Motion for Appearance and Examination in Kenneth Miller v. David Strothers, Eric Bevard, Gretchen Bevard| Trellis.Law

On June 07, 2018 a Letter,Correspondence was filed involving a dispute between Kenneth Miller, and David Strothers, Eric Bevard, Gretchen Bevard, for Real Property - Other (Declaratory Judgment/Ease) in the District Court of Jefferson County.

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FILED: JEFFERSON COUNTY CLERK 09/03/2020 01:45 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 09/03/2020

Supreme Court

State of New York
CHAMBERS
Dulles State Office Building
10th
317 Washington St., FlOOr

P. McCLUSKY Watertown, NY 13601-3783
JAMES
Justice Telephone : 315- 221-5821
Fax: 315- 266-4781
September 3, 2020

VIA NYSCEF
Thomas P. Givas, Esq. Roger W. Bradley, Esq.

Pappas, Cox, Kimpel, Dodd & Levine, P.C. Melvin & Melvin PLLC
614 James Street, Suite 100 217 South Salina St., 7th Floor

Syracuse, NY 13202 Syracuse, NY 13202-1390

Robert J. Slye, Esq.

Slye Law Offices, P.C.

104 Washington Street

Watertown, NY 13601

RE: Miller vs Strothers and Bevard
Index No. EF2018-1369; RJI No. 22-19-0090

Dear Counselors:

As mentioned during the oral argument this morning attached are the Jury Trial

Procedures (5th District) for your reference. The Jury Trial will be held at the Jefferson

County Court Complex located at 163 Arsenal Street, Watertown, NY.

To comply with Section J of the Procedures the Court has scheduled an in-person

conference on Wednesday, October 21, 2020 30 a.m. which will be held at the

Jefferson County Court Complex.

V :ry truly yours,

JAMES .M LUSKY
Supre e Co rt Justice

JPM:bjw

cc: Deanna Morse, Chief Clerk (via email)

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[8/11/20]

(5™
JURY TRIAL PROCEDURES DISTRICT)

A. Scheduling of Jury Trials

1. Due to the unique and substantial logistical, physical and safety considerations caused

by the COVID-19 pandemic, itis essential that the scheduling of jury trials be
coordinated between the Commissioner of Jurors, the Presiding Judge, the Chief

Clerk, the parties and their attorneys. This coordination will likely require additional
pre-trial conferences.

2. A jury trialmay only be scheduled if 2 courtrooms on the same floor are available
throughout the anticipated length of the trial.

3. During Terms 10 and 11 (commencing September 8, 2020), the scheduling of alljury
trials shall be approved by the Administrative or Supervising Judge.

B. Juror Notice

1. The Commissioner of Jurors shall send a Jury Summons to each prospective juror.
The Jury Summons will contain an additional written notification, to be approved by
the Administrative Judge, advising of health and safety protocols to prospective jurors
in a form such as the following Sample Notice attached as Appendix A or contain a
link thereto.

2. As was successfully implemented with the resumption of Grand Juries, jurors shall be
provided COVID-19 supplemental jury instructions to complete that asks the
following:

a. Relevant medical questions, including whether they or someone close to them
has been diagnosed with when were diagnosed with COVID-
COVID-19; they
19; and whether they have recovered from COVID-19 or are caring for
someone who has the illness or was tested positive.

b. Whether they suffer from a comorbidity that would make them a higher risk
[for infection] ifthey were to become illand require that the condition be
listed on their questionnaire.

c. It shall be noted that answering the medical questions is solely for the purpose
of determining whether a juror can serve and the answers to the questions will
be filed under seal and destroyed after their service.

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C. Prescreening of the Jury Ouestionnaires

1. The jury responses shall be prescreened and forwarded to the Presiding Judge by the
Commissioner of Jurors when jurors have expressed an inability to serve due to
COVID-19. The Presiding Judge shall schedule a pre-trial conference to review and
determine service exemptions with all counsel, subject to any applicable

health/privacy laws. The prescreening shall be done on the record. The goal of the

prescreening is to eliminate certain jurors with COVID-19 issues from coming into
the courthouse.

