November 13, 2014
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 Nicholas G. Garaufis held that defense counsel's failure to give notice of alibi witnesses amounted to ineffective assistance of counsel, warranting habeas relief. Judge Eric N. Vitaliano granted a preliminary injunction prohibiting the National Park Service and other defendants from acting pursuant to improper revisions to the boundary map for a park on the Brooklyn waterfront. Judge Leonard D. Wexler remanded to state court an action involving a licensing agreement for patented technology. And Judge Jack B. Weinstein dealt with summary judgment motions in connection with 'excessive force' claims against a security officer.
Untimely Notice of Alibi
In Harrison v. Cunningham, 07 CV 4077 (EDNY, May 17, 2011), Judge Garaufis granted a habeas corpus petition for ineffective assistance of trial counsel in failing to provide timely notice of important alibi evidence.
In October 2001 petitioner attended a party at an address in Hempstead, with his friends Angelo Brown and Hakeem Edwards. Between 5:30 and 6 a.m., a police officer responded to a disturbance in a parking lot outside the party's location. The officer saw, among a group of people arguing, someone who resembled petitioner with a 'dark object in his hand.' After the group was alerted that police were on the scene, the man threw the object under a car and the group dispersed. The officer retrieved the object-a loaded gun with a defaced serial number. After police backup arrived, the officer arrested petitioner outside the building.
Petitioner was charged with criminal possession in the third degree, possession of a defaced firearm, and possession of a loaded firearm. When the indictment was filed in February 2002, the prosecution served on the defense a demand for notice stating the names and addresses of any alibi witnesses. Defense counsel was supposed to supply this information within 20 days of arraignment, but did nothing about it.
In July petitioner changed counsel. Immediately before trial in September 2002, defense counsel submitted an offer of proof that Messrs. Edwards and Brown would testify that petitioner was inside the party when the police officer saw a man throwing the gun under a car; that two people entered the party as police backup arrived on the street; and that the officer mistakenly arrested petitioner as he was leaving the party with Messrs. Brown and Edwards. The prosecution objected to the proposed testimony as untimely alibi evidence. Defense counsel offered no reason for the delay, other than saying that he had been retained only "six weeks to two months" before trial.
Under N.Y. Crim. Proc. Law §250.20(3), the court 'may exclude' alibi testimony if the defense has failed to serve the demanded notice. The trial court here excluded the testimony, the jury found petitioner guilty on all counts, and the court sentenced him to (among other things) six to seven years' imprisonment.
Petitioner unsuccessfully sought to overturn his conviction on direct appeal, and later applied for a writ of coram nobis in the Second Department on grounds of ineffective assistance of counsel. After the denial of that application, petitioner filed the instant habeas petition.
Judge Garaufis found that petitioner could not meet the stringent requirements for federal relief as to his claim that the trial court improperly precluded the requested testimony. Petitioner's assertion that Messrs. Edwards and Brown were mischaracterized as 'alibi witnesses' did not raise a federal constitutional question. Moreover, the Second Department's finding that the defense failed to show 'good cause' for the untimely notice was neither an 'unreasonable' assessment of the facts at trial, nor an 'unreasonable' application of United States v. Taylor, 484 U.S. 400, 417 (1988), which held that the Sixth Amendment right to Compulsory Process does not prohibit exclusion of alibi testimony where defense counsel's conduct was 'willful.'
Petitioner fared better on his 'ineffective assistance' claim. As Judge Garaufis noted, there was no physical evidence tying petitioner to the gun. The only defense witness at trial was petitioner himself, who testified to being inside the party when the officer saw the man outside toss the gun under the car. Messrs. Brown and Edwards would have corroborated petitioner's story, and defense counsel offered no tactical reason for the delay in submitting a notice of alibi. His neglect of a 'ministerial task' cannot be viewed as 'objectively reasonable.' Slip op. 9. The state court also had no reasonable basis not to find ineffective assistance of counsel.
Finally, counsel's mistake at trial undermined confidence that the verdict would have been the same in any event. The officer's identification of petitioner was made before dawn, in a dimly lit parking lot, from 50 to 100 feet away. The state court therefore unreasonably failed to recognize the likely impact of the excluded testimony on the verdict. The 'wiser course of action,' Judge Garaufis observed, would have been for the trial court to adjourn the trial for a few days, allowing the prosecution to investigate the alibi evidence, rather than to exclude the evidence entirely. Slip op. 11. Petitioner was ordered to be released unless the state retries him within 90 days.
