Federal Rule of Criminal Procedure 58(b)(2)(H)

The Federal Rule of Criminal Procedure 58 was amended in 2014 to include subsection 58(b)(2)(H), which states:

At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: . . . (H) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested—but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

Fed. R. Crim. P. 58(b)(2)(H). This amendment took effect on December 1, 2014.

The United States is party to the Vienna Convention on Consular Relations, which is an international treaty that governs the consular relations between different nations. Article 36 of the Vienna Convention on Consular Relations provides that a foreign citizen who is arrested and detained may request that his consul be notified of his arrest and detention. Further, the United States is party to numerous bilateral agreements that fully require the arresting and detaining nation to notify the foreign citizen’s consul of his arrest and detention.

This subsection requires a magistrate judge to provide every defendant with this information in order to ensure that all United States treaty obligations, including the Vienna Convention on Consular Relations and bilateral agreements, are satisfied. A determination of the defendant’s citizenship does not need to be made before the information is provided to him or her.

In Sanchez-Llamas v. Oregon, the Supreme Court held that where a foreign citizen defendant is not apprised of his Article 36 rights, he has no judicial remedy. However, this new subsection does not address these potential rights and remedies.

Federal Rule of Evidence 803

Recent changes made to Federal Rule of Evidence 803 (6)-(8) became effective on December 1, 2014. The previous language of (6)-(8), operative prior to December 1, 2014, and the new language, effective since December 1, 2014 is outlined below:

The previous rule of (6) stated: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

The new language of (6) states: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

The rationale for the change to (6) is an effort to clarify that once the proponent has established “regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification,” then it becomes the opponent’s burden to prove that the source of the information or method or circumstances of preparation are untrustworthy. Not all courts have consistently imposed this burden on the opponent, and such an imposition is appropriate because the proponent’s establishment of the basic admissibility requirements is enough to advance a presumption that the record is reliable.

The previous language of (7) stated: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

The new language of (7) states: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

The rationale for this change in the language is an effort to clarify that once the proponent has established the stated requirements of the exception in Rule 803(6), the opponent bears the burden of showing that the possible source of the information, or some other circumstances, indicate a lack of trustworthiness. This language change is consistent with the language change to (6).

The previous language of (8) stated: (8) Public Records. A record or statement of a public office if: (A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The new language of (8) reads: (8) Public Records. A record or statement of a public office if:(A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

The rationale for the changes to (8) is once again to clarify who bears the burden once the proponent has satisfied the initial requirements of the Rule. The burden shifts to the opponent to show that the source information or other circumstances are untrustworthy. Courts have previously been inconsistent regarding upon which party this burden is placed. (8), as with (7), maintains consistency with (6) in this aspect.

Effective December 1, 2014

Federal Rule of Evidence 801

Recent changes have been made to Federal Rules of Evidence 801, which focuses on exclusions from heresy. Statements defined as heresy are statements that a declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of a matter asserted in the statement. Prior to the change, which became effective December 1, 2014, Federal Rule of Evidence 801(d)(1)(B) stated that a declarant-witness’s prior statement is not heresy if  “the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” Fed. R. Evid. 801(d)(1)(B). Essentially, before the rule change took place, consistent statements could be only substantively used to rebut recent fabrication or improper motive charges. Therefore, many prior statements were potentially admissible only for rehabilitating a witness’s credibility. This left out using consistent statements to substantively rebut general charges against a witness’s credibility, such as charges of inconsistency or faulty memory.

The new rule reads “a statement that meets the following conditions is not hearsay: (1) the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (B) is consistent with the declarant’s testimony and is offered (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground”. Fed. R. Evid. 801(d)(1)(B). The new change retains the original purpose and limitations of the rule in that it allows parties to bring prior consistent statements before the fact finder for credibility purposes. However, the change now extends the substantive effect to prior consistent statements of rebutting other attacks on a witness’s credibility besides just charges of recent fabrications or recent improper motives. The changes results in a broader application in use of consistent statements, but it does not make any consistent statement admissible that was not admissible before.

Effective December 1, 2014

Federal Rule of Civil Procedure 26(b)(1)

As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.

The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.

Coleson v. City of New York

This appeal stems from a negligence suit against the City of New York and the New York City Police Department (NYPD) and addresses what evidence is necessary to establish that a special relationship existed between an individual and a municipality that would require the municipality to exercise a duty of reasonable care.

