Injured? You May be Covered: Court Of Appeals Extends the Duty of Care Owed by Medical Providers to Members of the General Public

— By Andrew Stewart

Davis v. South Nassau Communities Hosp., 2015 NY Slip Op 09229 (December 16, 2015).

Abstract: The Court of Appeals recognized a legal duty owed by medical providers to a non-patient, third party even in the absence of a special relationship. In doing so, the Court has joined the trend of other States, expanding the duty of care jurisprudence to include members of the general public.

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In 2009, Lorraine Walsh drove herself to the Hospital and was checked into the emergency room. At 11:00 AM, two medical professionals (collectively with the Hospital referred to as “Defendants”) intravenously administered Dilaudid, an opioid narcotic painkiller and Ativan, a benzodiazepine drug. Examination of the warning labels supplied with the drugs, in addition with testimony elicited by an expert, established that the common side effects of Ativan include “sedation, dizziness, and disorientation”, which can create a “sedative/hypnotic” state. Additionally, Dilaudid can be up to eight times as powerful as morphine, with effects lasting between two to four hours. Dilaudid’s warning labels explicitly warn against the dangers of “driving a car or operating machinery.” Nevertheless, the two medical professionals at the Hospital failed to warn Walsh about the dangers of driving after receiving the medications. At 12:30 PM, only 90 minutes after administration of both drugs, Walsh was released from the hospital. Nineteen minutes later, she crossed the double centerline and crashed into another vehicle, seriously injuring the driver, Edwin Davis.

Davis filed suit alleging medical malpractice because Defendants failed to warn Walsh of the effects of the medication. His wife also alleged a derivative action for loss of consortium. Defendants moved to dismiss for failure to state a cause of action, which was granted by the trial court. The Appellate Division affirmed, stating that the Defendants did not owe a duty of care to the plaintiff because of the lack of a physician-patient relationship (that relationship existed between Walsh and Defendants, not Davis).

The Court of Appeals disagreed. It concluded that the duty of care extended to Davis: “the defendants owed to plaintiffs a duty to warn Walsh that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.”

Before reaching its conclusion, the Court of Appeals reviewed New York’s history of evaluating duty questions in the context of the medical profession. It noted the court’s precedent had been reluctant to impose a duty of care to “the general public” because it consists of “indeterminate, faceless, and ultimately prohibitively large class of plaintiffs, as opposed to a

‘known and identifiable group.’” The Court had only recognized a small exception for “special relationships.” Special relationships were limited to “members of a patient’s immediate family or household who may suffer harm as a result of the medical care a physician renders to that patient” because those plaintiffs are of a definable class. Importantly, the Court noted it had expanded the duty in such cases because the third party’s injury resulted from the physician’s performance of the duty of care owed to the patient [emphasis added]. The Court, therefore, concluded it had left the door open to expand the duty of care between a treating physician who takes the affirmative step of administering medication, but fails to warn the patient of the dangers of operating a motor vehicle, to a member of the general public who is affected by that omission [emphasis added].

In the instant case, the Court imposed a duty of care extending from the Defendants to Davis. In parting from previous decisions, the court identified several others factors that are used to calculate whether a duty should exist. Those include capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer. Further, the Court quoted Prosser and Keaton; “no better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Torts § 54 at 359 {5th Ed. 1984).

Here, the Defendants took affirmative step to administer medication, but had failed to warn the patient about the risks to driving. Their failure to warn created a peril affecting every driver in Walsh’s vicinity. A duty of care must be imposed on medical professionals in this scenario, said the Court, because the “cost” of imposing the duty is small: he or she must simply warn the patient of the dangers. Physicians often advise patients of the risks of certain medications; requiring them to do so imposes no additional, significant obligations. Just as a pharmacist administers warnings to a patient that prescribed medication could impair the ability to drive when the patient picks up his or her prescription, a medical provider should be required to take a similar, simple prophylactic measure [emphasis added]. Furthermore, the Court recognized that other States extend the duty of care from the physician to members of the general public to warn the patient about adverse side effects of medications when the physician has administered the medication, or in other ways has treated the patient.

“This is an instance in which defendants’ ‘relationship with. . .the tortfeasor. . .placed them in the best position against the risk of harm.’” Therefore, the Court concluded that the Defendants owed a duty of care to Davis as a third party member of the general public.

Women Only Liable for Intentional Injuries to Unborn Fetuses, Court of Appeals Says

–by Chris Powers

Abstract: The New York Court of Appeals ruled that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence because criminalizing negligence in this context gave too much discretion to prosecutors.

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The New York Court of Appeals ruled last month in People v. Jorgensen[1] that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence.

