New York Court of Appeals: Schron v. Troutman Saunders, LLP

The matter before the Court was the result of a number of consolidated cases, but the parties immediately on appeal were SVCare Holdings, LLC and Cammeby’s Equity Holdings, LLC (“Cam Equity”).  The issue centered on two written agreements entered into as part of a plan by Schron, a real estate investor who controlled Cam Equity, Grunstein (Schron’s attorney), Forman (Schron’s investment banker), and managers and owners of SVCare.  As part of a plan to acquire a publicly-held nursing home company, the parties drafted two agreements.  The first gave Cam Equity an option to acquire 99.99% of SVCare.  The second provided that another of Schron’s entities (“Cam III”) would lend SVCare $100 million for capitalization of its subsidiary. The agreements were later amended while refinancing the nursing home company transaction.

After a period of litigation, the only claim now relevant before the Court was whether Cam Equity’s option was enforceable, where SVCare argued that it was contingent upon the $100 million loan.  SVCare also claimed that the $100 million loan was never paid and sought to introduce parol evidence to prove both of its claims. Related to the previous litigation, Schron and Cam Equity sought specific performance of the option agreement.  In that litigation, Cam Equity moved to exclude the parol evidence by SVCare that might be offered to prove that the “other good and valuable consideration” (from the option agreement) was intended to reference the $100 million loan agreement. Schron v. Troutman Saunders, LLC, 20 N.Y.3d 430, 433 (2013).

Upon SVCare’s motion to introduce parol evidence, Cam Equity argued that the other “mutual covenants” referenced by the option agreement were sufficient consideration for the option and objected to the attempt to insert the $100 million loan as part of the original agreement.  The Court held that Cam Equity’s interpretation of the option agreement comported with the precedential understanding of contract law for several reasons: (1) a writing that is clear, unambiguous and complete on its face must be enforced; (2) the simple inclusion of “other good and valuable consideration” did not create any ambiguity in the agreement; and (3) the business entities here were sophisticated enough to have included language relating to the $100 million loan had they intended it to be part of their agreement. Schron, 20 N.Y.3d at 433.   The Court affirmed the appellate division and held that Cam Equity was free to exercise its option.

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20 N.Y.3d 430 (2013)

New York Court of Appeals: Auqui v. Seven Thirty One Ltd. Partnership

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

This appeal addresses the preclusive effect of an administrative finding of fact.  The plaintiff, Jose Verdugo, was a food service deliveryman who was injured when a sheet of plywood fell from a building owned by the defendant.  Following his injury, the plaintiff was compensated for treatment of his head, neck, and back injuries as well as post-traumatic stress disorder and depression, and commenced a personal injury action in the Supreme Court of New York County.  While the personal injury action was pending, the plaintiff’s employer moved for the Workers’ Compensation Board (“WCB”) to discontinue his benefits on the grounds that he was no longer disabled because of the accident.  An administrative law judge (“ALJ”) reviewed the expert testimony submitted by both parties and determined that the plaintiff no longer suffered any disability and terminated his benefits. After the plaintiff appealed, a full panel of the WCB affirmed the finding.

Following the WCB decision, the defendants in the personal injury action moved to preclude plaintiffs—including Maria Auqui, the guardian of Mr. Verdugo—from re-litigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the workers’ compensation administrative proceeding.  The Court held that the doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB, and applies only if the identical issue to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue.  The Court further held that findings of fact which are necessary for an administrative agency to reach its decision are entitled to preclusive effect, as opposed to legal conclusions of mixed law and fact that are normally not entitled to preclusive effect.

Here, the Court held that the determination of the WCB should be given preclusive effect as to the duration of plaintiff’s disability, relevant to lost earnings and compensation for medical expenses.  The Court also held that plaintiffs had a full and fair opportunity to litigate the issue of the ongoing disability in the workers’ compensation proceeding, since he was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether there was an ongoing disability.  The defendants’ motion to preclude plaintiffs from litigating the issue of his injury was granted.