The plaintiff in this case, Jandy Coleson, had suffered verbal and physical abuse at the hands of her husband for years and had obtained several orders of protection against him. On June 23, 2004, plaintiff’s estranged husband attempted to force himself into her building and threatened to stab and kill her with the screwdriver he was carrying. Plaintiff called the NYPD, but when they arrived, Coleson had fled. After searching for him with plaintiff’s assistance, Coleson was apprehended the following morning. Plaintiff and her son were transported to the precinct where an Officer Reyes told her that Coleson had been arrested and “was going to be in prison for a while.” Reyes also told plaintiff she was going to be given protection. Plaintiff and her son were then taken to Safe Horizon, a non-profit domestic abuse victims’ organization. Later that evening, plaintiff received a telephone call from Officer Reyes, in which she was told that Coleson “was in front of the judge” and that “everything was okay.” Two days later, while picking her son up from school, plaintiff was approached by Coleson, who proceeded to stab her in the back with a knife. Plaintiff’s seven-year-old son was placed in a broom closet by an employee of the car wash across the street from the school, and upon coming out, witnessed his mother lying in a pool of blood.

On behalf of her and her son, plaintiff commenced a negligence suit against the City of New York and the NYPD, also asserting a claim for negligent infliction of emotional distress. The City moved for summary judgment, arguing that Reyes’ statements were not definite enough to create justifiable reliance in order to establish a special relationship in satisfaction of the duty prong of plaintiff’s negligence claim. Plaintiff argued a special duty existed based on the NYPD’s agreement to provide protection to her. The Supreme Court granted the City’s motion for summary judgment and the Appellate Division, First Department affirmed, saying the statements “were too vague to constitute promises giving rise to a duty of care.”

The Court determined that there was sufficient evidence to conclude plaintiff raised a triable issue of fact as to whether a special relationship existed. The court emphasized that the “injured party’s reliance is . . . critical,” and also that in applying the factors set out in Cuffy v. City of New York, a jury could reasonably find for plaintiff. The Court also distinguished this case from a previous case relied on by the Appellate Division, stating that conduct of the police here was more substantial, involved, and interactive than the police conduct in Valdez v. City of New York. The case was remitted to the Appellate Division, First Department to be modified in accordance with the opinion.

The dissent objected on the grounds that opening up municipalities to tort liability in domestic abuse cases is a slipper slope that will lead to police officers giving as little information as possible to victims in order to avoid civil liability.

999 N.Y.S.2d 810 (N.Y. 2014)

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People v. Allen

This appeal addresses whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment. The appellant/defendant, Terrell Allen (“defendant”), was charged with one count of second-degree murder and one count of attempted second-degree murder for the death of the victim. Accordingly, the defendant attempted to shoot the victim while he was in the street but the gun did not fire. Ten minutes later the defendant fired two shots at the victim near the front stoop of the victim’s house. One shot missed the victim but the other shot hit the victim in the head killing him. The victim’s wife witnessed some of the event and spoke to police offices about what she saw, which included naming Welds, the co-defendant (“Welds”). Welds told the police that the defendant had fired the gun at the victim. Three days later, the police arrested the defendant in New Jersey. A lineup was conducted at the 113th precinct in Queens, where the victim’s wife identified the defendant as the shooter. Ballistics evidence also showed that the bullet recovered at the scene and from the victim’s body were fired from the same gun. The defendant and Welds were charged in a single indictment. Welds case was severed from the defendants. Welds stood trial first and was convicted of murder in the second degree by the jury. In an exchange for a promise of leniency, Welds agreed to testify against the defendant.

After the defendant was convicted he claimed three errors at trial. First, the defendant claimed the indictment is duplicitous. The defendant filed a request for a bill of particulars seeking specification of the substance of each aspect of the defendants conduct in relation to each charge. The defendant also filed an omnibus motion, which challenged the indictment as multiplicitous. The defendant claimed that the count one (1) and two (2) of the indictment charging murder in the second degree and attempted murder in the second degree are multiplicitous since they encompass either the same or a single continuing offense and should not be separate counts. Second, the defendant claimed that the Supreme Court erred in denying his motion to suppress identification testimony, which he claimed was made in a lineup that was conducted in violation of his right to counsel. Third, the defendant claimed that the trial court erred in refusing to allow the defendant to introduce extrinsic evidence on a collateral matter to impeach the credibility of a witness.

