New York Court of Appeals This Week

Beginning today, and continuing tomorrow and Thursday, the New York Court of Appeals will hear oral argument in 12 cases. There are six civil cases, and six criminal cases. Three cases are of particular interest.

Arbitration. CPLR § 7509 requires that a party must move before arbitrators within 20 days of an arbitration award to "modify" the award. CPLR § 7511 requires that a party must move before a court within 90 days of an arbitration award to "vacate" or "modify" the award. In Matter of Joan Hansen & Co. v. Everlast World's Boxing Headquarters Corp., Hansen moved before the arbitrators two years after the award to "clarify" whether Everlast was required to make certain payments under the award.

The Appellate Division, First Department, held that the time limitations established by sections 7509 and 7511 do not apply because Hansen was seeking a "clarification" of the arbitration award and not a "modification" of the award. The Court of Appeals must determine whether the CPLR time limitations apply to "clarifications" of arbitration awards.

Criminal Appeals. A criminal defendant who claims his appellate counsel was constitutionally ineffective does so by filing a motion for a writ of error coram nobis in the Appellate Division. If his motion is denied, he can then seek leave to appeal to the Court of Appeals. An order of the Appellate Division denying a motion for reargument is not appealable to the Court of Appeals.

In People v. D'Alessandro the defendant filed a motion for a writ of error coram nobis in 1999 which was denied by the Appellate Division, First Department. Nine years later in 2008 he filed a second motion for a writ of error coram nobis. The Appellate Division treated the motion as one "for reargument" and denied the motion.

The Court of Appeals must decide whether the Appellate Division correctly labeled the second motion as one for reargument--which would deprive the Court of Appeals of jurisdiction over the case. The Court must also decide whether there is any statutory bar under the Criminal Procedure Law to successive coram nobis motions.

Expert Testimony: Eyewitness Identification. In the seminal case People v. LeGrand, 8 N.Y.3d 449 (2007), the Court of Appeals held that "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications."

The Court will address the LeGrand rule in two cases. In People v. Abney the Court will review a 3-2 decision of the Appellate Division, First Department, that the trial judge did not abuse his discretion when he denied the motion to admit the expert testimony. In People v. Allen the Court will review a decision of the Appellate Division, Second Department, that the trial judge did not abuse his discretion when he denied the motion to admit the expert testimony.