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https://www.courtlistener.com/api/rest/v3/opinions/5901574/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered October 15, 1986, convicting him of sexual abuse in the first degree (three counts), sexual abuse in the third degree (three counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
*557The defendant’s principal contention is that the prosecution failed to prove that the victim was “physically helpless” within the meaning of Penal Law § 130.00 (7) and § 130.65. However, the defendant did not make any reference to such an argument at the time that he made his motion to dismiss the indictment at the close of the People’s case. The defendant’s present contention, which is thus being asserted for the first time in this court, has therefore not been properly preserved for review as a matter of law (see, People v Gomez, 67 NY2d 843, 844-845; People v Dekle, 56 NY2d 835, 837; People v Stahl, 53 NY2d 1048, 1050; People v Patel, 132 AD2d 498) and we decline to review it in the exercise of our interest of justice jurisdiction.
We further find that the sentence imposed was not unduly harsh or excessive. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901575/ | —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lonschein, J.), rendered January 18, 1983, convicting him of attempted robbery in the first degree and assault in the first degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial (O’Dwyer, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony of the complainant.
Ordered that the judgment is affirmed.
The defendant’s contentions concerning the use of allegedly improper police tactics before and during the pretrial lineups and the police failure to have a blank lineup prior to the regular one in contravention of a prior court order were previously raised and rejected on his codefendant’s appeal (see, People v Moses, 126 AD2d 755, Iv denied 70 NY2d 715). We find no basis for disturbing our previous decision on these issues, which is equally applicable to the defendant. Further, the hearing evidence established that the complainant had an independent basis for identifying the defendant in court.
In addition, we find that when viewed in a light most favorable to the People (see, People v Contes, 60 NY2d 620), the evidence was legally sufficient to support the defendant’s conviction. Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The defendant’s remaining contentions, that the trial court’s conduct and the prosecutor’s summation deprived him of a fair trial, are without merit. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901576/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vinik, J.), rendered April 4, 1983, convicting him of attempted murder in the first degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court properly denied the defendant’s motion to dismiss the charge of attempted murder in the first degree because the People’s evidence was legally sufficient to establish the offense (see, CPL 290.10). The evidence showed that the defendant fired his gun at two police officers who pursued him as he fled the scene of another shooting. The record demonstrates that the defendant’s intent could have been to cause death, not merely to inflict serious physical injury (see, People v Bracey, 41 NY2d 296, 302; People v Castillo, 47 NY2d 270, 277; People v Colon, 113 AD2d 897; People v Dobranski, 89 AD2d 250; People v Burke, 73 AD2d 627).
The defendant’s claim that the People failed to prove beyond a reasonable doubt his guilt of criminal possession of a weapon in the second degree (Penal Law § 265.03) is without merit. Evidence of operability of the defendant’s gun was provided by the testimony of eyewitnesses who saw and heard the defendant fire the gun, first at the complainant and then at police officers. In addition, operability was evidenced by a stipulation entered into between the parties that the gun and the ammunition recovered from the defendant were both *558operable. Viewing the evidence in the light most favorable to the People, we find that it was sufficient as a matter of law to support the defendant’s conviction (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932). Moreover, upon the exercise of our factual review power we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The prosecutor failed to timely comply with the provisions of CPL 240.45 by turning over certain material concerning the People’s witnesses after, rather than before, the People’s opening statement. During colloquy about the delay, the defendant’s trial counsel expressly declined to seek an adjournment and instead agreed to use a recess to review the material when it was produced. This delay in producing the material does not afford a basis for reversal, absent bad faith or substantial prejudice, which is not present under these circumstances (see, People v Ranghelle, 69 NY2d 56, 63; People v Donald, 107 AD2d 818, 819-820; People v Kegelman, 73 AD2d 977). Although certain other documents demanded by the defendant were not produced, the representation of the prosecutor that the documents did not exist sufficed to establish their nonexistence (see, People v Poole, 48 NY2d 144, 149).
The defendant was not denied his constitutional right to the effective assistance of counsel. The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation (see, People v Baldi, 54 NY2d 137, 146-147; see also, People v Benn, 68 NY2d 941).
The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit. Bracken, J. P., Eiber, Kunzeman and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5905266/ | — Mercure, J.
On the morning of June 18, 1986 two Clinton Correctional Facility inmates became involved in a fight. One stabbed the other several times with a homemade knife consisting of a sharpened steel rod with a shoelace wrapped around one end to form a handle and strap. As a result of this incident, a Grand Jury returned an indictment charging defendant with the crimes of assault in the second degree and criminal possession of a weapon in the third degree. Following a jury trial, defendant was found guilty as charged in the indictment and was sentenced to concurrent terms of imprisonment of 3Vz to 7 years on each count, to run consecutively to any sentences defendant was already serving. This appeal followed.
Correction Officers Michael Canning and Fred Kitterle were both in the general vicinity of the altercation when it began. Each saw one inmate making stabbing motions at another inmate and ran toward the participants, arriving from different directions at approximately the same time. The officers pulled the inmates apart and Canning grabbed the right wrist of the assailant and took the knife away from him. Although *809his recollection did not permit an in-court identification of the weapon, Canning testified that it was approximately 11 inches long and was tied to the assailant’s right wrist “with a shoestring-like affair”. He also testified that he put his initials on the weapon and personally brought it to the office of Deputy Superintendent Ronald Fuller.
Kitterle testified that upon arriving at the scene, he assisted Canning in subduing defendant and then led defendant over to other officers who had come on the scene. Kitterle was able to give a detailed and accurate description of the weapon and had no difficulty identifying defendant at trial as the inmate who committed the crimes. Fuller testified that on June 18, 1986, Canning brought a homemade weapon to his office which remained secured in the evidence locker until he personally turned it over to State Police Investigator Robert Denny the following day. Denny accounted for the weapon’s location from that day until trial in March 1987.
Initially, we agree with County Court’s determination that the People established a proper foundation for receipt of the weapon into evidence. The credible and uncontroverted testimony of Canning, Fuller and Denny established an unbroken chain of custody (see, People v Connelly, 35 NY2d 171, 174). Although it is true, as defendant asserts, that the People offered no direct proof that the evidence was in the same condition as at the time of the stabbing (see, People v Julian, 41 NY2d 340, 342-343), it was established that the evidence was secured in such a manner as to negate the likelihood of its alteration. Kitterle’s detailed description of the knife taken from defendant, coupled with its unique characteristics (see, supra, at 343), also permitted a finding that the evidence was in its original condition. The absence of direct proof that the knife was in substantially the same condition as at the time of the stabbing goes to the weight of the evidence and not its admissibility (see, People v Coleman, 55 AD2d 981, 982).
We also agree with County Court that there is ample evidence to substantiate Kitterle’s in-court identification of defendant. It is clear from Kitterle’s testimony that he was able to see the assailant for a period of time before, during and immediately after the incident and came in extremely close proximity to him when helping subdue him, thereby providing a more than sufficient basis for the in-court identification (see, People v Burrus, 125 AD2d 583, lv denied 69 NY2d 825 [witness’s observation of the defendant’s face for about one minute at close range in a well-lit office held sufficient]; People v Mitchell, 116 AD2d 744, lv denied 67 NY2d 947; *810People v Herring, 47 AD2d 979). Defendant’s contention that the identification evidence is insufficient is based in large part upon a misunderstanding of certain of Kitterle’s testimony. Kitterle candidly acknowledged that he was not able to identify the assailant at the time of the stabbing and that his identification of defendant was based upon information gained from other correction officers. It is clear from Kitterle’s testimony, however, that when he uses the term "identification” in this sense he is referring to knowledge of defendant’s name and not the ability to recognize him. In view of Kitterle’s demonstrated ability to recognize defendant as the assailant, his knowledge of defendant’s name is irrelevant. "Where a witness positively identifies a defendant as the man who committed a crime, the weight of the evidence of identification is for the jury unless it is incredible as a matter of law” (People v Seppi, 221 NY 62, 68; People v Malphurs, 111 AD2d 266, 269, lv denied 66 NY2d 920; People v Noland, 27 AD2d 663).
Finally, we find no prejudicial error in County Court’s denial of defendant’s request for a missing witness charge. In view of Kitterle’s testimony, defendant did not meet his burden of promptly notifying County Court that there were uncalled witnesses with "knowledge of any evidence, other than that found to be cumulative, that was material to any issue in the case” (People v Gonzalez, 68 NY2d 424, 430-431, n 2; see, People v Almodovar, 62 NY2d 126, 133; People v Band, 125 AD2d 683, 686).
Judgment affirmed. Casey, J. P., Yesawich, Jr., Levine, Harvey and Mercure, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901579/ | In an action to recover damages for personal injuries, the defendant Mazl Building, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated June 30, 2011, as denied those branches of its motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240 (1), 241-a and 241 (6) insofar as asserted against it, and the defendant/third-party defendant, Rotavele Elevator, Inc., appeals from so much of the same order as denied that branch of its motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification and granted that branch of the motion of the defendant/third-party plaintiff, Patmos Fifth Real Estate, Inc., which was for summary judgment on its third-party cause of action for contractual indemnification.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs payable by the defendant Mazl Building, LLC, and one bill of costs to the defendant/third-party plaintiff, Patmos Fifth Real Estate, Inc., payable by the defendant/third-party defendant, Rotavele Elevator, Inc.
On October 14, 2006, the plaintiffs, Joseph Samaroo and Stephen Herman, were installing rails and brackets in an elevator *945shaft as part of a renovation project at a building owned by the defendant/third-party plaintiff, Patmos Fifth Real Estate, Inc. (hereinafter Patmos), when the plank on which they were standing collapsed, causing them to fall several stories to the bottom of the shaft. The plaintiffs were employed by the defendant/ third-party defendant, Rotavele Elevator, Inc. (hereinafter Rotavele), the subcontractor hired to perform the elevator installation. The renovation project was initiated by the building’s prior owner, the defendant Mazl Building, LLC (hereinafter Mazl), which had originally hired Rotavele. On March 29, 2006, while the renovation project was ongoing, Mazl had sold the building to Patmos. In doing so, Mazl assigned its contracts with Rotavele to Patmos, including an indemnity contract in which Rotavele agreed to indemnify the building owner, to the extent permitted by law, for injuries arising out of Rotavele’s work on the renovation project. On September 17, 2006, Patmos entered into a “Temporary Construction Contract” (hereinafter TCC) with Mazl, in which Mazl agreed, inter alia, to “continue or commence work with good and sufficient material and in a workmanlike manner of work, which is deemed by [Mazl] and which can be done without approval of plans,” and to “keep a competent foreman, necessary assistants, and a sufficient number of skilled workmen and laborers to properly and promptly perform the work” at the renovation project site. Following the accident, the plaintiffs commenced this action asserting various Labor Law violations against the defendants. Patmos commenced a third-party action against Rotavele, inter alia, for contractual indemnification.
There is no merit to Rotavele’s contention that Patmos was not entitled to seek contractual indemnification against it because the assignment of its indemnity contract with Mazl to Patmos was invalid. Contracts are freely assignable absent a contractual, statutory, or public policy prohibition (see Allhusen v Caristo Constr. Corp., 303 NY 446, 452 [1952]; Matter of Stralem, 303 AD2d 120, 122 [2003]; Sullivan v International Fid. Ins. Co., 96 AD2d 555, 556 [1983]; see also General Obligations Law § 13-101). Moreover, Patmos met its prima facie burden of demonstrating its entitlement to judgment as a matter of law on its third-party cause of action against Rotavele for contractual indemnification by establishing that the subject indemnity contract contains no express prohibition as to its assignability, that the assignment was not statutorily barred, and that there was no public policy issue inasmuch as the assignment did not change the scope of Rotavele’s indemnity obligation (cf. Reisman v Bay Shore Union Free School Dist., 74 AD3d 772, 773-774 [2010]). In opposition, Rotavele failed to raise a *946triable issue of fact as to its claim that the indemnity contract was not assignable. Accordingly, the Supreme Court correctly granted that branch of Patmos’s motion which was for summary judgment on its third-party cause of action for contractual indemnification against Rotavele, and denied that branch of Rotavele’s motion which was for summary judgment dismissing that third-party cause of action.
There is no merit to Mazl’s contention that the Supreme Court erred in denying those branches of its motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240 (1), 241-a and 241 (6) insofar as asserted against it, because it was neither an agent of the owner of the building or a general contractor of the renovation project. “ ‘A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured’ ” (Delahaye v Saint Anns School, 40 AD3d 679, 683 [2007], quoting Linkowski v City of New York, 33 AD3d 971, 974-975 [2006]; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]). “To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition” (Delahaye v Saint Anns School, 40 AD3d at 683; see Linkowski v City of New York, 33 AD3d at 975). Thus, a defendant’s potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right (see Williams v Dover Home Improvement, 276 AD2d 626, 626 [2000]). “Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity” (McGlynn v Brooklyn Hosp.-Caledonian Hosp., 209 AD2d 486, 486 [1994]). Here, Mazl failed to make a prima facie showing of its entitlement to judgment as a matter of law. Specifically, Mazl failed to demonstrate that it lacked the requisite authority to supervise and control the plaintiffs’ work, given the terms of the TCC it entered into with Patmos (see Pino v Irvington Union Free School Dist., 43 AD3d 1130, 1132 [2007]). Mazl’s reliance on deposition testimony to alter or otherwise explain the unambiguous terms of the TCC is barred by the parol evidence rule (see Annis v Phillips, 256 AD2d 531, 531 [1998]).
