COURT OF APPEALS

ARBITRATION (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE ARBITRATOR, ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT)/FEDERAL ARBITRATION ACT (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE HANDS OF THE ARBITRATOR, ENFORCEABLE)/INSURANCE LAW (DELEGATION CLAUSES IN INSURANCE-RELATED AGREEMENTS, PLACING THE DECISION WHETHER A MATTER IS ARBITRABLE IN THE HANDS OF THE ARBITRATOR, ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT)

ARBITRATION, INSURANCE LAW.

DELEGATION CLAUSES, PLACING THE DETERMINATION OF ARBITRABILITY IN THE ARBITRATOR, NOT THE COURT, ENFORCEABLE UNDER FEDERAL ARBITRATION ACT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined "delegation clauses" in insurance-related contracts were enforceable under the Federal Arbitration Act (FAA). The "delegation clauses" required that the initial determination whether a dispute is arbitrable is to be made by the arbitrator, not the court. Before reaching the merits, and after explaining the history of the FAA and the McCarran-Ferguson Act, the Court of Appeals decided, under the facts, the McCarran-Ferguson Act did not remove the matter from the jurisdiction of the FAA:

... [A] review of the record reveals that [the insureds] did not specifically direct any challenge to the delegation clauses empowering the arbitrators to determine gateway questions of arbitrability ... . Those delegation provisions, which state that the arbitrators "have exclusive jurisdiction over the entire matter in dispute, including any question as to its arbitrability," are valid because the parties "clearly and unmistakably" agreed to arbitrate arbitrability ... . As the delegation clauses are severable from the remainder of the agreements to arbitrate, we must enforce them according to their terms and, under these circumstances, the question of arbitrability is one for the arbitrators ... . ...

... [W]e hold that the FAA applies to the [contracts in issue] because it does not "invalidate, impair, or supersede" ... any insurance regulations and, consequently, the McCarran-Ferguson Act is not triggered ... . Further, because the parties clearly and unmistakably delegated the question of arbitrability and enforceability of the arbitration clauses to the arbitrators — in provisions that were not specifically challenged by the insureds — the FAA mandates that the arbitration provisions be enforced as written. Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 2016 NY Slip Op 01209, CtApp 2-18-16

CRIMINAL LAW (SENTENCING, DEFERRAL OF MANDATORY SURCHARGE)/SENTENCING (DEFERRAL OF MANDATORY SURCHARGE)/MANDATORY SURCHARGE (DEFERRAL)

CRIMINAL LAW.

MECHANISMS FOR SEEKING DEFERRAL OF MANDATORY SURCHARGE EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined, where a sentence of incarceration exceeds 60 days,  a sentencing judge does not have the power to waive the mandatory surcharge. The only mechanism available to such a defendant who seeks to demonstrate the inability to pay the surcharge is a motion for resentencing:

... [T]he relevant statutes prohibit judicial waiver of a mandatory surcharge, require collection of any unpaid amounts from an inmate's funds as of the moment of confinement and throughout the period of incarceration, and provide for deferral under limited circumstances, namely an inability to pay that is not solely due to incarceration. A person subject to a mandatory surcharge may seek to defer payment at any time after sentencing, by way of a motion to resentence under CPL 420.10 (5). In addition, persons sentenced to confinement of 60 days or less, may avoid filing such motion, and instead present information in support of a request to defer on the appearance date set forth on a summons issued pursuant to Penal Law § 60.35 (8). Under either procedural mechanism, if the court grants a deferral it must place its reasons on the record ... , and issue a written order, which shall be treated as a civil judgment in accordance with CPLR 5016 ... . This statutory scheme is structured to further the legislative goals of raising revenue and ensuring payment of the mandatory surcharge by persons convicted of crimes. People v Jones, 2016 NY Slip Op 01208, CtApp 2-18-16

