Category: Uncategorized

Scott Middleton and Suffolk County Commissioner of Jurors Lawrence Voigtsberger. Photo by Judy Walker

By Adina Genn
Long Island Business News
March 30, 2018

In a pool full of prospective jurors, trial attorneys have lots to assess. Who’s biased? Who’s empathetic? Who can think for themselves? Those determinations can make or break a case, and mean the difference in a winning a case for a client.

That’s why prosecutors, defense attorneys and judges need to quickly evaluate jurors by studying body language and facial expressions to gain insights as to how they think.

They also consider the profession that jurors might align with, depending on the case and client. In a criminal case, for instance, an attorney might not want a juror who is related to someone in law enforcement, or in a medical malpractice case, someone related to a physician.

“I want six people who see things my way,” said Scott Middleton, a partner at Campolo, Middleton & McCormick, a law firm with headquarters in Ronkonkoma.

But, Middleton pointed out, “the other side is doing the same thing.”

Business lesson

A jury summons might spark dread for the recipient, but Suffolk Commissioner of Jurors Lawrence Voigtsberger pointed out that serving is a “civic duty.”

“It’s a constitutional right to have a trial by jury whether civil or criminal,” he noted. “Jury duty is mandatory, but it’s typically a very good learning process. Hopefully, no one gets involved in the court system as a victim, but at least you have an idea of what the process will be.”

And while businesses on Long Island may see jury duty as disruptive to their organizations, Voigtsberger said, most trials last two to three days, though “there are always exceptions.”

Jurors not only see the justice system up close, but also gain insights into the flaws of a contract that prompted litigation.

“All that is brought out in evidence,” Voigtsberger said.

Level playing field

Ultimately, Middleton noted, trial attorneys want jurors and alternates that are “impartial to listen to your case and decide what should occur at the end.”

That can mean understanding that the person on trial doesn’t have to testify – and a juror shouldn’t hold that against someone.

And to the untrained civilian, some of the questions might seem surprising.

Consider, for example, Judge Joan Azrack, who at federal court in Central Islip, reportedly asked about the favorite TV shows of potential jurors in the Ed Mangano, Linda Mangano and John Venditto trial.

That’s par the course, attorneys said. These kinds of questions garner “how analytical” a person is, and, for instance, in a case where the evidence may be complex, help an attorney understand who might quickly grasp the elements.

High profile cases

Experts say local jurors can be impartial, even when the case is a high profile one.

With the case against the Manganos and Venditto, for instance, attorneys said they would not necessarily second guess the ability of prospective jurors to serve even if they were unfamiliar with the case.

It’s not surprising that some potential jurors have not been paying attention to that case, experts said.

“Put yourself in the general population – a lot of people just don’t care,” Middleton said. “Even if they have an interest in politics, [people] going to work have real issues to deal with. The Mangano situation doesn’t really affect them at their level.” And a juror from say Queens, or Brooklyn, may have very little awareness of political leaders in Nassau County, he added.

Timing

Jury selection can take as little as one day, to about three days.

The time allotted for a jury selection is tied in with the time a judge offers.

And a group of prospects can be dismissed quickly.

The questions asked can scope out not only bias, but also whether people have a planned vacation, a medical issue, a language barrier and other concerns.

Once they’ve completed jury service, they can breathe easy, at least for a while.

“They won’t be summoned again for six years,” Voigtsberger said.

Quick decisions required when attorneys make their choices

Voir dire – Merriam-Webster defines this legal term as a “preliminary examination to determine the competency of a witness or juror” – takes a certain skill.

Experts say observing a prospective juror’s whole being come into play.

“What we try to do is think of what backgrounds, life experiences, cognitive styles, opinions, and values jurors might have that would make them less receptive to our case,” Jeffrey Reynolds, director of the jury research division of the National Legal Research Group, and author of “Mastering Voir Dire and Jury Selection” told the online publication MentalFloss.

And while body language, gender, lifestyle choices, race and even social media may seem to fall into play, that view may prove limited.

And while social media searches on jurors may offer insights into those sitting on a jury, not all states, courts and judges approve. The New York State Bar Association, for example, has cited ethics concerns. For instance, it states that attorneys conducting research on a juror cannot communicate with that individual without running into professional conduct conflicts.

And there may be no hard and fast rules, with each case having its own set of idiosyncrasies – for example, whether it’s a criminal or civil – or its venue.

And there may be instances where a prospective juror may not seem to like you. The person sits with arms folded, offers single-word replies, smiles or laughs at times. But these signals may have nothing to do with the attorney. Perhaps the person is nervous, or appears cross but is actually hungry.

So what’s an attorney to do?

One attorney put it this way: “Go with your gut, and try to get people who will be open, honest and fair, and will listen to the facts.”

Read the full article on LIBN.