Moreover, contrary to Mazl’s alternative contention, the doctrine of law of the case is not applicable and, thus, does not require dismissal of the plaintiffs’ causes of action alleging a violation of Labor Law § 241 (6) insofar asserted against it (see generally People v Evans, 94 NY2d 499, 503-504 [2000]). Ac*947cordingly, the Supreme Court correctly denied those branches of Mazl’s motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240 (1), 241-a and 241 (6) insofar as asserted against it. Skelos, J.P., Balkin, Chambers and Miller, JJ., concur. [Prior Case History: 32 Misc 3d 1209(A), 2011 NY Slip Op 51217(11).] | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901580/ | —Appeal by the defendant from a judgment of the County Court, Westchester County (Nicolai, J.), rendered April 30, 1987.
Ordered that the judgment is affirmed (see, People v Kazepis, 101 AD2d 816). Thompson, J. P., Eiber, Sullivan and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901581/ | —Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Goldstein, J.), rendered May 23, 1984, adjudicating him to be *560in violation of the terms of a sentence of probation, and imposing sentence.
Ordered that the amended judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Thompson, J. P., Eiber, Sullivan and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901583/ | In an action, inter alia, to recover damages for fraud and breach of contract, and to set aside a mortgage, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated January 20, 2012, as denied those branches of their cross motion which were for a change of venue to Ulster County, to join this action for trial with an action entitled Kodsi v Scotto, pending in the Supreme Court, Ulster County, under index No. 11-3559, and, in effect, to strike the complaint or, in the alternative, to preclude the plaintiffs from presenting certain evidence based on the plaintiffs’ alleged failure to comply with a preliminary conference order dated September 13, 2010.
Ordered that the order dated January 20, 2012, is modified, on the law and in the exercise of discretion, by deleting the provisions thereof denying those branches of the defendants’ cross motion which were for a change of venue to Ulster County and to join this action for trial with the action entitled Kodsi v Scotto, pending in the Supreme Court, Ulster County, under index No. 11-3559, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order dated January 20, 2012, is affirmed insofar as appealed from, with costs to the defendants, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Ulster County, all papers filed in this action, and certified copies of all minutes and entries.
In or about August 2005, the defendant Robert Kodsi (hereinafter Robert) entered into a contract to sell certain real property in Ulster County to the plaintiffs. The plaintiffs executed a purchase money mortgage in favor of Robert. The closing occurred in September 2006. The plaintiffs made their mortgage payments for some time without issue, but, at some point, they allegedly defaulted on their mortgage obligation. The plaintiffs commenced this action in 2009 in the Supreme Court, Kings *948County, seeking, inter alia, to recover damages for fraud and breach of contract, and to set aside the mortgage. Thereafter, the defendants commenced a mortgage foreclosure action entitled Kodsi v Scotto in the Supreme Court, Ulster County, under index No. 11-3559, in connection with the subject property. In this action, the defendants cross-moved to join this action for trial with the mortgage foreclosure action pending in Ulster County, and for a change of venue to Ulster County. Additionally, the defendants cross-moved, in effect, to strike the complaint or, in the alternative, to preclude the plaintiffs from offering certain evidence at trial, based on the plaintiffs’ alleged failure to comply with a preliminary conference order dated September 13, 2010. In the order appealed from, the Supreme Court, among other things, denied those branches of the cross motion which were for a change of venue and to join this action for trial with the mortgage foreclosure action pending in Ulster County. The defendants appeal.
A motion to consolidate or join for trial two or more actions “rests within the sound discretion of the trial court” (American Home Mtge. Servicing, Inc. v Sharrocks, 92 AD3d 620, 622 [2012]; see CPLR 602; Matter of Long Is. Indus. Group v Board of Assessors, 72 AD3d 1090, 1091 [2010]; North Side Sav. Bank v Nyack Waterfront Assoc., 203 AD2d 439 [1994]). Where common questions of law or fact exist, consolidation or a joint trial is warranted, “unless the opposing party demonstrates prejudice to a substantial right” (American Home Mtge. Servicing, Inc. v Sharrocks, 92 AD3d at 622; see Alizio v Perpignano, 78 AD3d 1087, 1088 [2010]; Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 856 [2009]; Glussi v Fortune Brands, 276 AD2d 586 [2000]). Additionally, consolidation or a joint trial is appropriate “where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts” (Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850 [2008]; see Best Price Jewelers.Com, Inc. v Internet Data Stor. & Sys., Inc., 51 AD3d 839, 839 [2008]).
Here, both actions arise from the same transaction, concern the same parties, and involve common questions of law and fact (see Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d at 850). Furthermore, the plaintiffs failed to demonstrate that consolidation or a joint trial would result in prejudice to a substantial right (see id.). Accordingly, under the circumstances of this case, the Supreme Court should have granted that branch of the defendants’ cross motion which was to join this action for trial with the mortgage foreclosure action pending in the Supreme *949Court, Ulster County (see GAM Prop. Corp. v Sorrento Lactalis, Inc., 41 AD3d 645, 646 [2007]). Moreover, since this action, inter alia, to set aside a mortgage, when joined for trial with the mortgage foreclosure action in Ulster County, will “affect the title to, or the possession, use or enjoyment of, real property” (CPLR 507), the mandatory venue provisions of CPLR 507 require that the place of trial must be in Ulster County, where the subject real property is situated (see GAM Prop. Corp. v Sorrento Lactalis, Inc., 41 AD3d at 646).
The defendants’ argument that the Supreme Court should have compelled the plaintiffs to serve an amended bill of particulars more responsive to their demand was improperly raised for the first time in their reply papers before the Supreme Court (see Yechieli v Glissen Chem. Co., Inc., 40 AD3d 988, 989 [2007]; see also Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]; Smith v County of Suffolk, 61 AD3d 743, 743 [2009]). Under the circumstances of this case, this Court will not consider the argument (see Yechieli v Glissen Chem. Co., Inc., 40 AD3d at 989).
The plaintiffs’ request for certain affirmative relief is not properly before this Court, as they failed to file a cross appeal (see Liberty Mut. Fire Ins. Co. v National Cas. Co., 90 AD3d 859, 861 [2011]).
The plaintiffs’ remaining contentions are either improperly raised for the first time on appeal or without merit. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901584/ | —Appeal by the defendant from an amended judgment of the County Court, Rockland County (Nelson, J.), rendered March 24, 1987, adjudging him, after a hearing, to be in violation of the restitution provisions of a sentence of probation imposed by a judgment of the County Court, Westchester County, rendered June 27, 1984, and imposing a sentence of imprisonment.
Ordered that the amended judgment is reversed, on the law and as an exercise of discretion in the interest of justice, the charge of violation of probation is dismissed, and probation is reinstated; and it is further,
Ordered that the provision of the judgment rendered June 27, 1984, to the effect that restitution should be made pursuant to a schedule set by the Probation Department is vacated, and in accordance with CPL 410.80 (2) the matter is remitted to the County Court, Rockland County, to fix the manner of restitution and to specify the date when restitution is to be paid in full.
The defendant pleaded guilty to offering a false instrument for filing in the first degree and was sentenced on June 27, 1984 to five years’ probation on condition that he make restitution of $25,000 to the State pursuant to a schedule set by the Probation Department. He was convicted of a violation of probation in March 1987 after failing to make the scheduled payments.
Although the evidence was sufficient to establish a violation of probation, the amended judgment should be reversed because the underlying judgment on which the violation was based is invalid. The original sentencing court improperly delegated to the Probation Department the authority to determine the manner of restitution and failed to set a date prior to the expiration of probation when restitution must be paid in full (see, People v Fuller, 57 NY2d 152; People v Mark R. S., *56198 AD2d 755; People v Julye, 64 AD2d 614; People v Maurice K., 123 Misc 2d 251; Penal Law § 65.10 [2] [g]).
Under these circumstances, corrective action may be taken in the interest of justice, even though the defendant failed to appeal directly from the judgment of conviction, because of the "essential nature” of the right to be sentenced as provided by law (see, People v Fuller, supra, at 156). The matter is remitted to the County Court, Rockland County, for further proceedings in accordance with Penal Law § 65.10 (2) (g) (CPL 410.70 [5]). In view of this determination, we do not reach the defendant’s remaining contentions. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901586/ | —Appeal by the defendant from an amended judgment of the County Court, Rockland •County (Nelson, J.), rendered March 24, 1987, adjudging him, after a hearing, to be in violation of the restitution provisions of a sentence of probation imposed by a judgment of the County Court, Westchester County, rendered June 27, 1984, and imposing a sentence of imprisonment.
Ordered that the amended judgment is reversed, on the law and as an exercise of discretion in the interest of justice, the charge of violation of probation is dismissed, and probation is reinstated; and it is further,
Ordered that the provision of the judgment rendered June 27, 1984, to the effect that restitution should be made pursuant to a schedule set by the Probation Department is vacated, and in accordance with CPL 410.80 (2) the matter is remitted to the County Court, Rockland County, to fix the manner of restitution and to specify the date when restitution is to be paid in full.
The defendant pleaded guilty to offering a false instrument for filing in the first degree and was sentenced on June 27, 1984 to five years’ probation on condition that he make restitution of $75,000 to the State pursuant to a schedule set by the Probation Department. He was convicted of a violation of probation in March 1987 after failing to make the scheduled payments.
Although the evidence established a violation of probation, the amended judgment should be reversed because the underlying judgment on which the violation was based is invalid. The original sentencing court improperly delegated to the Probation Department the authority to determine the manner of restitution and failed to set a date prior to the expiration of *562probation when restitution must be paid in full (see, People v Fuller, 57 NY2d 152; People v Mark R. S., 98 AD2d 755; People v Julye, 64 AD2d 614; People v Maurice K., 123 Misc 2d 251; Penal Law § 65.10 [2] [g]).
Under the circumstances, corrective action may be taken in the interest of justice, even though the defendant failed to appeal directly from the judgment of conviction, because of the "essential nature” of the right to be sentenced as provided by law (see, People v Fuller, supra, at 156). The matter is remitted to the County Court, Rockland County, for further proceedings in accordance with Penal Law § 65.10 (2) (g) (CPL 410.70 [5]). In view of this determination, we do not reach the defendant’s remaining contentions. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6822862/ | Per Curiam.
At the September, 1963, term of the court below James R. Bullock was indicted for the larceny of $1,596 from the Seaboard Citizens National Bank of Norfolk. Pursuant to Code (Repl. Vol. 1960), § 18.1-109, the attorney for the Commonwealth filed a statement in writing that in asking for conviction he would rely on Code (Repl. Vol. 1960), § 18.1-118. This latter section provides that “If any person obtain, by any false pretense or token, from any person, with intent to defraud, money or other property which *868may be the subject of larceny, he shall be deemed guilty of larceny thereof; * *
The defendant filed a plea of autrefois convict, alleging that on October 16, 1963, he had been convicted in the same court of uttering at the Seaboard Citizens National Bank on January 30, 1962, a forged promissory note in the sum of $1,596; that under the present indictment he is charged with obtaining from the same bank on the same date the same amount of money by means of the same forged promissory note involved in the previous trial; and that his prior conviction “constitutes former jeopardy for the offense which he now stands indicted” and is a bar to the present prosecution.
In support of his plea the defendant offered the record in the former case showing his conviction of forging a note in the principal sum of $1,596, and uttering it by presenting it to the Seaboard Citizens National Bank on January 30, 1962.
In the trial on the special plea the lower court held that obtaining money by false pretense, which amounts to larceny under Code (Repl. Vol. 1960), § 18.1-118, is a separate and distinct offense from uttering a forged note for that amount. Accordingly, it overruled the defendant’s special plea. Upon being arraigned the defendant pleaded not guilty. There was a trial before a jury which found the defendant guilty, as charged in the indictment, and fixed his punishment at confinement in the penitentiary for three years. Judgment was entered on the verdict. We granted the defendant a writ of error.
The main contention of the defendant on this appeal is that the lower court erred in overruling his plea of autrefois convict. He argues here, as he did in the lower court, that uttering the forged note for $1,596 by presenting it to the bank constitutes the same offense as obtaining that amount of money from the bank by means of the forged instrument.
We agree with the lower court that these acts do not constitute the same offense, and we so held in Bateman v. Commonwealth, 205 Va. 595, 600, 139 S. E. 2d 102, 106, decided subsequent to the granting of the writ of error in the present case.
For the same reason there is no merit in the defendant’s contention that the present prosecution is barred by Code (Repl. Vol. 1960), § 19.1-259. The pertinent portion of this -statute reads: “If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a *869prosecution or proceeding under the other or others. # * *” (Emphasis added.)
Since, as we have said, uttering the forged note in violation of Code (Repl. Vol. 1960), § 18.1-96, is not the “same act” as obtaining money by means thereof in violation of § 18.1-118, supra, the present proceeding is not barred by § 19.1-259.
The defendant’s plea of autrefois convict must fail for another reason. It appears from the records of this court, of which we will take judicial notice (Cunningham v. Hayes, 204 Va. 851, 857, 134 S. E. 2d 271, 275, and authorities there cited), that the judgment of conviction of the defendant entered in the court below on October 16, 1963, and upon which he relies in his special plea, was on his petition for a writ of error reversed and the case remanded for a new trial by an order of this court entered on October 12, 1964. See Bullock v. Commonwealth, 205 Va. 558, 563, 138 S. E. 2d 261, 265. Hence the prior judgment of conviction, reversed at the instance of the defendant, cannot be pleaded in bar of the present proceeding. See Cross v. Commonwealth, 195 Va. 62, 63, 77 S. E. 2d 447, 448; 22 C. J. S., Criminal Law, § 272-a, p. 700; Id., § 273, p. 705; 15 Am. Jur., Criminal Law, § 427, p. 89.
We find no error in the proceedings and the judgment is
Affirmed. | 01-04-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901587/ | —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered June 17, 1985, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Neither dismissal of the indictment nor suppression of the identification testimony is required because the police identified the defendant through the use of fingerprints that should have been sealed pursuant to CPL 160.50. As this court has recently stated, CPL 160.50 "was part of a legislative package *563whose purpose was to remove the stigma of alleged criminal activity from an accused who was acquitted by a court or against whom the charges were dismissed and to restore the former defendant to the status he occupied before the arrest and prosecution (see, L 1976, ch 877; People v Gallina, 110 AD2d 847, 848; People v Anderson, 97 Misc 2d 408, 412)” (People v Dozier, 131 AD2d 587, 588). It was not designed to immunize a defendant from the operations of a law enforcement official’s investigatory use of fingerprints (see, People v Dozier, supra; People v London, 124 AD2d 254, Iv denied 68 NY2d 1001).
