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N.Y. Family Court Judge Uses Equitable Estoppel to Find Co-Parent Standing in the Absence of Pre-Conception Agreement

Posted on: October 3rd, 2017 by Art Leonard No Comments

Filling a gap in New York family law left open by the New York Court of Appeals’ 2016 decision In the Matter of Brooke S.B., 28 N.Y.3d 1, 61 N.E.3d 48839 N.Y.S.3d 89, Nassau County Family Court Judge Thomas Rademaker held in J.C. v. N.P., a decision published by the New York Law Journal on September 27, 2017, that the doctrine of equitable estoppel could be used to establish the standing of a lesbian co-parent who could not show that she and her former partner, the birth mother, had a written pre-conception agreement concerning parentage of the two children that were born during their relationship. (At the time of writing, the opinion had not yet appeared in the Lexis or Westlaw databases or been assigned a N.Y. Slip Opinion number, and the version of the opinion published on the Law Journal website did not include a docket number, but bore the date of publication of September 27.) In Brooke S.B., a similar case in other respects, the Court of Appeals had relied on the plaintiff’s allegation of the existence of a pre-conception agreement in determining the standing of an unmarried co-parent to seek custody, and stated “we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.”

The Court of Appeals’ statement left an ambiguity for lower courts confronted by cases such as J.C. v. N.P.. Does “if any” mean that co-parents who lack evidence of a pre-conception agreement are categorically barred from establishing standing to seek custody and visitation after their relationship with the child’s birth mother ends, as would be the case under the older precedents overruled in Brooke?  Or, to the contrary, could it just mean that lower courts have room to consider other legal doctrines that would enable them to reach what should be the overriding question in such custody/visitation disputes: what is in the best interest of the children?

Judge Rademaker opted for the second approach. “It is doubtful that the Court of Appeals meant that no test should apply and it is beyond doubt that the Court of Appeals carefully tailored their holding to the fact specific case before them.  Simply put, the holding in Brooke applies to situations when a pre-conception agreement is proven to exist by clear and convincing evidence.”  Further, the “if any” comment struck Rademaker as showing that the Court of Appeals felt it was premature to take the next step of allowing a co-parent to establish standing based on events that occurred upon and after the birth of the child until an appropriate case arose that required determination of that question.  While finding that relying solely on a “best interest of the child” test would provide “far too amorphous a standard” to determine co-parent standing, wrote Rademaker, “Given precedent, the social and legal acknowledgement of same sex marital status, parentage, and the like, this Court looks to the doctrine of equitable estoppel for guidance in the instant matter.”  Rademaker explained that this doctrine has been frequently pressed into service by New York courts in determining that a man without a biological/genetic relationship to a child can be deemed a parent in certain circumstances, and he noted that those opinions emphasized that the overriding factor in such cases should be the best interest of the child.

“To prevail on the grounds of estoppel, the moving party bears the burden of proving, by clear and convincing evidence, that she has the right to the relief being sought,” the judge wrote, disclaiming any intent to create rigid guidelines or lists of factors that must be proven, while taking note of the factors that had been cited by the courts in cases determining men’s status as fathers.

In this case, the court found, J.C. and N.P. began their relationship around January 10, 2014, at which time N.P. was still married to, but separated from, another woman. Within days, N.P. became pregnant through donor insemination, and J.C. participated fully during the pregnancy, accompanying N.P. on doctor visits.  “Throughout their relationship,” Rademaker found, “including the pregnancies, the parties lived together in each other’s homes which they separately owned, dividing time between the two homes depending upon the season and work schedules.”  When their first child, C.C., was born on September 29, 2014, they brought him to J.C.’s house, where a nursery room had been prepared for the child.  Through the women’s subsequent relationship, including the birth to N.P. of a second child conceived through donor insemination who was born in May 2016, the women both functioned as parents, were regarded as a family by the children’s pediatrician, neighbors, and their other family members.  The two children are described by the court as “biological siblings,” presumably because the same man served as sperm donor for both children.

