November 13, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt vacated a Nassau County conviction for 'depraved indifference' murder. Judge Brian M. Cogan held that Fed. R. Civ. P. 69(a) did not incorporate a statelaw requirement that plaintiffs start a new action to seek a turnover order to enforce a judgment. Judge Jack B. Weinstein explained the reasons for defendant's 16-month sentence, including why the offense level should be based on only 50 grams of cocaine. Judge John Gleeson found the Montreal Convention applicable to plaintiff's claims of injury caused by personnel at the Frankfurt Airport. And Judge Joanna Seybert remanded to state court a cause of action under the Investment Advisors Act of 1940.

'Depraved Indifference'

In Petronio v. Walsh, 09 CV 341 (EDNY, Sept. 14, 2010), Judge Spatt, granting habeas relief, held that the evidence supporting petitioner's conviction for 'depraved indifference' murder was insufficient in light of applicable decisions redefining that offense.

In 2002 petitioner was convicted in Nassau County Supreme Court of depraved indifference murder. A fight erupted when petitioner accused Walter, the murder victim, of 'ripping him off' in a drug deal. Walter punched petitioner, who shot pepper spray into Walter's eyes. According to petitioner's testimony, he tried to prevent Walter from getting to a bag for fear it contained a gun. At one point petitioner slammed Walter's head against the floor three times and kicked his head twice. Walter then stopped moving. In a statement to police, petitioner recalled stomping on Walter's back and neck with both feet. A medical examiner testified that vertebrae in the victim's neck had been fully separated, as the result of a tremendous force.

Petitioner buried the body. A few weeks after the fight, he moved in with his girlfriend. One night, seeming very upset, petitioner confessed to her that he had killed a man.

The trial judge instructed the jury to consider the count of second-degree murder first under N.Y. Penal Law §125.25(1), 'intentional murder'; and then, alternatively, §125.25(2), 'depraved indifference murder.' The judge explained that petitioner was guilty of depraved indifference murder if he 'recklessly engaged in conduct which created a grave risk of death to another person and thereby caused [the victim's] death . . .'

Petitioner was acquitted of intentional murder, convicted of depraved indifference murder, and sentenced to 25 years to life imprisonment.

Petitioner argued here that his conviction should be vacated because new case law, decided before his conviction became final, signaled a stark shift in construing depraved indifference murder. At the time of trial, the law's focus was not on defendant's subjective intent, but rather on an objective assessment of the degree of risk posed by defendant's reckless conduct. The newer cases, however, e.g., People v. Feingold, 7 N.Y.3d 288, 295, 819 N.Y.S.2d 691 (2006), explicitly overruled the earlier decisions, and announced that the mens rea requirement was not 'recklessness' but 'depraved indifference' – a subjective element involving a 'dispassion' toward the victim's fate. By that standard the defendant simply does not care whether grievous harm results or not. Indeed, an intent to cause death would prevent a conviction for depraved indifference murder.

Now, typically, the requisite level of indifference could not be exhibited in one-on-one intentional assaults causing death, except for two rare exceptions: (1) where defendant causes a vulnerable victim's death by abandoning him, without intent to kill, in a particularly dangerous situation, such as placing him on the side of a road in winter without adequate clothing; or (2) where defendant, with intent to cause serious injury, causes death by particularly heinous conduct, such as torture or a brutal, prolonged course of conduct against a very vulnerable victim. Slip op. 9-13.

After analyzing in detail the alleged procedural bars to the habeas petition, Judge Spatt found it appropriate to consider the merits of the petition. Slip op. 14-26.

This case, the court stated, does not fit into the narrow exceptions for allowing a depraved indifference murder conviction where death occurs from a one-on-one assault.

The evidence showed, at the very least, that petitioner intended to injure Walter seriously, 'taking this fact pattern outside the realm of the abandonment cases.' Slip op. 28. Moreover, Walter died instantly from his injuries, not because petitioner failed to summon help.

Walter was also not an especially vulnerable victim. Nor was he tortured or subjected to prolonged abuse. He died 'during a one-onone struggle that could not have taken more than a few minutes.' Slip op. 29.

The conviction, based on insufficient evidence, violated due process, and its affirmance by the state courts was contrary to clearly established federal law. Slip op. 30.

Supplementary Proceedings

In Mitchell v. Lyons Professional Services Inc., 09 Civ. 1587 (EDNY, July 29, 2010), Judge Cogan ruled that Fed. R. Civ. P. 69(a), which incorporates state law for supplementary proceedings to enforce a judgment, did not incorporate CPLR 5225(b)'s requirement that a new action be commenced.

Plaintiffs had obtained judgments on discrimination claims under federal, state and local law, and sought a turnover order from non-parties ('garnishees ') as fraudulent transferees or successorsin-interest to one of the judgment debtors.

Fed. R. Civ. P. 69(a) provides: 'The procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located. . . .' CPLR 5225(b) provides for a turnover order, in an appropriate case, '[u]pon a special proceeding commenced by the judgment creditor. . . .' When Plaintiffs sought relief under Fed. R. Civ. P. 69(a) and CPLR 5225(b) by way of motion in the pending federal action, the garnishees argued that compliance with state law required a new action.

Recognizing a split among the district courts in the U.S. Court of Appeals for the Second Circuit, Judge Cogan looked to out-of-circuit authorities and dictum in Chalmers v. Blickle Ford Sales Inc., 313 F.2d 252 (2d Cir. 1963) (which dismissed on the merits a turnover order brought by motion). As Judge Cogan concluded, 'other than the generation of an additional filing fee for the commencement of a separate proceeding in this Court, there seems no reason to compel plaintiffs to start over when there is a vehicle for relief presently pending.' Slip op. 7.

