| Hurrell-Harring v State of New York |
| 2014 NY Slip Op 05010 [119 AD3d 1052] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Kimberly Hurrell-Harring et al., on Behalf ofThemselves and All Others Similarly Situated, Appellants, v State of New Yorket al., Respondents, et al., Defendants. |
Schulte, Roth & Zabel, LLP, New York City (Kristie M. Blase of counsel), andNew York Civil Liberties Union Foundation, New York City, for appellants.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), forrespondents.
Peters, P.J. Appeals (1) from an order of the Supreme Court (Devine, J.), enteredNovember 12, 2013 in Albany County, which, among other things, granted certaindefendants' motion to preclude plaintiffs' experts from testifying at trial, and (2) from thatpart of an order of said court, entered December 19, 2013 in Albany County, whichpartially denied plaintiffs' motion for reconsideration.
This appeal is the latest chapter in a class action lawsuit seeking a declaration thatindigent criminal defendants in the five defendant counties are being actually orconstructively denied the right to counsel as a result of systemic failures in defendantState of New York's public defense system (112 AD3d 1217 [2013]; 112 AD3d 1213[2013]; 81 AD3d 69 [2011]; 75 AD3d 667 [2010]; 66 AD3d 84 [2009], mod 15NY3d 8 [2010]). In response to a demand for expert disclosure, plaintiffs adviseddefendants that they intended to call Robert Boruchowitz, Norman Lefstein and RobertSpangenberg (hereinafter the experts) as expert witnesses to testify as to the prevailingprofessional standards governing the provision of legal representation to [*2]indigent criminal defendants and whether the structure andoperation of the public defense systems in the five counties meets thosestandards.[FN1]Supreme Court granted the motion bydefendant Governor Andrew Cuomo and the State (hereinafter collectively referred to asdefendants) to preclude such testimony, concluding that the information to be impartedby the experts was not outside the ordinary experience and knowledge of a SupremeCourt Justice, as the trier of fact. Upon reconsideration, Supreme Court adhered to itsdetermination concerning the experts. Plaintiffs appeal from both orders.
While the admissibility of expert testimony is a matter left primarily to the discretionof the trial court (see People vWilliams, 20 NY3d 579, 584 [2013]; De Long v County of Erie, 60NY2d 296, 307 [1983]; Brownv Reinauer Transp. Cos., LLC, 67 AD3d 106, 114 [2009], lv dismissed anddenied 14 NY3d 823 [2010], cert denied 564 US &mdash, 131 S Ct 3088[2011]), we conclude that, here, Supreme Court should not have precluded the testimonyof the experts. "Under familiar rules, expert opinions are admissible on subjectsinvolving professional or scientific knowledge or skill not within the range of ordinarytraining or intelligence" of the trier of fact (Matter of Nicole V., 71 NY2d 112,120 [1987] [citations omitted]; see People v Rivers, 18 NY3d 222, 228 [2011]; DeLong v County of Erie, 60 NY2d at 307; Hudson v Lansingburgh Cent. School Dist., 27 AD3d1027, 1028 [2006]). "[T]his principle applies to testimony regarding both 'theultimate questions and those of lesser significance' " (People v Rivers, 18NY3d at 228, quoting People v Cronin, 60 NY2d 430, 432-433 [1983]; seeDufel v Green, 84 NY2d 795, 798-799 [1995]). Notably, expert testimony is"appropriate to clarify a wide range of issues calling for the application of acceptedprofessional standards" (Selkowitz v County of Nassau, 45 NY2d 97, 102[1978]).
Here, the experts possess the requisite skill, training, education, knowledge and/orexperience to qualify as experts on the operation of indigent defense systems and theevaluation of such systems in light of prevailing professional standards (see Matott vWard, 48 NY2d 455, 459 [1979]; Pember v Carlson, 45 AD3d 1092, 1094 [2007]). Despitetheir qualifications, Supreme Court concluded that the experts' testimony was both"unnecessary and improper" in this action because the average Supreme Court Justicepossesses the requisite knowledge and/or experience to comprehend the evidence anddecide the issues presented. If this case were simply about individualized claims of denialof counsel at a critical stage of a criminal proceeding, we might agree. However, it isnot.
At its core, this litigation is about system-wide conditions relating to and affectingthe delivery of public defense—such as caseloads, funding and oversight, amongothers—and whether these conditions in the defendant counties are such that "thebasic constitutional mandate for the provision of counsel to indigent defendants at allcritical stages is at risk of being left unmet" (Hurrell-Harring v State of New York, 15 NY3d 8, 25[2010]). By virtue of their extensive experience, the experts possess specializedknowledge with respect to the operation of public defense systems, the professionalstandards applicable to such systems, and the impact of [*3]systemic shortcomings on the provision of counsel toindigent criminal defendants at all critical stages. Such particularized knowledge is,manifestly, beyond that of a typical Supreme Court Justice, whose experience is oftconfined to case-by-case determinations (cf. Selkowitz v County of Nassau, 45NY2d at 102-103).[FN2]We therefore conclude that SupremeCourt improvidently exercised its discretion in precluding the experts' testimony.Accordingly, that part of its November 12, 2013 order must be reversed. In light of ourdetermination, plaintiffs' challenge to the partial denial of their motion for renewal hasbeen rendered academic.
Stein, Rose, Egan Jr. and Clark, JJ., concur. Ordered that the order enteredNovember 12, 2013 is modified, on the law, without costs, by reversing so much thereofas granted defendants' motion to preclude Robert Boruchowitz, Norman Lefstein andRobert Spangenberg from providing expert testimony at trial; motion denied to thatextent; and, as so modified, affirmed. Ordered that the order entered December 19, 2013is dismissed, as academic, without costs.
Footnote 1:Plaintiffs also disclosedthat they intended to call Gary King as an expert statistician to testify about the statisticalanalyses of data he conducted related to the provision of public defense services in thedefendant counties. Supreme Court initially precluded King's expert testimony, but, uponplaintiff's motion for reconsideration, the court permitted it.
Footnote 2:We note that experttestimony of this nature has been routinely admitted in similar systemic cases challengingthe provision of counsel to indigent criminal defendants (see e.g. New York CountyLawyers' Assn. v State of New York, 196 Misc 2d 761, 776, 785-788 [2003];Wilbur v City of Mount Vernon, 2013 WL 6275319, *3, 2013 US Dist LEXIS171187, *10 [WD Wash, Dec. 4 2013, No. C11-1100RSL]; United States ex rel.Green v Washington, 917 F Supp 1238, 1250 [ND Ill 1996]; Public Defender,Eleventh Jud. Cir. of Fla. v State, 115 So 3d 261, 275 [Fla 2013]). The same is truefor various other forms of systemic reform litigation (see e.g. Campaign for FiscalEquity v State of New York, 100 NY2d 893 [2003] [permitting expert testimonyfrom a variety of education experts in assessing whether the state's education system metminimum constitutional guarantees]; Brown v Plata, 563 US &mdash, &mdash,131 S Ct 1910, 1933-1935 [2011]; Nicholson v Williams, 203 F Supp 2d 153,207-221 [2002]; Thomas S. by Brooks v Flaherty, 699 F Supp 1178, 1187-1192[1988], affd 902 F2d 250 [4th Cir 1990], cert denied 498 US 951 [1990]).