There was also documentary evidence, in the form of an email N.P. sent to her parents on October 16, 2015, as she and J.C. were going to the airport for N.P. to travel, in which she stated: “Since I have a child, don’t have a legal will and [JC] and I aren’t married yet, I figured I would put my wishes in writing just in case of an unfortunate event and I don’t return from Miami safely. Since [JC] is [CC]’s co-parent and other mommy, my wish is for her to have full custody and raise [CC] as her own in the instance I’m not on this earth to raise her myself.  Thank you!”  Although N.P. testified that this was sent to assuage J.C.’s concerns, the court found no reason to believe the statement was sincerely meant.

In a footnote, Judge Rademaker specifically rejected N.P.’s argument that J.C.’s standing claim was barred by the fact that N.P. was married to another woman at the time of C.C.’s conception. “It has been held that the presumption of legitimacy is a presumption of a biological relationship, not a legal relationship,” he wrote, “and therefore has no application to same-gender married couples,” citing Matter of Paczkowski v. Paczkowski, 128 App. Div. 3d 968 (2nd Dept. 2001).  “Moreover,” he wrote, “respondent’s judgment of divorce from her prior spouse clearly rebuts any presumption that C.C. is a child of that marriage, and respondent is bound by that determination under the doctrine of collateral estoppel.”  He also rejected N.P.’s argument that the failure of J.C. to adopt the children due to N.P.’s negative response to J.C.’s suggestions should carry more weight than the tangible evidence of N.P. treating J.C. as a parent and sharing parenting responsibilities with her.  “Simply stated,” wrote the judge, “respondent may have been apprehensive at times about the course of the relationship and perhaps even embarrassed by comments made by petitioner at particular family events but respondent’s daily words and actions with and toward petitioner, as well as CC and AJ [the second child], throughout the relationships were, in fact, quite different.”

The parties’ relationship ended early in 2017 and they separated, but J.C. continued “to see, care for, and tend to the children,” and they all went together on a ski weekend trip in February “together with the children sharing the same room together with the children after the relationship purportedly ended.”

Rademaker found that J.C. had “established by clear and convincing evidence that respondent created, fostered, furthered, and nurtured a parent-like relationship between the children and petitioner. Commencing just a few days after the older child’s conception, and continuing well after the demise of the parties’ relationship, respondent acted as if petitioner was a parent and acknowledged to petitioner, the children, and others that petition was essentially a parent, to wit, a “Mommy,” and both respondent and the children benefitted from this parent-like relationship on a daily basis for years.  Petitioner is adjudicated to be a parent of the subject children and therefore, has standing to seek visitation and custody.”

The next step will be for the court to determine whether it is in the best interest of the children for J.C. to be granted custody and visitation rights.

The Law Journal article reporting on the decision suggested that this was the “first” New York court decision to “offer an answer” to the question whether a co-parent could be adjudicated to be a parent in the absence of a pre-conception agreement. Neither the article nor the opinion identified counsel for the parties.  In a footnote, Judge Rademaker acknowledged the “invaluable assistance of Court Attorney Jeremy Jorgensen in the preparation of this decision.”

 

New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

Posted on: August 30th, 2016 by Art Leonard No Comments

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

Judith Kaye, a champion of lesbian & gay rights, dies at 77

Posted on: January 11th, 2016 by Art Leonard No Comments

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.

NY High Court Approves Reduced Charges in HIV Transmission Case

Posted on: February 20th, 2015 by Art Leonard No Comments

The New York Court of Appeals, the state’s highest court, ruled 4-1 on February 19 that a Syracuse (Onondaga County) trial judge had appropriately granted a defendant’s motion to reduce charges against him from felony to misdemeanor reckless endangerment where the defendant had apparently transmitted HIV to another man by engaging in unprotected anal sex without disclosing his HIV status, reassuring his sex partner that it was “okay.”  People v. Williams, 2015 WL 685818.  The defendant also faces a misdemeanor assault charge.  The court’s decision is premised on its conclusion that evidence presented to the grand jury would not support the conclusion that the defendant acted with “depraved indifference to human life.”

