexGrinnell LP (“Simplex”) brought suit against their employer. Plaintiffs claimed that Simplex had not paid them “prevailing wages” for their labor on “public works” since at least February 2011, in violation of New York Labor Law (“NYLL”) section 220. N.Y. LAB. LAW § 220 (McKinney 2011). Two questions were at issue: (1) whether this type of work was covered by the statute, which would require prevailing wages to be paid, and (2) whether the parties expressly contracted to have prevailing wages paid for this type of work.

Simplex argued that testing and inspection work was not covered by the statute, and therefore not entitled to the payment of prevailing wages. Subsequently, the then-Commissioner of the Department of Labor (“DOL”), Patricia Smith, issued an opinion letter on December 31, 2009, stating that testing and inspection work was covered under section 220 of the NYLL, based on the conclusion that such work was a form of “maintenance work,” a category covered under the statute. However, the DOL further stated that this decision was to be enforced “prospectively only,” in light of the past uncertainty as to whether this type of work was in fact covered by the statute.

This case was moved to the United States District Court for the Eastern District of New York after initially bring brought in New York state court in 2007. After the DOL issued its letter, the parties completed discovery in the Eastern District and filed cross-motions for summary judgment.

The district court granted Simplex’s motion to dismiss Plaintiffs’ claims relating to testing and inspection work. The court held that Plaintiffs’ testing and inspection claims for the period of the litigation could not proceed since the DOL, in its own enforcement, required that prevailing wages only be paid prospectively, and that there was nothing irrational or unreasonable about this interpretation.

In addition, the district court held that Plaintiffs’ third-party breach of contract claim could not be brought for the testing and inspection work. The district court reasoned that while Simplex generally agreed to pay prevailing wages in its contracts, in light of the uncertainty as to whether testing and inspection work was covered, Simplex could not have had reason to believe it would be required to pay wages for that type of work. The general agreement to pay wages required by the statute applied only to work that was clearly understood by the parties to be covered at the time the contract was made, and not to work subsequently held to be covered, unless such work was already explicitly required by the contract.

Though the district court held that the DOL was entitled to some deference, what remained disputed was whether such deference was due here (or even appropriate) not only to the DOL’s construction of the statute, but also to its administrative decision to apply that construction in its own enforcement prospectively only. The overall scope of deference to be granted to the DOL remained unclear, primarily because judicial review of such an agency construction is limited to whether that determination was arbitrary, capricious, or an abuse of discretion. Whether testing and inspection work was covered by the statute and whether this level of deference should be given to any agency were unsettled matters in New York courts. Because New York courts have not clarified whether the work in question is covered under the NYLL, or whether such agency deference should have been granted, the circuit court decided that the issue was appropriate for certification.

The circuit court also felt the need to certify the issue pertaining to whether Simplex had in fact contracted to pay prevailing wages for the relevant work. Simplex expressly agreed to be bound to pay prevailing wages for every kind of work covered by NYLL section 220, so it could easily be reasoned that it contracted to be bound by what the statute ultimately required, even if such requirements were unclear at the time the parties signed. However, under current New York law, it is uncertain if such a reading would prevail over the district court’s determination.

As a result, the circuit court certified the following questions to the New York Court of Appeals:

1) What deference, if any, should a court pay to an agency’s decision, made for its own enforcement purposes, to construe section 220 of the NYLL prospectively only, when the court is deciding the meaning of that section for a period of time arising before the agency’s decision?

2) Does a party’s commitment to pay prevailing wages pursuant to NYLL section 220 bind it to pay those wages only for work activities that were clearly understood by the parties to be covered by section 220, or does it require the party to pay prevailing wages for all the work activities that are ultimately deemed by a court or agency to be “covered” by that portion of the statute?

The United States Court of Appeals for the Second Circuit retained jurisdiction to decide the case once it has had the benefit of the view of the New York Court of Appeals, or once that court declines certification.

