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Luis BONILLA, Claimant, v. The STATE of New York, Defendant.
In this case, claimant Luis Bonilla seeks damages for an alleged wrongful conviction under section 8-b of the Court of Claims Act. At a conference on December 14, the Court scheduled a trial on liability to be conducted virtually on May 20, 2021, subject to any potential objections which the parties might raise.
By letter dated December 21, 2020, the Assistant Attorney General representing defendant wrote the Court in opposition to the conduct of a virtual trial. The letter stated in pertinent part:
“As ordered by the Court, Defendant proceeded with claimant's virtual deposition on December 3, 2020, which provided a window into the technical difficulties of proceeding virtually in this particular case. Mr. Bonilla, who testified through a Spanish interpreter, participated in the deposition from his daughter's house, and the link was compromised every time she received a phone call. Mr. Cohen [opposing counsel] and I participated remotely. As you are aware, the New York City office of the Attorney General's Office remains closed through at least February, and we are continuing to work from home. As I reiterated at the telephone conference last week, this is an unjust conviction case in which claimant's credibility is the key to the case. Defendant has obtained video surveillance footage of the crime from the District Attorney's Office. Our IT department was able to divide the original split-screen footage into separate video tapes, and I questioned Mr. Bonilla at his deposition about his activities on the tape at certain key points in time. During a virtual trial, however, when the court monitor is screen-sharing an exhibit, the video occupies the main screen, thus reducing the claimant's face to a small tile. Defendant maintains that this set-up is not ideal for assessing the claimant's credibility, or his reaction to the videotape, which I anticipate will cause him to conform his testimony at trial. For these reasons, defendant respectfully requests that the trial of this matter be stayed until Mr. Cohen and I are comfortable with the health risks associated with attending an in-person trial, and the courts in New York City are operating at normal capacity.”
Claimant has not taken a position on defendant's request.
This Decision addresses defendant's objection to conducting a virtual trial on liability in this matter. There are two aspects to the analysis: (1) whether I have the authority to order a resistant party to appear for a trial to be conducted remotely; and (2) whether I should, in the exercise of discretion, exercise that authority in this case. Since I answer both questions in the affirmative, I order that the trial on liability take place virtually.
Under Judicial Law § 2-b(3), “[a] court of record has power to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” Long before anyone had heard the words “COVID-19” or “social distancing,” trial courts used this authority to conduct proceedings by remote means, and appellate courts consistently upheld that authority (see People v. Cintron, 75 N.Y.2d 249, 552 N.Y.S.2d 68, 551 N.E.2d 561  [taking of televised testimony from a child witness from a separate room permissible]; People v. Wrotten, 14 N.Y.3d 33, 36, 896 N.Y.S.2d 711, 923 N.E.2d 1099  [“the court's inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure” whereby witnesses are permitted to testify via live, two-way television at trial]). Such procedures have routinely been applied in the Court of Claims to conduct trials on claims brought by incarcerated inmates via videoconference from correctional facilities — a practice that has been upheld as an appropriate exercise of the Courts section 2-b authority (see Jackson v. State, 165 A.D.3d 1527, 84 N.Y.S.3d 392 [3d Dept. 2018]).
At least in criminal matters, the court must make an “individualized determination that denial of physical, face-to-face confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured” (Wrotten, 14 N.Y.3d at 38-39, 896 N.Y.S.2d 711, 923 N.E.2d 1099). This principle was set forth in Wrotten in the context of the Court's discussion of the right of a criminal defendant to confront his or her accuser under the Confrontation Clause, and thus it is not clear that it applies to civil cases (see Wrotten, 14 N.Y.3d at 38, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [“the exercise of this authority following a finding of necessity is permissible under the Confrontation Clauses of both the Federal and State Constitutions”]; but see State v. Robert F., 25 N.Y.3d 448, 34 N.E.3d 829  [applying same test in Article 10 civil commitment context, on basis that testimony should be given remotely only in “exceptional circumstances” or upon the parties' consent, since “televised testimony is certainly not the equivalent of in-person testimony”]). I will presume for present purposes that the Wrotten test governs here (see Wyona Apartments LLC v. Ramirez [Kings Cty. Civ. Ct. Nov 22, 2020] 70 Misc.3d 591, 595, 137 N.Y.S.3d 653 [applying requirement of “case-specific findings” to the question of whether to hold a virtual hearing in a civil case]).
Of course, there is an exceptional circumstance in this instance: the COVID-19 pandemic (see C.C. v. A.R., 69 Misc.3d 983, 992, 133 N.Y.S.3d 200 [Kings Cty. Fam. Ct. 2020] [“the global pandemic is an ‘exceptional circumstance' allowing this court to proceed on all aspects of this proceeding ․ by virtual means”]). The pandemic has presented courts with a Hobson's Choice between exposing the public and bar to a deadly and highly contagious disease through conducting in-person trials on the one hand, and greatly delaying access to the courts on the other. Virtual proceedings have presented a way out of this dilemma, allowing the legal process to move forward without endangering the health of the participants. This has been significantly true in the Court of Claims, which has successfully conducted tens of virtual trials.
