Applying the Doctrine of Abatement in a criminal action

Applying the Doctrine of Abatement in a criminal action

United States v Libous, USCA, 2nd Circuit, Docket#15-3979

Under the Doctrine of Abatement, the government has no right to retain fines imposed pursuant to a criminal conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to [1] withdraw his then pending appeal; [2] vacate the underlying judgment of conviction of making false statements to the FBI; and [3] remand the matter to the district court for dismissal of the indictment and a order refunding the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a two-year term of probation on Libous, whose physicians had determined had less than a year to live, along with a $50,000 fine imposition of the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established Doctrine of Abatement, ab initio, when a convicted defendant dies pending an appeal as of right, his [or her] conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated."

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, "a defendant does not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right, suggesting that it may distinguish the impact on the Doctrine in cases of suicide from the impact of the Doctrine in the event of death as the result of natural causes, accident, or events other than suicide while such an appeal is pending.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca2/15-3979/15-3979-2017-05-30.html

Determining if an individual is an employee of an employer

Determining if an individual is an employee of an employer

Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;

2. The payment of salary or wages by the entity;

3. The power of dismissal of the individual by the entity; and

4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

Claiming the affirmative defense of "privilege"

Claiming the affirmative defense of "privilege"

Casey v State of New York,  2017 NY Slip Op 01922, Appellate Division, Third Department

Office of Court Administration's [OCA] sole contention is that the Court of Claims court should have found that its "detention" of Colleen Casey, a senior court officer, was privileged* on the ground that a designated superior's authority to command Casey through lawful orders carried with it a privilege to keep Casey under the supervisor's supervision and to control her movements when Casey did not immediately comply with the lawful order to surrender her personal firearms.

The Appellate Division, observing that OCA bore the burden of proof to establish any claim of an affirmative defense of privilege, said that "There is nothing in this testimony that supports [OCA's] current claim that [Casey] was so noncompliant that it was reasonably necessary to confine her or restrict her movements to ensure her compliance, or so distraught that close supervision was required to ensure her safety and that of others until the firearms [sought] were secured."

OCA, relying upon Casey's testimony in her Court of Claims action to support its claim of privilege, argued that the testimony that Casey she was upset and uncooperative establishes that it was reasonable under the circumstances for the supervisor and the other officers to confine her and restrict her movements. However, said the Appellate Division, as it "previously noted, it was [OCA's] burden, not [Casey's], to prove the claim of privilege."

Having made no claim at trial that the officers' actions were based in any way upon Casey's alleged insubordination or required by any threat to public safety, and having instead presented contradictory evidence to the effect that Casey consented to almost everything she was directed to do, "[OCA] cannot now meet its burden by relying on the same testimony that it sought to discredit at trial."

Addressing OCA's contention that the supervisor "was privileged to confine [Casey] restrict her movements," under the governing rules and procedures to ensure Casey's compliance with lawful orders, the Appellate Division observed that "the rules that require court officers to comply with their supervisors' lawful orders and to turn over their firearms when directed to do so are solely directed at the subordinate officer's obligations, and do not directly address the extent of a supervisor's authority to compel compliance."

Further, said the court, "Nothing in any of the provisions relied upon by [OCA] expressly authorizes a supervisor to use confinement or force to compel a subordinate to comply with an order" nor do the rules that require an officer to comply promptly with lawful orders unequivocally forbid all resistance to every order. Rather the rules provide that the officer "shall not obey any order which is inconsistent with the law," must request clarification or confer with a supervisor when in doubt as to whether an order is lawful, and must obey an order that he or she believes to be unlawful only if the supervisor fails to modify the order after being respectfully informed of the subordinate's belief that it is unlawful.

Accordingly, the Appellate Division said that it agreed with the Court of Claims conclusion that OCA did not meet its burden to that the conduct of the officers in confining Casey and restricting her movements was "reasonable under the circumstances and in time and manner," and therefore OCA failed to prove that its supervisor's conduct was privileged.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01922.htm

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* A particular benefit, advantage, or immunity available to a particular entity, person or class of persons.