According to the court’s statement of the facts, the victim and Terrance Williams became friends in July 2010, and their relationship became sexual later in the summer “when they engaged in anal sexual conduct.”  The first few times they used condoms, but eventually they had unprotected sex.  “The first time this happened,” wrote the court, “the victim reached for a condom only to have defendant take the condom away from him,” assuring him that it was “safe for them to have unprotected sex.”  The men had previously conversed several times about HIV and “the need to be careful to avoid infection.”  In October 2010, Williams told his partner that Williams might be HIV-positive, because a prior sexual partner with whom he had unprotected sex had been diagnosed.   Williams urged his partner to get tested, and shortly after this conversation their relationship ended.  In February 2011, the victim experienced symptoms, got tested, and turned out to be infected.  He started on antiretroviral therapy soon thereafter.

In April 2011, the victim received a message through social media from Williams, in which Williams confessed that he had been diagnosed as HIV positive before he and the victim had started having sex, and Williams expressed remorse about having lied to him.  “I want to start by saying that I sincerely apologize for giving you HIV,” he wrote.  “I made my biggest mistake that night I said I didn’t want to use a condom knowing my status but still being so deep in love with you that I wanted us to be one person.  I was selfish and I was more so concerned with my own false happiness than your health.”  The victim contacted the police, and this prosecution ensued.

The Onondaga County District Attorney’s office presented the case to a grand jury, which voted to indict Williams on charges of reckless endangerment in the first degree (Penal Law section 120.25) and third-degree assault (Penal Law section 120.00[2]).  Reckless endangerment in the first degree is a Class D felony, subjecting a defendant to a potential prison term of up to seven years.  Conviction requires a finding that the defendant “under circumstances evincing a depraved indifference to human life … recklessly engages in conduct which creates a grave risk of death to another person.”  The third-degree assault charge applies to situations where a defendant intentionally, recklessly or negligently causes a physical injury to another.  In cases of negligence, the defendant must have use a deadly weapon or a dangerous instrument.  This is a misdemeanor with a maximum prison sentence of a year.

Williams filed a pretrial motion challenging the appropriateness of the first degree reckless endangerment charge, arguing that his conduct did not show depraved indifference to human life and that in light of current medical treatments he did not subject the victim to a “grave risk of death” by transmitting HIV to him.  Onondaga Supreme Court Justice John J. Brunetti granted the motion and reduced the charge to second degree reckless endangerment (Penal Law section 120.20), which applies when a defendant “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”  This is a Class A misdemeanor, carrying the same potential prison sentence as the assault charge.

The prosecutor appealed Brunetti’s ruling, but the Appellate Division, 4th Department, affirmed Brunetti by a unanimous 5-0 panel vote.  The panel wrote that the evidence presented to the grand jury would not support a finding of depraved indifference to human life.  The court focused on Williams’ explanation why he did not disclose his HIV status (he was “afraid [the victim] would not want to be with” him, and he “loved [the victim] so very much”), and on his action of urging the victim to be tested and then sending his apology.  “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant was trying, however weakly and ineffectively, to prevent any grave risk that might result from his conduct.  We thus conclude that, while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that he did not care at all,” which would be necessary to support a finding of “depraved indifference to human life.”  The Appellate Division panel also found that medical evidence presented to the grand jury countered the conclusion that transmitting HIV today puts somebody in grave risk of death.  A doctor had testified that the prognosis for somebody who starts antiretroviral therapy soon after being infected is “outstanding.”  The prosecutor applied to the Court of Appeals for review of this decision.

The Court of Appeals abstained from deciding whether HIV infection today creates a grave risk of death, instead focusing on the depraved indifference issue.  “Here,” wrote the court, “there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.  Without a doubt, defendant’s conduct was reckless, selfish and reprehensible.  Under our caselaw, though, this is not enough to make out a prima facie case of depraved indifference.”  Since it concluded that the evidence would not support a finding of “depraved indifference,” the Court of Appeals saw no need to rule on whether the medical evidence would show a “grave risk of death.”

