MEDIA

September 9, 2005

Questioning Right After Flight Called Custodial, ‘Miranda’ Required

Published in: New York Law Journal | volume 234

In the U.S. District Court for the Eastern District of New York, Judge David G. Trager upheld the Second Department’s system for assignment of appellate panels. Judge Sandra L. Townes saw no merit to a doctor’s claim that a hospital where he worked had discriminated against him as an Orthodox Jew. Magistrate Judge Joan M. Azrack, suppressing statements by a defendant accused of sexual misconduct on an airplane, held that the interrogation of defendant immediately after the flight was ‘custodial’ and therefore required Miranda warnings.

Appellate Assignments

In Kaufman v. Kaye, 04-CV-3494 (EDNY, Aug. 11, 2005), Judge Trager considered a challenge to the system by which the Appellate Division, Second Department, assigns Justices to state court civil appeal panels.

Plaintiff had filed, and lost, numerous state court actions and appeals in which he asserted claims arising from the alleged failure, by the property owners’ association responsible for the ‘gated community’ in which he lived, to enforce certain restrictive covenants. A number of plaintiff’s appeals were assigned to appellate panels containing justices who had heard his earlier appeals.

After losing all of the appeals and being sanctioned with respect to one of them, plaintiff commenced a federal action alleging that his constitutional rights had been violated by the non-random assignment of appellate judges in the Second Department, and by the ‘bias’ of the state court judges assigned to his appeals. He sought both to overturn the adverse judgments and sanctions, and to compel the Second Department to ‘adopt a public, random, neutral and transparent process for the assignment of appeals ….’

Citing the Rooker-Feldman doctrine, Judge Trager found it ‘apparent that this court is without power to overturn the Second Department’s decisions or the sanctions against plaintiff.’ Judge Trager observed that plaintiff had not exhausted his appellate options in all of the state court actions and had failed to allege that the state court judges in question had acquired their purported ‘biases’ against him from any source outside their ‘adjudicatory functions’ (as necessary to make ‘bias’ disqualifying).

Noting a distinction, under Feldman, ‘between a general challenge to a rule and a challenge to a judgment applying the rule,’ Judge Trager found jurisdiction to resolve ‘plaintiff’s claim that the Second Department’s assignment system generally violates due process because it is not random and can be manipulated.’ Rejecting that claim on its merits, Judge Trager stated: ‘the fact that the Second Department’s method of assigning cases is not necessarily random does not render it unconstitutional.’ Indeed, ‘the allocation of judges to related cases for the sake of judicial efficiency is a common and accepted practice.’ Slip op. 9.

Religious Discrimination

In Zacharowicz v. Nassau Health Care Corp., 02 CV 4510 (EDNY, June 29, 2005), Judge Townes, granting defendant’s motion for summary judgment, dismissed Title VII claims by plaintiff, an Orthodox Jewish pediatric neurologist, alleging religious discrimination, hostile work environment and retaliatory discharge.

Plaintiff worked at defendant hospital from June 1997 to his termination in June 2001. When he applied for the job, he attended interviews with two other on-staff neurologists, including Dr. Delfiner. Plaintiff claimed here that, at the interviews, he would be unable to work on the Sabbath and various Jewish holidays. The hospital had only one other pediatric neurologist, Dr. Zadakia. Consequently, plaintiff was told he could not avoid being on call or on duty for every Sabbath. Plaintiff claimed, however, that the hospital promised to reduce the number of Sabbaths he would have to work by hiring another pediatric neurologist, and to refrain from asking him to work on other Jewish holidays.

Plaintiff also alleged that, contrary to the assurances made to him, he had to work on Purim 2000, and he was repeatedly ‘scheduled’ to work or be on call during Sabbath and other holidays on which he did not actually work. According to plaintiff, during his tenure at the hospital, Dr. Delfiner and Dr. Zadakia made odd and pointed comments to him critical of Orthodox Jews. Plaintiff’s termination, he claimed, was in retaliation for his complaints about being scheduled on Sabbath and holidays.