 

Jorgensen was 34 weeks pregnant when the car she was driving entered the oncoming lane of traffic and struck a vehicle head on, killing both occupants of that vehicle. Jorgensen was taken to a hospital, where tests revealed probable fetal injuries. She consented to an emergency C-section, and the baby was delivered. The baby died six days later and an autopsy confirmed that the cause of death was injuries sustained the automobile accident.

 

Jorgensen was subsequently indicted on three counts of manslaughter in the second degree, one for each occupant of the other vehicle and one for the baby. At trial, the prosecution’s theory was that defendant was speeding and under the influence of prescription drugs when she struck the vehicle. Upon impact, the fetus was injured when the defendant, who was not wearing a seat belt, hit the steering wheel. The first jury was unable to reach a verdict, but a second jury acquitted her of two counts but convicted her for the death of her child. The Appellate Division affirmed the trial court.

 

The Court of Appeals reversed by a 5-1 vote, holding that “it is evident from the statutory scheme that the legislature . . . did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” The majority analyzed multiple provisions in the New York Penal Law to reach the conclusion that the legislative intent in making the relevant laws was to require intentional behavior, not mere recklessness, by a pregnant woman to hold her criminally responsible for harm to themselves and their unborn children. Specifically, the majority found that the legislature had explicitly included criminal liability for harm to unborn fetuses in circumstances relating to self-abortions, so the legislature clearly had contemplated prenatal acts in devising the statute. The fact that reckless and negligence were not included, the majority contended, was not an inadvertent omission; the legislature must have meant to exclude it.

 

Next, the majority gave a policy reason for reaching its result, saying, “The imposition of criminal liability . . . [should] not be left to the whim of the prosecutor.” As the majority argued, a pregnant woman’s reckless behavior could be stretched by an ambitious prosecutor to include “disregard[ing] her obstetrician’s specific orders concerning bed rest; tak[ing] prescription and/or illicit drugs; shovel[ing] a walkway; engag[ing] in a contact sport; carry[ing] groceries; or disregard[ing] dietary restrictions.” If mere recklessness could result in criminal liability, a mother could conceivably be charged with a crime for such conduct if it resulted in premature birth and subsequent death of the child. The same conduct, however, would not be criminalized if the fetus died in utero. In essence, the majority was worried about creating a perverse incentive for a woman to refuse to deliver the baby if she feared criminal prosecution should the baby not survive after birth.

 

One judge dissented, saying, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.” The dissenting judge conducted a statutory interpretation of his own, citing many of the same statutes, to reach an opposite conclusion. He reasoned that the “pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum.”

 

In its opinion, the majority directly appealed to the legislature to make its intent clear for such a situation as the facts presented here. (“The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts.”)

 

Time will tell if the state lawmakers respond.

 

[1]           People v. Jorgensen, 2015 NY Slip Op 07699, (N.Y. Oct. 22, 2015),

http://www.courts.state.ny.us/reporter/3dseries/2015/2015_07699.htm

 

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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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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People v. Johnson

This appeal addresses whether a defendant’s right to counsel has been violated when he attempts to gain leniency for one crime by discussing another crime and ultimately incriminates himself for the other crime in a meeting where his attorney was not present. Defendant was arrested for burglary, and told detectives that he had information about an earlier, unrelated stabbing in attempt to obtain leniency. This led to a meeting between defendant, his attorney, police officers, and an assistant district attorney. The People agreed that they would not use any statement the defendant made in a prosecution brought against him in return for his full cooperation, but included a clause that the agreement would be null and void if the defendant violated any of its terms.

In the meeting, the defendant told law enforcement and the assistant district attorney that a friend of his had performed the stabbing, and that he was in jail at the time the stabbing occurred. However, after fact checking the police found that defendant was released ten days prior to the stabbing. The police were hesitant, but decided to wire up the defendant to speak to the friend of his that he claimed did the stabbing.

In a separate meeting, defendant met with law enforcement without his counsel present, his counsel believing that this was not an interrogation but rather a meeting to discuss strategy for the upcoming wire situation. However, when police spoke to defendant, his story changed several times, with the defendant ultimately admitting he was actually the one who had done the stabbing. Defendant was then read his Miranda warnings, and signed a typed statement. Defendant was later arrested and charged with attempted murder and assault, to which he was found guilty of both crimes. The trial court had denied his motion to suppress, and the appellate division affirmed.

When this case came before the New York Court of Appeals however, the Court reversed, ordered that the statements in question be suppressed, and ordered a new trial.  The court reasoned that defendant’s right to counsel encompassed his conversations with law enforcement regarding the stabbings since the conversations were an attempt to gain leniency for the burglary case. Therefore, defendant would have needed to waive counsel for the police to continue questioning him. There was never a waiver that occurred, so therefore the statements should be suppressed.