The court’s charge on intoxication was not confusing and conveyed the proper burden of proof to the jury. The court was not required to instruct the jury that the People bore the burden of disproving intoxication beyond a reasonable doubt.
The interest of justice does not warrant a reduction of the sentence imposed upon the defendant. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901588/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered November 7, 1984, convicting him of rape in the first degree, robbery in the first degree and sexual abuse in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
We do not agree with the defendant’s contention that he was deprived of a fair trial by the complainant’s inadvertent mention of looking at "pictures”. The court’s prompt and complete instruction to the jury to disregard the testimony was sufficient to cure the error (see, e.g., People v Berg, 59 NY2d 294, 299-300), particularly in view of the complainant’s unequivocal identification of the defendant as her attacker.
We find the defendant’s remaining contention to be without merit. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534466/ | FILED
NOT FOR PUBLICATION
MAY 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PAUL A. MORABITO, No. 19-15322
Debtor, D.C. No. 3:18-cv-00221-MMD
______________________________
JH, INC.; BERRY-HINCKLEY MEMORANDUM*
INDUSTRIES,
Plaintiffs-Appellees,
v.
PAUL A. MORABITO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted May 12, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and FRIEDLAND and BENNETT, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court affirmed a bankruptcy court judgment finding a debt owed
by Paul Morabito to Maryanna Herbst and related entities (collectively, “Herbst”)
non-dischargeable on the basis of fraud. Morabito appealed. We have jurisdiction
under 28 U.S.C. §§ 158(d)(1) and 1291, and we affirm.
1. The bankruptcy court did not abuse its discretion in disregarding
Morabito’s declaration under the sham affidavit doctrine. In settling litigation
regarding whether Morabito defrauded Herbst in connection with a business
transaction, Morabito verified that the contents of the parties’ stipulated
Confession of Judgment (the “COJ”), including factual recitations detailing
Morabito’s fraud, were “true and accurate.” He subscribed and swore to that
verification before a notary. Years later, when opposing Herbst’s summary
judgment motion in the non-dischargeability proceeding below, Morabito filed a
declaration that “clear[ly] and unambiguous[ly]” contradicted the COJ’s contents.
See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (internal citation
omitted). Given the contradiction, the bankruptcy court acted within its discretion
in applying the sham affidavit doctrine. See Nelson v. City of Davis, 571 F.3d 924,
928 (9th Cir. 2009) (“The rationale underlying the sham affidavit rule is that a
party ought not be allowed to manufacture a bogus dispute with himself to defeat
summary judgment.”).
2
2. The bankruptcy court properly applied Nevada issue preclusion law in
concluding that the COJ’s fraud recitations barred Morabito from relitigating
whether he defrauded Herbst. See Five Star Capital Corp. v. Ruby, 194 P.3d 709,
713 (Nev. 2008) (listing necessary factors for application of issue preclusion). The
COJ is a valid final judgment for issue preclusion purposes. The COJ incorporates
the same factual findings concerning Morabito’s fraud that the Nevada state court
made after a bench trial during which the parties “actually and necessarily
litigated” whether Morabito defrauded Herbst. See id. The litigated question is
identical to the fact issue presented to the bankruptcy court in the non-
dischargeability proceeding below. Finally, it is undisputed that Morabito was a
party to the state court litigation.
The COJ does not fall within the public policy prohibition on waivers of
bankruptcy protection. Although debtors may not “contract away the right to a
discharge in bankruptcy,” they ordinarily may stipulate to the factual basis for an
exception to discharge. See Hayhoe v. Cole (In re Cole), 226 B.R. 647, 651, 655
(B.A.P. 9th Cir. 1998) (internal citation omitted).
3. The bankruptcy court properly concluded that the fourth cause of
action was not mutually exclusive with the bankruptcy court’s determination, in
3
granting summary judgment on Herbst’s first and second causes of action, that the
COJ established Morabito’s fraud as a matter of fact.
4. The bankruptcy court did not err in concluding that the $85 million
COJ is not an unenforceable penalty. Under Nevada law, “liquidated damage
provisions are prima facie valid,” Haromy v. Sawyer, 654 P.2d 1022, 1023 (Nev.
1982). Morabito bears the burden of establishing that the provision is a penalty,
see Mason v. Fakhimi, 865 P.2d 333, 335 (Nev. 1993), and he concedes that
liquidated damages clauses are appropriate when “contractual damages are
uncertain or immeasurable,” Khan v. Bakhsh, 306 P.3d 411, 414 (Nev. 2013). That
was the case here, as the settlement agreement included several non-monetary
obligations. Because a state court determined, after a full trial, that Herbst was
entitled to approximately $141 million in damages, $85 million of which were
compensatory, we cannot conclude that the $85 million COJ is “disproportionate to
the actual damages sustained” by Herbst as a result of Morabito’s breach of the
settlement that replaced the state court’s judgment. Mason, 865 P.2d at 335.
5. We decline Morabito’s invitation to consider materials outside the
record on appeal. See Fed. R. App. P. 10(a), (e). Accordingly, we GRANT
Herbst’s motion to strike Exhibits 45 and 46 of Morabito’s Excerpts of Record as
4
well as Section (IV)(F)(9) of Morabito’s opening brief. And we DENY
Morabito’s motion to supplement the record.
AFFIRMED.
5 | 01-04-2023 | 05-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5901589/ | In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (St. George, J.), entered January 24, 2011, as, upon a decision of the same court dated June 21, 2010, made after a nonjury trial, awarded the defendant 90% of a certain personal injury award as his separate property, denied her request for maintenance, imputed income to her, and directed her to pay the sum of $144.25 per week in child support and the sum of $9,819.38 in child support arrears, and the defendant cross-appeals from the same judgment.
Ordered that the cross appeal is dismissed as abandoned; and it is further,
*950Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The cross appeal must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614 [2009]; Ellner v Schwed, 48 AD3d 739, 740 [2008]; Matter of Goldweber & Hershkowitz v Digsby, 32 AD3d 853, 854 [2006]), as the brief filed by the defendant does not seek reversal or modification of any portion of the judgment.
The Supreme Court correctly concluded that 90% of a certain personal injury award was the defendant’s separate property, even though he placed those funds in an account titled jointly with the plaintiff. The proceeds of an action to recover damages for personal injuries are the separate property of the injured spouse (see Domestic Relations Law § 236 [B] [1] [d] [2]; Chamberlain v Chamberlain, 24 AD3d 589 [2005]; Gundlach v Gundlach, 223 AD2d 942 [1996]). When spouses hold property in a joint account, however, a rebuttable presumption arises that both have an undivided one-half interest in it (see Banking Law § 675 [b]; Chamberlain v Chamberlain, 24 AD3d at 593; Tayar v Tayar, 208 AD2d 609, 610 [1994]). Thus, by depositing the proceeds of his personal injury lawsuit in an account titled jointly with the plaintiff, the defendant created the presumption that the funds were marital (see Lagnena v Lagnena, 215 AD2d 445, 446 [1995]; Di Nardo v Di Nardo, 144 AD2d 906 [1988]). This presumption may be overcome, however, by evidence that the account was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely as separate property of the spouse who claims the separate interest (see Chamberlain v Chamberlain, 24 AD3d at 593; Wade v Steinfeld, 15 AD3d 390, 391 [2005]; Giuffre v Giuffre, 204 AD2d 684, 685 [1994]). Here, the defendant overcame the presumption that he intended to commingle his funds by establishing that he deposited them in the parties’ joint account for only a few days, and then removed the funds and placed them into an account in his name only (see Banking Law § 675 [b]; Wade v Steinfeld, 15 AD3d at 391; McGarrity v McGarrity, 211 AD2d 669, 671 [1995]).
“[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Wortman v Wortman, 11 AD3d 604, 606 [2004]; see DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008]; Griggs v Griggs, 44 AD3d 710, 711 [2007]). “ Tn determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, *951the standard of living of the parties during the marriage and the present and future earning capacity of both parties’ ” (DiBlasi v DiBlasi, 48 AD3d at 404, quoting Haines v Haines, 44 AD3d 901, 902 [2007]; see Domestic Relations Law § 236 [B] [6] [a]).
Considering, among other factors, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, and the ability of the plaintiff to become self-supporting (see Domestic Relations Law § 236 [B] [6]; Kelly v Kelly, 69 AD3d 577, 578-579 [2010]; Meccariello v Meccariello, 46 AD3d 640, 641-642 [2007]), the Supreme Court providently exercised its discretion in denying the plaintiff an award of spousal maintenance (see Dellafiora v Dellafiora, 38 AD3d 825, 826 [2007]; Almeda v Hopper, 2 AD3d 471 [2003]).
A court need not rely upon a party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated future potential earnings (see Brown v Brown, 239 AD2d 535 [1997]). The level of child support is determined by the parents’ ability to provide for their children rather than their current economic situation (see Gorelik v Gorelik, 71 AD3d 730, 731 [2010]; Matter of Zwick v Kulhan, 226 AD2d 734, 734 [1996]). Here, the Supreme Court properly imputed an annual income of $30,000 to the plaintiff based upon the evidence at trial (see Gorelik v Gorelik, 71 AD3d at 731).
The plaintiff did not raise the issue of attorneys’ fees in the Supreme Court, and the issue is thus not properly before this Court (see Wexelbaum v Jean, 80 AD3d 756, 758 [2011]; Willsey v Gjuraj, 65 AD3d 1228, 1231 [2009]; Green Apple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]).
The plaintiffs remaining contentions are without merit. Dillon, J.P., Balkin, Chambers and Hall, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901590/ | —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered November 22, 1985, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to raise his objections to the adequacy of his plea allocution in the Supreme Court, Queens County. Consequently, his claims have not been preserved for appellate review (see, People v Hoke, 62 NY2d 1022; People v Pellegrino, 60 NY2d 636; People v Edgehill, 130 AD2d 761). In any event, we find that the allocution established the requisite elements of the crime and did not suggest an entrapment defense requiring further inquiry by the court (see, People v Castro, 133 AD2d 839).
Furthermore, the Supreme Court did not abuse its discretion in denying the defendant’s application to withdraw his plea of guilty on the ground that he received ineffective assistance of counsel at the Mapp hearing and the plea proceeding. The defendant’s assertion regarding the Mapp hearing was based on unreliable double hearsay. His claims concerning his attorney’s actions with respect to the plea were directly contradicted by the minutes of that proceeding and are lacking any basis in law. Accordingly, denial of the motion *564without a hearing was proper (see, People v Kelly, 117 AD2d 680).
Finally, the defendant was properly adjudicated a second felony offender upon his admission that he had previously been convicted of a felony within the requisite time period. The defendant declined an opportunity to challenge his second felony offender status and does not now point to any constitutional infirmity in the prior conviction. Thus, there is no reason to disturb his sentence (see, People v Johnson, 134 AD2d 370). Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534468/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR LOPEZ, No. 19-55162
Plaintiff-Appellant, D.C. No. 8:17-cv-01470-DOC-JDE
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Arthur Lopez appeals pro se from the district court’s summary judgment in
his action alleging premises liability claims under the Federal Tort Claims Act, 28
U.S.C. §§ 2671 et seq. (“FTCA”). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Marlys Bear Med. v. U.S. ex rel. Sec’y of Dep’t of Interior,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
241 F.3d 1208, 1213 (9th Cir. 2001). We affirm.
The district court properly granted summary judgment on Lopez’s FTCA
claims because Lopez failed to raise a genuine dispute of material fact as to
whether the walkway outside the Ronald Reagan Federal Building and Courthouse
was a dangerous condition. See Conrad v. United States, 447 F.3d 760, 767 (9th
Cir. 2006) (“In assessing the United States’ liability under the FTCA, we are
required to apply the law of the state in which the alleged tort occurred.”); Taylor v
Trimble, 13 Cal. App. 5th 934, 944 (2017) (premise liability only arises under
California law if there is a showing plaintiff’s injuries were caused by a
“dangerous condition” on the property).
The district court did not abuse its discretion in denying Lopez’s motion for
appointment of counsel because Lopez did not present “exceptional circumstances”
warranting the appointment of counsel. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (setting forth standard of review and “exceptional circumstances”
standard for appointment of counsel).
To the extent that Lopez challenges the district court’s order denying his
reconsideration motion, we lack jurisdiction over that decision because Lopez did
not file an amended notice of appeal. See Fed. R. App. 4(a)(4)(B)(ii).
We reject as meritless Lopez’s contention that the district court’s dismissal
of his case deprived him of his constitutional rights.
2 19-55162
We do not consider facts or documents that were not raised before the
district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
All pending motions and requests are denied.
AFFIRMED.
3 19-55162 | 01-04-2023 | 05-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/105803/ | 358 U.S. 202 (1958)
EVERS ET AL.
v.
DWYER ET AL.
No. 382.
Supreme Court of United States.
Decided December 15, 1958.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE.
Robert L. Carter for appellants.
Walter Chandler, Allison B. Humphreys, Edward P. Russell and Charles M. Crump for appellees.
PER CURIAM.
