Criminal and Insurance Matters - U.S. Second Circuit
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Criminal and Insurance Matters

Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., No. 07-4141, concerned an action seeking insurance proceeds based on the destruction of a drug store in the September 11, 2001 attacks.  The Second Circuit affirmed the dismissal of the complaint on the grounds that 1) the district court's application of res judicata was proper because plaintiff could have raised in its prior action the claims it raised here, but it did not; and 2) because the store had not yet been "actually replaced," nor had the Recovery Period in the policy terminated following the actual replacement of the store, the Extended Recovery Period provision was inapplicable.

In US v. Burden, No. 03-1727, the court of appeals affirmed defendants' convictions under the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Violent Crimes in Aid of Racketeering statute ("VCAR"), holding that 1) sufficient evidence existed to support the jury's finding that the defendants' organization constituted an enterprise for RICO purposes; 2) there was sufficient evidence that the predicate acts alleged in the racketeering counts formed a pattern of racketeering activity; and 3) the evidence supported a finding that the defendants engaged in violent acts because it was expected of them as a way of taking care of each other and as members of the organization.  However, the court remanded defendants' sentences to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence knowing that it had discretion to deviate from the Guidelines.

In Besser v. Walsh, No. 05-4375, which involved habeas petitions filed by multiple petitioners sentenced under New York's persistent offender statute, the Second Circuit affirmed the orders granting the petitions and vacated the orders denying the petitions, on the ground that the New York courts' upholding of the constitutionality of the New York state persistent felony offender statute after the U.S. Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.  However, the court affirmed as to one petitioner whose conviction became final before Blakely.

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