The dissent objected on the grounds that the determination of whether Mr. Verdugo was capable of work was a mixed question of law and fact, and therefore, merited a legal determination.  Further, the dissent reasoned that a determination by the WCB on a work-related disability cannot be the basis of collateral estoppel because of the inherent policy considerations behind it.

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20 N.Y.3d 1035 (2013).

New York Court of Appeals: People v. Solomon

This case dealt with the question of whether a lawyer can, with the consent of his client, represent both his client, and, in an unrelated matter, one of the prosecution’s witnesses against his original client. The defendant in this case, Solomon, was charged with raping his daughter over a four year period.  The lawyer that was representing the defendant also represented Kuebler, one of the police officers who had interviewed the defendant after his arrest.  Prior to the trial, the attorney informed the judge that he represented Kuebler in an unrelated civil matter, but that the defendant had been informed of the situation and had consented to the representation.  The judge asked the defendant if it was correct that he consented to the representation, which the defendant affirmed.  Kuebler testified at trial that, in an interview, the defendant had confessed to having sex with his daughter at least once.  The attorney for the defendant, and for Keubler in the second matter, was able to cross-examine Kuebler at trial.  The defendant was convicted.  After the trial, the defendant appealed on the ground that the lawyer’s conflict had denied him effective assistance of counsel.

The Court of Appeals held that the defendant was denied effective assistance of counsel.  In a criminal matter, the defendant may waive an attorney’s conflict, “but only after an inquiry has shown that the defendant ‘has an awareness of the potential risks involved in that course and has knowingly chosen it.’”  People v. Gomberg, 38 N.Y.2d 307, 313-314, 342 N.E.2d 550, 554 379 N.Y.S.2d 769, 775 (1975).  The consent in this case was inadequate where the inquiry into the nature of the defense counsel’s simultaneous representation was not even placed on the record.  However, the Court explained, inadequate representation is not enough to require reversal.  There must also be an actual conflict of interest, not just a potential conflict of interest.

A potential conflict of interest may arise when an attorney represents co-defendants or both a client and a prosecution witness.  However, in neither case will there be an actual conflict of interest, per se.  An actual conflict of interest arises when the conflict has a “‘substantial relation to the conduct of the defense.’”  People v. McDonald, 68 N.Y.2d 1, 9, 496 N.E.2d 844, 847, 505 N.Y.S.2d 824, 827 (1986).  It is not necessary to look into the actual quality of the representation, only whether an actual conflict existed.  In this case, the lawyer simultaneously owed a duty of loyalty to both the defendant on trial and to the police officer being cross-examined.  This represented an actual conflict and required reversal.

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20 N.Y.3d 91, 980 N.E.2d 505, 956 N.Y.S.2d 457 (2012).

New York Court of Appeals: In the Matter of Galasso

Respondent, Peter J. Galasso, was a partner at the law firm Galasso & Langione, LLP.  Anthony Galasso, the respondent’s brother, worked as the firm’s bookkeeper and office manager.  Over a period of three years, Anthony Galasso misappropriated funds from and between two different accounts—an escrow account with four million dollars and an Interest on Lawyer Account (IOLA)—after altering the account application to permit him to act as a signator.  The misappropriation was not detected for three years because of minimal oversight over Anthony Galasso’s activities and because of his practice of switching funds back-and-forth between the two accounts, while removing some for himself.  Anthony Galasso pled guilty to grand larceny, and the Nassau County District Attorney’s Office submitted its conclusions to the Grievance Committee that no one else had participated in or knew about the misappropriation.

Nevertheless, the Grievance Committee charged the respondent with ten charges of professional misconduct: four of the charges alleged breach of fiduciary duty to safeguard client funds, three of the charges alleged failure to supervise a nonlawyer employee resulting in misappropriation of client funds, one charge alleged unjust enrichment by use of funds for personal benefit, one charge alleged failure to provide appropriate accounts to clients with respect to escrow funds, and one charge alleged failure to timely comply with the lawful demands of the Committee.  The Special Referee sustained all ten charges, and the appellate division affirmed.  The respondent was suspended from practicing law for two years, resulting in this appeal.