Appellant, a Negro resident of Memphis, Tennessee, brought this class action in the Western Division of the United States District Court for the Western District of Tennessee, seeking a declaration as to his claimed constitutional right, and that of others similarly situated, to travel on buses within that City without being subjected, as required by Tenn. Code Ann., 1955, §§ 65-1704 through 65-1709, to segregated seating arrangements on account of race. An injunction against enforcement of this statute *203 or any other method of state-enforced segregation on Memphis transportation facilities was also sought. Various officials and officers of the City of Memphis, the Memphis Street Railway Company, and one of that Company's employees were named as defendants. After a hearing a three-judge District Court, without reaching the merits, dismissed the complaint on the ground that no "actual controversy" within the intendment of the Declaratory Judgment Act, 28 U.S. C. § 2201, had been shown, in that appellant had ridden a bus in Memphis on only one occasion and had "boarded the bus for the purpose of instituting this litigation," and was thus not "representative of a class of colored citizens who do use the buses in Memphis as a means of transportation."
Of course, the federal courts will not grant declaratory relief in instances where the record does not disclose an "actual controversy." Public Service Comm'n v. Wycoff Co., 344 U.S. 237. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, this Court said: "The difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." In the present case we think that the record establishes the existence of an actual controversy which should have been adjudicated by the lower court.
The District Court found that when appellant boarded a Memphis bus on April 26, 1956, and seated himself at the front of the vehicle, the driver told him he must move to the rear, "stating that the law required it because of *204 [his] color"; that following appellant's refusal to comply, two police officers shortly thereafter boarded the bus and "ordered [appellant] to go to the back of the bus, get off, or be arrested"; and that thereupon appellant left the bus. The record further shows that the appellees intend to enforce this state statute until its unconstitutionality has been finally adjudicated. We do not believe that appellant, in order to demonstrate the existence of an "actual controversy" over the validity of the statute here challenged, was bound to continue to ride the Memphis buses at the risk of arrest if he refused to seat himself in the space in such vehicles assigned to colored passengers. A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability. See Gayle v. Browder, 352 U.S. 903, affirming the decision of a three-judge District Court reported at 142 F. Supp. 707. That the appellant may have boarded this particular bus for the purpose of instituting this litigation is not significant. See Young v. Higbee Co., 324 U.S. 204, 214; Doremus v. Board of Education, 342 U.S. 429, 434-435.
We hold that the court below erred in not proceeding to the merits. Accordingly, the judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. | 01-04-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/5901593/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lane, J.), *567rendered February 22, 1985, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Mollen, P. J., Bracken, Rubin and Spatt, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901594/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered October 17, 1986, convicting him of arson in the second degree, reckless endangerment in the first degree (two counts), and criminal mischief in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
Viewing the evidence in the light most favorable to the People, we find that it is legally sufficient to support the defendant’s conviction of the crimes charged (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932). Moreover, upon the exercise of our factual review power we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The expert testimony adduced by the People established that the fire was incendiary in nature (see, People v Hoppe, 89 AD2d 670). The People’s arson expert, an experienced fire marshal, properly offered his opinion that the fire was not mechanically, electrically, accidentally, or naturally caused, thus eliminating all nonsuspect causes (see, People v Maxwell, 116 AD2d 667, 668). His observation of the burn pattern and "puddling effect” at the point of origin on the defendant’s kitchen floor indicated that the fire had been started with a flammable fluid. He also smelled a flammable liquid or vaporized fuel at the point of origin. The mere fact that the arson expert was unable to identify the accelerant used does not render the proof defective (see, People v Marin, 65 NY2d 741, 743).
In addition, the testimony of the defense expert was insuffi*568cient to create a reasonable doubt about the incendiary nature of this fire. Based on his examination of photographs of the scene, the defense expert hypothesized that the fire could be attributed to nonsuspect causes but conceded that he could not determine that the fire was nonincendiary without viewing the site.
The evidence tending to identify the defendant as the arsonist was equally compelling. Two prosecution witnesses saw the defendant enter his apartment minutes before the fire broke out. One witness saw the defendant leaving his apartment as flames escaped through his kitchen door. Although the evidence was circumstantial, it was so tightly woven that it cannot be said that the jury "leap[ed] logical gaps in the proof offered and * * * [drew] unwarranted conclusions based on probabilities of low degree” (People v Benzinger, 36 NY2d 29, 32).
The People’s failure to disclose until the eve of trial certain oral statements made by the defendant to the police prior to the defendant’s commission of the crime, although improper, does not constitute reversible error. The statements made by the defendant to the police were discoverable upon demand and the People were required to disclose these statements pursuant to CPL 240.20 (1) (a). The People’s contention that the statements, which were concededly addressed to police officers, were not heard by them but were overheard by civilians is specious. Since the People were aware of these statements and intended to use them at trial, the statements should have been disclosed upon demand or a written refusal supplied.
Nonetheless, under the circumstances of this case, the failure to disclose the statements until the eve of trial did not constitute reversible error. The fact that the statements were not disclosed until the eve of trial, standing alone, does not establish that the defendant was prejudiced in his defense. Although it might have been useful to the defense to know earlier that the People possessed these statements, such knowledge would not have affected the verdict of the jury (see, People v La Bombard, 99 AD2d 851). Aside from the defendant’s statements which touched on possible motive and intent, there was overwhelming evidence establishing the incendiary origin of the fire and the defendant’s identity as the arsonist. Nor has there been a showing of intentional misconduct on the part of the prosecutor which would warrant the drastic remedy of reversal (see, e.g., People v Keppler, 92 AD2d 1032). In sum, the failure to disclose that the defendant made *569voluntary noncustodial statements to the police prior to committing the crime was harmless error which does not require reversal (see, People v Crimmins, 36 NY2d 230).
We have considered the defendant’s remaining contention and find it to be without merit. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901596/ | In an action to recover damages for personal injuries, the defendants Kenneth P Palmer and Glass Gardens, Inc., doing business as Shop Rite of Rochelle Park, appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 2, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
*952The instant action arises out of a collision between a bicyclist and a motorist that occurred at around 8:30 p.m. on an April evening. The moving defendants contend that the sole proximate cause of the accident was the plaintiff bicyclist’s failure to have a headlight on his bicycle (see Vehicle and Traffic Law § 1236 [a]), and failure to yield the right-of-way (see Vehicle and Traffic Law § 1143). However, there can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427 [2005]; Romano v 202 Corp., 305 AD2d 576, 577 [2003]). Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether the plaintiff entered the intersection before the defendant driver, whether it was the defendant driver who failed to yield the right-of-way, and whether the defendant driver failed to see that which through proper use of his senses he should have seen (see Matamoro v City of New York, 94 AD3d 722, 722-723 [2012]; Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896 [2009]). Accordingly, the Supreme Court properly denied the moving defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901597/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered June 13, 1985, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Thompson, J. P., Eiber, Sullivan and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901598/ | In an action to recover damages for personal injuries, the defendants Kenneth P Palmer and Glass Gardens, Inc., doing business as Shop Rite of Rochelle Park, appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 2, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
*952The instant action arises out of a collision between a bicyclist and a motorist that occurred at around 8:30 p.m. on an April evening. The moving defendants contend that the sole proximate cause of the accident was the plaintiff bicyclist’s failure to have a headlight on his bicycle (see Vehicle and Traffic Law § 1236 [a]), and failure to yield the right-of-way (see Vehicle and Traffic Law § 1143). However, there can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427 [2005]; Romano v 202 Corp., 305 AD2d 576, 577 [2003]). Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether the plaintiff entered the intersection before the defendant driver, whether it was the defendant driver who failed to yield the right-of-way, and whether the defendant driver failed to see that which through proper use of his senses he should have seen (see Matamoro v City of New York, 94 AD3d 722, 722-723 [2012]; Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896 [2009]). Accordingly, the Supreme Court properly denied the moving defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901599/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered August 27, 1986, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 4t7 NY2d 606). Mollen, P. J., Bracken, Rubin and Spatt, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901600/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered February 7, 1984, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Mollen, P. J., Brown, Lawrence, Kunzeman and Weinstein, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901653/ | —In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Rubenfeld, J.), entered June 18, 1986, as, upon a jury verdict, is in favor of him and against the defendants in the principal amount of only $27,000.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff urges this court to set aside the jury’s award for both pain and suffering and for loss of earnings as so grossly inadequate as to shock the conscience. However, the award is neither inadequate nor shocking. The plaintiff presented no documentary proof at trial respecting his loss of earnings. Further, the two medical experts strongly disagreed as to the nature, extent and the cause of the plaintiff’s physical complaints. Where conflicting medical evidence is presented at trial, a jury award will not be set aside as inadequate (see, Maldonado v WABC Towing Corp., 121 AD2d 517). Mangano, J. P., Bracken, Fiber and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6822863/ | I'Anson, J.,
delivered the opinion of the court.
Defendant, Ross Oakley Johnson, was convicted by a jury of a *894second offense of driving a motor vehicle while under the influence of intoxicants in violation of an ordinance of the town of Damascus, Virginia. Judgment was entered on the verdict of the jury, and defendant is here on a writ of error.
Defendant assigns numerous errors, but they involve only two questions. He contends (1) that the evidence was insufficient to sustain his conviction; and (2) that the town ordinance was not proved.
Although defendant asks that we set aside his conviction on the ground that the evidence is insufficient to support it, he failed to designate for printing the evidence which is necessary and material for us to determine that issue. The printed record contains only the evidence which is favorable to him.
Rule 5:1, § 6, requires the defendant to “designate not only that which is favorable to him, but that which is favorable to his opponent, for obviously without access to all of the material evidence it is impossible for us to determine its sufficiency.” DeMott v. DeMott, 198 Va. 22, 24, 92 S. E. 2d 342, 343. See also Jenkins v. Womack, 201 Va. 68, 69, 109 S. E. 2d 97, 98.
Because of defendant’s failure to comply with the rule, we would be justified in not considering that assignment of error. But in the interest of justice we will consider all the pertinent evidence in the transcript, including that designated and that omitted from the printed record. See Carter, Adm'r v. Nelms, 204 Va. 338, 340, 341, 131 S. E. 2d 401, 402, 403; Rule 5:1, § 6(f).
The evidence, stated in the light most favorable to the town, since all conflicts in the evidence have been resolved in its favor by the jury’s verdict, shows that on the night of August 11, 1963, the defendant stopped his truck at a business establishment in the town of Damascus and picked up three young men and drove them to a bowling alley in the town. These young men, testifying to substantially the same facts, said that after they got in the truck and the defendant started it in motion, he struck a fence and barely missed hitting a building. On the way to the bowling alley the truck “was weaving backwards and forward across the solid line” on the roadway. Upon arriving at the bowling alley parking lot, they got out of the truck and walked approximately 50 to 75 yards down the road. Within eight to ten minutes after leaving the truck they observed that the defendant had been taken into custody by a police officer. *895The arresting officer, Beattie Fulcher, testified that as he was leaving the bowling alley in a patrol car he observed defendant’s truck turning into the parking lot. He returned to the area within ten minutes because he had received a complaint that a truck had been operating in the town in a careless and negligent manner. He found defendant’s truck parked in the bowling alley lot and the defendant was sitting behind the steering wheel in an intoxicated condition. When he removed defendant from the truck he staggered and was very belligerent. Defendant admitted that he had been drinking, but denied that he had driven the truck to the parking lot. Several bottles and cans of beer were found in the truck and a subsequent blood test revealed .19 per cent alcohol in defendant’s blood.
Defendant admitted during the trial in the court below that he had driven the truck to the parking lot, but he said that he did not begin drinking until after he had parked it and that he had been there from 30 to 40 minutes before the officer arrested him.
Several witnesses corroborated defendant’s testimony that he had been in the parking lot from 30 to 40 minutes before he was arrested, and testified that they drank intoxicating beverages with him during that time. Thus defendant argues that he became intoxicated after parking his truck and the evidence is insufficient to support his conviction of driving under the influence of intoxicants.
Defendant relies on Bland v. City of Richmond, 190 Va. 42, 55 S. E. 2d 289, in support of his argument, but the case is readily distinguishable on the facts. There two police officers found Bland’s automobile resting against a fireplug which it had hit. A third officer, who was not called as a witness, brought Bland to the scene “a few minutes” after the two officers had discovered the accident, and at that time the accused talked with a thick tongue and was under the influence of intoxicating liquors. The evidence did not show how far the accused was from the scene of the accident when apprehended by the officer, or whether he had sought out the officer, or was picked up because of apparent drunkenness. In reversing Bland’s conviction, this Court held that because of the uncertainty of the interval between the time of the accident and when the accused was brought back to the scene, the evidence did not establish that Bland operated a motor vehicle while under the influence of intoxicating liquors.
In the instant case there was evidence that the defendant operated his truck in a careless and reckless manner while driving to the bowling alley parking lot in the town of Damascus. The arresting *896officer saw the defendant drive the truck into the parking lot, and when he was arrested within ten minutes thereafter he was under the influence of alcohol. The question presented was one of fact for the jury, and their finding that the defendant had operated the truck while under the influence of intoxicating beverages is clearly supported by the evidence.
The contention of the defendant that the town ordinance prohibiting the operation of a motor vehicle while under the influence of intoxicating beverages, and the punishment therefor, was not proved, is without merit.
The town met the burden that was required of it under our holding in Sisk v. Shenandoah, 200 Va. 277, 105 S. E. 2d 169.
The record shows that the town of Damascus code, with its pocket parts, was introduced into evidence, without objection, pursuant to the provisions of Code § 8-270, as amended, Code of 1950, 1957 Repl. VoL, after the clerk of the circuit court, when called as a witness, identified the code and testified that it was on file in his office. Moreover, defendant expressly waived the reading of the applicable ordinance and we do not have it before us as a part of the record. Nor was it printed in defendant’s brief.
For the reasons stated, the judgment is
Affirmed. | 01-04-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901601/ | —Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered January 6, 1984, convicting him of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
We find that the evidence presented at trial was legally sufficient to sustain the conviction. The evidence supports a finding that the defendant acted in concert with the codefendants Knapp and Fridella to sell drugs to undercover police officers and a named informant, and that he was in possession of the drugs immediately prior to his arrest. The testimony of the informant and the arresting officer was not incredible as a matter of law, and the jury could reasonably have resolved the inconsistencies in their accounts in favor of the People (see, People v Augustave, 123 AD2d 323).
