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Procedure Used by Family Court in Custody-Modification Proceeding Did Not Meet the Criteria for a Fact-Finding Hearing

The Third Department determined the proceeding Family Court used in a custody-modification proceeding did not meet the criteria for the required fact-finding hearing:

Family Court erred in failing to conduct a fact-finding hearing. The final appearance was not a true hearing; the parties should have been “afforded a full and fair opportunity to be heard” … . While Family Court stated at the outset of the August 2013 appearance that the matter was set for a hearing that day, the court then allowed each party to deliver a long, unsworn narrative comprised mostly of hearsay — as the court had permitted the parties to do at each previous appearance. After the parties had discussed their views of the situation for an extended time, they were asked to swear to the statements they had made, following which the court rendered a determination without any opportunity for the parties to avail themselves of the usual attributes of a hearing, including the opportunity to present opening and closing statements, to present any other evidence or to conduct cross-examination (see id.). Thus, the court erred in modifying the prior order without holding a fact-finding hearing … . Matter of McCullough v Harris, 2014 NY Slip Op 04984, 3rd Dept 7-3-14

 

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A DEFENDANT MAY PLEAD GUILTY TO A CRIME WHICH IS A LEGAL IMPOSSIBILITY OR FOR WHICH THERE IS NO FACTUAL BASIS AS LONG AS IT IS SUBJECT TO A LESSER PENALTY THAN THE CHARGED OFFENSE(S) (THIRD DEPT).
A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT).
PAROLE PROPERLY RESCINDED BASED UPON PETITIONER’S BEHAVIOR AT THE RESCISSION HEARING AND VICTIM IMPACT STATEMENTS PROVIDED AFTER PETITIONER HAD BEEN RELEASED (THIRD DEPT).
IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).
IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).
AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).
ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES.

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