National Park Service Action
In Brooklyn Heights Association Inc. v. National Park Service, 11 CV 226 (EDNY, April 8, 2011), Judge Vitaliano granted a preliminary injunction to plaintiffs Brooklyn Heights Association (BHA), Fulton Ferry Landing Association, New York Landmarks Conservancy and others, against defendants National Park Service (NPS), Brooklyn Bridge Park Development Corporation, Brooklyn Bridge Park Corporation and St. Ann's Warehouse Inc., reversing a revision to the boundary map for a grant for the benefit of Empire Fulton Ferry State Park on the Brooklyn waterfront and prohibiting any action pursuant to the revision.
Empire Fulton Ferry State Park was established as a state park in 1979 on the East River at the Brooklyn waterfront between the Brooklyn and Manhattan Bridges. In 2001, the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP) applied to the Land and Water Conservation Fund (LWCF) for a grant to make improvements to the waterfront at the park. The boundary map that was part of the application included two structures built in the 1860s-the Tobacco Warehouse and Empire Stores. OPRHP stabilized the walls of the Tobacco Warehouse and began using Empire Stores for its administrative offices and restrooms for the park. Closeout documentation for the grant was issued in September 2003. Under the Land and Water Conservation Fund Act of 1965, once closeout occurred, the boundary map could not be revised without a conversion proceeding and replacement property substituted for public outdoor use for any property removed from the boundary map.
In December 2008, at the request of OPRHP, the National Park Service agreed that the boundary map was in error and should be revised to exclude the Tobacco Warehouse and Empire Stores. Following the revision of the map, the park was transferred to the Brooklyn Bridge Park Development Corporation, which had been created to develop the Brooklyn Bridge Park, by a deed that split the park into two parcels, one of which contained the Tobacco Warehouse and Empire Stores. In August 2010, in response to a Request for Proposal, St. Ann's proposed to convert the Tobacco Warehouse into a performance space.
The Brooklyn Heights Association sought to reverse the NPS's 2008 determination revising the boundary map, first by negotiation and then by filing suit. In February 2011, the NPS affirmed its 2008 determination, citing its authority to make 'limited, technical corrections' to the boundary map.
In considering whether to grant a preliminary injunction, Judge Vitaliano first found that plaintiffs had made a clear showing of irreparable harm. Without an injunction, St. Ann's or Brooklyn Bridge Park Corporation would 'commence drilling and boring of pits into the concrete floor of the Tobacco Warehouse at their earliest opportunity.' Slip op. 17. All parties agreed that money damages would be inadequate if the Tobacco Warehouse were impaired by these activities. An injunction was thus in the public interest by ensuring the physical integrity of the Tobacco Warehouse. 'There [was] also an obvious public interest in confining government agencies to actions that are within the authority delegated to them by the people's elected representatives.' Slip op. 19.
Judge Vataliano next concluded that plaintiffs were likely to succeed on the merits. The court found no statutory basis for the NPS's December 2008 and February 2011 decisions. Once the Tobacco Warehouse and the Empire Stores were included in the boundary map, and the boundary map was approved and the grant project closed, the only way to change the map was a conversion with substitute property for public recreation. Moreover, there was no evidence of mistake. To the contrary, the record was replete with references to the four warehouse buildings and their deliberate inclusion within the boundary map.
The Land and Water Conservation Fund regulations do not provide for a 'revision' or 'correction' to the boundary other than through the conversion process: 'Any change to the 6(f)(3) boundary after the close of an LWCF grant-regardless whether that change is referred to as a 'revision' or 'correction'-triggers the conversion process and requires the full consideration of alternatives and, if needed, the substitution of replacement property.' Slip op. 29 (emphasis in original).
Finally, the National Park Service's reconsideration of the boundary was untimely, occurring five years after the park grant closed. NPS's time for reconsideration should be weeks, not years. Slip op. 32-33.
Remand of Removed Action
In Nanomedicon, LLC v. The Research Foundation of the State University of New York, 10 CV 5094 (EDNY, May 9, 2011), Judge Wexler remanded to state court an action alleging various state law claims related to a licensing contract concerning patented technology.