*571Upon the exercise of our factual review power, we are satisfied that the defendant’s guilt was established beyond a reasonable doubt and the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The hearsay statements of the codefendant Fridella were properly admitted into evidence as declarations of a coconspirator in furtherance of a conspiracy, and the defendant’s right of confrontation was not abridged by virtue of the admission of these statements (see, People v Sanders, 56 NY2d 51; People v Salko, 47 NY2d 230; People v Grant, 113 AD2d 311, Iv denied 67 NY2d 762). The remaining contentions raised by the defendant are either unpreserved or without merit. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901603/ | In an action to recover damages for injury to property, the defendants Anderson-Barrows Metals Corporation and Watts Industries, Inc., appeal from an order of the Supreme Court, Suffolk County (Martin, J.), dated December 20, 2011, which, upon a decision of the same court dated March 15, 2011, granted the plaintiffs motion pursuant to CPLR 3126 to preclude them from offering evidence at trial.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion pursuant to CPLR 3126 to preclude the appellants from offering evidence at trial is denied.
Even though the plaintiffs motion pursuant to CPLR 3126 requested that the answering affidavits be served seven days prior to the date upon which the motion was noticed to be heard, it is undisputed that the motion was served by regular mail only 19 days prior to that time. Since the plaintiff did not serve its motion at least 21 days before the return date, it was only entitled to service of the answering papers two days before the return date (see CPLR 2103 [b] [2]; 2214 [b]; Bush v Hayward, *953156 AD2d 899, 900-901 [1989]; Capoccia v Brognano, 132 AD2d 833, 833-834 [1987]). Contrary to the determination of the Supreme Court, the appellants, who served their opposition papers four days prior to the return date, did not default in opposing the plaintiffs motion. Accordingly, the Supreme Court erred in not considering the appellants’ opposition papers on the ground that they were late, and erred in treating the plaintiffs motion as unopposed.
Furthermore, there was no clear showing that the appellants engaged in willful and contumacious conduct in response to the plaintiffs notice to produce (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]; Moog v City of New York, 30 AD3d 490, 490-491 [2006]; Assael v Metropolitan Tr. Auth., 4 AD3d 443 [2004]). Accordingly, the plaintiffs motion pursuant to CPLR 3126 to preclude the appellants from offering evidence at trial should have been denied. Dillon, J.P., Hall, Roman and Cohen, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534467/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER JAMES HENSON, No. 20-15117
Plaintiff-Appellant, D.C. No. 2:19-cv-04396-MTL-
DMF
v.
CORIZON HEALTH, INC.; et al., MEMORANDUM*
Defendants-Appellees,
and
STEWART, Unknown; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Arizona state prisoner Christopher James Henson appeals pro se from the
district court’s orders denying his motions for a preliminary injunction and his
motion for reconsideration of the denial of a preliminary injunction in his 42
U.S.C. § 1983 action alleging constitutional violations. We have jurisdiction under
28 U.S.C. § 1292(a)(1). We review for an abuse of discretion. Jackson v. City &
County of San Francisco, 746 F.3d 953, 958 (9th Cir. 2014) (denial of preliminary
injunction); Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255,
1262 (9th Cir. 1993) (denial of reconsideration). We affirm.
The district court did not abuse its discretion by denying Henson’s motions
for a preliminary injunction because Henson failed to demonstrate that such relief
is warranted. See Jackson, 746 F.3d at 958 (plaintiff seeking preliminary
injunction must establish that he is likely to succeed on the merits, likely to suffer
irreparable harm in the absence of preliminary relief, the balance of equities tips in
his favor, and an injunction is in the public interest).
The district court did not abuse its discretion by denying Henson’s motion
for reconsideration because Henson failed to demonstrate any basis for such
relief. See Sch. Dist. No. 1J, 5 F.3d at 1263 (grounds for relief under Fed. R. Civ.
P. 59(e)).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 20-15117
AFFIRMED.
3 20-15117 | 01-04-2023 | 05-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5901605/ | —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered December 18, 1985, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The United States Customs Inspector’s pat-down search of the defendant, during which he seized a quantity of cocaine, was reasonable in that the Inspector possessed an articulable suspicion that the defendant was concealing contraband (see, *572People v Materon, 107 AD2d 408). The defendant was traveling alone, carrying one suitcase, with few items, appeared overly nervous and agitated and was arriving from a country with a high profile for illegal drug trade. This conduct justified the minimally intrusive pat-down which led to the drug discovery.
The defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter imposed. Under the circumstances of this case, the defendant has no basis to now complain that his sentence was excessive (see, People v Kazepis, 101 AD2d 816). Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901610/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered November 20, 1985, convicting him of sodomy in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Thompson, J. P., Eiber, Sullivan and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901611/ | *954In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Gavrin, J.), entered April 12, 2011, which granted the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
On January 26, 2006, the injured plaintiff was assaulted by the defendant Gang M. Kim in front of a token booth at the Main Street subway station in Flushing, Queens. The injured plaintiff and her husband, suing derivatively, commenced this action to recover damages for personal injuries against the New York City Transit Authority (hereinafter the NYCTA) and Kim. The Supreme Court granted the NYCTA’s motion for summary judgment dismissing the complaint insofar as asserted against it.
Generally, “[t]he New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between [the NYCTA] and the person assaulted” (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 178 [1982]; see Frazier v Manhattan & Bronx Surface Tr. Operating Auth., 75 AD3d 619, 620 [2010]; Banks v New York City Dept. of Educ., 70 AD3d 988, 990 [2010]; Rios v New York City Tr. Auth., 251 AD2d 484 [1998]). In support of its motion, the NYCTA demonstrated that it did not have a special relationship with the injured plaintiff, thus establishing its prima facie entitlement to judgment as a matter of law (see Weiner v Metropolitan Transp. Auth., 55 NY2d at 178; Banks v New York City Dept. of Educ., 70 AD3d at 990; Rios v New York City Tr. Auth., 251 AD2d at 484; see also Cuffy v City of New York, 69 NY2d 255, 260 [1987]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether a special relationship existed between the NYCTA and the injured plaintiff or as to whether the NYCTA employee who observed Kim assaulting the injured plaintiff failed to summon emergency assistance in a timely manner sufficient to bring her claim within an exception to the special relationship requirement (see Crosland v New York City Tr. Auth., 68 NY2d 165, 170 [1986]; Miller v City of New York, 277 AD2d 363 [2000]; Rios v New York City Tr. Auth., 251 AD2d at 484; Tidd v New York City Tr. Auth., 218 AD2d 694 [1995]; cf. Murphy v New York City Tr. Auth., 74 AD3d 1158 [2010]; Bastien v New York City Tr. Auth., 67 AD3d 716 [2009]). Accordingly, the Supreme Court properly granted the NYCTA’s motion for summary judgment dismissing *955the complaint insofar as asserted against it. Dillon, J.P., Balkin, Chambers and Miller, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4557939/ | AMENDED
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 21, 2020
No. 17-51060 Lyle W. Cayce
____________ Clerk
Whole Woman’s Health, on behalf of itself, its staff, physicians and
patients; Planned Parenthood Center for Choice, on behalf of
itself, its staff, physicians, and patients; Planned Parenthood of
Greater Texas Surgical Health Services, on behalf of itself, its
staff, physicians, and patients; Planned Parenthood South Texas
Surgical Center, on behalf of itself, its staff, physicians, and patients;
Alamo City Surgery Center, P.L.L.C., on behalf of itself, its staff,
physicians, and patients, doing business as Alamo Women’s
Reproductive Services; Southwestern Women’s Surgery
Center, on behalf of itself, its staff, physicians, and patients; Curtis
Boyd, M.D., on his own behalf and on behalf of his patients; Jane Doe,
M.D., M.A.S., on her own behalf and on behalf of her patients; Bhavik
Kumar, M.D., M.P.H., on his own behalf and on behalf of his patients;
Alan Braid, M.D., on his own behalf and on behalf of his patients;
Robin Wallace, M.D., M.A.S., on her own behalf and on behalf of her
patients,
Plaintiffs—Appellees,
versus
Ken Paxton, Attorney General of Texas, in his official
capacity; John Creuzot, District Attorney for Dallas
County, in his official capacity; Sharen Wilson, Criminal
District Attorney for Tarrant County, in her official
capacity; Barry Johnson, Criminal District Attorney for
McLennan County, in his official capacity,
Defendants—Appellants.
No. 17-51060
_______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-690
_______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
IT IS ORDERED that Appellants’ joint opposed motion for stay
pending appeal is DENIED.
2
No. 17-51060
James L. Dennis, Circuit Judge.
Nearly 1,000 days ago, a federal district court declared that Texas
Senate Bill 8 placed an undue burden on a woman’s right to access a pre-
viability abortion and enjoined its enforcement. Texas appealed that same
day. Now, almost three years later, the State seeks to stay the judgment
below. Because the State’s motion is procedurally improper, it must be
denied.
I.
As an initial matter, we address our dissenting colleague’s view that
the motion should be granted, and this case remanded, because the governing
legal standards have supposedly changed in light of the Supreme Court’s
decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).
Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103
(2020), has not disturbed the undue-burden test, and Whole Woman’s Health
v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.
June Medical was a 4-1-4 decision. “Ordinarily, ‘[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as the position
taken by those Members who concurred in the judgment[] on the narrowest
grounds.’” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir.
2013) (first alteration in original) (quoting Marks v. United States, 430 U.S.
188, 193 (1977)). But as we have repeatedly explained, this “principle . . . is
only workable where there is some ‘common denominator upon which all of
the justices of the majority can agree.’” Id. (quoting United States v. Eckford,
910 F.2d 216, 219 n. 8 (5th Cir. 1990)). When a concurrence does not share
a “common denominator” with, or cannot “be viewed as a logical subset of,”
a plurality’s opinion, it “does not provide a controlling rule” that establishes
or overrules precedent. Id.
3
No. 17-51060
In June Medical, the only common denominator between the plurality
and the concurrence is their shared conclusion that the challenged Louisiana
law constituted an undue burden. Compare 140 S. Ct. at 2132 (plurality
opinion), with id. at 2141-42 (Roberts, C.J., concurring in the judgment).
What they obviously disagreed on is the proper test for conducting the
undue-burden analysis: the plurality applied Hellerstedt’s balancing of the
law’s burdens against its benefits, while the concurrence analyzed only the
burdens. Compare 140 S. Ct. at 2132, with id. at 2141-42. Indeed, the Chief
Justice expressly disavowed the plurality’s test. See id. at 2136; cf. Duron-
Caldera, 737 F.3d at 994 n.4 (holding that, in the Supreme Court’s decision
in “Williams[ v. Illinois, 132 S. Ct. 2221 (2012)], there is no such common
denominator between the plurality opinion and Justice Thomas’s concurring
opinion. Neither of these opinions can be viewed as a logical subset of the
other. Rather, Justice Thomas expressly disavows what he views as ‘the
plurality’s flawed analysis,’ including the plurality’s ‘new primary purpose
test.’” (quoting Williams, 132 S. Ct. at 2255, 2262 (Thomas, J., concurring)
(emphasis added))).
Thus, under our Circuit’s reading of the Marks principle, that the
challenged Louisiana law posed an undue burden on women seeking an
abortion is the full extent of June Medical’s ratio decidendi. The decision
does not furnish a new controlling rule as to how to perform the undue-
burden test. Therefore, Hellerstedt’s formulation of the test continues to
govern this case, and because the district court correctly applied Hellerstedt’s
balancing test, remand is not warranted.
Curiously, the dissent does not cite our relevant precedents or our
court’s common-denominator/logical-subset rule. Instead, it cites Justice
Kavanaugh’s statement, in dissent in June Medical, that five Justices
disapproved of the Hellerstedt’s balancing test for determining undue burden.
See Dissenting Op. at 2 (quoting June Med. Servs. LLC, 140 S. Ct. at 2182
4
No. 17-51060
(Kavanaugh, J., dissenting)). With all due respect, this observation is of no
moment in determining the Court’s holding. See 430 U.S. at 193 (explaining
that when no opinion receives a majority of votes the Court’s holding is
“viewed as that position taken by those Members who concurred in the
judgment[] on the narrowest grounds (emphasis added)). And any
intimation that the views of dissenting Justices can be cobbled together with
those of a concurring Justice to create a binding holding must be rejected.
That is not the law in this or virtually any court following common-law
principles of judgments.
II.
The State’s stay motion is also patently procedurally defective. To
understand why, it bears emphasizing that the State’s appeal has been
pending before this court for nearly 1,000 days. Never during this time
period has the State moved in the district court for a stay. Instead, it asks this
court to hear in the first instance its profoundly belated motion. But Federal
Rule of Appellate Procedure 8(2) mandates that the party moving for a stay
in a court of appeals must have either first tried and failed to obtain a stay in
the district court or, alternately, “show that moving first in the district court
would be impracticable.” FED. R. APP. P. 8(a)(2)(A). As noted, Texas
bypassed the first route.
As for the second, Texas’s explanations for the purported
impracticability of moving in the district do not pass muster. The State cites
Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981), in which we explained that
stay motions must first be presented to the district court “unless it clearly
appears that further arguments in support of the stay would be pointless in
the district court.” But the problem here is that the State does not even
attempt to explain why it would be “pointless” to move first in the district
court. Perhaps that is because, under our precedents, it would not be. Cf.
5
No. 17-51060
Bayless v. Martine, 430 F.2d 873, 879 (5th Cir. 1970) (“It does not follow from
the refusal to grant a preliminary injunction pending a trial in the court below
that the district court would refuse injunctive relief pending an appeal.”).
The State appears to apply a presumption of bad faith on the part of the
district court when the appropriate presumption is of course just the
opposite. See Evans v. Michigan, 568 U.S. 313, 325-266 (2013) (“We presume
here, as in other contexts, that courts exercise their duties in good faith.”).