The Appellate Division held that the indictment which charged the defendant with murder and attempted murder in the second degree were not duplicitous on its face. Accordingly an indictment is duplicitous when a single count charges more than one offence. People v. Alonzo. Here, the defendant contends that at trial, the charges for attempted murder did not become arguably duplicitous until the trial evidence suggested that there was another incident involving the defendant and the victim. However, at trial, the defendant did not object during the opening statement, witness’s testimony, or to the jury charge, which could have remedied any uncertainty at trial. The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review. The preservation to the constitutional right to a public trial requires the preservation of public trial claims. Bringing a public trial violation to a judge’s attention would have ensured the timely opportunity to correct the errors. Therefore, the Appellate Division held that the defendant’s claim that the indictment became duplicitous based on trial evidence could not be considered since the defendant failed to preserve his claim for review.

As for the defendant’s second claim, the Appellate Division held that the trial court did err in denying the defendants motion to suppress the lineup identification, however such an error was deemed harmless. The Appellate Division found the error to be harmless beyond a reasonable doubt due to the overwhelming evidence of the defendant’s guilt. There were three eyewitnesses, ballistics evidence, a confession to one o the witnesses, and the defendant’s effort to avoid arrest by hiding in an attic. Therefore, the error of the admission of the lineup identification was deemed harmless.

Furthermore, the Appellate Division held that the trial court did not abuse its discretion in preventing the defendant from using the police reports to impeach the credibility of the victim’s wife at trial. Accordingly, “…prior statements are often collateral to the ultimate issue before the jury and bear only upon the credibility of the witness, the [statements] admissibility is entrusted to the sound discretion of the Trial Judge whose rulings are not subject to review unless there has been an abuse of discretion as a matter of law.” People v. Duncan. Here, the police records were properly found to be inadmissible extrinsic evidence on a collateral matter, and the defendant failed to show the source of the information in the police reports was the wife herself. Therefore, the Appellate Division found that the trial court did not abuse its discretion in preventing the defendant from using police reports to impeach the witness’s credibility at trial.

Accordingly, the Court of Appeals of New York held that the Appellate Division’s order should be affirmed.

999 N.Y.S.2d 350 (N.Y. 2014)

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People v. On Sight Mobile Opticians

This appeal addresses the severability of a municipal ordinance section and the constitutionality of a content-neutral restriction on the posting of signs on public property. The defendant, On Sight Mobile Opticians, had placed a sign advertising its business on public property. The Town of Brookhaven’s investigator filed informations charging the defendant with violation a section of the Town Code prohibiting the posting of signs on public property. The defendant moved for dismissal on the ground that the Town Code chapter at issue was unconstitutional.

The district court denied the motion, holding that the chapter was constitutional. The defendant pleaded guilty and then appealed to the appellate term. The appellate term found the section itself constitutional, but it held that the entire chapter “unconstitutionally favor[ed] commercial speech over noncommercial speech.” It then found that the unconstitutional parts of that chapter could not be severed and as a result reversed the convictions, dismissed the informations, and ordered any fines returned.

Here, the Court held that the code section at issue dealt only with the posting of signs on public property and thus had a discrete, independent legislative purpose. It could therefore be severed from the rest of the chapter in which it appeared.

Considering the constitutionality of the code section in isolation from the rest of the chapter, the Court found it to be a ban that affected both commercial and non-commercial signs without regard to content. It also found the section to “serve[ ] the Town’s valid interest in traffic safety and aesthetics.” Since it was content-neutral and served a valid government interest, the Court held the section constitutional and reversed the order of the appellate term.

2 N.Y.S.3d 406 (N.Y. 2014)

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Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

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Liberty Affordable Housing Inc. v. Maple Court Apartments

In this appeal, the Fourth Department examined whether the Court of Appeals decision in Rovello v. Orofino Reality Co., which held that under New York Civil Practice Law and Rules 3211(a)(7) “‘summary dismissal is appropriate . . . when the defendant’s evidentiary submissions establish conclusively that plaintiff has no cause of action,’” survived the Court of Appeals subsequent decision in Miglino v. Bally Total Fitness of Greater New York, Inc.