The issue before the Court of Appeals was whether the respondent’s motion to dismiss the ten charges alleging misconduct should have been granted.  The Court held that nine of the ten charges should be affirmed, but modified as to the charge alleging a failure to timely comply with the Grievance Committee’s lawful demands for information.

In affirming the nine charges, the Court first stated that an attorney has a clear duty to safeguard client funds.  The Court stated that an attorney has a fiduciary relationship with the clients, which requires an attorney to act with a “high degree of vigilance” to ensure that the funds placed in escrow are returned to the clients.  Here, the respondent failed to establish adequate procedures to detect misappropriation by placing too much control over the accounts with a non-lawyer.

The Court also reasoned that there was, at one point, a $5,000 discrepancy in the escrow account.  Respondent allowed Anthony Galasso to resolve the issue.  The Court stated that this type of discrepancy should have been alarming to a reasonably prudent attorney.  Any delegation of authority should have been done with more oversight, but the respondent failed to properly supervise the employee.  Therefore, the disciplinary action was warranted and was sustained for the first nine counts.

Finally, in modifying the last charge of failure to comply, the Court found that there was no evidence to support the charge. When the respondent could not immediately meet the demands, he notified the Committee, explained his reasons why, and stated that he would comply at the earliest opportunity.  The Court found the respondent complied to the best of his ability and remitted the case to the appellate division for it to reconsider whether the suspension imposed was still appropriate.

19 N.Y.3d 688, 978 N.E.2d 1254, 954 N.Y.S.2d 784 (2012)

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New York Court of Appeals: People v. Garcia

The Court in this case considered whether a police officer must have reasonable suspicion to ask the occupants of a lawfully-stopped vehicle whether they possess any weapons.  The Court extended its holding from Debour and Hollman (holding that the common law right of inquiry by an officer requires reasonable suspicion that criminal activity is afoot) by holding that an officer must have reasonable suspicion to inquire whether there are weapons in a car.

Three officers pulled over Miguel Garcia’s vehicle for having a defective rear brake light.  Inside the vehicle, the officers found four males, allegedly acting nervous.  One of the officers inquired if anyone in the vehicle had a weapon, to which one passenger admitted that he had a knife.  The passenger placed the knife on the floor of the car, and the officers asked the occupants to step out of the vehicle whereupon each one was frisked.  One officer noticed something that resembled a gun wedged between the car seat and the door.  Once the item was discovered to be an air pistol, the occupants of the car were arrested.  Upon an inventory search, another air rifle was found in the trunk of the car.  The defendant confessed that he was the owner of the items, and he was charged with two counts of misdemeanor possession of an air pistol or rifle.

The defendant moved to suppress the air rifles as evidence, arguing that the officers had no basis for asking about or searching for weapons when the car was stopped.  The trial court granted the motion at first, but reversed upon a motion to reargue.  The State argued that the Court’s ruling that an officer can request occupants to step out of a vehicle without reasonable suspicion should be expanded to permit officers to inquire if anyone inside has a weapon because doing so does not require any greater intrusion.  Upon reversal of the suppression order, the defendant pled guilty and appealed the suppression decision.  The appellate division reversed and vacated the judgment of the defendant.

The Court of Appeals began by explaining that an officer may use precautionary measures without particularized suspicion to direct occupants out of a car.  This principle is an established rule for the protection of police officers.  The Court proceeded to discuss two prior holdings which described the different levels of officer-citizen encounters.  When questioning becomes more pointed and the officer is seeking information about an individual’s wrongdoing, the officer must have a founded suspicion that criminal activity is afoot.

Next, the Court discussed the various policy issues behind the ruling, and considered the importance of promoting predictability and precision in judicial review of search-and-seizure cases, along with the protection of individual rights.   A bright-line rule in this area would better promote these policies.  Therefore, the Court found that Debour and Hollman apply to street encounters and traffic stops, requiring reasonable suspicion to ask if there are any weapons in a vehicle.

The evidence in the record supported the appellate division’s determination that the air rifles should have been suppressed.  However, the case was remanded to the trial court to allow the State to make an alternative argument under the doctrine of inevitable discovery.

