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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT.

The First Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction because of counsel’s (alleged) advice on the deportation consequences of his guilty plea:

Defendant alleged in support of his CPL 440.10 motion that counsel at his plea affirmatively misadvised him …  that he “could” be deported, but “maybe” could avoid deportation if he stayed out of further trouble. However, since defendant pleaded guilty to an aggravated felony under federal law, deportation was mandatory irrespective of subsequent good behavior … . Defendant also alleged that, although he was innocent, he accepted what he thought was a favorable plea because it involved a sentence of probation, whereas, had he known that deportation was mandatory, he would have asked counsel to negotiate a disposition with less onerous deportation consequences or would have proceeded to trial, in light of the fact that he has family here.

Defendant raised sufficient questions of fact concerning the effectiveness of counsel’s assistance to warrant a hearing on the content of counsel’s immigration advice, and whether defendant was prejudiced … . People v Candel, 2017 NY Slip Op 05680, 1st Dept 7-13-17

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/ATTORNEYS (CRIMINAL LAW, DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/VACATE CONVICTION, MOTION TO (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/INEFFECTIVE ASSISTANCE (DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)

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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

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EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT.

The First Department, reversing Supreme Court, determined an email from an attorney constituted a binding settlement agreement:

The email communications between plaintiffs’ counsel and defendants’ counsel sufficiently set forth an enforceable agreement to settle plaintiffs’ personal injury claims, including that of plaintiff Morales … . Plaintiffs’ counsel, who had authority to bind Morales, accepted defendants’ offer … . Furthermore, counsel typed his name at the end of the email accepting defendants’ offer, which satisfied CPLR 2104’s requirement that settlement agreements be in a “writing subscribed by him or his attorney” in order to be enforceable … , thus creating a binding settlement agreement. Jimenez v Yanne, 2017 NY Slip Op 05677, 1st Dept 7-13-17

CONTRACT LAW (SETTLEMENT AGREEMENT, EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT)/ATTORNEYS (SETTLEMENT AGREEMENT, EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT)/EMAILS (ATTORNEYS, SETTLEMENT AGREEMENT, EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT)/ATTORNEY (SETTLEMENT AGREEMENT, EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT)/SETTLEMENT AGREEMENT (ATTORNEYS, EMAILS,  EMAIL FROM ATTORNEY CONSTITUTED A BINDING SETTLEMENT AGREEMENT, SUPREME COURT REVERSED 1ST DEPT)

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SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT. 

The First Department, reversing Supreme Court, determined the petition seeking pre-action disclosure by respondent of the identities of persons who allegedly violated a confidentiality agreement should not have been granted. Respondent provides information about debt-distressed companies to a small audience at high prices. The First Department concluded that respondent operated a news service and the pre-action disclosure was precluded by the Civil Rights Law (Shield Law) which protects sources of news stories:

… [R]espondent established that its editorial staff is solely responsible for deciding what to report on and that it does not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting. Other courts have found the extent of a publication’s independence and editorial control to be important in determining whether to apply the Shield Law … . We concur.

Extending protection to respondent under the Shield Law is consistent with New York’s “long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press” – protection that has been recognized as “the strongest in the nation” … . To condition coverage on a fact-intensive inquiry analyzing a publication’s number of subscribers, subscription fees, and the extent to which it allows further dissemination of information is unworkable and would create substantial prospective uncertainty, leading to a potential “chilling” effect. Matter of Murray Energy Corp. v Reorg Research, Inc., 2017 NY Slip Op 05688, 1st Dept 7-13-17

CIVIL RIGHTS LAW (SHIELD LAW) (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CONSTITUTIONAL LAW (FREEDOM OF THE PRESS, SHIELD LAW, (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/SHIELD LAW (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/FREEDOM OF THE PRESS (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CIVIL PROCEDURE (PRE-ACTION DISCLOSURE, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)

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FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

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ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT.

The First Department, in an opinion consisting of a two-justice concurrence, a separate one-justice concurrence and a two-justice partial dissent, determined that the arbitration of a dispute concerning the television broadcast fees for major league baseball was tainted by counsel’s conflicts of interest (and the award was properly vacated on that ground). The bulk of the opinions dealt with whether the court should order that the second arbitration be held in a different forum. The majority concluded it should not:

Pursuant to the negotiated terms of the parties’ written agreement, the subject arbitration, governed by the Federal Arbitration Act (FAA) (9 USC § 1 et seq.), was initiated before the Revenue Sharing Definitions Committee (RSDC) of Major League Baseball (MLB), to resolve a contractual dispute over telecast rights fees between TCR Sports Broadcasting Holding, LLP d/b/a the Mid-Atlantic Sports Network (MASN) and the Baltimore Orioles, and the Washington Nationals. For the reasons stated herein, we find that the arbitration award issued by the RSDC on June 30, 2014 was correctly vacated based on “evident partiality” (9 USC § 10[a][2]) arising out of the Nationals’ counsel’s unrelated representations at various times of virtually every participant in the arbitration except for MASN and the Orioles, and the failure of MLB and the RSDC, despite repeated protests, to provide MASN and the Orioles with full disclosure or to remedy the conflict before the arbitration hearing was held. However, even if this Court has the inherent power to disqualify an arbitration forum in an exceptional case, on the record before us there is no basis, in law or in fact, to direct that the second arbitration be heard in a forum other than the industry-insider committee that the parties selected in their agreement to resolve this particular dispute, fully aware of the role MLB would play in the arbitration process.