Notably, after waiting years to file this motion, the only recent
development the State identifies is the Supreme Court’s decision in June
Medical. But that the State may now presume its litigation position to be more
favorable due to an intervening Supreme Court decision clearly does not bear
on its ability to move in the district. Preference and impracticability are not
synonyms.
The State’s failure to show the impracticability of moving first in the
district court is sufficient grounds to deny its motion. See, e.g., SEC v.
Dunlap, 253 F.3d 768, 774 (4th Cir. 2001) (explaining that movant’s failure
to move first in the district court for a stay or explain why doing so was
impracticable “constitutes an omission we cannot properly ignore” and thus
denying the motion (citing Hirschfield v. Bd. of Elections, 984 F.2d 35, 38 (2d
Cir. 1993) (denying motion to stay judgment because there was ‘no
explanation why the instant motion for a stay pending appeal was made in the
first instance to [the appellate court]”))); Baker v. Adams Cnty./Ohio Valley
Sch. Bd., 310 F.3d 927, 930-31 (6th Cir. 2002) (seeking a stay pending appeal
first in the district court is “[t]he cardinal principle of stay applications” and
denying the stay motion where “[t]he defendant did not so move below and
has not made any showing that such a motion would be impracticable” (first
alteration in original) (quoting 16A CHARLES ALAN WRIGHT, ARTHUR R.
MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE §
3954 (3d ed. 1999))).
6
No. 17-51060
III.
For these reasons, the State’s motion for a stay is denied.
Carl E. Stewart, Circuit Judge, concurs.
7
No. 17-51060
Don R. Willett, Circuit Judge, dissenting:
I would grant the State of Texas’s motion to stay the injunction.
The Supreme Court recently divided 4-1-4 in June Medical Services
LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the
takeaway seems clear: The three-year-old injunction issued by the district
court in this case rests upon a now-invalid legal standard. See Hopkins v.
Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020)
(explaining that June Medical upended the previous cost-benefit balancing
test for reviewing the constitutionality of abortion restrictions); June Med.
Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) (“Today, five Members
of the Court reject the Whole Woman’s Health cost-benefit standard.”).
I would grant the motion to stay. Additionally, I would remand the
underlying merits appeal to the district court for reconsideration under the
now-governing legal standard. See Box v. Planned Parenthood of Ind. & Ky.,
Inc., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020) and Box v.
Planned Parenthood of Ind. & Ky., Inc., No. 18-1019, 2020 WL 3578669 (U.S.
July 2, 2020) (remanding “for further consideration in light of June
Medical”).
Because the majority does otherwise, I respectfully dissent.
8 | 01-04-2023 | 08-24-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5901612/ | —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered April 17, 1986, convicting him of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The victim, a television producer and photographer, viewed a lineup 16 days after the crime. At the suppression hearing, *575he testified that although he instantly recognized the defendant as his assailant, he continued to scrutinize the lineup for 2 or 3 more minutes, out of extra caution, before identifying the defendant. He then requested a closer view of the defendant because the defendant appeared to have more facial hair at the lineup than he had at the time of the crime. The victim then briefly left the viewing room. When he returned, the defendant was standing eight feet closer than the five fillers, all of whom were seated. The victim then reaffirmed his initial identification.
Although the second viewing was in the nature of a showup, it was merely confirmatory (see, People v Morales, 37 NY2d 262, 271-272; People v Scott, 124 AD2d 684), and it did not taint the first viewing or the in-court identification. This is not a situation in which the stimulus to identify the defendant was placed in the victim’s mind by procedures selected by the police (cf, People v Adams, 53 NY2d 241). The hearing court properly concluded that the procedure used was not likely to give rise to a substantial likelihood of "irreparable misidentification” (see, Manson v Brathwaite, 432 US 98, 107; Neil v Biggers, 409 US 188).
Furthermore, we agree with the hearing court’s determination that the victim had a basis for the in-court identification independent of the lineup procedures. The victim had both the opportunity and ability to form a mental image of his assailant, whom he faced directly throughout the encounter. In addition, the victim provided a detailed description of his assailant which matched the defendant (see, People v Mallory, 126 AD2d 750).
Finally, although the victim’s testimony that he told his wife that he was certain that the man he selected at the lineup was his assailant constituted improper bolstering, the error was harmless. In light of the strong identification testimony adduced at trial, there was no significant probability that but for the bolstering testimony the defendant would have been acquitted (see, People v Johnson, 57 NY2d 969; People v Green, 121 AD2d 739). Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901613/ | —Appeals by the defendant from a judgment of the County Court, Suffolk County (Rohl, J.), rendered October 30, 1985, convicting him, under indictment No. 492/85, of manufacture of unauthorized recording of sound (21 counts) and failure to disclose origin of recording of *576sounds (5 counts), upon a jury verdict, and an amended judgment of the same court, also rendered October 30, 1985, convicting him of a violation of the terms and conditions of a sentence of probation imposed by the same court (Jaspan, J.), on February 19, 1981, upon his conviction under indictment No. 1242/80, upon his plea of guilty, and imposing sentences.
Ordered that the judgment and amended judgment are affirmed.
The defendant contends, inter alia, that certain enumerated errors contained in the trial court’s charge to the jury, as well as several remarks made by the prosecutor during his summation, deprived him of a fair trial. However, the record indicates that none of these issues was preserved for appellate review. In any event, the charge, read in its entirety, conveyed to the jury the correct rules to be applied in arriving at its decision (see, People v Richardson, 117 AD2d 825; cf, People v Evans, 111 AD2d 830). Also, as to the prosecutor’s summation, "[w]e find that there is no reasonable probability that [the challenged] comments had an affect on the outcome of the trial” (People v Nocera, 107 AD2d 768) in light of the overwhelming evidence of the defendant’s guilt.
We also find that the defendant received meaningful legal representation by his trial attorney, who provided a vigorous and competent defense (see, People v Hill, 122 AD2d 810). Additionally, under the circumstances of this case, it cannot be said that the trial court abused its discretion in denying the defendant’s application to have an attorney who had previously been retained by the defendant and who had represented the defendant in the initial stages of the case, but who had subsequently ceased to represent the defendant, substituted for the assigned attorney who had represented the defendant since the retained attorney had ceased to represent him and for a one-month adjournment of the scheduled trial. The record indicates that the defendant was arrested on October 19, 1984, and it was not until almost one year later, shortly before the Huntley hearing was held in September 1985, that the defendant moved to reinstate his original attorney. Thus, the defendant had been “accorded a reasonable opportunity to retain counsel of his own choosing” (People v Arroyave, 49 NY2d 264, 271), and the court was properly concerned at this point in the proceedings with avoiding further delay (see, People v Tineo, 64 NY2d 531, 537).
We have reviewed the defendant’s remaining contentions and find them either unpreserved for appellate review or *577without merit. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901654/ | In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Futnam County (Lubell, J.), dated August 16, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The injured plaintiff, while delivering parcels to the defendant’s home on a hot, misty day, allegedly slipped and fell on a brick walkway that had grass growing up between the bricks.
On her motion for summary judgment, the defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous (see Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2006]; Cupo v Karfunkel, 1 AD3d 48 [2003]; Sun Ho Chung v Jeong Sook Joh, 29 AD3d 677 [2006]; Osborne v Village of N. Tarrytown, 180 App Div 224 [1917]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901614/ | —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered September 20, 1983, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial as a result of certain remarks made by the prosecutor during his summation. However, he did not object to these remarks at trial and hence failed to preserve this claim for appellate review. In any event, although the prosecutor did improperly denigrate the defense and appeal to the jurors’ emotions, we decline to exercise our discretion to reverse the conviction in the interest of justice, in view of the overwhelming evidence of the defendant’s guilt.
We further note, although the issue was neither preserved for review nor raised on appeal, it was error to admit the confession of the codefendant Thompson into evidence at the joint trial. The applicable rule, as articulated by the Supreme Court of the United States, is that where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him (Cruz v New York, 481 US —, 107 S Ct 1714). Since Thompson did not testify at trial, his statement, which served in part to incriminate the defendant, was improperly admitted. However, the defendant’s own confession may be considered on appeal in assessing whether the violation was harmless (supra; People v Baptiste, 135 AD2d 546; People v McCain, 134 AD2d 287). Here, the evidence adduced at trial included the reliable testimony of both an eyewitness to the crime and a medical examiner who performed the autopsy on the body of the deceased, the voluntary confession of the defendant, and the presentation of the weapons used in the commission of the crime. We find that this evidence provided overwhelming proof of the defendant’s guilt, and that there was no reasonable possibility that the jury would have acquitted the defendant if the codefendant’s statement had not been introduced. Accordingly, we conclude that the error was harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230).
*578We have examined the remainder of the defendant’s contentions, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or without merit. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901615/ | —Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered February 4, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements given by him to the police.
Ordered that the judgment is affirmed.
The record supports the hearing court’s determination that the defendant was arrested in his home after his wife consented to the entry of the police (see, People v Maerling, 96 AD2d 600, affd 64 NY2d 134), and that his subsequent statements were voluntarily made after he was given and waived his Miranda rights. Since no accusatory instrument, such as a felony complaint, had been filed, the criminal action had not commenced and the defendant, whose right to counsel had not indelibly attached, could waive his rights without the presence of an attorney (see, People v Samuels, 49 NY2d 218; People v Lane, 64 NY2d 1047).
We have examined the defendant’s remaining contentions and find them to be without merit or unpreserved for appellate review. Mangano, J. P., Bracken, Kunzeman and Eiber, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901616/ | In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated June 20, 2012, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102 (d) (see Fudol v Sullivan, 38 AD3d 593, 594 [2007]).
In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained serious injuries (see Perl v Meher, 18 NY3d 208, 218-219 [2011]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5901617/ | In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated June 20, 2012, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102 (d) (see Fudol v Sullivan, 38 AD3d 593, 594 [2007]).
In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained serious injuries (see Perl v Meher, 18 NY3d 208, 218-219 [2011]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur. | 01-04-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534472/ | No. 15-175C
(Filed: April 27, 2020)
(Re-filed: May 14, 2020)1
**************************
IRIS CORPORATION BERHAD, Patents; motion for
summary judgment;
Plaintiff, infringement; doctrine
of equivalents;
v.
tangential exception.
THE UNITED STATES,
Defendant.
**************************
Stephen Norman Weiss, New York, NY, for plaintiff.
Philip Charles Sternhell, United States Department of Justice, Civil
Division, Commercial Litigation Branch, Washington, DC, with whom were
Joseph H. Hunt, Assistant Attorney General, and Gary L. Hausken, Director,
for defendant. Conrad J. DeWitte, Jr., United States Department of Justice,
of counsel.
OPINION
BRUGGINK, Judge.
This is a patent infringement case brought under 28 U.S.C. § 1498
(2018). Plaintiff IRIS Corporation Berhad (“IRIS”) alleges that the United
States Department of State has infringed U.S. Patent No. 6,111,506 (“the
‘506 Patent”) by its manufacture and importation of certain electronic
passports. Before the court is the government’s motion for summary
1
Due to the protective order in this case, this opinion was issued under seal.
The parties reported that they do not have any proposed redactions. The
opinion is therefore released publicly without redaction.
judgment on the issue of infringement. For the reasons discussed below, we
grant the government’s motion.
BACKGROUND
The ‘506 Patent concerns a method of making an improved security
identification document containing a contactless communication insert. The
‘506 Patent is comprised of one independent claim and six dependent claims.
Claim 1, the independent claim, describes:
1. A method of making an identification document
comprising the steps of:
forming a contactless communication insert unit by
electrically connecting an integrated circuit including a
microprocessor, a controller, a memory unit, a radio
frequency input/output device and an antenna, and
disposing a metal ring to surround the integrated circuit;
disposing the contactless communication insert unit on a
substrate and laminating it to form a laminated substrate;
supplying a first sheet of base material;
supplying a second sheet of base material;
disposing the second sheet of base material on top of the
first sheet of base material and inserting the laminated
substrate including the contactless communication insert
unit between the first and second sheets of base material;
and
joining a third sheet of base material to the first and second
sheets of base material having the laminated
substrate disposed therebetween, the third sheet of base
material containing printed text data located so as to be
readable by humans.
‘506 Patent, col. 20, ll. 10–34.
When presented in prosecution, Application Claim 1 did not include
the step of “disposing a metal ring to surround the integrated circuit.” Def.’s
2
Ex. B at 45. Instead, Application Claim 4, a dependent claim, recited a
“method of making an identification document according to claim 1, wherein
the step of forming a contactless communication insert unit includes the step
of disposing a metal ring to surround the integrated circuit.” Id. at 46. The
Examiner’s Office rejected Application Claims 1-3 and 5-8 as obvious. Id. at
78-87. The claims were obvious in light of two preceding patents, which both
taught a method to construct and insert or otherwise use a communication
unit to control, process, and coordinate data in an identification device. Two
other preceding patents taught methods of adhesion and certain uses of a
memory unit that made the IRIS patent claims obvious. The IRIS method
would add a microprocessor and controller, a different way of placing the
insert unit between sheets of material, and cover page, but the Examiner’s
Office found that these steps would have been obvious to one of ordinary
skill in the art at the time of the claimed invention. Under “Allowable Subject
Matter,” the Examiner’s Office wrote, “Claim 4 is objected to as being
dependent on the rejected base claim but would be allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claims.” Id. at 85.
In response, IRIS requested to
amend claim 1 as follows: 1. (Amended) A method of making
an identification document comprising the steps of: forming a
contactless communication insert unit by electrically
connecting an integrated circuit included a microprocessor, a
controller, a memory unit, a radio frequency input/output
device and an antenna, and disposing a metal ring to surround
the integrated circuit . . . .
