OPINION OF THE COURT RIVERA , J. Defendant claims that the trial court, relying on People v Herner ( 85 N.Y.2d 877 [1995]), and affirmed by the Appellate Term, improperly denied her request for a Wade hearing to determine the suggestiveness of a prosecutor's pretrial display to complainant of defendant's arrest photograph, on the ground that the display was trial preparation, and not an identification procedure. Defendant further argues that we should repudiate a practice that has...
OPINION OF THE COURT PIGOTT , J. This case presents two issues for our review. The first is whether the doctrine of collateral estoppel bars the People from introducing, at defendant's second trial, evidence that defendant threatened the victim of a burglary with a razor blade when the jury had acquitted defendant of charges involving the use or threatened use of a dangerous instrument at the first trial. The second issue is whether the trial court erred when it permitted the People to...
OPINION OF THE COURT Chief Judge LIPPMAN . The issues presented by this appeal are whether the Federal Arbitration Act (FAA) is applicable to disputes arising under the agreements at issue and, if so, whether plaintiffs Rita and Dominic Cusimano waived their right to arbitrate by pursuit of this litigation. We hold that the FAA does apply, but that plaintiffs waived their right to arbitrate. This appeal concerns three commercial agreements entered into among family members regarding...
OPINION OF THE COURT FAHEY , J. This action arises from a motor vehicle accident that occurred after nonparty Lorraine A. Walsh was treated at defendant South Nassau Communities Hospital by defendants Regina E. Hammock, DO and Christine DeLuca, RPA-C, that is, medical professionals employed by defendant Island Medical Physicians, P.C. (collectively, Island Medical defendants). As a part of that treatment, defendants intravenously administered to Walsh an opioid narcotic pain-killer and a...
OPINION OF THE COURT PIGOTT , J. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a "culpable state of mind," and "that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" ( VOOM HD Holdings LLC v EchoStar...
OPINION OF THE COURT STEIN , J. In IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A. ( 20 N.Y.3d 310 [2012], cert denied 569 US ___, 133 S.Ct. 2396 [2013]), this Court held that, where parties include a New York choice-of-law clause in a contract, such a provision demonstrates the parties' intent that courts not conduct a conflict-of-laws analysis ( see id. at 312). We now extend that holding to contracts that do not fall under General Obligations Law 5-1401, and clarify that...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum. In 2006, defendant was charged with assault in the first degree (Penal Law 120.10 [3]) and endangering the welfare of a child (Penal Law 260.10 [1]), in connection with injuries sustained by a seven-month-old infant in her care. At defendant's trial in 2009, the People's theory was that the infant...
OPINION OF THE COURT PIGOTT , J. Under the Social Services Law, a recipient of public assistance must assign to the State and social services district his or her right to child support ( see Social Services Law 158 [5]). The recipient is entitled to any support payments that exceed the total amount of public assistance received (18 NYCRR 347.13 [f] [3]). Respondents determined that no such excess existed in this case, and because their determination was not arbitrary, capricious or...
OPINION OF THE COURT ABDUS-SALAAM , J. In April 2004, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class B felony, and he was sentenced in June 2004 to an indeterminate prison term of from 3 1/3 to 10 years. Defendant had committed that crime in April 2003. Days after he was sentenced on this drug charge, defendant was sentenced, upon his guilty plea to two counts each of robbery in the first degree and of endangering the welfare of a child,...
OPINION OF THE COURT ABDUS-SALAAM , J. On this appeal, we must decide whether defendant's trial counsel was ineffective for (1) failing to seek the dismissal of time-barred charges against defendant and (2) failing to object to certain statements by the prosecutor during her summation. For the following reasons, we hold that defendant's trial counsel was not ineffective and therefore the Appellate Division order should be affirmed. I Defendant Nugene Ambers was charged, in two felony...
OPINION OF THE COURT Chief Judge LIPPMAN . On the night of August 4, 2002, the complainant awoke in the dwelling where she was passing the night, to the sight of a man standing over her. She screamed and the man fled, but, as it turned out, not without leaving markers of his intrusion. In December 2010, DNA recovered from the complainant's pajama shirt directly after the 2002 incident was matched to defendant's DNA profile, and that match was confirmed using a buccal swab obtained from...
OPINION OF THE COURT On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs; motion of defendants Metropolitan Transportation Authority Bus Company and Isael Reyes for summary judgment denied; and certified question not answered as unnecessary. On this record, whether the emergency doctrine precludes liability presents a question of fact and, therefore, summary judgment for defendants...
OPINION OF THE COURT PIGOTT , J. Defendant Samuel Small, also known as Samuel Smalls, was indicted on March 30, 2006 for various charges arising from a burglary that occurred January 11, 2005 in Brooklyn. He was arrested on April 4, 2006 for a different burglary that occurred earlier that day. At arraignment, the People served notice that they would be presenting the April 4 burglary to the grand jury on Monday, April 10, and defendant notified the People that he wished to testify....
OPINION OF THE COURT Chief Judge LIPPMAN . We are asked to decide whether a defendant's sentencing comports with due process where he rejects a plea offer of 10 years' probation for a single crime and, after being tried and convicted on multiple charges, is sentenced to 10 to 20 years' imprisonment. Because a presumption of vindictive sentencing does not apply to the circumstances presented here, we affirm the order of the Appellate Division. Defendant was charged with rape in the first...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be reversed, without costs, and the petition dismissed. After one juror was found unable to serve, defendant refused to substitute an alternate juror and requested a partial verdict on the one count on which the jury had indicated it had reached a verdict. The Appellate Division granted the petition on the basis that there was no manifest necessity for a mistrial and did not address the issue of consent ( 120 A.D....
OPINION OF THE COURT ABDUS-SALAAM , J. In Society of Plastics Indus. v County of Suffolk ( 77 N.Y.2d 761 [1991]), this Court examined the law of standing, and set forth a framework for deciding whether parties have standing to challenge governmental action in land use matters generally, and under the State Environmental Quality Review Act (ECL art 8 [SEQRA]), specifically. We held that "the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in...
OPINION OF THE COURT Chief Judge LIPPMAN . We hold that petitioner, who performed work for the City of New York in exchange for cash public assistance and food stamps, is protected by the federal minimum wage provisions of the Fair Labor Standards Act (FLSA). Petitioner Carver is a 69-year-old Vietnam War veteran who received public assistance from the City of New York, through the State-funded Safety Net Assistance Program ( see Social Services Law 61, 62, 157 et seq. ),...
OPINION OF THE COURT STEIN , J. Late one evening in June 2007, defendant happened upon an altercation on a street in Manhattan and saw his friend being chased by several men. As one of those men attempted to hit defendant's friend, defendant—who was otherwise uninvolved in the events leading up to the dispute—fired a gun multiple times into the group, killing one person and injuring two others. Police officers arriving at the scene of the fight witnessed defendant begin shooting and,...
OPINION OF THE COURT FAHEY , J. The primary issue on this appeal is whether a surveillance video showing defendant rifling through and then walking off with the victim's purse constitutes direct evidence of his guilt of larceny, despite the fact that defendant offered an alternative explanation for his behavior. We hold that the surveillance video constituted direct evidence of defendant's guilt, and that no circumstantial evidence charge was required. A particular piece of evidence is...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. Defendant stands convicted of conspiracy in the fourth degree. Prior to his nonjury trial upon an indictment charging him with numerous crimes incident to his alleged participation in a scheme to defraud mortgage lenders, defendant, through trial counsel, entered into a stipulation deeming certain enumerated exhibits "admissible as evidence in chief for all purposes." Among the numerous documents covered...