CRIMINAL LAW (APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT'S RULING)/APPEALS (CRIMINAL APPEALS MAY BE DECIDED ON GROUNDS IMPLICIT IN THE TRIAL COURT'S RULING)/CRIMINAL LAW (EVIDENCE OF UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM'S DELAY IN REPORTING)/EVIDENCE (UNCHARGED ACTS OF VIOLENCE ADMISSIBLE TO EXPLAIN CHILD SEX-ABUSE VICTIM'S DELAY IN REPORTING)/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (EXPERT EVIDENCE ADMISSIBLE EVEN THOUGH JURORS STATED IN VOIR DIRE THEY UNDERSTOOD WHY A CHILD WOULD DELAY IN REPORTING ABUSE)

CRIMINAL LAW, APPEALS.

APPELLATE DIVISION PROPERLY DECIDED APPEAL ON GROUNDS WHICH WERE NOT EXPLICITLY STATED BY THE TRIAL COURT BUT WHICH WERE IMPLICIT IN THE TRIAL COURT'S RULING.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the Appellate Division did not exceed its statutory powers when it decided an evidentiary issue on grounds which were implicit in the trial court's ruling, but not explicitly stated by the trial court. The trial judge had ruled rebuttal testimony was admissible to show defendant's witness had lied when she testified she was currently "just friends" with the defendant. The Appellate Division found the testimony was admissible to show the defendant's witness's bias or motive to fabricate. The Court of Appeals held that the "bias or motive to fabricate" reasoning simply recognized the underlying premise of the trial court's ruling, and did not violate the rule that the Appellate Division cannot decide an appeal on a ground not ruled upon by the lower court. The Court of Appeals also ruled that evidence of uncharged acts of violence against or witnessed by the child sex-abuse victim were admissible to explain the victim's delay in reporting the abuse, and the expert evidence of Child Sexual Abuse Accommodation Syndrome was properly presented despite jurors stating in voir dire that a child's delay in reporting would be understandable. With respect to the Appellate Division's review powers, the Court of Appeals wrote:

Where a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge's stated reasoning. Moreover, nothing in the language of CPL 470.15 (1) ... prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court's ultimate determination, as it did in defendant's case. Unlike the case where the Appellate Division renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor—the type of appellate overreaching prohibited by CPL 470.15 (1) ... , the Appellate Division here affirmed the evidentiary ruling on the ground relied on by the trial court, namely to establish the defense witness lied that she and defendant were merely friends, as well as the unspoken, record-supported inferences that can be drawn from that testimony. We therefore conclude that the Appellate Division acted within its statutory appellate review power.

Any other interpretation of CPL 470.15 (1) would require a trial judge to state every analytic step underlying a determination to admit or deny evidence, no matter how obvious the reasoning from the record. This approach demands a heretofore unexpected level of descriptive technical exactitude. It would require the judiciary to participate in a laborious exercise, without obvious commensurate benefit to the parties or our system of justice. We do not mean that a trial court's evidentiary rulings may go unexplained, that the Appellate Division may hypothesize the basis for a judge's determination where a record is wholly devoid of reason, or that an appellate court may comb through the entirety of a record solely to cobble together some theory for the trial court's conclusion. There must be sufficient articulation of a "reviewable predicate" ... . Thus, where the trial court's decision is fully articulated the Appellate Division's review is limited to those grounds, but where the trial court gives a reason and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15 (1) when it considers those inferences. People v Nicholson, 2016 NY Slip Op 01206, CtApp 2-18-16

CRIMINAL LAW (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/ATTORNEYS (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/EVIDENCE (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)/EXPERT EVIDENCE (COUNSEL NOT INEFFECTIVE RE MULTIPLE DISCLOSURES OF SEX ABUSE AND FAILURE TO CALL MEDICAL EXPERT)/BOLSTERING (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND)/BACKGROUND INFORMATION (EVIDENCE OF MULTIPLE DISCLOSURES OF CHILD SEX ABUSE NOT BOLSTERING, ADMISSIBLE AS BACKGROUND INFORMATION)