As to the religious discrimination claim, Judge Townes could not infer that the hospital ‘would have disciplined him’ had he refused to work on Sabbath or Purim. Significantly, on several occasions he refused to work when scheduled and was not disciplined. The hospital, moreover, never disciplined plaintiff for failing to work on Sabbath or holidays. That fact, in itself, was fatal to the discrimination claim.

As the court also noted, plaintiff accepted the position knowing there was only one other pediatric neurologist with whom all coverage had to be negotiated.

Plaintiff’s assertion that he once had to work on Purim did not help his case. The point again is that he was never disciplined for failure to comply with an employment requirement. In any event, the claim about Purim was outside the limitations period, which gives a plaintiff 300 days after an incident to file a charge with the Equal Employment Opportunity Commission.

That limitations period did not apply to plaintiff’s ‘hostile work environment’ claim. But viewing the record as a whole, particularly a cover memorandum for the 2000 schedule, Judge Townes saw no ‘threat’ against plaintiff’s right to observe Jewish holidays. Plaintiff’s remaining allegations showed, at most, vague and isolated instances of harassment insufficient to show a hostile work environment.

Plaintiff’s retaliation claims could not hold up against (a) the hospital’s explanation that it fired plaintiff because of a financial crisis, and (b) ample evidence of complaints against plaintiff by staff, patients and residents. Plaintiff did not make a sufficient showing that this explanation was pretextual.

‘Miranda’ Warnings

In United States v. Cohen, 04 CR 0489, Magistrate Judge Azrack held that the interrogation of defendant immediately after he left an airplane, regarding his allegedly nonconsensual sexual contact with another person on the plane, was ‘custodial.’ Thus, the failure to give Miranda warnings required that his statements be suppressed.

Defendant was charged with engaging in sexual contact with another person without permission. 18 USC § 2244(b)(2005). The charge related to his conduct on a flight from Salt Lake City to JFK Airport. The complaining witness alleged that defendant, who was sitting next to her on the flight, put his hand under her skirt and touched her underwear.

She allegedly told defendant to stop. Defendant then fell asleep, woke up after 15 minutes, and repeated the same act. At that point, the complainant left her seat and alerted the flight crew to the problem. The passengers were told over the public address system that, when the plane landed, they had to stay seated ‘for security reasons.’

Law enforcement officers met the flight at the airport, escorted the complainant off of the plane, interviewed her, then returned to retrieve defendant. They interviewed him in the tunnel leading from the aircraft to the terminal. Defendant explained that, during the flight, there was physical contact between him and complainant, which led to his touching her leg. He told the officers that she acquiesced in these developments, but he stopped when a flight attendant passed by. After falling asleep for a while, he began to touch her again. She then put on some makeup and left her seat.

After the interview, defendant was arrested. During later interviews at the police precinct and elsewhere, defendant received Miranda warnings and made further statements about the events on the plane. He described the contacts between him and the complainant as a consensual ‘game.’

Magistrate Judge Azrack held that, during the interview in the passageway, defendant was ‘in custody.’ The court pointed to the ‘heightened security atmosphere’ of airline travel, the impact of the admonition to passengers to stay seated, and the obvious focus of law enforcement attention on defendant. In the court’s view defendant would not have felt ‘free to leave’ the first interview, he was in fact not free to leave, and had he tried to do so, he would have been arrested. The interview, moreover, took place in an enclosed 60-foot tunnel, with no escape routes. Slip op. 17-18.

As the court also noted, defendant’s seizure by the police involved restraints associated with formal arrest. In short, ‘a reasonable person in defendant’s situation would have felt at the mercy of the police.’ Because defendant was in custody and got no Miranda warnings, his statements were not admissible.

After an elaborate analysis of the circumstances surrounding defendant’s subsequent statements (slip op. 14-37), the court concluded that the mid-interrogation warnings given to defendant at the police precinct effectively safeguarded his constitutional rights. In finding the post-warning statements admissible, the court discussed the rather intricate evolution of law relating to police interrogation of suspects in successive warned and unwarned phases.

Finally, Magistrate Judge Azrack rejected defendant’s argument that the police conduct at the precinct amounted to trickery or deception requiring suppression of his statements.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the September 9, 2005, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]