Id. at 91 (emphasis in original). IRIS concluded, “Please cancel claim 4
without prejudice or disclaimer of the subject matter recited therein.” Id. at
92. In its remarks, IRIS stated, “Applicant amends claim 1 to include claim
4 and cancels claim 4.” Id. Its explanation for the amendment was concise:
IRIS thanked the Examiner for indicating that Claim 4, if rewritten as part of
the independent claim, was allowable over prior art and stated that it accepted
the Examiner’s recommendation. IRIS submitted that the prior art did not
teach the method of making an identification document with the added
limitation of “disposing a metal ring to surround the integrated circuit.” Id.
at 93. IRIS provided no further explanation. The Examiner’s Office later
issued IRIS a patent for the claims as amended, the ‘506 Patent.
3
IRIS brought its claim in this court on February 24, 2015, alleging that
“all electronic passport inlays that have been in use since the issuance of the
‘506 patent have been manufactured according to the method, or to an
equivalent of the method, disclosed and claimed by said ‘506 patent.” ECF
No. 1 at ¶ 10. It alleged infringement under 35 U.S.C. § 271(g), relating to
importation, use, or sale of a product made by a process patented in the
United States.
During discovery, IRIS responded to a request for admission by
“qualifiedly admit[ing] that the structure [i.e., the accused electronic
passport] appears not to literally include a metal ring.” Def.’s Ex. D at 1-7.
IRIS later responded to interrogatories by stating that the samples the
government had produced showed “a cutout” or “equivalent structure for ‘a
metal ring to surround the integrated circuit’.” Id. at Ex. E.
In April 2018, IRIS filed an Amended Complaint, which added a
theory of infringement under 35 U.S.C. § 271(a), direct infringement by use
of a process. The government moved to dismiss the Amended Complaint for
failure to state a claim on which relief can be granted, because the complaint
did not allege literal infringement regarding “disposing a metal ring to
surround an integrated circuit” and infringement under the doctrine of
equivalents was unavailable to IRIS as a matter of law due to patent
prosecution estoppel. At the hearing on the government’s motion, IRIS
represented that succeeding on its literal infringement claim would require
the court to construe “metal” as “made of metal and other material.” Id. at
Ex. F (Transcript 30:16-25). The court denied the government’s motion,
because the complaint alleged infringement generally and, therefore,
“survive[d] a 12(b)(6) motion because no method of proof is claimed nor
waived by such an allegation, even if the one example provided by the
complaint happens to be by way of the doctrine of equivalents.” IRIS Corp.
Berhad v. United States, No. 1:15-cv-00175, 2018 WL 5305324 at *2 (Fed.
Cl. Oct. 26, 2018). Moving forward, the court ordered IRIS to disclose, in
addition to its infringement contentions and other disclosures, any invocation
of a recognized exception to the doctrine of equivalents as set out in Festo
Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733 (2002)
(Festo I), including all supporting evidence.
IRIS served infringement contentions on the government in January
2019, followed by amended infringement contentions in May 2019 to comply
with the court’s order to particularly identify which products and where on
those products the infringing use could be seen. Additionally, regarding
exceptions to Festo I, IRIS limited itself to arguing the “tangentiality”
4
exception. Id. at Ex. G at 12. In correspondence with the government to
clarify its contentions, IRIS further stated, “IRIS is identifying the same
Teslin or Durasoft for . . . ‘disposing a metal ring to surround the integrated
circuit;’ and, ‘disposing the contactless communication insert unit on a
substrate and laminating it to form a laminated substrate’.” Id. at Ex. I.
Following claim construction briefing and the Markman hearing, the
court concluded that the following constructions of terms in the ‘506 Patent
were appropriate:
Term The Court’s Construction
encrypted information that has been
transformed from plain text to
coded text or ciphertext
Order of steps in which the method The limitations in Claim 1 must be
must be performed performed in the sequence claimed.
integrated circuit a microprocessor, a controller, a
memory unit, a radio frequency
input/output device, an antenna,
and the connections thereto
ring a structure that surrounds the
integrated circuit
metal metal
disposing a metal ring to surround The metal ring must surround the
the integrated circuit integrated circuit. The metal ring
and the substrate are separate
components.
laminating it to form a laminated bonding the contactless
substrate communication insert unit and the
substrate with one or more layers of
a coating material
base material material separate from the claimed
cover
tamper-proof stitching stitching that cannot readily be
altered or tampered with
IRIS Corp. Berhad v. United States, 147 Fed. Cl. 160, 171 (2020).
5
The government filed this motion for summary judgment on
infringement on March 6, 2020. The motion is fully briefed. Oral argument
is deemed unnecessary.
DISCUSSION
Summary judgment is proper when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Rules of the United States Court of Federal Claims (“RCFC”) 56(a). Entry
of summary judgment is proper when a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment bears the initial burden of showing that no genuine dispute of
material fact exists, which it may do by showing an absence of proof
regarding an essential element of the non-moving party’s case. Id. at 323-25.
Once the moving party has supported its motion, the burden shifts to
the non-moving party to identify specific facts on which a genuine dispute
exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’” Id. (quoting First Nat’l Bank of Arizona
v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
I. The United States Electronic Passports do not Literally Infringe the ‘506
Patent.
After claim construction, “[s]ummary judgment on the issue of
infringement is proper when no reasonable jury could find that every
limitation recited in a properly construed claim either is or is not found in the
accused device either literally or under the doctrine of equivalents.” PC
Connector Sols. LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed. Cir.
2005). “To prove literal infringement, the patentee must show that the
accused device contains every limitation in the asserted claims. If even one
limitation is missing or not met as claimed, there is no literal infringement.”
Mas–Hamilton Grp. v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed. Cir. 1998)
(internal citations omitted).
6
A. Creating an Integrated Circuit
Claim 1 states the step of “forming a contactless communication insert
unit by electrically connecting an integrated circuit including a
microprocessor, a controller, a memory unit, a radio frequency input/output
device and an antenna.” ‘506 Patent, col. 20, ll. 13–18. In the claim
construction order, the court held that this step requires the antenna to be a
part of the integrated circuit, not a separate component that is simply
connected to the integrated circuit.
The government argues that there is no evidence in the record that
accused electronic passports feature an integrated circuit that includes an
antenna as part of the integrated circuit, meaning that there is no “integrated
circuit” as stated in the ‘506 Patent. Moreover, the government points out
that plaintiff’s infringement contentions did not allege that the integrated
circuit in accused devices includes an antenna. Rather IRIS alleged that
Gemalto, Infineon, Toppan, ASK, or Smartrac inlays or contactless
communication inserts “connect[] an antenna via the [input/output] area of
the [integrated circuit] . . . .” Def.’s Ex. H at 2-3. IRIS further stated in its
contentions that “the antenna has been electrically connected to the
[integrated circuit], and the [integrated circuit] includes a controller, a
microprocessor and a memory unit along with the [input/output].” Id.
In its response to the motion for summary judgment, however, IRIS
argues that a disputed fact exists regarding whether Gemalto and ASK inlays
“come with chips that have an antenna as part of the integrated circuit.” Pl.’s
Resp. 7-8, Ex. C. Plaintiff supports its argument with a March 31, 2020
declaration from an electrical engineer, David Ferguson, who examined
United States electronic passports for IRIS on June 12, 2018. Mr. Ferguson
concluded that the Gemalto and ASK inlays have an integrated circuit that
includes an antenna. His conclusion is based on an article from the website
EDN which states that a predecessor company to Gemalto supplied such
samples to the United States. He also cites x-rays of United States electronic
passports that he has labeled to show an antenna connecting to the frame of
the integrated circuit.
We agree with the government that there is no genuine dispute of fact
regarding the step of forming an integrated circuit that includes an antenna.
First, IRIS only argues that a triable question exists as it relates to Gemalto
or ASK inlays. IRIS did not point to any facts that suggest that an antenna
can be found in the integrated circuit of the Infineon, Toppan, or Smartrac
inlays or contactless communication inserts. Thus, as it relates to those
7
accused devices, there is an absence of evidence that a claim limitation of the
‘506 Patent is present.
As to the Gemalto or ASK inlays, IRIS has pivoted from its
infringement contentions that it disclosed prior to claim construction. Despite
Mr. Ferguson analyzing the samples provided by the United States in June
2018, IRIS made no mention of its theory that certain inlays included an
antenna in the integrated circuit in its original January 2019 infringement
contentions or in its revised May 2019 infringement contentions. This
approach is at odds with the purpose of the disclosure requirement,
particularly when IRIS effectively seeks to amend its contentions without a
showing of good cause, as required by this court’s Patent Rule 24. The court
will not consider a novel, undisclosed infringement contention that should
have been disclosed to the government during the time set for serving
infringement contentions.
In any event, as the government points out, the declaration does not
raise a genuine dispute of material fact. First, the article Mr. Ferguson cites
refers to a predecessor of Gemalto providing “manufactured initial
production samples for the US government to evaluate.” Pl.’s Ex. D. The
article does not support an inference that those samples were used to
manufacture United States electronic passports. The x-rays Mr. Ferguson
labeled show a piece of an antenna connected to a frame or some outer part
of an inlay. At best, these x-rays support plaintiff’s disclosed contention that
the antenna is connected to the integrated circuit. Finally, IRIS does not
argue, as we discuss below, that the Gemalto or ASK inlays include an
antenna that is surrounded by a metal enclosure. Thus, even if the antenna on
the Gemalto or ASK inlays were a part of the integrated circuit, there is a
lack of evidence that the integrated circuit is surrounded by a metal ring. For
each of the foregoing reasons, the court grants the government’s motion on
the issue of literal infringement of the integrated circuit step of Claim 1.
B. Surrounding an Integrated Circuit with a Metal Ring
Claim 1 also includes the step of “forming a contactless
communication insert unit by electrically connecting an integrated circuit . .
. and disposing a metal ring to surround the integrated circuit.” ‘506 Patent,
col. 20, ll. 13–19. In the claim construction order, the court held that a “ring”
is a structure that surrounds the integrated circuit; “metal” means metal, as
typically understood; and that the metal ring and the substrate that appears in
the next step of Claim 1 are separate components.
8
The government argues that there is an absence of proof that the
United States electronic passports use the method of surrounding an
integrated circuit with a metal ring. Defendant dissects the infringement
contentions from several angles. First, it argues, that metal appears, at most,
on two sides of the circuit in the accused devices, which shows there is no
ring. In other words, there is no evidence that metal surrounds the integrated
circuit. Second, the other two sides of the integrated circuit are set on top of
Teslin or Durasoft materials which are not metal, showing that there is no
evidence of a metal ring. And, third, the Teslin or Durasoft is in fact the
substrate upon which a contactless communication unit is disposed—the next
step of Claim 1—which means that the material cannot form the ring.
IRIS qualifiedly admitted in 2016 that the United States electronic
passports do not use the method of surrounding, or enclosing, an integrated
circuit with a metal structure, suggesting instead that there was an equivalent
used in the passports. Def.’s Exs. D, E. As this case continued, IRIS conceded
in 2018 that if the court determined that a metal ring means that metal must
surround the integrated circuit, the United States electronic passport does not
literally infringe the ‘506 Patent. Def.’s Ex. F. In its revised infringement
contentions, IRIS stated that Gemalto, Infineon, Toppan, ASK, or Smartrac,
suppliers of inlays for electronic passports, surround the integrated circuit
“by a perimetric enclosure, at least a portion of which includes metal, said
enclosure comprising both metal and Teslin or Durasoft.” Def.’s Ex. H.
In its response to the motion for summary judgment, however, IRIS
argues that the step of “disposing a metal ring to surround the integrated
circuit,” ‘506 Patent, col. 20, ll. 17–18, is literally infringed when Infineon
attaches “a metal carrier . . . to the chip.” Pl.’s Resp. 4. IRIS supports this
argument with a few lines from Infineon’s deposition representative in which
the deponent agreed that a “chip is glued onto a metal part that forms part of
the module.” Id. IRIS argues that this citation, and only this citation,
“creat[es] an issue of fact which cannot be resolved by summary judgment.”
Id. IRIS does not reference any other inlay manufacturers in this section of
its response.
Plaintiff’s lone citation does not create a genuine dispute on the issue
of whether a metal ring surrounds the integrated circuit on the accused
devices. First, IRIS only argues that a triable question exists as it relates to
Infineon inlays regarding the step of “disposing a metal ring to surround the
integrated circuit.” ‘506 Patent, col. 20, ll. 17–18. IRIS did not point to any
facts that suggest that such a metal ring is disposed to surround the integrated
circuits supplied by Gemalto, Toppan, ASK, or Smartrac. Thus, as it relates
9
to those accused devices, there is no evidence that a claim limitation is
present.
Second, as to the Infineon inlays, IRIS argues that there is a dispute
as to whether “a metal carrier is attached to the chip” surrounds the integrated
circuit. Pl.’s Resp. 4. IRIS did not disclose in its infringement contentions
that it alleges that a carrier glued to a chip on the Infineon inlays constitutes
a metal ring. IRIS took the Rule 30(b)(6) deposition of Infineon’s
representative in 2016, giving IRIS ample time to disclose this theory in its
infringement contentions. Here again, IRIS attempts to change its
contentions. IRIS only disclosed its theory that a mix of metal and Teslin or
Durasoft constitutes the ring. In other words, IRIS contended that metal on
less than all sides of the integrated circuit combined with a sheet of Teslin or
Durasoft creates a “metal ring.” Plaintiff now argues, without prior
disclosure, that a carrier or frame or other metal piece associated with the
Infineon inlay surrounds the integrated circuit. The court will not consider
this undisclosed infringement contention.