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

DEFENSE COUNSEL NOT INEFFECTIVE; EVIDENCE OF CHILD'S MULTIPLE DISCLOSURES OF SEX ABUSE WAS NOT BOLSTERING; DEFENSE COUNSEL ARTICULATED LEGITIMATE REASONS FOR NOT CALLING A MEDICAL EXPERT.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel was not ineffective in a child sex abuse case.  The central issues concerned the evidence of the child's disclosures of the alleged abuse to several people (including the People's expert), the prosecutor's emphasis on the multiple disclosures without objection, and defense counsel's failure to call a medical expert. The Court of Appeals held defense counsel articulated arguably legitimate reasons for not calling an expert, and the evidence of multiple disclosures did not constitute bolstering, but rather was properly admitted as background information, fleshing out the investigation, and the People's expert's diagnosis:

In Ludwig [24 NY3d 221], we acknowledged that "New York courts have routinely recognized that 'nonspecific testimony about [a] child-victim's reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'" and assisting in the completion of the narrative of events which led to the defendant's arrest ... . Here, the testimony of the child's mother, sister, principal and the two officers fulfilled these legitimate nonhearsay purposes, and defense counsel's objections to the testimony of the witnesses ensured that the witnesses did not specifically repeat what the child told them.

The majority of [the People's medical expert's] testimony as to the child's specific allegations of sexual abuse was admissible under People v Spicola (16 NY3d 441 [2011]). In Spicola, we held that testimony of a nurse-practitioner concerning the child's history of sexual abuse was permissible testimony because the child's statements to the nurse-practitioner "were germane to diagnosis and treatment" and therefore "were properly admitted as an exception to the hearsay rule" (16 NY3d at 451). Applying Spicola here, the trial court properly admitted [the expert's] testimony. The testimony explained why the child was being examined by [the expert] and why the normal results of the physical examination did not indicate that the child had not been subjected to sexual abuse. This background information completed the narrative and was properly permitted under the exception to the hearsay rule. Moreover, defense counsel lodged an objection to [the expert's] testimony concerning the child's history; however, that objection was overruled. Defense counsel can hardly be deemed ineffective on this score.

Trial counsel's failure to request that a limiting instruction be given to the jury that the child's testimony concerning the disclosures she made to other individuals should not be accepted for the truth of her allegations, does not render her ineffective in light of the totality of her representation of defendant ... . Moreover, defense counsel was not ineffective for failing to object to the prosecutor's summation comments referencing the testimony of the witnesses to whom the victim had disclosed. Despite the dissent's argument to the contrary, the failure to object to the prosecutor's statement on summation does not negate the overall meaningful representation provided to defendant by his counsel. Defense counsel zealously advocated for defendant, making multiple successful objections which limited the testimony of several prosecution witnesses. Additionally, defense counsel may have made a strategic choice not to object during summation given that the witnesses were not able to testify to the specifics of the child's allegations ... . She may have felt that such an objection would not be worthwhile given the limited testimony elicited from the witnesses. Such a strategic decision does not support a finding of ineffectiveness ... . People v Gross, 2016 NY Slip Op 01204, CtApp 2-18-16

CRIMINAL LAW (EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/EVIDENCE (CRIMINAL, SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION)/ATTORNEYS (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT)/INEFFECTIVE ASSISTANCE (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE)/GRAND JURY (DECISION WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC ONE TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT, DEFENDANT MUST DEMONSTRATE PREJUDICE TO SUPPORT INEFFECTIVE ASSISTANCE CLAIM)

CRIMINAL LAW, ATTORNEYS, EVIDENCE.