Judge Eugene Pigott, Jr., dissented, contending that the evidence presented to the grand jury was sufficient to support the felony charge.  “The People’s evidence established that defendant knew at the time he engaged in sexual conduct with the victim that he had been infected with HIV.  The victim was unaware of defendant’s condition.  Prior to engaging in unprotected intercourse, defendant and the victim had spoken about the need for people to be careful when engaging in unprotected sex, but defendant intentionally failed to tell the victim that defendant had been diagnosed with HIV in December 2009, eight months before he and the victim had met.  The grand jury testimony established that when the victim reach for a condom, defendant took it away from the victim, and after the victim had asked defendant four times whether it was safe to engaged in unprotected sex with the defendant, defendant responded that it was ‘okay.’  These facts, viewed in the light most favorable to the People, established at the very least that defendant acted with ‘wanton cruelty, brutality or callousness’ and ‘utter indifference’ to the victim’s fate.”  Judge Pigott contended that Williams’ subsequent remorse was irrelevant; his state of mind at the time the acts were committed were the relevant consideration.  He argued that it was inappropriate for the court to substitute its judgment for the grand jury on this point.  Further, he noted that the grand jury received conflicting evidence on the “grave risk of death issue,” which in his view was “legally sufficient” to establish that element of the charged offense.

The Court of Appeals’ action means that the prosecution will continue with the reduced charge of second degree reckless endangerment and the original third-degree assault charge.  Unless Williams is contesting the prosecution’s factual case, it is likely that this case will end with some sort of plea bargain.  Reduction of the reckless endangerment charge to a misdemeanor probably increases the likelihood of a plea to a short prison sentence.  The district attorney’s appeal through two levels suggests that the office feels strongly enough about this case that it is unlikely they would offer a plea that doesn’t involve prison time.

The court’s ruling raises interesting public policy issues.  Surely it is reprehensible for somebody who knows they are infected and capable of transmitting HIV to fail to disclose their status to a sex partner while assuring them that it is “safe” for them to have unprotected anal sex.  The question is whether such conduct should be treated as merely a misdemeanor, and whether actual transmission of HIV under those circumstances should also be treated as a mere misdemeanor under the assault statute?  Some have argued that criminal law is too blunt an instrument altogether to address issues of sexual ethics in the context of consensual gay sex where undisclosed HIV is involved, while others would undoubtedly be glad to “throw the book” at somebody who affirmatively lies about their HIV status to get a partner for whom they supposedly feel love to submit to a serious risk of permanent infection with HIV and all the complications that might ensue. (Nothing is said in the opinion about using PREP to prevent transmission, so presumably Williams had no basis for arguing that he was not infectious.)  This is not one of those outrageous cases where somebody is prosecuted and sentenced to decades in prison for “exposing” another to the virus under circumstances where the chance of transmission is slight, where transmission did not actually take place, and where the defendant did not affirmatively misrepresent his medical condition.  Perhaps further fine-tuning of the statutes is needed.

 

New York High Court Affirms Setting Aside Hate Crime Conviction as Inconsistent

Posted on: November 24th, 2014 by Art Leonard No Comments

The New York Court of Appeals, the state’s highest court, ruled unanimously on November 24 that the Appellate Division had correctly reversed the hate crime manslaughter conviction of Dwight R. DeLee, who was charged in the murder of a New York transgender woman named Lateisha Green, because the jury’s verdict was inconsistent.  However, the court modified the Appellate Division’s decision by granting the prosecution an opportunity to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury, which may lead to a new prosecution.

The decision for the court by Judge Susan P. Read reveals nothing about the nature of the charged offense, and makes no reference to the fact that the victim was a transgender woman or that the defendant was charged with murdering her because of her gender identity.  Instead, the coldly analytical opinion focuses solely on the inconsistency in the jury’s verdict and the trial judge’s failure to correct the situation by explaining the inconsistency to the jury and asking them to resume deliberations to produce a consistent verdict.  A casual reader of the court’s opinion in isolation would have no idea what the case was actually about.

Under New York law, a jury can convict on a hate crime charge if they find all the elements of an underlying crime plus the element of bias on grounds prohibited by the state’s hate crime law.  DeLee was indicted for second-degree murder as a hate crime, second-degree murder, and third-degree criminal weapon possession.  The jury convicted him of first-degree manslaughter as a hate crime and a weapon possession offense, but acquitted him on the charge of first-degree manslaughter.  After the verdict was rendered, DeLee’s attorney argued that the verdict was inconsistent, since the acquittal on the manslaughter charge could be taken to mean that the jury found that the prosecution failed to prove all the elements of the crime of manslaughter.  If so, of course, logically DeLee could not be found guilty of manslaughter as a hate crime.