Even if plaintiff had timely disclosed this theory, the testimony that
IRIS cites of Infineon’s Rule 30(b)(6) witness, Joerg Borchert, when read in
context, does not support the existence of a triable question on whether this
“carrier” is a piece of metal that surrounds the integrated circuit. When asked
in several different ways, the deponent consistently describes Infineon’s
inlay as a package of a chip and a carrier and a mold, never suggesting that
the carrier surrounds the chip. Def.’s Ex. L. IRIS represents that the deponent
could not say whether the metal piece surrounds the chip, but the deponent
simply did agree with counsel and explained “[t]he chip is attached to this
metal with a glue” along with the rest of the inlay manufacture process. Id.
at 8 (Borchert Deposition 24:8-9). The identified section of the deposition
does not even suggest what functions the “carrier” or the “chip” serve in
relation to forming the inlay. Gluing a piece of metal to a chip, which is all
the deposition suggests, does not constitute surrounding an integrated circuit
with a metal ring. We agree with the government that IRIS cannot
manufacture a dispute of fact from a selection of ambiguous quotes from a
single deposition.
Finally, IRIS argues that “[t]he court’s construction did not mandate
that the metal ring could not include other material in addition to metal,”
returning to its theory that Teslin or Durasoft coupled with the metal
constitutes a metal ring. Pl.’s Resp. 3. Plaintiff argues that, even if the
Infineon carrier does not surround the integrated circuit, a Teslin or Durasoft
sheet can complete the ring. IRIS draws a distinction without meaning,
10
because what the court did hold was that metal must surround the integrated
circuit, as stated in Claim 1. That metal might be mixed with some other
substance, certainly, but metal must nevertheless enclose the circuit. Teslin
or Durasoft are not metal. IRIS has not identified any evidence in the record
that Infineon manufactures an integrated circuit and then surrounds it with a
metal enclosure prior to adhering it to a sheet of substrate material.
In sum, the government demonstrated that there is an absence of
evidence that any accused device “dispos[es] a metal ring to surround the
integrated circuit.” Plaintiff conceded as much during discovery, and its
response to the motion for summary judgment does nothing to dispel that
concession. The court grants the government’s motion on the issue of literal
infringement of this step of Claim 1.
C. Performing the Claim 1 Steps in the Order Recited
Claim 1 further states the steps of “forming a contactless
communication insert unit by electrically connecting an integrated circuit . .
. and disposing a metal ring to surround the integrated circuit; disposing the
contactless communication insert unit on a substrate and laminating it to form
a laminated substrate . . . .” ‘506 Patent, col. 20, ll. 13–20. In the claim
construction order, the court held that the limitations in Claim 1 must be
performed in the sequence claimed.
The government argues that there is no evidence in the record that the
accused electronic passports are manufactured by (1) forming an integrated
circuit, (2) surrounding the integrated circuit with a metal ring, and (3)
disposing the newly-formed contactless communication insert on a
substrate—in that order. Defendant points out that a metal piece that attaches
the antenna to other components of the circuit cannot perform both the step
of connecting the integrated circuit and surrounding it with a metal ring.
Likewise, defendant contends that the Teslin or Durasoft piece that
constitutes the substrate cannot also be a part of the metal ring. We agree.
In its response, IRIS again isolates only the Infineon inlay. IRIS
argues that, based on the same lines of Mr. Borchert’s deposition discussed
above, a disputed material fact exists. IRIS also cites a picture, which it
represents is an Infineon inlay, that shows what IRIS labels as an
“equivalent” of a metal ring on one side of the picture and the “substrate upon
which the contactless communication insert has been disposed” on the other
side of the picture. Pl.’s Ex. B.
11
We conclude that there is no genuine dispute on the issue of whether
United States electronic passports use the steps of Claim 1 in the order recited
in the ‘506 Patent. First, IRIS only argues that a triable question exists as it
relates to Infineon method. Therefore, as it relates to the Gemalto, Toppan,
ASK, or Smartrac method, there is an absence of evidence that the inlays are
manufactured using the steps as set out in Claim 1. We grant the
government’s motion as to those accused products.
Despite years of discovery and stripping down samples, plaintiff’s
only response is that there is a triable question as to how Infineon puts its
inlays together. We find that IRIS has not identified any facts that would
allow a reasonable factfinder to conclude that a metallic carrier attached to a
chip fulfills the step of disposing a metal ring to surround the integrated
circuit; so that step is missing from the sequence. Plaintiff’s alternative
theory is that the Teslin or Durasoft material is used as both a part of the
“ring” and the “substrate” on which the contactless communication insert is
placed. Def.’s Exs. H, I. To the extent IRIS argues that the substrate performs
both steps, there is no dispute of material fact that the accused devices do not
follow the patented method because the Teslin or Durasoft cannot be both
the ring and the substrate. The court thus grants the government’s motion for
summary judgment as to the issue of literal infringement overall for each of
the reasons discussed in Section I.
II. The Doctrine of Equivalents is Unavailable to Plaintiff, and, even if it
were Available, the United States Electronic Passports do not Infringe the
‘506 Patent under the Doctrine of Equivalents.
When a patentee cannot show literal infringement, it may resort to the
doctrine of equivalents “to claim those insubstantial alterations that were not
captured in drafting the original patent claim but which could be created
through trivial changes.” Festo I, 535 U.S. at 733. Here, IRIS is “relying
upon an equivalent for the ‘metal’ element of ‘metal ring.’” Pl.’s Resp. 6.
IRIS argues that the difference between a “metal” ring and a “metal along
with some other substance” ring is insubstantial. The government argues that
prosecution history estoppel bars plaintiff’s reliance on the doctrine of
equivalents; that the doctrine of equivalents cannot save plaintiff’s claim; and
that application of the doctrine would vitiate limitations of the ‘506 Patent.
A. IRIS cannot rely on the doctrine of equivalents to support its
infringement claim.
12
When an applicant during patent prosecution narrows a claim to avoid
prior art, “[e]stoppel then bars the applicant from later invoking the doctrine
of equivalents to recapture the surrendered ground.” EMD Millipore Corp. v.
AllPure Techs., Inc., 768 F.3d 1196, 1203 (Fed. Cir. 2014). The Federal
Circuit explained the effect of rewriting an independent claim to include
material from a dependent claim in Honeywell International, Inc. v. Hamilton
Sundstrand Corp.:
When a claim is rewritten from dependent into independent
form and the original independent claim is cancelled . . . the
surrendered subject matter is defined by the cancellation of
independent claims that do not include a particular limitation
and the rewriting into independent form of dependent claims
that do include that limitation. Equivalents are presumptively
not available with respect to that added limitation.
370 F.3d 1131, 1144 (Fed. Cir. 2004). In Festo I, the Federal Circuit noted,
“Were it otherwise, the inventor might avoid the PTO’s gatekeeping role and
seek to recapture in an infringement action the very subject matter
surrendered as a condition of receiving the patent.” 535 U.S. at 734.
In this case, the Examiner’s Office rejected the application as
originally written. IRIS then rewrote its Application Claim 1, the
independent claim, to include its dependent Application Claim 4, “disposing
a metal ring to surround the integrated circuit,” and cancelled the original
dependent claim. Def.’s Ex. B at 91-92. The government contends that the
metal ring step constitutes the surrendered subject matter. In other words,
IRIS cannot recapture other methods of forming a contactless
communication insert. IRIS responds that “nothing was surrendered so there
is nothing to recapture.” Pl.’s Resp. 5.
We agree with the government. The surrendered subject matter is a
method of forming a contactless communication insert unit that does not
include the step of “disposing a metal ring to surround the integrated circuit.”
IRIS is therefore presumptively precluded from arguing that equivalents to
metal used to form a ring in the United States electronic passports constitute
infringement of the ‘506 Patent.
A patentee may rebut the presumption of prosecution history estoppel,
however. To rebut the presumption, the patentee must demonstrate one of
three possibilities: (1) “the alleged equivalent would have been unforeseeable
at the time of the narrowing amendment”; (2) “the rationale underlying the
13
narrowing amendment bore no more than a tangential relation to the
equivalent in question”; or (3) “there was ‘some other reason’ suggesting that
the patentee could not reasonably have been expected to have described the
alleged equivalent.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,
344 F.3d 1359, 1368 (Fed. Cir. 2003) (en banc) (Festo II) (quoting Festo I,
535 U.S. at 741). The Supreme Court has “made clear that the patentee bears
the burden of showing that a narrowing amendment did not surrender a
particular equivalent.” Id. In its disclosures, IRIS limited itself to arguing
only the second option: the tangentiality exception. Def.’s Ex. G at 12.
To decide whether “the rationale underlying the narrowing
amendment bore no more than a tangential relation to the equivalent,” the
court asks whether there is an “objectively apparent reason for the narrowing
amendment[, which must be] discernible from the prosecution history
record.” Felix v. American Honda Motor Co., 562 F.3d 1167,
1184 (Fed. Cir. 2009) (quoting Festo II, 344 F.3d at 1369) (brackets in
original). “The tangential relation criterion for overcoming the Festo
presumption is very narrow.” Honeywell, 523 F.3d at 1315. “When the
patentee is unable to explain the reason for amendment, estoppel not only
applies but also ‘bar[s] the application of the doctrine of equivalents as to
that element.’” Festo I, 535 U.S. at 740 (quoting Warner-Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 33 (1997)). “Where no explanation is
established . . . the court should presume that the patent applicant had a
substantial reason related to patentability for including the limiting element
added by amendment.” Warner-Jenkinson Co., 520 U.S. at 33.
The government correctly observes that the objectively apparent
reason for the narrowing amendment is the Examiner’s indication that Claim
1 with the added step of “disposing a metal ring to surround the integrated
circuit” would be allowable. Def.’s Ex. G. IRIS then amended its
independent claim, exactly as directed, to include the entire limitation:
“disposing a metal ring to surround the integrated circuit.” Id.
IRIS responds, “The type of material used for the ring was never at
issue and was never a factor during prosecution of the application that
matured into the ‘506 Patent. The type of material used for the ring is
tangential to the accused equivalent.” Pl.’s Resp. 6. IRIS cites the Examiner’s
Office Action for the proposition that the prior art did not include a “ring,”
regardless of material, and thus the choice of “metal” is tangential to
amendment of adding a ring. In other words, metal is an irrelevant descriptor.
14
We disagree. The explanation IRIS provides is not in the prosecution
history. There is, however, an objectively apparent explanation in the
prosecution history: The Examiner’s Office stated that the entire dependent
claim 4 would be allowable if rewritten in independent form, and IRIS did
just that. IRIS did not attempt to exclude “metal” from its amendment or
provide any explanation in its amendment as to why “ring” was a sufficient
amendment without “metal.” Its argument now is, in essence, too late. Not
having drawn the distinction before the examiner, the court cannot come
behind and red line the claim in plaintiff’s favor.
Because IRIS has not offered an explanation from the prosecution
history as to why “metal” was included in Claim 1 but should be considered
superfluous now, it has not met its burden of proof in rebutting the
presumption that prosecution history estoppel applies. It is therefore barred
from reliance on the doctrine of equivalents for the term “metal.”
B. Even if IRIS relied on the doctrine of equivalents, IRIS cannot
point to a triable question. Furthermore, applying the doctrine of
equivalents would vitiate elements of Claim 1.
Even if IRIS were not barred from relying on the doctrine of
equivalents, it only preserved the argument as it relates to the term “metal”
in independent Claim 1. As discussed in Section I, the United States
electronic passports do not include a “ring” that surrounds an integrated
circuit. Nor does the integrated circuit in the United States electronic passport
include an antenna. As the government argues, IRIS would need to rely on
the doctrine of equivalents for those steps in Claim 1 as well, which it does
not attempt to do. Therefore, even if the use of materials such as Teslin or
Durasoft can take the place of metal under the doctrine of equivalents, the
steps of forming an “integrated circuit,” surrounding it with a “ring,” and
“disposing” it on a separate substrate are not infringed by accused electronic
passports.
Relatedly, “if a court determines that a finding of infringement under
the doctrine of equivalents ‘would entirely vitiate a particular claim[ed]
element,’ then the court should rule that there is no infringement under the
doctrine of equivalents.” Lockheed Martin Corp. v. Space Sys./Loral, Inc.,
324 F.3d 1308, 1321 (Fed. Cir. 2003) (quoting Bell Atlantic Network Sers.,
Inc. v. Covad Commc’ns Grp., 262 F.3d 1258, 1279-80 (Fed. Cir. 2001)).
Part of the patented method is using a “metal” ring, preferably one made of
SUS 303 stainless steel, to surround an integrated circuit to form a contactless
communication insert. Claim 1 includes the term “metal,” and the patent
15
repeatedly shows in figures and describes a method by which a metal
structure is used to enclose the integrated circuit. Finding infringement of the
‘506 Patent by a structure of any combination of metal and other materials,
in any proportion, would effectively read the term “metal” out of Claim 1.
Furthermore, reading Claim 1 to mean that the step of “disposing a metal ring
to surround the integrated circuit” is interchangeable with or the same step
as “disposing the contactless communication insert on a substrate” collapses
separate steps into one, again vitiating the purpose of particular elements of
Claim 1. Therefore, even if IRIS were not barred from relying on the doctrine
of equivalents, the court would grant the government’s motion for summary
judgment on the issue of infringement under the doctrine of equivalents.
III. The United States does not Infringe the ‘506 Patent through Devices or
Activities Not Identified in Plaintiff’s Infringement Contentions.
When plaintiff fails to identify an accused product, there is no
infringement as a matter of law. See Celotex, 477 U.S. at 323. Regarding
broad infringement claims relating to electronic passports or other activities
not identified in plaintiff’s infringement contentions, IRIS cannot
demonstrate infringement as a matter of law. The court grants the
government’s motion for summary judgment on any theories of infringement
beyond those identified in plaintiffs’ infringement contentions.
CONCLUSION
For the foregoing reasons, the court grants defendant’s motion for
summary judgment. The Clerk is directed to enter judgment accordingly. No
costs.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
16 | 01-04-2023 | 05-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/8076593/ | No opinion. Appeal dismissed, with $10 costs. Order filed. | 01-04-2023 | 09-09-2022 |