During her employment with defendant Research Foundation, defendant Pelagia-Irene Gouma invented technology capable of detecting certain gases. Research Foundation patented the technology and entered into an 'option and exclusive license agreement' giving plaintiff Nanomedicon certain rights in the technology. Research Foundation subsequently terminated the license agreement, citing defaults that plaintiff claimed to have timely cured.
After plaintiff sued in state court alleging various state law claims, defendants removed, alleging that two of plaintiff's claims arose under federal patent law: (i) plaintiff's claim that Research Foundation had breached a confidentiality agreement related to the license agreement; and (ii) plaintiff's claim that Dr. Gouma had tortiously interfered with its prospective economic advantage by making false and malicious statements about plaintiff to Research Foundation that impaired plaintiff's ability to earn profits and royalties that it otherwise could have earned under the terminated license agreement.
In Judge Wexler's view, defendants did not meet their burden of proving that one or more of the claims 'require the court to resolve a substantial issue of patent law,' or other federal law, as required to support removal. The alleged breach of the confidentiality agreement related to the license agreement concerned only the scope of the confidentiality provisions and Research Foundation's compliance with them, and did not 'implicate the patent laws, or in any way affect the validity of the patents that form the basis for the parties' agreements.' Similarly, the tortious interference claim 'depends upon the knowledge and conduct of Dr. Gouma,' but 'not at all upon the validity or construction of the patents.' Slip op. 9.
In Brown v. Starrett City Associates, 09 CV 3282 (EDNY, May 13, 2011), Judge Weinstein granted summary judgment to defendant Starrett City Associates (SCA) with respect to plaintiff's §1983 claim for excessive force in connection with an arrest, but denied summary judgment as to all other claims, including the claims against SCA for excessive force under New York law.
Plaintiff Annette Brown was arrested by defendant Robert Newman at Spring Creek Towers (formerly Starrett City). Mr. Newman was a security officer with a Department of Public Safety private security force, composed of officers employed by SCA, who carried weapons and were authorized to make arrests and charge crimes. Mr. Newman arrested plaintiff during the course of an argument that evolved into a fight in a public area at SCA.
There were conflicting reports concerning plaintiff's arrest. Mr. Newman claimed that plaintiff was cursing and screaming and holding onto a teenage girl who had just been arrested. He alleged that he told her to let the girl go, but plaintiff refused and he then ordered her arrested for disorderly conduct. Plaintiff, on the other hand, claimed that the teenage girl asked her to pull down the girl's shirt and that, on doing so, she was arrested. She claims she did not interfere with the girl's arrest, charge at her, grab her by the arm, or try to pull her away from Mr. Newman or speak to any officer.
As plaintiff was handcuffed, her foster son told the officers to be careful with the handcuffs because she had bad wrists. Following her arrest, plaintiff was taken to the security force's station house, where she remained handcuffed for a period of time. Her hands swelled, and the paramedics were called. Plaintiff was given a desk appearance ticket and went to the hospital where she was admitted and her hands were treated for pain and swelling. The ticket was later dismissed.
Judge Weinstein determined that summary judgment was not justified on plaintiff's false arrest claim. Probable cause is a complete defense to a false arrest claim, but the facts surrounding plaintiff's arrest were in dispute.
Similarly, 'sufficient conflicting evidence exists from which a jury could reasonably find that Newman used excessive force in handcuffing plaintiff.' Slip op. 10. The conflicting evidence includes whether (1) Mr. Newman knew plaintiff had 'bad wrists'; (2) the handcuffs were excessively tight; (3) Mr. Newman ignored plaintiff's complaints; (4) she was handcuffed for too long; and (5) plaintiff was injured as a result of the handcuffing.
Plaintiff's excessive force claim under §1983 could not go forward against SCA because there was 'no evidence indicating that any allegedly tortious act in this case was committed in accordance with established policy or custom of SCA.' Slip op. 11. However, SCA may be held vicariously liable under New York law for excessive force, false arrest or assault and battery. Plaintiff would have to show that the 'torts were committed by Newman in furtherance of SCA's interests and within the scope of his employment.' Id.
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 June 10, 2011, issue of the New York Law Journal. Copyright © 2011 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]