20 N.Y.3d 317 (2012)

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New York Court of Appeals: Bitachatchi v. Board of Trustees of New York City of Police Department Pension Fund

In this case, the Court considered three consolidated appeals, each addressing a police officer that responded to provide assistance at the World Trade Center (“WTC”) following the attacks on September 11, 2001.  The three appeals included two officers who sought Accidental Disability Retirement Benefits (“ADR”), and the surviving spouse of another officer who brought a claim for line-of-duty death benefits.  The issue in all three appeals involved the application of the statutory WTC presumption.  Under this presumption, for the purpose of benefit upgrades, an officer’s disability or death, as a result of a qualifying condition, is presumed to be caused by his or her exposure at the WTC site.  The central issue presented was whether the Board of Trustees of the New York City Police Department Pension Fund (“the Board”) produced competent evidence to rebut the WTC presumption.  The Court held that the Board did not meet its burden of disproving that the officers’ disabilities or deaths were causally related to their work at the WTC.

New York City Police Department officers who become disabled may apply for one of two types of disability benefits.  Ordinary Disability Retirement Benefits (“ODR”) are comprised of a taxable pension and are payable if the officer is “‘physically or mentally incapacitated for the performance of duty and ought to be retired.’”  N.Y.C., N.Y., Administrative Code § 13-251.  Alternatively, ADR benefits include a tax-free pension of three-quarters of the officer’s salary, but require an additional showing that the officer’s disability is the “natural and proximate result of an accidental injury received in … city-service.”  N.Y.C., N.Y., Administrative Code § 13-252.  Where a police officer dies as a result of a work-related accident, the officer’s beneficiaries may recover line-of-duty death benefits equating to the officer’s full salary, as well.  Typically, the officer seeking an upgrade of benefits has the burden of presenting evidence that their benefits should be upgraded to ADR.  However, after September 11th, a new statute was enacted creating a presumption in favor of ADR benefits for those who performed rescue, recovery, or cleanup operations at specified locations.  The statute shifted the initial burden of proving that a claimant’s qualifying condition was not caused by the hazards encountered at the WTC site to the Board.

The Court determined that a decision by the Board that a disability was not caused by a service-related accident would be upheld provided it was supported by “credible evidence” in the record.  Credible evidence “is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered.”  Meyer v. Board of Trustees, 90 N.Y.2d 139, 147, 681 N.E.2d 382, 387, 659 N.Y.S.2d 215, 220 (1997).  The evidence must also be “evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported evidence.”  Id.

In the first two cases, the Court held that the presumption that the officers’ cancerous conditions were caused by their exposure at the WTC site was not rebutted by credible evidence.  Simply referencing “literature” and “copious data” without a foundation upon which the Court could review the matter was insufficient.  The Court rejected the Board’s argument that the cases should be remanded:  “[w]hen the Board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of ADR benefits—even if the claimant offers no medical proof.”  In the third case, the Board contended that petitioner’s condition was pre-existing and therefore did not qualify under the WTC statute.  Yet, the Court rejected this contention, since the Board failed to preserve the argument that the burden of proof remains with the petitioner to demonstrate that exposure aggravated or exacerbated the pre-existing condition.  The Court held that the Board could not rely on petitioner’s deficiencies to fill its own gap in proof, and therefore, failed to meet its statutory burden.

20 N.Y.3d 268, 982 N.E.2d 600, 958 N.Y.S.2d 680 (2012)

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New York Court of Appeals: People v. Best

This case arises from the conviction of defendant Emil Best for endangering the welfare of a child.  The defendant appeals his conviction on the basis that his constitutional rights were violated because he was restrained during the course of his bench trial with no specific justification.  The Court of Appeals held that the rule governing visible restraints in jury trials applies equally to non-jury trials and the district court’s failure to state a basis for the restraint was error.  The Court did go on to hold, however, that the constitutional error in this case was harmless and the conviction was affirmed.