2. The Commissioner of Jurors must plan for a lower yield from the jury pool during the
pandemic similar to the recent experience with Grand Jurors. Even healthy jurors not
considered particularly vulnerable to COVID-19 may hesitate to serve for a variety of
reasons including the following: to avoid the risk of exposing other members of their
household to the virus; to care for children who no longer have school or summer
activities to attend; to care for an elderly relative or COVID vulnerable person; to
look for work if they have recently lost their employment; or because they have

recently returned to work and cannot afford to take leave. These reasons shall be

properly considered. As always, special consideration shall be given to assure a
diverse and representative panel.

D. Juror Annearance and Staggering

jurors'
1. Commissioner of Jurors shall be advised to stagger potential appearances in

reporting to jury duty in order to ensure social distancing and avoid over-crowding.
The Jury Assembly location shall be pre-approved by the Administrative Judge and
the Commissioner of Jurors shall make sure the room is thoroughly cleaned prior to
jurors'
appearances. Before entering the Courthouse, panel members shall undergo
standard COVID-19 and NYS Travel Advisory questioning, be instructed to wear a
face covering and shall have their temperatures taken. Anyone with a fever will be
excused from service as well as anyone answering the screening questions in the
affirmative.

2. To facilitate proper social distancing, the jurors shall be separated into small groups,
with one group at a time coming into the jury/court room for voir dire at staggered
times. Two courtrooms will be available at all times.

3. The Commissioner of Jurors, in consultation with the Supervising Judge or his/her

Designee, shall submit a detailed physical plan in writing to the Administrative Judge
or his/her designee for pre-approval. The Plan shall consider the following:

a. Using larger areas or rooms in your courthouse for the Jury Assembly location

including the jury assembly room or large courtrooms.

b. How jury movement will be safely accomplished within the courthouse.

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c. Whether in certain courthouses or cases, the Jury Assembly area could be
bypassed. Instead, bring jurors directly to the courtroom, and have them
processed immediately outside the courtroom. The orientation, including the
Chief Judge's video, could be played inside the courtroom.

d. Having assigned/designated seats for jurors that accomplish social distancing.

e. Advising jurors to bring their own writing instruments, reading materials,
water bottles, snacks, and lunches. For the health of the jurors and the court

staff, the jurors should be further instructed to keep allsuch items separated
jurors'
from other similar items.

f. Assure that there are sufficient supplies of extra masks, face shields, hand
sanitizer and paper towels present in each area where jurors will enter.

E. Preparing the Courtroom for Jury Selection and Trial

1. The Courtroom should be prepared to ensure that jurors, attorneys, witnesses, court
staff and the Judge are appropriately socially distanced. The Chief Clerk and

Presiding Judge shall inspect the Courtroom prior to the panel arrival for compliance
with these protocols. Each juror must be seated so as to maintain social distancing.
This will likely involve seating jurors throughout the Courtroom in designated seats.

2. Masks shall be worn at all times by everyone present in the Courtroom unless the

Presiding Judge specifically directs otherwise. Clear face shields shall be made
available to jurors and witnesses.

3. In preparing the Plan to be submitted for approval of the A dministrative Judge, the .
Chief Clerk and Presiding Judge shall consult with the IT department regarding the
placement of microphones for sidebars, juror voir dire, court reporting, the viewing of
electronic evidence, and the remote presentation of proceedings. In addition, the Plan
shall also:

a. Determine whether there are sufficient stationary microphones in the voir dire
area for prospective jurors to be heard so that hand-held microphones are not

being passed. Disposable microphone covers shall also be available to be
switched after each individual use.

b. Ifsidebars are to be conducted, consider how these will take place. If the
courtroom is large enough, tape the floor for proper placement of the attorneys
and the prospective juror and the judge. A court reporter can remain at his/her
place at the bench rather than being exposed to the sidebar if he/she uses a
microphone at the sidebar location and headphones system similar to that used

by interpreters.