It is absolutely time to revisit and revise New York State’s absolute liability standard imposed upon contractors and owners for construction-related accidents. New York Labor Law Sections 240 and 241, colloquially referred to as the “Scaffold Law,” impose a strict liability standard on contractors and owners for elevation/gravity related accidents.  Unlike other personal injury matters, the Scaffold Law does not allow for any consideration of the comparative fault of the injured worker for causing and/or contributing to his/her accident. As a result, facts such as the injured worker’s decision not to wear personal protective equipment (“PPE”) that is provided by his/her employer and readily available at the jobsite are not considered in evaluating liability or the award of damages.

Having worked in the construction industry for the past twenty years, and having overseen the Safety, Risk Management, and Loss Control Departments for contractors with a New York (as well as a national and international) presence, I’ve seen beyond dispute that New York’s Scaffold Law is among the primary reasons for the soaring cost of construction.  It drives up the value of settlements and verdicts which, in turn, increases the cost of insurance.  In fact, many insurance carriers have stopped writing policies in New York as a result of this antiquated and imbalanced law. And those carriers that have kept writing programs in New York have dramatically increased their premiums as well as the deductibles and self-insured retentions that the insured contractors are required to carry.

The net effect is an ever-increasing cost to build.  Further, it has forced many contractors and subcontractors to seek projects outside of New York, price shop insurance programs with carriers that are not admitted in New York State, and purchase policies that contain numerous exclusions that do not provide any actual coverage. These increased costs are then passed along to consumers on private sector projects and taxpayers on public sector projects.

This is not to say that injured workers should not be compensated for elevation-related accidents on construction sites.  Nor is it intended to endorse contractors that curtail spending on training, safety, PPE, and supervision that the workforce needs to perform their work.  But, when the Occupational Safety and Health Administration (“OSHA”) investigates an elevation-related accident and determines that the injured worker caused or contributed to his/her accident by not using available PPE, rushing/cutting corners, failing to follow proper procedures and/or the employee’s own training, but the contractor/employer cannot use OSHA’s findings to mitigate or cut off the worker’s entitlement to compensation for his/her own negligence, which is precisely what the Scaffold Law does, then it is time for some major reform.

Until New York State addresses this inequity, contractors and subcontractors should do the following:

• Read your insurance policies very carefully. Be careful of endorsements that exclude coverage for elevation-related work.

• Engage experienced insurance brokers, advisors, and other professionals who specialize in the construction industry. With insurance premiums being among the top three annual expenses for most contractors (along with payroll and brick & mortar costs), it is imperative to work with specialists who understand your business, the types of coverage that are needed, and how to put together a program that provides real coverage.

• Spend money on training, upgrading PPE, and supervision. In this era of increasing deductibles, think about how much it costs to proactively address safety issues vs. how much you spend on claims within your insurance deductibles.

New York’s construction industry cannot move forward and realize its full potential if antiquated laws keep it tethered to the past.

By Christine Malafi

The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility to those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands.

The purpose of the ADA is to provide equal opportunity to individuals with disabilities. Title III of the ADA specifically prohibits discrimination of individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” While the ADA is silent on the specific issue of website accessibility, case law has made it clear that the ADA applies to public websites, and businesses must accommodate individuals with disabilities and make their websites ADA accessible. However, the extent to which websites must be made accessible has not been definitively determined. Questions remain as to whether all websites fall under the ADA and whether a website must also be tied to a physical location before it falls under the ADA, among other questions.

In December 2015, the Department of Justice (“DOJ”) announced that it would not issue private sector website ADA accessibility regulations until fiscal year 2018. However, a recent Presidential Executive Order cut regulatory resources, and may subsequently freeze the DOJ’s public accommodations website rulemaking.

In the absence of DOJ regulations, what should businesses do? Many settlements approved by the DOJ have implemented the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. At the most basic level, an ADA accessible website should provide these (and other) types of features:

• Text alternatives for any non-text content;
• Alternatives for time-based media;
• Content that can be presented in different ways without losing information or structure;
• Be easy to see and hear, including separating foreground from background;
• Permit all functionality from a keyboard if needed (as opposed to a cursor);
• Permit sufficient time to read and use content;
• Not be designed in a way that is known to cause seizures;
• Include ways to help users navigate, find content, and determine where they are;
• Include text content that is readable and understandable;
• Operate and appear in predictable ways;
• Help users avoid and correct mistakes; and
• Compatible with current and future user agents, including assistive web technologies.

The best option for business owners to not fall victim to a successful Title III suit is to comply with these WCAG guidelines.

However, it may not always be deemed “reasonable” for businesses to create a fully ADA compliant website. As is stated in the ADA: “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. “ 28 C.F.R. § 36.302 (2012).

If making your website fully compliant with the WCAG is too costly for your company, other options may be available. Although New York courts have yet to address this specific issue, others have. In National Federation of the Blind v. Target Corp., Target was sued because its website did not enable visually impaired persons to directly purchase products, redeem gift cards, or find stores.  The court ruled against Target, as Target failed to show that the information on its website was available in another reasonable format. The court acknowledged ADA defines discrimination to include a failure to take such steps “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii). The court specifically noted the following examples of accessibility: “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu”; and “while a bookstore must ensure that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille.” Courts therefore recognize that there may be significant limitations on the possibility of making a website completely or fully ADA accessible.