Contrary to the view of the dissent, there has been no showing of bias or corruption on the part of the members of the reconstituted RSDC, and the Nationals will use new counsel at the second arbitration. Speculation that MLB will dictate the outcome of the second arbitration by exerting pressure on the new members of the RSDC does not suffice to establish that they will not exercise their independent judgment or carry out their duties impartially, or that the proceedings will be fundamentally unfair. Matter of TCR Sports Broadcasting Holding, LLP v WN Partner, LLC, 2017 NY Slip Op 05689, 1st Dept 7-13-17

ARBITRATION (ATTORNEYS, CONFLICTS OF INTEREST, MAJOR LEAGUE BASEBALL, ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT)/CONTRACT LAW (ARBITRATION, ATTORNEYS, CONFLICTS OF INTEREST, MAJOR LEAGUE BASEBALL, ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT)/ATTORNEYS (CONFLICTS OF INTEREST, MAJOR LEAGUE BASEBALL, ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT)/CONFLICT OF INTEREST (ATTORNEYS, MAJOR LEAGUE BASEBALL, ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT)/BASEBALL (ARBITRATION, ATTORNEYS, CONFLICTS OF INTEREST, MAJOR LEAGUE BASEBALL, ARBITRATION AWARD IN DISPUTE OVER TELEVISION BROADCAST FEES FOR MAJOR LEAGUE BASEBALL PROPERLY VACATED BASED UPON COUNSEL’S CONFLICTS OF INTEREST, SECOND ARBITRATION SHOULD NOT BE MOVED TO A DIFFERENT FORUM 1ST DEPT)

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DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant property owners did not establish the configuration of the area at the top of the basement stairs and the absence of a handrail were not dangerous conditions and were not proximate causes of plaintiff’s fall down the stairs. Defendants’ summary judgment motion should not have been granted:

The plaintiff alleged that the size and the configuration of the landing at the top of the basement staircase constituted a dangerous condition since there was insufficient room to safely close the bedroom door. The plaintiff further alleged that the defendants were negligent in failing to provide a handrail on either side of the staircase. The defendants moved for summary judgment dismissing the complaint, arguing that a dangerous condition did not exist and that, in any event, the negligence alleged in the complaint was not a proximate cause of the accident. In support of their motion, the defendants submitted, inter alia, their own deposition testimony and that of the plaintiff. …

The owner of property has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … .”[An] owner, however, has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous” … . “The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury” … . Lee v Acevedo, 2017 NY Slip Op 05586, 2nd Dept 7-12-17

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/OPEN AND OBVIOUS  (SLIP AND FALL, DEFENDANTS DID NOT DEMONSTRATE THE CONFIGURATION AT THE TOP OF THE STAIRS AND THE ABSENCE OF A HANDRAIL WERE NOT DANGEROUS CONDITIONS WHICH PROXIMATELY CAUSED PLAINTIFF’S FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT.

​The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient proof that the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 were met:

… [W]here, as here, the plaintiff in a residential foreclosure action alleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, a plaintiff moving for summary judgment must “prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304” … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 … . Moreover, contrary to the plaintiff’s contention, the unsubstantiated and conclusory statement of a vice president of the plaintiff that “a 90-day default letter was sent in accordance with [ ] RPAPL 1304” was insufficient to establish that the required notice was mailed to the defendant by first-class and certified mail… . Since the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, its motion for summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition papers … . M&T Bank v Joseph, 2017 NY Slip Op 05587, 2nd Dept 7-12-17

FORECLOSURE (STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/EVIDENCE (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)

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EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … .  Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY  (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

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EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT.

The Second Department, affirming Family Court, noted that even one instance of excessive corporal punishment is sufficient support for a neglect finding:

“Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect” … Even “a single incident of excessive corporal punishment is sufficient to support a finding of neglect” … .

Here, contrary to the father’s contention, a preponderance of the evidence supported the Family Court’s finding that the father neglected the subject child by inflicting excessive corporal punishment … . The father admitted that on June 17, 2014, he hit the child once with a wooden ruler, and other credible evidence established that the child sustained visible marks and swelling on his left forearm as a result, and that this was not an isolated incident … . Matter of Tarelle J. (Walter J.), 2017 NY Slip Op 05600, 2nd Dept 7-12-17

FAMILY LAW (EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)/NEGLECT (FAMILY LAW, EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)/CORPORAL PUNISHMENT (FAMILY LAW, NEGLECT, EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)

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