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c. Consider and establish methods to permit attorneys and clients to speak

confidentially while in court, including, if possible, the use of headsets,
computers, laptops or iPads; and providing break out rooms for counsel for
attorney/client communications.

d. Consider signage on the outside of the courtroom regarding your court's order

regarding PPE and where the public may sitin the courtroom.

e. Consider streaming the trial live in another space or unused courtroom if there
is littleor no room for the public, or if the trialis high profile or being closely
covered.

f. If social distancing is not possible in any area, consider using plexiglass
dividers in appropriate places in the courtroom if necessary.

g. When prospective jurors are gathering for jury selection, consider bringing
smaller groups into the courtroom for voir dire to keep fewer people in the
courtroom at any one given time. Consider, for example, questioning only 12
to 14 atany one time.

h. At least 7 days before the commencement of voir dire, the Presiding Judge
shall hold a Pre-Trial Conference with allcounsel to discuss the physical
layout of the court room and any other logistical concerns.

F. Safety Protocols and Voir Dire

1. Before voir dire begins, at the request of either party, the Court, and/or its designee,

may provide each panel member a clear face shield and instruct the jurors to wear the
shields throughout voir dire. This will permit the attorneys to be able to see the
jurors'
faces throughout jury selection. The Court will not advise the panel members
as to which party requested the use of clear face shields. The Court shall provide the
parties strict time limits for voir dire.

2. If necessary, the Court, counsel, and the court reporter may need to step out of the
room to conduct any bench conferences and resolve any motions to strike.

3. After six or twelve jurors and any alternates are selected depending on the
requirements of a civil or criminal trial,the Court or Part Clerk will immediately
dismiss the remaining panel members in a staggered manner to avoid a rush toward
the exits.

4. At the end of each day, the Courtroom shall be thoroughly cleaned and disinfected.

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G. Trial: Courtroom Setup, Juror and Witness Seating

1. During trial, the jurors shall at all times sit throughout the Courtroom at least six feet
from one another in a seating arrangement approved by the Supervising or
Administrative Judge.

2. Jurors shall wear face masks at all times. A juror may also request a face shield in
addition.

. 3. The parties, including counsel, will sit facing as much as possible the Presiding Judge
and Jury, and will wear masks at all times. An attorney may make application to the

Presiding Judge, outside the presence of the jury, to wear a face shield during voir

dire, Opening Statement and/or Summation.

4. Witnesses shall testify from a designated location per the approved Plan and will
wear masks unless the Presiding Judge determines there is a need to remove the
mask. The Court shall then direct the witness to wear a face shield.

5. The Presiding Judge shall make sure that Court personnel clean the witness chair
between witness testimony.

6. If necessary, bench conferences may be moved to robing rooms or chambers. If

available, the Court will allow counsel to use their muted computers, iPads or phones
in the courtroom to communicate with their client while maiñtaining adequate
distance between one another.

7. For larger courthouses, only one trialper floor shall be scheduled to minimize
movement.

8. If necessary, consider seating jurors in designated spaces in the gallery section in a
manner that assures appropriate social distancing. To maintain appropriate social

distance, as jurors arrive in the courtroom, consider seating them in the room front to

back, left to right, row by row. Exit jurors in reverse for break or lunch. Care should
be taken to be sure no one else sitsin the immediate vicinity of the jurors.

H. Audio and Record Taking

1. Consider placing microphones on each side of the bar entrance and direct that the
juror being questioned speak from there. Consider marking the standing location on
the floor.

"shotgun"
2. Consider using microphones for jurors, which will allow jurors to keep a
safe distance from the microphone. For the lawyers and judge, some disposable

covering (such as a small Ziploc bag) shall be placed over the head of the microphone
which should be changed between use.