The defense lawyer moved to set the verdict aside as “repugnant,” a technical term meaning that it was fatally flawed due to inconsistency.  The trial judge denied the motion, and sentenced Lee to 25 years in prison.  But Lee successfully appealed, persuading the Appellate Division that the verdict was repugnant.  There was a heated dissenting opinion by Justice Erin Peradotto, who focused on the lack of clarity in the trial judge’s charge to the jury and the obvious misunderstanding by the jury that if they found all the elements of manslaughter as a hate crime satisfied, they should not acquit on the simple manslaughter count.  By its conviction, she argued, the jury was clearly indicating their conclusion that all the manslaughter elements had been met.

Judge Read wrote that this case “presents a straightforward application” of the relevant Court of Appeals precedents, “which clearly contemplate that when jury verdicts are absolutely inconsistent, the verdict is repugnant.  The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime.”   Since the jury in this case acquitted DeLee of manslaughter, it arguably found that the prosecution failed to prove at least one element of that crime.

Read continued, “Repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and the instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.  In making these determinations, it is inappropriate for the reviewing court to attempt to divine the jury’s collective mental process.  Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts.”

The prosecution had presented an affidavit from the jury foreperson, attesting to the jury’s intention to convict DeLee, but the court dismissed that as “the opinion of just one juror, and, in any event, [it] cannot be considered under our longstanding precedent.”

However, the court concluded that the Appellate Division’s decision to order absolute acquittal of DeLee went too far, because “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element.”  It is possible that a jury has decided to acquit on a lesser-included charge, as here, in order to exercise mercy.  “But if this mercy function is the cause of a repugnant verdict,” wrote Read, “the remedy of dismissal of the repugnant conviction is arguably unwarranted.  Indeed, it provides a defendant with an even greater windfall than he has already received.”  The court concluded that “permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance.  This is particularly so given that a reviewing court can never know the reason for the repugnancy.  Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.”

If the new grand jury indicts DeLee on the manslaughter as a hate crime charge, he can be retried on that charge without violating the ban on “double jeopardy” since he was not acquitted on that charge at the previous trial.  The federal constitution’s double jeopardy provision prohibits retrying a criminal defendant on a charge of which he has been acquitted by a jury.

In a concurring opinion, Judge Sheila Abdus-Salaam explained at length how a trial judge in a hate crime case should charge the jury to avoid the problem of inconsistent verdicts.  She concluded that “courts would provide particularly clear and legally correct guidance on this subject by telling the jury to treat a non-hate crime as a lesser included offense of an equivalent hate crime allegedly committed via the same criminal acts” and thus that “it is impossible to commit the hate crime without also committing the ordinary crime” on which it is based.  “To that end,” she wrote, “the court should instruct the jury that if it convicts the defendant of the greater offense, it will not consider the lesser included offense.  In that situation, the jury should be told to deliberate on any unrelated charges based on different criminal conduct,” such as the weapons possession charge in this case.  “Of course, if the jury instead acquits the defendant of the hate crime, it should next deliberate on the equivalent ordinary offense, and in the event of an acquittal on that ordinary charge, it may consider any lesser hate crime or lesser included ordinary crime which has been charged based on the same conduct.”

In this case, DeLee was charged with second-degree murder as a hate crime, for which ordinary second-degree murder, manslaughter as a hate crime, and ordinary manslaughter are lesser included offenses.  It is easy to see how a jury could become confused and produce a repugnant verdict, even if it concluded that the defendant was guilty of a hate crime.  The party most likely at fault for this result is the trial judge, whose failure to instruct the jury immediately upon the rendition of the inconsistent verdict and to resubmit the case to them has generated all the subsequent litigation on appeal.  Now the local prosecutor will get a second chance to seek justice for Lateisha Green by retrying Dwight DeLee.

James P. Maxwell represented the prosecution on appeal and Philip Rothschild represented DeLee.  Lambda Legal, the District Attorneys Association of NY and the NY State Association of Criminal Defense Lawyers submitted amicus briefs.