Given the authority the Court to adopt remote procedures under section 2-b, and the extraordinary equities weighing in favor of the use of such procedures to address our current predicament, all courts confronted with the question during the past year have found it both permissible and advisable to compel a party to participate in virtual proceedings (see C.C., supra [contempt hearing]; Wyona Apartments LLC, supra [landlord-tenant trial]; Ciccone v. One West 64th Street, Inc., 2020 WL 6325719 [Sup. Ct., N.Y. Cty. Sep 8, 2020] [evidentiary hearing]; A.S. v. N.S., 68 Misc.3d 767, 128 N.Y.S.3d 435 [Sup. Ct., N.Y. Cty. 2020] [custody trial]; see also Rodriguez v. Montefiere Medical Center, 2020 WL 7689633 [Sup. Ct., Bx. Cty. Dec 23, 2020] [citing numerous cases directing that depositions be conducted virtually during pandemic]; Jones v. Memorial Sloan Kettering Cancer Ctr., 186 A.D.3d 1851, 1852 n. 1, 131 N.Y.S.3d 421 [3d. Dept. 2020] [“We cannot help but take note that if the COVID-19 pandemic has proved anything, it is the usefulness (if not the preference) of conducting matters via video”]). As the Court put it in Wynona Apartments LLC, supra: “There can be little dispute that the state of the current COVID-19 pandemic sweeping the nation justifies conducting the instant trial by virtual means” (70 Misc.3d 591, 595, 137 N.Y.S.3d 653).
As to the specific arguments made by defendant in this case, I find them entirely unconvincing.
First, defendant's alternative to proceeding remotely—that the parties and the Court simply wait out the pandemic, and conduct an in-person proceeding at whatever point it might be safe to do so and permitted by the administrative orders issued by the Chief Administrative Judge—is no alternative at all. Given the progress of the virus in successive waves, the presence of new strains, and the uncertain course of vaccine distribution, no one can say with any assurance when in-court proceedings will again be possible (see A.S., supra, 68 Misc 3d at 768, 128 N.Y.S.3d 435 [“Given the unpredictable nature of the COVID-19 pandemic it is unknown when court operations will return to normal in-person procedures”]; C.C., 69 Misc 3d at 993, 133 N.Y.S.3d 200 [position that “this court must indefinitely postpone any continuation of the ongoing trial” is “unreasonable”]). The Court cannot simply push off the trial indefinitely, on the understanding that at some unknown point in the future, the claimant will have his day in court. Such an approach would be fundamentally at odds with the principle that courts should seek to conduct the proceedings before them in an efficient and quick matter (see CPLR 104 [“The civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding”]). And it is at odds with that old (but still quite accurate) adage that “justice delayed is justice denied.”
These concerns are, if anything, particularly true in an 8-b case like this one, where the subject matter concerns an alleged crime that took place many years in the past. In this instance, the events giving rise to the alleged claim occurred on January 8, 2012, more than nine years ago (see Claim ¶ 11). Putting off the trial will make even harder the already difficult task of determining precisely what occurred in the distant past, not to mention delaying further a determination of whether claimant is entitled to compensation—and providing it to him in the event he prevails.
The various potential horribles that might accompany a virtual proceedings in this case, as sketched out in defendant's letter, do not offset the costs of such delay. Defense counsel frets that the problems that manifested themselves at deposition may re-appear at trial, such as interruptions caused by incoming calls. Such issues could be avoided by preparations taken in advance of trial to ensure that claimant is provided with an appropriate device from which to access the proceedings. But if worst comes to worst and the virtual trial is disrupted, so what? Technical glitches indeed occur in video trials, but just as the parties completed their deposition, this Court has successfully carried out numerous virtual trials notwithstanding such issues — and that appears to have been the experience of the court system generally (cf. Martinez v. M Nadlan, LLC, 69 Misc.3d 1208[a], 131 N.Y.S.3d 854 [Civ. Ct., City of N.Y. Oct 21, 2020] [inspection of apartment conducted virtually; “video and audio quality had some connection issues but proved to be reliable for the court to make its observations”]). In essence, defendant suggests that to avoid the possible delay of minutes or even hours that can result from technical problems, the Court should impose the certainty of delaying the entire proceeding for many months. I can think of no reason why the latter alternative is preferable.
Counsel also argues that assessment of the witness's credibility will be impaired because the witness will appear small when a video exhibit is played.
While courts have recognized such disadvantages of remote testimony, it has not prevented the use of virtual proceedings as long as they “enable the Judge, the jury and the defendant ․ to see and hear the witness and evaluate the witness's demeanor, facial expressions, voice and mode of speaking while the testimony is being given” (see Cintron, 75 N.Y.2d at 260, 552 N.Y.S.2d 68, 551 N.E.2d 561). From my own experience—and the observations of other judges in various opinions on the subject—improvements in video technology now facilitate transmission of virtual images that are clear and closeup, and allow for sufficient consideration of a witness's demeanor (see In re RSC and ResCap Liquidating Trust Action, 444 F.Supp.3d 967, 970 [D. Minn. 2020] [citations and internal quotation marks omitted] [while “[c]ertain features of testimony useful to evaluating credibility and persuasiveness ․ can be lost with video technology, and the ability to observe demeanor, central to the fact-finding process, may be lessened”, advances in video technology “permit[ ] the jury [or, in a bench trial, the Court] to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration”]). The fact that the image of a witness may be smaller while he is questioned on one exhibit in no way alters the balance of considerations outlined above.
In light of the foregoing, and provided there is no contrary directive re-opening the courthouses to in-person proceedings in advance of the trial date, the liability trial in this matter shall take place virtually, as scheduled, on May 20, 2021.
David A. Weinstein, J.
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Docket No: 133141
Decided: January 22, 2021
Court: Court of Claims of New York.
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