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3. As determined by the Presiding Judge, the court reporter shall take the record

remotely from outside the courtroom, remain at the usual station with appropriate
social distancing, or move to a different location as warranted.

I. Court Interpreting

The use of remote interpretation, generally by video, continues to gain popularity and

may continue as the primary source of interpreting services for a while. Enhanced
awareness is suggested from the parties, as the system may lag at times, speech may be

choppy, and sound quality may not be optimal. The attorneys shall notify the Court as
soon as possible regarding the need for an Interpreter.

J. Evi_dence Presentation - Exhibits

The following protocols are established solely for the health and safety of all trial
participants in an attempt to try and reduce the need to physically handle exhibits and to
avoid passing them back and forth between individuals. It isunderstood that the

uncertainty of litigation will likely result in additional exhibits being identified and
offered at trial (in addition to the right of a criminal defendant to only determine if it
wishes to put forth any evidence after the People have rested). Nothing in these protocols
is intended to change substantive law and the Presiding Judge shall have sole discretion
to determine the admissibility of exhibits.

1. All Exhibits proffered by the Plaintiff/Prosecution should be provided digitally to
the Court Clerk five (5) business days prior to the Final Pre-Trial Conference
which shall be held with the Presiding Judge no later than ten days before jury
selection is scheduled. Defendant's proffered Exhibits shall be digitally provided
three (3) business days prior to the Final Pre-Trial Conference.

2. The proposed Exhibits (other than those used for impeachment) shall be produced

digitally and pre-marked at the Final Pre-Trial Conference. Immediately
following the Final Pre-Trial Conference, the Court shall hold a Trial Exhibit

Hearing at which the attorneys shall on the record, starting with the Plaintiff, offer
their Trial Exhibits into evidence. Opposing counsel shall raise any objection at
that time and the Court shall rule on admissibility, subject to authentication or
connection. At the conclusion of the Exhibit Hearing, the admissibility of the
received Trial Exhibits shall be established. No other Exhibits (other than those
used for impeachment) shall be received at Trial unless the Presiding Judge finds
good cause exists as to why the Exhibit could not have been produced at the
Exhibit Hearing.

3. The received Exhibits should not be passed to the jury during the Trial but may be
displayed on screens throughout the courtroom or provided in individual binders
to each juror. During deliberations, the Jury will be provided with a digital means
of reviewing and examining the received Exhibits to avoid any hand-to-hand
exchanges.

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4. Attorneys, for good cause, may raise any legal or practical issues specific to

conducting a trialduring a pandemic, on notice, to the Presiding Judge at least 10
days prior to the Final Pre-Trial Conference. The sole intent is to address any
issues that might result in an adjournment of the trial early enough to avoid

unnecessarily bringing potential jurors into the Courthouse.

5. Disposable gloves should be available in the Courtroom to anyone asked to

physically handle an exhibit.

K. Counsel

1. Counsel tables shall be located so as to allow visual observation of the Judge, Jurors
and witness, at alltimes maintaining social distance. Each table shall have hand
sanitizer and paper towels available.

2. Counsel shall address the court and argue to the jury from counsel tables or podiums
placed at approved locations in the Courtroom.

3. Floor signage and other markings shall be used to restrict and direct movement in the
courtroom for alltrial participants.

4. Parties must present evidence electronically, using a computer or document camera
(no handing paper back and forth to the witness).

5. The Presiding Judge should caution counsel not to approach the witness, opposing
counsel or the Court any closer than six feet.

L. Soecial Considerations for Defendants in Criminal Cases

1. The Presiding Judge must insure at all times a defendant's rights to consult with his

attorney and confront witnesses while using the protective measures necessitated by
COVID-19.

2. Consider specific guidance and develop reasonable accommodations to allow for

socially distanced attorney-client conferences during trial.Possibilities include
dedicated secure text-messaging capability to allow counsel and client to
communicate midtrial, establishing separate secure and adequate space for such
conferences to be held outside the courtroom setting if necessary or other
technological options to be approved by the Presiding Judge.

