Court of Appeals January Session: Arguments of Interest for January 10, 2017

The Court of Appeals’ January Session continues on Tuesday, January 10, 2017. In the three cases on the argument schedule (the Court’s case summaries can be found here), the Court will address (1) whether the testimony of a witness that the No Trespassing signs on posted property bore the address of the property owner in accordance with the requirements of the Environmental Conservation Law was legally sufficient to support a conviction for trespassing when the defendant’s pictures of the sign where he was cited clearly show that the particular sign does not, (2) whether a municipality that leases property for an educational program owes a special duty to protect the students in the program where it referred a Level III sex offender to perform maintenance work at the site who sexually assaulted a female student, and (3) whether a drug treatment facility owes a duty of care to third parties where a resident released for a violation of the facility’s rules assaults someone upon being discharged from the facility.  The first two cases on the argument docket are discussed below:

No. 7     People v Zachary T. Guerin

It is rare to get the opportunity to argue before the Court of Appeals, and even more rare when the person arguing has a personal stake in the case.  That is the case in Guerin, where the pro se defendant gets to plead his case to the Court on his own behalf.  The case is fairly straightforward:  Guerin was cited for trespassing when he was hiking on posted land and refused to leave.  At trial in Town court, Guerin defended himself, arguing that the No Trespassing signs did not comply with Environmental Conservation Law 11-2111, which states: “Signs shall bear the name and address of the owner, lawful occupant, or other person or organization authorized to post the protected area.”  He introduced pictures showing that one of the No Trespassing signs on the property did not bear the owner’s address, and two of the owner’s representatives conceded that the pictures were accurate.  One of the representatives testified, however, that 32 signs on the property did bear the address, as required.  Guerin was thus convicted of trespassing.

On appeal to County Court (appeals of criminal violations in the Town courts go to County Court, not the Appellate Divisions), the Court affirmed Guerin’s conviction, holding that the representative’s testimony was legally sufficient to establish that the signs bore the address required under the ECL.  Judge Pigott granted Guerin leave to appeal, and Guerin now argues that the representative’s testimony could not be legally sufficient evidence because his photographs, which are the best evidence of the signs, show no address.

No. 8     Tara N.P. v Western Suffolk Bd. of Cooperative Educational Services

In Tara N.P., a teenage female student was sexually assaulted by a Level III sex offender that Suffolk County had assigned to perform maintenance work at the BOCES program where the student was taking classes.  The County owned the property and leased the building to the BOCES program, and also explicitly agreed that it would not assign anyone with a criminal record to work there.  After the assault, the student sued the BOCES program and the County on negligence and premises liability grounds.  Specifically, the student claimed that the County was negligent in assigning the Level III sex offender to work at the site when it explicitly agreed it would not, in failing to protect her as the owner of the premises, and in negligently hiring the sex offender in the first place.

Supreme Court denied the County’s motion to dismiss, holding that questions of fact existed whether the County had negligently created the dangerous condition by assigning the sex offender to work at the site and whether the County had reasonable notice of the danger and failed to correct it within a reasonable time.  The Appellate Division, Second Department, however, reversed and dismissed all claims against the County.  The Court held that the County was entitled to governmental immunity because it never assumed a special duty to protect the student and the act of referring the sex offender to work at the site was a discretionary governmental act, not a proprietary one.

The Appellate Division’s order can be found here.

It will be interesting to see how, if at all, the Court contrasts this case with its recent decision in Turturro v City of New York (No. 196), where it held that a municipality could be liable in its proprietary role for failing to take affirmative acts to protect the public from a known risk of criminal activity.

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