EVIDENCE SUFFICIENT TO TRIGGER DRUG FACTORY PRESUMPTION OF DRUG POSSESSION; WHETHER TO TESTIFY BEFORE A GRAND JURY IS A STRATEGIC DECISION TO BE MADE BY DEFENSE COUNSEL, NOT DEFENDANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion by Judge Rivera, determined the evidence supported the jury's consideration of the "drug factory presumption" re: possession of drugs.  In addition, the Court of Appeals held the decision whether to testify before a grand jury is a strategic decision to be made by the attorney, not the defendant, and, in order to demonstrate ineffective assistance in this context, a defendant must show prejudice. The presence of some loose cocaine on the floor, some baggies and a razor blade was sufficient to trigger the "drug factory presumption", i.e., a presumption of possession by everyone in close proximity to the cocaine. Without the presumption, there would not have been enough evidence defendant possessed the drugs:

While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being "package[d] or otherwise prepare[d] for sale" in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them ... . * * *

While the right to testify before a grand jury is significant and "must be scrupulously protected" ..., "a prospective defendant has no constitutional right to testify before the [g]rand [j]ury" ... . In contrast to the "constitutional nature of the right to testify at trial" ... , the right to testify before the grand jury is a limited statutory right ... . Whether to exercise that right is a decision that requires "the expert judgment of counsel" ... because it "involves weighing the possibility of a dismissal, which, in counsel's judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses" — quintessential matters of strategy ... . The various risks and benefits that must be considered render the decision of whether to exercise this statutory right "an appropriate one for the lawyer, not the client" ... .

In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a "defense counsel's failure to timely facilitate defendant's intention to testify before the [g]rand [j]ury does not, per se, amount to a denial of effective assistance of counsel" ... . That is, even where no strategy is involved, a defendant must show prejudice ... . People v Hogan, 2016 NY Slip Op 01207, CtApp 2-18-16

CRIMINAL LAW (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/CONFESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/SUPPRESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/EVIDENCE (CONFESSION, UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)

CRIMINAL LAW, EVIDENCE.

THERE WAS AN INEXCUSABLE 28-HOUR DELAY BETWEEN DEFENDANT'S ARREST AND ARRAIGNMENT, BUT THE DELAY DID NOT RENDER THE CONFESSION INVOLUNTARILY GIVEN.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in a double-murder case, determined defendant's motion to suppress his confession was properly denied.  The central issue was whether the delay between defendant's arrest and his arraignment (28 hours) rendered the confession involuntary. The Court of Appeals determined there was inexcusable delay, but that the delay was only one factor in an analysis of whether the confession was voluntarily given:

Given the inordinate length of time between defendant's arrest and arraignment and the unsupported claims of an investigatory need to continue the questioning following his arrest, we have no difficulty concluding that the record lacks support for a finding that the delay was necessary. Here, defendant was arrested at 9:00 p.m. on May 14th, after 10 hours of intermittent questioning at the precinct. Over 12 hours later, he made an oral confession, at approximately 9:30 p.m. on May 15th, and completed a signed written confession 4 1/2 hours later, at 2:00 a.m. He was then arraigned more than 28 hours after his arrest, in excess of the 24-hour delay this Court determined to be presumptively unnecessary in People ex rel. Maxian [77 NY2d 422}]. * * *

Although defendant was detained for over 24 hours, and spent most of the time in a windowless room, his basic human needs were provided for because he was able to eat, drink, and take bathroom breaks. He was even allowed to smoke cigarettes. ... [T]he interrogations were not done in continuous rotations, but rather were intermittent, and provided breaks during which defendant was able to rest and sleep, as well as remain silent and consider his situation. Defendant was not placed in the untenable position of bargaining his rights ... , as he was neither induced to confess in order to speak with a lawyer, nor dissuaded from exercising his rights to counsel or to remain silent. Instead, as the detectives testified and the Miranda form indicates, defendant was informed of his rights early during the interrogation process. The record establishes defendant confessed only once he was faced with evidence of his guilt, not because he was exhausted and desperate to escape his interrogators. Thus, the totality of the circumstances here do not "bespeak such a serious disregard of defendant's rights, and were so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant's will was not overborne" ... . People v Jin Cheng Lin, 2016 NY Slip Op 01205, CtApp 2-18-16