3. Ifdefendant is in custody, make certain that the new configuration of the courtroom
does not reveal his/her in-custody status. Take the same precautions you would in the
past to prevent the jury from seeing/hearing shackles, handcuffs, prison garb, etc.

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jurors'
4. Plan for objections from counsel based on an inability to read expressions in
judges'
response to testimony, evidence, objections, and rulings, among others.
Address the courtroom layout and the courtroom rules in the Final Pre-Trial
Conference so that the attorneys can raise objections at that time.

5. Have prosecution and defense counsel accept on the record the setup for the
courtroom once the issues are briefed by the parties and established by the Presiding
Judge.

6. When deaf/hearing-impaired staff,defendants, or others are involved in a proceeding,
consider providing participants with clear face coverings or clear face shields to allow
the mouth to be visible. Create a plan for cleaning each night the court-provided
individual hearing devices and microphones used by lawyers, witnesses, or jurors.

M. S_pe_ctator Seating

1. If the courtroom does not have sufficient space to seat spectators and the jury with
appropriate social distancing, spectators shall be provided the opportunity to watch
trial proceedings remotely in the jury assembly room or other unused courtroom with
masks and appropriate spacing.

N. Witnesses

1. If the witnesses are to be sworn in on a Bible or other book, consider placing the book
on or near the witness stand, under clear, single-use plastic covering to avoid
handling. It shall be cleaned before each witness use.

2. Depending on the setup of the Courtroom, witnesses may sitbelow the bench facing
the Presiding Judge and Jury at a table or witness box with presentation equipment.

Any location should be considered to improve social distancing and limit movement
within the well of the courtroom.

3. Witnesses shall wait in attorney conference rooms or other designated rooms as

necessary to maintain social distance.

4. Consider issues of credibility determination by the jury if the witness is wearing a
mask during testimony. A face shield in place of a mask may be permitted in the
discretion of the Presiding Judge.

5. Consider issues of procedures for in-court identification by witnesses when all
participants are wearing masks. Have the parties brief before the Final Pre-Trial
Conference whether they intend to have an in-court identification and, if so, how that
will be performed to be certain that the Confrontation Clause is protected.

6. Consider allowing testimony from witnesses through live video streaming, if allowed

by statute, rule or the Constitution or with consent of the parties.

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7. Consider allowing recorded trial testimony from witnesses if allowed by statute, rule
or the Constitution or with consent of the parties.

O. Breaks in Proceedings

1. Consider the best manner in which bathroom breaks may proceed with proper social
distancing.

2. Consider where the jury can meet on breaks with proper social distancing and
whether they should bring their materials with them.

3. Recognize that a significant component of jury collaboration comes from their
interactions with each other outside the presence of the judge and the attorneys as

they gather and take breaks. Take care not to separate the jury on these breaks
because factions and coalitions could unwittingly be forming.

P. Additional Considerations

jurors'
1. Consider placing individual supply bags on assigned seats before they arrive in
the courthouse. Such supply bags should include hand sanitizer wipes or individual
hand sanitizers, Trial Exhibit binders and individual trial notebooks.

2. Designate a place in the jury room (label with individual's name) for storing
individual personal belongings and for juror notebooks so that they are not
comingled.

3. Consider a protocol for the use of the refrigerator. microwave or coffee machine in
the jury room, if applicable, such as clearly marked individual containers or bags and
the use of gloves to access the refrigerator, microwave or coffee machine.

Q. Deliberations

1. Consider having the jury deliberate in a vacant courtroom or other large space, such
as a jury assembly room, to allow greater social distancing.

2. Ensure that no one is able to stand outside the doors and overhear jurors during
deliberations, as they will presumably be talking louder than usual because of social
distancing.

3. Notetaking/Questions:

a. Direct the jury to tellthe Court Officer waiting outside the deliberation room
when they have questions or a verdict.

b. Have only the jury foreperson write jury questions and complete the verdict form.