The defendant was charged with endangering the welfare of a child based on allegations that he offered a 12-year-old boy $50 for the boy to expose himself.  The defendant waived his Miranda rights and, in a written statement, admitted that he did make the offer.  The defendant subsequently appeared for a Sandoval hearing with his hands cuffed behind his back. Defense counsel requested the handcuffs be removed, but instead the defendant’s hands were merely cuffed in front.  At this point, the defendant also waived his right to a jury trial.  At the start of trial and each subsequent day after, defense counsel made the request to remove the cuffs and each day the defendant was cuffed in front.  The defendant alleged that this action violated his constitutional rights under Deck v. Missouri, where the Supreme Court held that the Constitution “forbids routine use of visible shackles during the guilt phase” of a trial and “permits the State to shackle a criminal defendant only in the presence of special need.” 544 U.S. 622, 626 (2005).  The defendant contended that no special need was shown and that his due process rights had been violated.

The State claimed that since a judge, rather than a jury, tried the defendant, this represented an important difference. However, the Court ruled this reasoning out as grounds for distinction.  The Court proceeded to outline the reasoning behind the ruling in Deck, stating that the psychological impact on a defendant being continually restrained is detrimental, as well as addressing the negative impact that the image of a handcuffed defendant has on the public’s perception.  While the district court offered no justification for ordering the defendant’s restraint, the Court applied the constitutional harmless error analysis and found that the constitutional error the district court made in restraining the defendant was harmless, where evidence of guilt was overwhelming and where there was no reasonable possibility that it affected the outcome of the trial.

19 N.Y.3d 739, 979 N.E.2d 1187, 955 N.Y.S.2d 860 (2012)

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New York Court of Appeals: People v. Fernandez

The issue on appeal in this case was whether the accusatory instrument in a traffic violation stop constituted a facially sufficient simplified traffic information, even though it was titled “Complaint/Information” and contained factual information. The defendant, Fernandez, was arrested on charges of aggravated unlicensed operation of a motor vehicle and had thirteen prior license suspensions.  The instrument in question was a four-by-eight inch paper titled “Complaint/Information” which listed the violation of the Vehicle and Traffic Law (“VTL”), the defendant’s personal information, and a description of the incident, as well as, a signed statement by the arresting officer.  The defendant alleged that the instrument omitted an element of the offense charged, and therefore was insufficient to serve as a complaint upon which he could be arraigned and sentenced.

The defendant pointed to People v. Casey, which stated that the title of a document controls, and therefore since the document in question here was titled “Complaint/Information” it was a misdemeanor complaint. 95 N.Y.2d 354, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000). However, the defendant drew this conclusion from a side comment that distinguished instruments including hearsay statements from those without.  The Court held that Casey did not, in fact, apply in this case and that holding title to be dispositive would contradict the Legislature’s intent that no single part of a form be dispositive. The Court further pointed out that a simplified traffic information need only “substantially conform to the requirements of the Commissioner of Motor Vehicles.” Therefore, as long as a form is adequately detailed to prevent the defendant from being tried twice on the same offense, it would substantially conform.

The defendant also argued that the form in the case did not comply with a state statute VTL § 207, that authorizes the Commissioner of Motor Vehicles to prescribe the form of a uniform summons and complaint in traffic violation cases.  However, the Court found that that statute does not apply to simplified traffic information in New York City, the location of the traffic violation.  Rather, the relevant statute, VTL § 226, authorizes the Commissioner of Motor Vehicles to prescribe the form of a summons and complaint in traffic cases and does not include a sample illustrated form nor the express language “simplified traffic information.”  The form used in this case was the form routinely used in a simplified traffic information for parts of New York City to prosecute traffic misdemeanors in criminal court.  Therefore, the defendant’s accusatory instrument substantially complied with the requirements of the statute and was a facially sufficient simplified traffic information.

The dissent explained that the accusatory instrument used in the defendant’s case did not sufficiently resemble the statutory template for a simplified traffic information. Further, the dissent contests the majority’s interpretation of Casey and emphasizes the principle from that case: an instrument that purports to be a misdemeanor information is a misdemeanor information. In conclusion, the dissent would find that the instrument was not a simplified traffic information with some superfluous information, but an insufficient misdemeanor information, and therefore, should have been dismissed as jurisdictionally defective.

20 N.Y.3d 44, 980 N.E.2d 491, 956 N.Y.S.2d 443 (2012)

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