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2014 WL 243404 (2d Cir. 2014)

People v. Cortez

The appeal addressed two issues: (1) the constitutional right of a criminal defendant to have conflict-free representation at trial, and (2) the use of a defendant’s state of mind months and years before perpetration of the crime as propensity evidence. Defendant Paul Cortez was convicted after a jury trial of the murder of Catherine Woods. On the night of the crime, Woods was found stabbed to death in her bedroom and after a crime scene analysis, detectives were able to find the impression of a bloodied hand on the wall and a latent fingerprint was discovered. Also among the evidence were cell phone records of Cortez, showing calls made in a progression from Cortez’s residence towards Woods’ apartment.

In his defense, Cortez was represented by two attorneys with the co-counsel being retained for her expertise in forensic evidence. Before trial, co-counsel was charged with a crime by the same office that was prosecuting her client. Further, at trial the State entered into evidence entries from Cortez’s journals concerning relationships with women from as early as six years prior, in which he described his growing rage and thoughts of revenge. Cortez contended on appeal that he was denied effective assistance of counsel because of co-counsel’s conflict, and that the receipt of evidence regarding his prior thoughts were irrelevant to proving the crime he was charged. Both of his arguments were rejected by the appellate division.

On the theory of conflict-based ineffective assistance of counsel the Court of Appeals held that there were no deficiencies in Cortez’s defense that were traceable to co-counsel’s conflict of interest. The Court acknowledged that the trial judge had conducted a Gromberg hearing to determine whether Cortez knowingly elected to continue with representation by co-counsel in light of the conflict. 379 N.Y.S.2d 769 (1975). At the hearing, Cortez stated that “she has not compromised this case on account of her own,” and the inquiry was thus ended. 2014 WL 210890 at 2.

The Court recognized that the trial court relied heavily upon this assertion and Cortez’s statement that co-counsel had spoken to him about the conflict. However, the trial judge failed to inform Cortez of all the possible consequences of his waiver and the court concluded that his statement regarding his waiver was indeed deficient. Yet the court declined to reverse the conviction because the fact that co-counsel was being prosecuted by the same office raised only a potential conflict, and although Cortez pointed several instances he felt co-counsel was deficient, those deficiencies could not be attributed to co-counsel’s alleged conflict.

Lastly, on the issue of admitting evidence relating to Cortez’s state of mind in years prior to the crime, the court found that this evidence was improperly admitted. Although the prosecutor had argued that this evidence was probative of a growing state of mind or a progression, the court found that this evidence by itself was simple propensity evidence which was forbidden because it asks for an inference of guilt from evidence that only shows a propensity to act in a certain manner. The court reasoned that evidence about mental thoughts only was particularly dangerous. However, even finding that this evidence was irrelevant to the murder of Woods, the court declined to reverse because it found the rest of the evidence presented to the jury overwhelmingly demonstrated that Cortez was the assailant.

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2014 WL 210890, 2014 N.Y. Slip Op. 00293

People v. Lamont

In November 2008, a Wendy’s employee in Rochester, New York, was preparing food for the day when he heard knocking on the back door. Through the security camera, the employee observed two masked men banging on the door and holding what appeared to be handguns. After the employee called 911, a police officer was dispatched to the restaurant. When Defendant and his accomplice spotted the officer, Defendant ran toward him with his gun pointed at the officer while his accomplice ran in the opposite direction. Defendant was wearing a black mask over his face, back knit hat, and black gloves. He wore a backpack with clothes in it. The police later found a BB gun in the grass behind the restaurant, a car registered to Defendant in a nearby parking lot, and a pellet gun inside the vehicle.

The indictment charged Defendant with two counts of attempted robbery in the second degree and two counts of attempted burglary in the second degree. Defendant was later acquitted of the attempted burglary counts in county court. Defendant conceded that he and his accomplice “may have been up to no good,” but he argued that the State failed to prove beyond a reasonable doubt that either intended to commit robbery and that the evidence was legally insufficient. 977 N.Y.S.2d at 541.

