Two cases involving purported acts of terrorism, one in Israel, one on the streets of the Bronx, will highlight the state Court of Appeals’ October session which begins today.
The judges will split their time between Manhattan and Court of Appeals Hall as it hears arguments in 27 cases between today and Oct. 18.
The court’s sessions will begin at 10 a.m. today, tomorrow and Oct. 11 at the Appellate Division, First Department, at 27 Madison Ave. in Manhattan.
In addition to meeting the court’s goal of conducting oral arguments about once every 18 months outside of Albany, this week’s sessions will serve as a farewell tour, of sorts, for retiring Judge Carmen Beauchamp Ciparick (See Profile).
A Manhattan resident, Ciparick is stepping down on Dec. 31, after more than 19 years on the court because she has reached the mandatory retirement age of 70.
Ciparick will be honored by the New York City Bar tonight and by Mayor Michael Bloomberg and Carol Robles Roman, the city’s deputy mayor for legal affairs, tomorrow night at Gracie Mansion.
In addition to the terrorism-related cases, the court will consider the potential state liability for the capsizing of a tour boat on Lake George that killed 20 people in 2005 and whether a Long Island doctor can be found to have committed medical malpractice for a consensual affair with a patient.
In the domestic terrorism case, People v. Morales, 186, the court will hear arguments today about whether a member of a Mexican-American gang in the Bronx should face sentence enhancements for terrorism for shooting and killing an innocent bystander and crippling the companion of a perceived rival gang member in August 2002.
Edgar Morales, a member of a gang known as the St. James Boys (SJB), was convicted of manslaughter, attempted murder and weapons possession by a jury, with all three crimes carrying enhanced penalties because they were “crimes of terrorism” as defined under the state’s anti-terrorism statute, Penal Law §490.25.
The Appellate Division, First Department, panel modified the sentence by eliminating the terrorism enhancements, reducing his sentence to 20 to 40 years from 40 years to life.
The First Department held that gang-on-gang violence does not meet the Penal Law statute’s definition of “terrorism,” which is an act committed to “intimidate or coerce” a civilian population (NYLJ, Nov. 10, 2010).
Catherine Amirfar of Debevoise & Plimpton will argue on Morales’ behalf today that when drafting the anti-terrorism statute in the days following the terrorist attack of Sept. 11, 2001, the Legislature adopted the federal definition of terrorism. That has broadly defined terrorism as being “motivated by a religious, political or ideological objective—not ordinary street crime,” Amirfar argues in her brief.
She will also ask the court to overturn Morales’ convictions on the ground that he was prejudiced by the prosecution’s attempts to paint him as a terrorist during the trial.
An amicus brief filed on Morales’ behalf by the New York University School of Law’s Center on the Administration of Criminal Law argued that all anti-terrorism statutes would be weakened if gang-related crimes can be prosecuted as terrorism.
“While the acts committed by the SJB in pursuit of being the toughest Mexican gang in the Bronx are certainly worthy of prosecution and meaningful punishment, they have no nexus whatsoever with the political motivation underlying terrorism,” the criminal law center said in its brief.
Bronx District Attorney Robert Johnson’s chief appellate attorney, Peter Coddington, will push the court today to reinstate the terrorism enhancements.
Coddington contends that the sole purpose of the St. James Boys’ criminal activity was to intimidate and coerce members of four rival Mexican-American gangs in the Bronx, the Vagabundos, La Raza Loco, the Callejeros and the Cholos. By extension, prosecutors argue, the St. James Boys aimed to intimidate all Mexican-Americans in the borough by trying to prove that their members were the toughest in the Bronx.
The gang participated in a “prolonged pattern of purposeful criminal activity, committed with the intent of establishing its reputation as a gang that could be dominated by no one,” Coddington said.
A stray bullet fired by Morales killed Melany Mendez, a 10-year-old bystander. Morales’ shooting also left the companion of the suspected rival gang member paralyzed.
The other terrorism-related case, Licci v. Lebanese Canadian Bank, 183, will be heard tomorrow.