2 N.Y.S.3d 825 (N.Y. 2014)

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Matter of Ford v. New York State Racing and Wagering Board

This appeal addresses the legal grounds for rulemaking regarding out-of-competition race horse testing and whether such testing would involve unconstitutional intrusions by testing agents. In 2009 the defendant, the New York State Racing & Wagering Board (“Board”), promulgated a rule in response to the introduction of a new generation of doping agents into the competitive world of horse racing. The new drugs could enhance horse race speeds while eluding race day detection. To combat these new drugs, the defendant implemented a rule requiring race horse owners and trainers to make harness race horses available for random testing days before the race

The petitioners commenced this action prior to the rule’s effective date. The petitioners argued that creating such a rule was not authorized by the respondent’s enabling legislation, and that the rule constituted a constitutionally unreasonable intrusion upon off-track farms which stabled race horses. The Supreme Court found that the Board had acted in excess of its legislatively delegated power, while the Appellate Division held that the rule was valid under the Board’s “broad, legislatively conferred authority to regulate and supervise race meets . . . [where] wagering is permitted.”

During litigation, the challenged rule was amended. The Court therefore had limited review power, and confined its review to whether the Board’s promulgation of any rule mandating out-of-competition testing, and whether the sort of testing regimen proposed would be a constitutionally unreasonable intrusion by the Board’s agents. The Court then examined the long history of horse doping regulations and how legislation had struggled to keep up with changes in doping technology that would create regulatory loopholes that posed a threat to the integrity of the sport and the health and safety of both horses and jockeys.

The petitioners argued that tests were available which would avoid the intrusion issue; tests which—on race day—could pick up traces of the new protein-based enhancers, which could be administered long before the race and which would previously undetectable except for immediately after being administered. The court stated that though the tests existed, they were extremely expensive and their results questionable. The court stated it would be unreasonable to require the Board to use these tests, and instead applied a rational basis test to the Agency’s decision.

The Court rejected the petitioner’s view that section 301(2)(a) demonstrated that the Board only had testing authority at race meetings. It stated that the legislature may give reasonable discretion to administrative officials to determine what methods were to be used, and that the language of the statute explicitly allowed for general supervision over the race meetings. The plain language of the legislation allowed specifically for regulatory action to avoid the circumvention of existing rules. The use of long-term drugs that could pass game day testing, according to the Court, was the exact type of evasion that the legislation envisioned.

The Court concluded by stating that based on both the language of the text and legislative intent, random drug testing was a reasonable exercise of administrative authority and this authority extended both to private horse farm owners and to those licensed to board race horses. Those who stable race horses on their property could “reasonably be deemed to have relinquished a privacy-based objection” by opening up their property to horses of such a regulated nature.

24 N.Y.3d 488 (N.Y. 2014)

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People v. DeLee

This appeal addresses the proper remedy for a repugnant verdict. The defendant Dwight DeLee, was indicted for second-degree murder, second-degree murder as a hate crime, and third-degree criminal weapon possession by a Syracuse grand jury. He was convicted of the lesser charge of first-degree manslaughter as a hate crime, and acquitted of the lesser charge of first-degree manslaughter. After the jury verdict, defense counsel moved to set aside the verdict as repugnant. Defense argued that due to the two convictions sharing the same basic elements, he could not be guilty of first-degree manslaughter as a hate crime and not guilty of ordinary first-degree manslaughter. The People submitted an affidavit of the jury’s foreperson as evidence that the jury must have concluded the ordinary first-degree manslaughter charge was superfluous when convicting on a first-degree murder as a hate crime charge. At sentencing, the judge denied the defense’s motion to set aside the verdict as repugnant and the defendant appealed. The Appellate Division affirmed, however reversed the defendant’s conviction for first-degree manslaughter as a hate crime and dismissed the first count of the indictment. The Appellate Division reasoned that by acquitting the defendant of first-degree manslaughter, the jury found that the People had failed to prove the elements beyond a reasonable doubt. Thus, the conviction of first-degree manslaughter as a hate crime was inconsistent, as it required the same elements with one added element. The People appealed with permission of the lone dissenting justice.

Here, the Court held that the jury determination was inconsistent, and therefore repugnant. The Court reasoned that all of the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime. To find the defendant guilty of first-degree manslaughter would mean that at least one element of the crime has not been proven beyond a reasonable doubt.  The Court found the People’s argument unpersuasive and the jury instructions to consider the charges separately, clear.  On the issue of the appropriate remedy, the Court found that no constitutional or statutory provision mandated reversal for a repugnancy error.  The Court granted the People leave to resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.

24 N.Y.3d 1119 (N.Y. 2015)

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