In a more recent case, Robles v. Domino’s Pizza LLC, a blind plaintiff claimed that he could not order pizza from the Domino’s website because it was not accessible using a screen reader. The court found that although Domino’s website was not in compliance with the WCAG guidelines, their 24-hour toll free phone number, where live agents provided assistance with using the website, was enough to meet its obligations under the law.

Absent further guidance, businesses and individuals with public business websites are urged to ensure accessibility. At CMM, we are available to assist and guide you on this issue.

By Patrick McCormick

The basic rule of karma is what goes around comes around. While in everyday life this principle may appeal only to the superstitious, the harsh reality is that in a court of law one mistake or bad act from your past can come back to haunt you.

In New York courts, the rule regarding the admissibility of uncharged prior bad acts is derived from the landmark case People v. Molineux, 168 N.Y. 264 (1901). Put simply, the admissibility of uncharged prior bad acts is dependent upon why the evidence was proffered. Generally, courts will deem evidence of uncharged prior bad acts inadmissible if it is proffered as pretext to demonstrate that the defendant has a propensity to act in a certain way. However, evidence of a defendant’s uncharged prior bad acts is admissible if it demonstrates something other than propensity, such as intent, motive, knowledge, common scheme or plan, identity of the defendant, or necessary background information and context.

Recently, the Court of Appeals and the Third Department decided two cases that demonstrate the increasing scrutiny courts apply when determining the admissibility of evidence pertaining to uncharged prior bad acts: People v. Leonard, 29 N.Y.3d 1 (2017) and People v. Anthony, 152 A.D.3d 1048 (3d Dep’t 2017). While on the surface these two cases may seem to warrant similar conclusions of law as to the admissibility of the evidence at issue, a subtle distinction can be gleaned to give insight as to how courts analyze this evidentiary issue.

In Leonard, the Court of Appeals reversed the finding of the trial court holding that the trial court erred in admitting Molineux evidence. The defendant was charged with sexual assault. At trial, the victim’s boyfriend testified that the defendant approached the victim, who at the time was intoxicated and vomiting, and then knelt by the victim and inappropriately touched her while her pants were down to her knees.

In an attempt to elicit testimony from the victim regarding an earlier incident of sexual abuse by the same defendant in which the circumstances were nearly identical, the prosecutor filed a “Molineux Proffer.” The testimony described how on an earlier occasion the victim was intoxicated and asleep on her coach when the defendant approached her, pulled down her pants, and inappropriately touched her. The prosecutor argued that this testimony was relevant because it demonstrated intent, absence of mistake, background, and a common scheme or plan. Over the defendant’s objection, the trial court ruled that the testimony could be elicited.

However, on appeal, the Court of Appeals found that the testimony regarding the prior incident of sexual abuse was propensity evidence that merely sought to show that the defendant committed the charged crime because he acted that way on a prior occasion. Notably, the Court stated that the testimony at issue did not fall into the background evidence exception because it was “not necessary to clarify their relationship or to establish a narrative of the relevant events.” Leonard, 29 N.Y.3d at 8.

Shortly after Leonard was decided, the Third Department confronted a case with the identical evidentiary issue. In People v. Anthony, the Third Department affirmed the trial court’s ruling that the evidence fell within recognized Molineux exceptions. In Anthony, the victim and defendant were acquainted through a course of drug deals. During the course of drug deals, the defendant, a member of the Bloods gang, invited the victim to join the gang multiple times. The victim rejected each invitation. Unfortunately, one drug deal went south when the victim rejected a gang invitation, which incensed the defendant. The defendant pulled out a gun and fired multiple shots at the victim, ultimately killing him. The prosecutor elicited testimony regarding the defendant’s gang membership and his earlier attempts to recruit the victim, arguing it provided context for the crime. The trial court admitted the testimony.

On appeal, the Third Department affirmed the trial court’s ruling. The Third Department noted that the defendant’s “purported gang membership fell within several Molineux exceptions, including placing testimony regarding defendant’s earlier attempt to recruit the victim in context.” Anthony, 152 A.D. at 1051. Unlike the Leonard Court, the decision in Anthony in no way expressed concern for propensity evidence.

These two cases shrewdly present how courts carefully scrutinize evidence in cases where prosecutors attempt to admit uncharged prior bad acts. In Leonard, the court deemed the evidence a mere subterfuge to demonstrate the defendant had a propensity to act a certain way. The Leonard court highlights that a court will not buy the argument that an identical uncharged prior bad act should be admitted because it is necessary provide background information or context out of fear that it will give rise to a propensity inference by those jurors who may not be thinking critically. Rather, a court is much more likely to admit evidence of prior uncharged bad acts if the evidence necessarily elucidates a narrative of events, like in Anthony.

So, for the would-be criminal defendants out there, remember: your past just might come back to haunt you.