It comes to the court in the form of two certified questions from the the U.S. Court of Appeals for the Second Circuit that ask for clarification on New York’s long-arm statute, CPLR §302(a)(1).
The circuit is seeking guidance on whether a bank has “transacted business” within the meaning of New York law by maintaining a correspondent bank account at a financial institution in New York through which dozens of multimillion dollar wire transfers were made. If so, the Second Circuit also wants to know if the plaintiffs’ claims arise against the Lebanese Canadian Bank under the U.S. Anti-Terrorism Act or Israeli law.
The action was brought by a host of plaintiffs, both Americans and non-Americans who were wounded in rocket attacks in northern Israel in the summer of 2006 or are the relatives of those wounded or killed in the attacks.
Attorney Robert Tolchin of the Berkman Law Office in Brooklyn, will argue on behalf of the plaintiffs that the Second Circuit has personal jurisdiction to hear their claim that the bank assisted the terrorist activities of Hizballah by wire transfers the bank made through the American Express Bank in New York to a related entity, the Shahid (Martyrs) Foundation.
“Granting jurisdiction in this case will…facilitate just actions by a limited number of parties harmed who wish to legitimately seek redress in New York,” Tolchin wrote in his briefs. “It will not open the floodgates of litigation.”
George Daniels, a Southern District judge, dismissed the action on jurisdictional grounds. The Second Circuit, however, said it was not certain how the state Court of Appeals would interpret CPLR §302(a)(1) given the facts of Licci and asked the court to clarify its views (NYLJ, March 6).
Jonathan Siegfried of DLA Piper will argue that state and federal courts have previously agreed with Daniels’ position that a “foreign bank has never been held to transact business in New York within the meaning of CPLR §302(a)(1) simply because it uses a New York correspondent bank to facilitate an international debit, credit, or wire transfer at the request of one of its foreign clients.”
Among the other cases the court will hear during its October session are:
• Metz v. State of New York, 208. On Oct. 18, the Court will hear arguments about the validity of the state raising an affirmative defense of sovereign immunity against claims by victims of the tour boat Ethan Allen accident and their relatives that state safety inspections of the craft were negligent.
A Third Department panel dismissed the sovereign immunity defense (NYLJ, July 15, 2011). The state will seek its reinstatement or the outright dismissal of the suit based on the contention that the plaintiffs failed to establish that safety inspectors owed them a “special duty” as opposed to the public at large when passing the craft as safe during inspection.
• Dupree v. Giugliano, 204. The court will consider on Oct. 18 whether to uphold a $416,500 jury verdict for medical malpractice against Dr. James Giugliano, a family practitioner in Southampton, for a nine-month affair he had with a patient.
A Second Department panel upheld the verdict, finding that although Giugliano was not a mental health provider, he had assumed the duty of care applicable to mental health providers. It said Giugliano’s “reprehensible” conduct “evinced a gross indifference to his patient’s well-being” (NYLJ, Sept. 19, 2011).
• Matter of Soares v. Herrick, 198. On Oct. 16, Albany County District Attorney P. David Soares’s office will challenge the decision by Albany County Court Judge Stephen Herrick to remove Soares’ office from the prosecution of a illegal steroid case against a Florida pharmacy because the pharmacy had sued the district attorney in a federal civil rights action. Herrick maintained that the suit compromised the impartiality of the district attorney.
A Third Department panel ruled that Herrick had overstepped his authority by directing that a special prosecutor take over the criminal case (NYLJ, Aug. 5, 2011).
• People v. Gavazzi, 195. Prosecutors will ask the court to overturn a Third Department ruling that threw out evidence in a child pornography case because the warrant contained the name of the wrong issuing court in violation of CPL 690.45.
The evidence against John Gavazzi was taken with a warrant that identified the issuing court as “Local Criminal Court, Town of Broome, Broome County” while the warrant was actually issued by the Village of Greene Justice Court in Chenango County.
The court will hear the arguments in Gavazzi on Oct. 16.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.