The court rejected Defendant’s argument. Direct evidence is rarely available and is unnecessary where there is a legally sufficient circumstantial evidence of intent, which may be inferred from the defendant’s conduct and the surrounding circumstances. The evidence established that none of the Wendy’s employees knew Defendant; the restaurant was not open to the public when he and his accomplice sought entry; and Defendant and his accomplice were armed with BB guns that appeared to be firearms, wore masks and gloves, and had a backpack in which Defendant could carry stolen items. The court therefore concluded that there was a valid line of reasoning and permissible inferences that could lead a rational person to conclude that the two intended to rob the restaurant.

Lastly, the court also rejected Defendant’s contention that he was deprived of effective assistance of counsel because his trial attorney failed to object to the verdict as repugnant. The court stated that where there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case. Therefore, the court affirmed Defendant’s charge of two counts of attempted robbery in the second degree.

In their dissent, Justices Fahey and Peradotto found the evidence legally insufficient to support Defendant’s conviction for attempted robbery. For the justices, the evidence was insufficient to show that Defendant intended to forcibly steal property rather than engage in any number of other misdeeds. The dissent conceded the unlikelihood that Defendant’s intentions were innocent, but ventured that he may have instead intended to “rape, assault, or menace” an employee. 977 N.Y.S.2d at 544.

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977 N.Y.S.2d 540 (4th Dep’t 2014)

People v. Jarvis

Defendant was convicted of two counts of murder in the second degree following a jury trial in 1991. In an earlier direct appeal, Defendant’s convictions were affirmed. However, in 2012, the appellate division granted Defendant’s writ of corum nobis for ineffective assistance of counsel, vacated its prior order, and heard this appeal de novo. On review, the court held that Defendant’s trial counsel committed two serious errors which warranted reversal and granted a new trial: (1) counsel failed to object to certain testimony; and (2) counsel used a flawed alibi defense.

The first error—which the court found sufficiently egregious by itself to deny Defendant a fair trial—was counsel’s inexplicable failure to object to testimony which he had successfully sought to preclude. Specifically, counsel failed to object when the prosecution elicited testimony from a witness about an alleged threat made by Defendant. Not only was the testimony allowed, but the prosecution used the testimony to the State’s full advantage during summation by arguing that the threat placed Defendant at the scene. According to the court, counsel’s failure to object was absent of any “strategic or other legitimate explanation,” People v. Cleophus, 916 N.Y.S.2d 624, 625 (2d Dep’t 2011), and was “sufficiently serious to have deprived defendant of a fair trial.” People v. Webb, 935 N.Y.S.2d 423, 424 (4th Dep’t 2011).

The second serious error committed by Defendant’s trial counsel was his use of a flawed alibi defense. Two alibi witnesses testified at trial, and both incorrectly identified the days of the week when testifying on Defendant’s whereabouts. Again, the prosecution took full advantage of the flawed erroneous testimony on cross-examination, through a rebuttal witness, by asking the court to take judicial notice of the week the relevant dates fell on and by denigrating it as a “Hollywood charade” during summation. In light of this error, compounded with the first, the court reversed the judgment of conviction and granted a new trial.

Two justices rejected the majority’s conclusion that Defendant’s counsel was ineffective. First, the dissent urged that counsel’s failure to object was not devoid of any strategy or legitimate explanation, and the dissenters posed several hypothetical reasons for the lack of an objection. Second, the dissent argued that the single discrepancy in the alibi defense did not compel reversal. In the dissent’s view, the prosecutor had not conclusively established that the alibi was false, but that it was an issue for the jury to resolve. The dissent concluded that counsel provided the defendant with impressive representation by thoroughly cross-examining the prosecution witnesses and presenting a unified defense theory.

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978 N.Y.S.2d 522 (4th Dep’t 2014)