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c. Have a large supply of single-use notebooks and pens on hand.

d. Have jurors store their own notebooks and pens at the end of the trial day in the

jury room. Consider providing each juror a large envelope or plastic bag for
individual storage.

R. COVID Exposure During Trial

If at any time during the trial, a juror or other trial participant who has had contact with

jurors, experiences symptoms consistent with COVID-19 or is directly exposed to an
individual diagnosed with COVID-19:

1. The Presiding Judge shall immediately cease trial proceedings, dismiss the jurors
for a period of at least 14 days (the "quarantine period"), and direct that jurors be
notified that trialproceedings have been stopped because an attendee notified the
Court that the person experienced symptoms consistent with COVID-19 or was
exposed to an individual diagnosed with COVID-19. It isanticipated that some
parties may ask for a mistrial at that point.

2. The Clerk shall contact each juror individually and instruct each juror to notify
the Clerk immediately if he or she experiences symptoms consistent with
COVID-19 or is exposed to an individual diagnosed with COVID-19 during the
quarantine period.

3. The Presiding Judge shall decide, after consultation with counsel, whether the
trial may be resumed after the quarantine period or whether a mistrial shall be
declared.

4. In light of the above, all parties are strongly encouraged to stipulate and arrange
for out-of-town wiMesses and expert witnesses to appear virtually or video tape
their testimony prior to trial.

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APPENDIX A (Sample)

The NYS Unified Court System would like to assure you that your health

and safety remain a top priority for us as we resume essential court

operations, including jury service.

As jury service resumes around the State, please be aware that enhanced

cleaning and safety protocols have been implemented at our courthouses.

For information on safety and cleaning protocols you can expect during
your jury service in your local county please visit: www.nyjuror.gov and

select your county from the drop down in the center of the screen.

If you have been summoned for jury duty, please follow the instructions

on Section C of your summons to determine when and where you need to
appear.

Please DO NOT appear at the courthouse if:

• You are flu like symptoms cough or
currently experiencing (fever,
shortness of breath)
• You have been diagnosed with COVID-19 in the last 30 days
• You have been directed to quarantine/self-monitor for COVID-19

by a medical authority or employer
• You are the caregiver for/have had close contact with a person

diagnosed with COVID-19 in the last 30 days

Ifany of the above apply, please, call or email your local Commissioner of
Jurors Office to discuss rescheduling your service. The phone number and
email address can be found on their county information page. To visit

your county information page, select your county from the drop down on

www.nyjuror.gov. Jurors shall notify the Commissioner of Jurors by
telephone or email advising whether they believe they are unavailable

to participate hecause of COVID-19 related concerns. The Court may
excuse jurors who seek to be excused based on COVID-19 related
concerns.

Case Info

Judge

James P. McClusky Track Judge’s New Case

Case No.

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Document Filed Date

September 03, 2020

Case Filing Date

June 07, 2018

County

Parties

BRADLEY, ROGER W. Attorney for the Defendant
David Strothers Defendant
Eric Bevard Defendant
GIVAS, THOMAS PETER Attorney for the Plaintiff
Gretchen Bevard Defendant
Kenneth Miller Plaintiff
SLYE, ROBERT J. Attorney for the Defendant
MITCHELL KATZ Attorney
ROBERT SISE Attorney
MICHAEL YONKOVIG Attorney
KEITH CAUGHLIN Attorney
ELLIOT STONE Attorney
DAVID RENZI Attorney
THOMAS PETERS Attorney
ROGER WILCOX Attorney
JAMES KATZ Attorney
ALEXANDRA LOCKE Attorneys for Defendants
ROBERT JORDAN Attorney
JONATHAN KALMUSS-KATZ Attorney
DAVID ARPINO Attorney
ANTHONY FARLEY Attorney
ANDREW FARLEY Attorney
WILLIAM BRADLEY Attorney

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Letter,Correspondence: Kenneth Miller v. David Strothers, Eric Bevard, Gretchen Bevard

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