Sentencing Statement

In United States v. South, 08 CR 681 (EDNY, Sept. 14, 2010), Judge Weinstein explained the reasons for sentencing defendant to 16 months' imprisonment.

Defendant pleaded guilty to a conspiracy involving crack cocaine. At the plea proceeding he referred to the mandatory minimum of 5 years under the guidelines and said, 'I just want to get it over with.'

According to the Pre-sentence Report, defendant drove his then girlfriend, a Bloods gang member, to three drug deals during which she sold more than 50 grams of powder cocaine and 118 grams of crack cocaine. The report described defendant's childhood as filled with physical abuse. In addition, he suffers from epilepsy, has a history of depression and takes medication to treat high blood pressure and hypertension. He suffered numerous head injuries as a result of being beaten over the head repeatedly, and was expelled from high school for his own safety to prevent gang attacks against him. He has resisted attempts to force him to enter a gang, because he did not want to be forced to participate in major drug conspiracies and sales. Defendant has a 7-year-old daughter. He has been providing for her and hopes to assist in her upbringing.

After a hearing, judge Weinstein found:

The defendant was, at most, guilty of conspiring to help deliver fifty grams of powder cocaine. . . . He was aware that on occasion his girlfriend sold some drugs, but he did not join the overall conspiracy to which he has pleaded. His admissions at the time of the plea were made to avoid a trial and higher sentencing guidelines. The record demonstrated that the conspiracy for which he should be sentenced involved less than the amount required for application of the [5-year] minimum sentence. Slip op. 6-7.

Judge Weinstein therefore based the total offense level on 50 grams of powder cocaine, and sentenced defendant to 16 months' incarceration, with credit for time served, and five years' supervised released-all within the guidelines range of between 10 and 16 months' imprisonment. Defendant had already more than served that term.

Explaining the sentence, Judge Weinstein stated that: (1) a sentence within the guidelines was appropriate; (2) defendant's participation in the crime was severely limited, and he received no money for driving his girlfriend to some drug transactions; (3) he has had a difficult life with residual health problems; (4) defendant has a genuine desire to help raise his daughter; (5) a maximum sentence under the guidelines reflects the seriousness of the offense; and (6) general and specific deterrence were satisfied by the substantial sentence.

Montreal Convention

In Matveychuk v. Deutsche Lufthansa, AG, 08 CV 3108 (EDNY, Sept. 7, 2010), Judge Gleeson, granting plaintiff's motion for summary judgment on choice of law, determined that the Montreal Convention, rather than German law, applied to injuries plaintiff suffered during a layover at the Frankfurt Airport.

In November 2007, plaintiff flew from Newark International Airport to Frankfurt Airport, intending to fly on to Minsk, where her parents lived. Her initial flight arrived late, and she proceeded from one section of the Frankfurt airport to another through the transit area. When she arrived at the departure gate, the agent informed her she was too late and would not be permitted to board the plane.

Plaintiff claimed that she began to argue with the agent, but was still not permitted to board. She became upset and went into a restroom in the waiting area. The gate agent allegedly followed her into the restroom and pushed her. Plaintiff fell to the floor, hit her head and passed out. She awoke to find the gate agent pouring water on her face. Lufthansa denied that the gate agent argued with plaintiff or assaulted her. Plaintiff rebooked her flight, spent the night in the transit area and boarded her rescheduled flight. She never passed through customs and was never admitted into Germany.

The Montreal Convention, which was ratified by the United States in 2003, replaced the Warsaw Convention. It limits the risk of air carriers through caps on monetary awards for passenger injuries and lost or damaged baggage. The Montreal Convention increased liability limits to protect the interests of international travelers, but retains the Warsaw Convention definition of compensable claims. Under Article 17, carriers are liable for 'damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.'

To determine whether an accident occurred in the course of embarking or disembarking, the Second Circuit looks at: '(1) the activity of the passenger at the time of the accident; (2) the restrictions, if any, on her movements; (3) the imminence of actual boarding; and (4) the physical proximity of the passenger to the gate.' Slip op. 4.

Judge Gleeson held that the Montreal Convention applied because: (1) plaintiff had narrowly missed her flight; (2) she stopped in the restroom near the gate; and (3) she remained in the secure transit area. Although boarding was not imminent, all the other factors weighed in favor of applying the Montreal Convention.


In Hennesey v. Dawson, 09 CV 2170 (EDNY, Aug. 17, 2010), Judge Seybert sua sponte dismissed the Second Cause of Action brought under the Investment Advisors Act of 1940 and remanded the case to Supreme Court, Nassau County.

The plaintiffs brought this complex mortgage fraud case originally in Supreme Court, Nassau County, but the Federal Deposit Insurance Corporation removed the action under its special removal authority. The parties later voluntarily dismissed all claims against the FDIC. Plaintiffs asked the court to retain jurisdiction, and several defendants requested remand.

Judge Seybert dismissed the second cause of action because there is no private right of action for damages under the Investment Advisors Act, which limits private actions to those for rescission of a contract. Here, the second cause of action impermissibly sought compensatory and punitive damages. Further, any claim for securities fraud arguably suggested by the second cause of action did not meet the heightened pleading standards of Fed. R. of Civ. P. 9(b).

The court found that the case 'cries out for remand.' Judge Seybert had not begun work on pending dispositive motions or explored the facts of the case, whereas Justice F. Dana Winslow, Supreme Court, Nassau County, to whom the case was assigned before removal, had continued to oversee a related case. Justice Winslow indicated to Judge Seybert that he would be able to decide the pending dispositive motions long before she could get to them. Thus, remand would promote judicial efficiency and avoid unnecessary delays.

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 October 8, 2010, issue of the New York Law Journal. Copyright © 2010 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]