In 2006, the Plaintiff, Maple Court Apartments, contracted with the Defendant, Liberty Affordable Housing, Inc., for the sale of real property. The Plaintiff was unable to secure funding by the closing date, or by the December 31, 2007, extension to the closing date. In April 2009, the Defendant sent the Plaintiff a letter in which the Defendant made clear that the purchase agreement was terminated and that the Defendant would market the property to other buyers. Two years later, in 2011, the Plaintiff secured funding and made another offer on the property. In a September, 2011, letter to the Defendant, the Plaintiff indicated the need for a new purchase agreement. The Defendant rejected the Plaintiff’s offer and accepted a higher offer from a third party.

The Plaintiff then commenced a suit for specific performance on the original 2006 contract. The Defendant moved for dismissal under N.Y. C.P.L.R. 3211(a)(7), which authorizes a court to dismiss a complaint when the opposing party fails to state a cause of action. In order to show the 2006 purchase agreement was invalid and therefore the Plaintiff had no cause of action, the Defendant submitted the 2009 letter and the 2011 letter to the court. The trial court dismissed the Plaintiff’s suit, finding it was clear that the original 2006 purchase agreement was invalid. The Plaintiff then appealed, arguing “that Miglino fundamentally changed the parameters of 3211(a)(7) and effectively barred the consideration of any evidentiary submissions outside the four corners of the complaint.”

The Plaintiff’s argument was based on the language in Miglino where “the Court cited Rovello for the proposition that ‘3211(a)(7) . . . limits [courts] to an examination of the pleadings to determine whether they state a cause of action’” and therefore found “‘the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits.’” The Plaintiff argued that this language from Miglino prohibits a court from considering evidentiary submissions when ruling on a 3211(a)(7) motion.

The court held for the Defendant, finding that Miglino did not change Rovello, but simply applied its framework. The court reasoned that “Miglino was ‘not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits’ because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a 3211(a)(7) motion.” This reading of Miglino was in line with similar decisions in the First and Second Departments. Therefore, the court found it was proper for the supreme court to consider the documents the Defendant submitted in support of its motion to dismiss. Turning to the substantive question, the court found the Defendant’s evidentiary submissions conclusively showed the Plaintiff was not willing and able to perform its end of the contract by the contract’s closing date or a reasonable time afterward. Therefore, the Plaintiff had no cause of action for specific performance and the supreme court properly dismissed the suit under 3211(a)(7).

998 N.Y.S.2d 543 (4th Dep’t. 2015)

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People v. Marquan M.

This appeal involves a sixteen-year-old high school student that anonymously posted pictures of high school classmates and other adolescents with sexually explicit descriptions of their personal lives on Facebook. A police investigation revealed defendant Marquan M. as the poster. The defendant admitted to the online activity, and was charged under Albany County’s cyberbullying law. The defendant moved to dismiss on the grounds that the law was unconstitutionally violative of his free speech rights under the First Amendment to the United States Constitution. Albany County conceded that parts of the law was unconstitutional, but that the law was severable, and the Court could delete the violative language.

Judge Graffeo, writing for the majority, reasoned that the law was overbroad, facially unconstitutional, and was not severable. The majority found that the text of the law was so broad as to encompass speech by adults and corporate entities, although the purpose of the law was to remedy the detrimental effects of cyberbullying on school children. The majority also wrote that while it was possible for the Court to sever the offensive provisions, it would be an impermissible use of judicial authority to do so. The law would need significant modification in order to be valid, and would bear “little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the position . . . .” The majority thus held the cyberbullying law overbroad and facially invalid under the Free Speech Clause of the First Amendment as drafted.

Judge Smith, writing for the dissent, reasoned that the violative provisions of the law could be severed, and the remainder of the law would be constitutionally valid. The dissent agreed that the terms of the law were vague and overbroad but insisted that crossing them out was preferable. The dissent thought that the majority focused too much on poor draftsmanship of the law, and should have focused on what the dissent thought was the crux of the case: whether Albany County could constitutionally prohibit certain kinds of communication—namely, cyberbullying. The dissent would answer this question in the affirmative, arguing that while the First Amendment protects extremely obnoxious forms of speech, speech that is designed to inflict serious emotional injury is only permitted when directed at matters of public concern; here, there was only “private rage or spite.”

994 N.Y.S.2d 554 (N.Y. 2014)

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